Director of Public Prosecutions v Leifer
[2023] VCC 1443
•24 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02066
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MALKA LEIFER |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7-10, 13-17, 20-24, 27-28 February, 2-3, 6-10, 14, 20-24, 27-31 March and 3 April 2023 (Trial) | |
DATE OF SENTENCE: | 24 August 2023 | |
CASE MAY BE CITED AS: | DPP v Leifer | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1443 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence.
Catchwords: Historical sexual offences – Two complainants – Accused convicted of 18 sexual offences following trial – Six charges of rape, six charges of indecent assault, three charges of sexual penetration of a 16 or 17 year old child under care, supervision or authority and three charges of indecent act with a 16 or 17 year old child under care, supervision or authority – Complainants were very vulnerable – Offending while accused a school teacher and principal at the school where the complainants were high school students and then young first year student teachers – Breach of trust and abuse of authority – Significant victim impact – Serious sexual offender – No prior or subsequent criminal history – Good character – Delay – Relevance of time spent in custody and home detention in Israel while facing extradition proceedings – Hardship whilst in Australian custody – Impact of COVID-19 on custodial experience – Extra-curial punishment – Relevance of likely deportation to prospects of release on parole.
Legislation Cited: Crimes Act 1958, ss 38(1), 39(1), 48(1), 49(1); Criminal Procedure Act 2009, s 241(2)(b); Evidence Act 2008, s 91; Sentencing Act 1991, ss 3, 5, 5AA, 6B, 6D, 6E, 6F, 8K, 8L, 18; Sex Offenders Registration Act 2004, ss 6, 33, 34, 50.
Cases Cited:R v Renzella [1997] 2 VR 88; Akoka v The Queen [2017] VSCA 214; R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169; R v Franceschini (2015) 123 SASR 396; Pappin v The Queen [2005] NTCCA 2; R v T (1990) 47 A Crim R 29; Ryan v The Queen (2001) 206 CLR 267; SD v The Queen [2013] VSCA 133; Wakim v The Queen [2016] VSCA 301; DPP v Pell [2019] VCC 260; DPP (Vic) v Dalgleish (a pseudonym) (2017) 262 CLR 428; Stalio v The Queen (2012) 46 VR 426; Torrefranca v The Queen [2021] VSCA 157.
Sentence: Total effective sentence of 15 years’ imprisonment, with a non-parole period of 11 ½ years.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Lewis and Ms S. Clancy (Trial) Mr J. Lewis (Plea) | Office of Public Prosecutions |
| For the Accused | Mr I. Hill KC with Ms L. Thies | Tony Hargreaves & Partners |
HIS HONOUR:
Introduction
1Malka Leifer, you recently stood trial in relation to a 29 charge indictment[1] which alleged that you committed numerous sexual offences against three sisters, each of whom was a high school student and then a young student teacher at the school where you were employed as a teacher and principal. You pleaded not guilty to all charges. Ultimately, the sole issue put in dispute at your trial insofar as the legal elements of the charges were concerned, was whether the prosecution could prove, beyond reasonable doubt, that any of the charged acts in fact occurred.
[1] Indictment M10182348.1.
2At the close of the prosecution case, I directed that verdicts of not guilty be entered, pursuant to s 241(2)(b) of the Criminal Procedure Act 2009, in respect of two charges of committing an indecent act with a 16 or 17 year old child under care, supervision or authority[2] relating to the complainant Rachel Harris.[3]
[2] Charges 20 and 21. The prosecution alleged that those offences were committed during the course of a single incident on a date between 1 and 11 December 2006. By law, the prosecution had to prove that the alleged offences occurred on a date on or after 1 December 2006 because this newly enacted type of offence only came into effect on 1 December 2006. Prior to that date, it was not an offence known to the law. On the state of the evidence at trial, it was clear that if the incident occurred, it was likely to have taken place on a date some time in November 2006 not on or after 1 December 2006.
[3] To ensure that there is no possibility of identification of this victim, these reasons for sentence have been anonymised by the adoption of a pseudonym in place of this victim’s name.
3After studious deliberation, the jury found you guilty of 18 of the remaining 27 charges left for their consideration.[4] Of those, ten[5] related to the complainant Laura Watson[6] and eight[7] related to Rachel Harris.
[4] The jury’s verdicts were returned on 3 April 2023.
[5] Charges 15, 19 (rape), 6, 9, 10, 12, 14 (indecent assault), and 7, 8, and 11 (sexual penetration of a 16 or 17 year old child under care, supervision or authority).
[6] To ensure that there is no possibility of identification of this victim, these reasons for sentence have been anonymised by the adoption of a pseudonym in place of this victim’s name.
[7] Charges 26, 27, 28, 29 (rape), 25 (indecent assault), and 22, 23, and 24 (indecent act with a 16 or 17 year old child under care, supervision or authority).
4The jury acquitted you of three charges of indecent assault and one charge of rape relating to Laura Watson.[8]
[8] Charges 13, 17, 18 (indecent assault) and 16 (rape).
5The jury also acquitted you of all five charges relating to the third complainant, Lucy Parker,[9] namely one charge of indecent assault and four of rape.[10]
[9] To ensure that there is no possibility of identification of the two victims of Mrs Leifer’s sexual offending, these reasons for sentence have been anonymised by the adoption of a pseudonym in place of this complainant’s name.
[10] Charge 1 (indecent assault), and Charges 2, 3, 4 and 5 (rape).
6Trial by jury is a fundamental and much revered feature of our criminal justice system. It is the jury, comprised of twelve, randomly selected, independent and fair-minded members of the community who is entrusted with the responsibility of determining whether the prosecution has discharged the onus of proving the accused person’s guilt of any charged offence to the criminal standard.
7In recognition of this fundamental role of juries in our criminal justice system, the law requires the trial judge to sentence any convicted offender in a manner that is consistent with the verdicts returned by the jury.
8Accordingly, in light of the jury’s verdicts in this case, it is now my duty to impose sentence on Mrs Leifer for six offences of rape,[11] six offences of indecent assault,[12] three offences of sexual penetration of a 16 or 17 year old child under care, supervision or authority,[13] and three offences of indecent act with a 16 or 17 year old child under care, supervision or authority.[14]
[11] Charges 15 and 19 (Laura Watson) and 26, 27, 28 and 29 (Rachel Harris). Charge 28 is an offence of rape by compelled sexual penetration.
[12] Charges 6, 9, 10, 12, 14 (Laura Watson) and 25 (Rachel Harris).
[13] Charges 7, 8 and 11 (Laura Watson).
[14] Charges 22, 23 and 24 (Rachel Harris).
9At trial, the credibility and reliability of each complainant was challenged by the defence and very much in issue. It is clear from the verdicts delivered in this case, that the jury accepted the credibility and reliability of Laura Watson and Rachel Harris. I must therefore approach this sentencing task on that basis if I am to sentence Mrs Leifer consistently with the jury’s verdicts.
10Parliament is responsible for fixing the maximum penalties for criminal offences and the court must have regard to such penalties. The maximum penalty for a particular type of offence is one of a number of relevant sentencing considerations that have to be taken into account by the sentencing court when assessing the gravity of any such offence before it. The maximum penalty is reserved for the worst category of offending for that type of offence.
11For current purposes, I note that the maximum penalty for the offence of rape is 25 years’ imprisonment.[15] For each of indecent assault and sexual penetration of a 16 or 17 year old child, it is 10 years’ imprisonment.[16] And, for committing an indecent act with a 16 or 17 year old child, it is five years’ imprisonment.[17]
[15] Pursuant to s 38(1) of the Crimes Act 1958, as amended by the Crimes (Rape) Act 1991.
[16] Pursuant to s 39(1) of the Crimes Act 1958, as amended by the Crimes (Rape) Act 1991 (indecent assault), and s 48(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991 (sexual penetration of a 16 or 17 year old child).
[17] Pursuant to s 49(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 2006.
12As I have already noted, Mrs Leifer falls to be sentenced for the 18 specific offences of which the jury found her guilty. An important corollary of that legal principle is the fact that Mrs Leifer does not fall to be sentenced or in any way additionally punished for any of the charged offences for which she was acquitted by the jury, or for any of the other alleged but uncharged acts of sexual misconduct she was said to have engaged in with the three complainants.[18]
[18] At trial, the prosecution was permitted to lead evidence in relation to that other alleged but uncharged sexual misconduct in order to try and establish a relevant tendency of Mrs Leifer and so as to place the charged offences in a full and realistic context.
13The 18 offences for which Mrs Leifer now falls to be sentenced were committed over a period of approximately four years between the early part of 2004 and the latter part of 2007, when she was aged between 37 and 41. The offences against Laura Watson took place when she was aged between 16 and 18 or 19, while those against Rachel Harris occurred when she was aged between 17 and 18.
14The offending against each of those complainants commenced when she was a high school student at the Adass Israel School and then continued while she was employed as a young first year student teacher at that school. Mrs Leifer taught each of them while they were students. As the principal and head of Jewish studies,[19] she was also responsible for supervising their work as student teachers.
[19] ‘Menaheles’ is the term used for the role of head of Jewish studies at the school.
Background and Context
15In order to understand the true nature of the offending in which Mrs Leifer engaged, one must first know the following relevant background and context to that offending.
Difficult home life of the complainants
16The complainants were raised in an ultra-Orthodox Jewish family. They had other siblings, including older sisters and younger brothers.
17The complainants were subjected to a very difficult upbringing due to the cruel and unpredictable way their mother behaved towards them. Each was mistreated and witnessed the mistreatment of their siblings. Their mother neglected and abused her children regularly, both physically and emotionally. She also threatened them. The physical abuse included slaps, kicks and pinching as well as the use of objects, including straps. This caused bruising and other marks.
18The complainants were expected to do the housework and mistreated if it was not done perfectly and to their mother’s liking. On occasion, she would lock one or more of the children in a dark cupboard, sometimes for lengthy periods. On other occasions, she would tell one of the children that they were ‘discarded’ and ‘no longer part of the family’ and then get her husband to drive that child to a park and leave them there alone for a significant period. Food was often withheld as a form of punishment and control. For each complainant, feeling hungry is an enduring childhood memory.
19And, it appears that at no stage did the complainants’ father intervene to offer any form of protection or respite from his wife’s erratic and emotionally damaging treatment of their children.
20On any view, it was a miserable home life for the complainants who were starved of love and affection and left in a perpetual state of fear and confusion.
21The time and movements of the complainants were strictly controlled by their mother. To ensure that they did the housework, she limited their ability to see friends and, on occasion, to attend school or school excursions and camps. This control was, however, sometimes relinquished when Mrs Leifer intervened to request their attendance at school or school outings and even at her own home. According to Laura Watson, her mother was prepared to relinquish some of her control to Mrs Leifer because of the reverence that she held Mrs Leifer in.[20]
[20] See Trial Transcript (‘TT’) at 605(30)-606(4).
22In her evidence, Laura Watson said that until the sexual abuse from Mrs Leifer started, she loved going to school and saw it as a safe haven from what was occurring at home.
Ultra-Orthodox Jewish community
23The complainants were raised in a family that was part of a small ultra-Orthodox Adass community confined to just a few suburbs in south-east Melbourne. In turn, each of them attended the Adass Israel School, an ultra-Orthodox Jewish school located nearby in Elsternwick. It was a life in which Jewish laws and customs were very important and strictly adhered to.
24Members of the Adass community did not mix outside of their community. There was no real engagement or social interaction with the broader Melbourne community. So, the only people that the complainants had any connection with were people who lived the same way as they did.
25Outside of the immediate family unit, children did not interact socially with the opposite sex. At the school, segregation of the sexes commenced when the children were in kindergarten and maintained thereafter by means of separate campuses for girls and boys. Segregation of boys and girls continued into adulthood. To a significant degree, men and women remained segregated.
26When they were growing up, the complainants had very little understanding of what was occurring outside of their Adass community. At home, they had no access to TV, the internet or newspapers. And, the only books or magazines they had access to at home were those approved by their parents and written by Jewish authors. At school, the situation was no different. The books in the school library had been carefully selected by the school and, if required, altered in various ways[21] to ensure that the text and illustrations accorded with ultra-Orthodox teachings and values, including modesty.
Complainants’ ignorance in sexual matters
[21] For example, by gluing or stapling pages together, by using marker pens to delete passages, by drawing more appropriately modest clothing onto a person depicted, and by removing a child when a boy and girl were depicted together.
27Due to their ultra-Orthodox upbringing, the complainants remained ignorant in sexual matters until shortly before they got married. They received no form of sexual education, either at home or at school. They had no understanding of human anatomy, puberty or sexual relations and didn’t even know the words ascribed for the intimate parts of their body. And from a very early age, they were taught that girls and women must dress very modestly and not reveal or discuss their bodies.
28The complainants’ ignorance in sexual matters continued well into their late teenage years and until shortly before they got married.
29It was customary for the parents of a young woman to seek advice from a matchmaker within the community as to potentially suitable young men. Over the course of a few weeks, a number of supervised meetings between the potential couple would be arranged and, if things went well, they would become engaged. According to Laura Watson, the meetings she attended involved no physical contact and no discussion about sexual matters. Rather, the couple’s discussions were focused on ascertaining whether their values aligned and whether they wished to bring children into the world.
30In the immediate months leading up to the wedding date, it was customary for an ultra-Orthodox Jewish woman to receive ‘Kallah’ lessons from a female member of the community. The Kallah teacher was usually selected by the mother of the bride-to-be. The lessons were held after hours and in private. They essentially dealt with how Jewish law impacted marriage and relationships. It was only towards the end, that there was some form of sexual education relating to the nature of the sexual act itself and what was expected in a sexual relationship within marriage in the ultra-Orthodox community.
31The offending against each of Laura Watson and Rachel Harris took place before they were married. As each stated in the evidence she gave at trial, her state of ignorance in sexual matters persisted throughout the period that Mrs Leifer offended against her. In effect, each of them had no understanding of the sexual nature of the acts Mrs Leifer was engaging in.
The Adass Israel School
32The Adass Israel School was an ultra-Orthodox Jewish school which catered for students from kindergarten through to Year 12. There were separate campuses for boys and girls. The Year 11 and 12 part of the girls’ campus was known as seminary. The school did not offer a VCE qualification. Instead, the education provided to students each day had a general studies component and a specific Jewish religion component.[22] The most important role of the school was to educate students in the philosophy and the ethos of the ultra-Orthodox Jewish.[23]
[22] The Jewish studies part of the school day was known as ‘Kodesh’.
[23] As explained by the witness Mrs Measey at TT 1257(12)-(17). Mrs Measey commenced at the school in 2002 and was employed as the head of the primary school part of the girls’ campus. More recently, she has been employed as the executive head of the school.
33As already noted, the school did not provide students with any form of sex education, including in relation to same-sex relationships.[24]
Mrs Leifer’s employment and duties at the school
[24] See for example, the evidence of the witness Mrs Bromberg at TT 1292(17)-(20). Mrs Bromberg has been employed as a teacher at the girls’ campus of the school since 1982.
34Mrs Leifer is an Israeli citizen who lived in Israel until she came to Australia with her husband and children to take up an appointment at the Adass Israel School at the start of the 2001 school year. She remained working there until being stood down by the school’s Board in March 2008, after allegations of her sexual misconduct began to surface.[25] A very short time later, Mrs Leifer and her family returned to live in Israel where she remained until being extradited to Australia.
[25] In early February 2008, Laura Watson revealed certain things to a social worker in Israel who then spoke very briefly to Lucy Parker. The social worker also spoke to a Melbourne based psychologist who later spoke to Rachel Harris. Although the evidence at trial did not extend to what the school Board was told and when, the matter is referred to, albeit somewhat obliquely, by the social worker and psychologist in their respective police statements dated 4 May 2021 and 1 December 2011 (see hand-up-brief, pages 706(6)-(8), 707(11)-(12), 709(4)-(5), and 710(8)). The matter was not reported to the police by the school Board. Police were first notified about Mrs Leifer’s alleged sexual misconduct by Rachel Harris, in 2011.
35Mrs Leifer was the ‘Menaheles’ or head of the Jewish studies department for the girls’ campus. In many respects, it was akin to being a school principal. The Menaheles was a highly respected and revered position at the school and within the Adass community. In that position, Mrs Leifer was directly responsible for what was taught in Jewish studies and for the ethos of the school overall. One of her duties was to ensure that the materials provided to the students were appropriate. She was able to consult directly with the chief Rabbi about any of these matters. Her overriding duty at the school was to ensure the religious education, care and welfare of the female students.
36As part of her role, Mrs Leifer taught female students, including each of the complainants.
37During the relevant period, Mrs Leifer offered extra lessons to some students which were conducted on Sundays, both at the school and on occasion at her home. It was considered a privilege to be offered such special attention.
38A unique aspect of the school was that at the end of each school year, any interested Year 12 students could apply to become a student teacher at the school the following year. Mrs Leifer had a very influential role in the selection process for student teachers. In turn, each of the three complainants were chosen to work at the school immediately after completing Year 12.
39Since they had no formal or tertiary qualifications, new student teachers were only permitted to teach aspects of Jewish studies and only to the younger female students at the school. The first year student teachers required the most assistance in relation to content and teaching methods. As the Menaheles and effective principal of the girls’ school, Mrs Leifer was responsible for assisting, supervising and assessing the work undertaken by the student teachers. On occasion, such assistance was provided on an individual or group basis at her home. The student teachers viewed Mrs Leifer as a mentor.
Mrs Leifer’s interactions with Laura Watson
40Laura Watson’s first memory of Mrs Leifer is from 2003, when Laura was in Year 10. Mrs Leifer seemed to have a big personality and lots of energy.
41Mrs Leifer had her favourite students who she would allow to run errands and do things for her, even if it meant leaving the classroom to do so on some occasions. While she was in Year 10, Laura Watson became one of Mrs Leifer’s favourites. At one point that year, Mrs Leifer took Laura into her school office and told her that she knew about her home life and was there to support her. When Mrs Leifer told Laura that she was supporting her sister Lucy, and was there to support her as well, it made Laura feel very special and supported. In this context, I note that in her evidence, Lucy Parker said that she had told Mrs Leifer about the abuse she received from her mother and the home situation.
42In the summer holidays between Years 10 and 11, Mrs Leifer rang Laura’s mother and told her that she would like to give Laura private lessons on Sundays. After the mother gave her permission, the lessons were held over that summer period, although not every week. According to Ms Watson, the lessons concerned Jewish values, Jewish morals, and instructions on how to be an upstanding Jewish girl according to Jewish law. The lessons were supposed to be held in Mrs Leifer’s school office but also took place at Mrs Leifer’s home.
43In the lessons, passages from various religious texts would be read and discussed. During the lessons held in her office, Mrs Leifer would sit next to Laura and touch her over clothing by putting her arms around her shoulders and rubbing her back and thighs, including near and over her crotch area. On some occasions during this period, Mrs Leifer would also pull Laura into her lap and hug her. Mrs Leifer would also tell Laura that she loved her and was there to help and support her, things that Laura says she was desperate to hear. When Mrs Leifer first began to touch her, Laura thought Mrs Leifer was being very loving and attentive. Although it made her feel special, it also confused her as no one else had ever touched her in that way.
44Laura Watson wanted the lessons to continue in Year 11 for a number of reasons. Mrs Leifer had told her that she was like a mother and touched her in a way that felt very loving. For Laura, her religion was of the utmost importance and she considered the lessons to be a great privilege as they provided her with an opportunity to increase her spirituality.
45The lessons continued throughout Years 11 and 12.
46According to Ms Watson, when she was first provided with the opportunity to receive private Sunday lessons from Mrs Leifer, she felt incredibly special. However, as she explained in her evidence, there came a time when the lessons ‘morphed into something more’, although Ms Watson had trouble identifying exactly when that point was reached. Notwithstanding that transition, they were still classified as ‘Sunday lessons’ through to the end of Year 12.
47On one particular school day afternoon in the early part of Year 11, Mrs Leifer got a female community member to drive her and Laura from the school to Mrs Leifer’s home so they could talk.[26] As Mrs Leifer did not hold a driver’s licence, it was customary for her to be driven, at her request, to various places by any one of a number of female community members. Once at her home, Mrs Leifer began telling Laura how much she loved her and how she was like a mother to her. She then cradled her upper body and got her to lay down on a couch where she hugged her and then rubbed her back over and under her bra strap while telling her that she was really close to her and that this was how she shows that she is close to her. Mrs Leifer then rolled Laura over onto her back and touched her stomach and breast over her bra while continuing to tell her the same things about loving her, being a mother to her and how she was showing her that she was close to her. The relevance of this alleged but uncharged sexual misconduct is limited and restricted to providing a necessary understanding of the context in which Mrs Leifer was able to prepare this complainant so as to facilitate the later charged offending for which the jury convicted her.
[26] This incident was described by Ms Watson in her evidence at TT 416(4)-419(25).
48What Laura Watson described by way of the manner in which Mrs Leifer selected her as a favourite student and then offered her private lessons in which she professed to love and support her like a mother while gauging her initial reaction to being touched in various ways, as earlier described, is to be properly seen and characterised as grooming conduct engaged in preparatory to much more serious and sexually motivated conduct. I consider that in accepting the credibility and reliability of this complainant as they did, the jury would also have accepted the conduct to which I have just referred given its importance in providing the context in which Mrs Leifer was able to gradually accustom the complainant to her advances and, thereby, to ultimately facilitate her offending. I have had regard to the evidence in that limited way while also being astute not to sentence or punish the accused for it.
49On being selected as a student teacher, Laura Watson was assigned to teach Year 8 students and to tutor primary school aged children, in Jewish studies. During this period, Mrs Leifer would arrange with Laura or her mother for Laura to come over to her house so that she could talk to her. These occasions were not confined to Sundays but would occur whenever Mrs Leifer wanted.
Mrs Leifer’s interactions with Rachel Harris
50Rachel Harris’ first memory of Mrs Leifer dates back to 2002, when Rachel was in Year 8. She recalled that people within the community seemed very happy about Mrs Leifer’s arrival at the school.
51For Ms Harris, her contact with Mrs Leifer commenced towards the end of Year 11, when Mrs Leifer asked her to do various tasks such as photocopying and helping with things around the office, including tidying.
52In Year 12, the contact became more regular. Mrs Leifer would call her out of class to her office. In view of Mrs Leifer’s standing, the teacher would allow Rachel to leave class. At this stage, the tasks given to her included taking Mrs Leifer’s children to the park, babysitting those children and tidying Mrs Leifer’s house. As things progressed, she started to feel comfortable and safe discussing personal things with Mrs Leifer, who she trusted and thought cared for her. She told her a bit about her home life. In response, Mrs Leifer told her that it would be okay and that she understood that it was hard.
53As Ms Harris explained in her evidence, she felt special as one of the select students who were afforded such contact with Mrs Leifer. She wanted the contact as she was hoping that Mrs Leifer would love her like a mother should love a child.
54According to Rachel Harris, the first physical contact from Mrs Leifer occurred in the rehearsal period for the 2006 end of year school play, which was due to be performed at the Phoenix Theatre on 11 and 12 December.[27] Ms Harris had a major part in the play and was busy with rehearsals which were mainly held at the school. During this rehearsal period, Mrs Leifer began to spend more time with Rachel. On one occasion, Mrs Leifer told Rachel to meet her in a certain teacher’s office at lunchtime. After locking the door, Mrs Leifer sat next to Rachel and then started to kiss her on the neck. She then proceeded to touch Rachel over her clothing, running her hands over her breast and towards her upper and inner thigh. Rachel was also directed to touch Mrs Leifer on the breast over clothing. Ultimately, Mrs Leifer opened Ms Harris’ shirt and touched her on the breast under her bra. Before leaving the office, Mrs Leifer told Ms Harris “This is between us”. Afterwards, even though Ms Harris felt confused, she had no understanding of the nature of what had just occurred and gave it little thought beyond thinking that it was special to have been afforded some time alone with Mrs Leifer.
[27] This was the incident on which the prosecution was relying to prove Charges 20 and 21 until I directed that verdicts of not guilty be entered in the record for those charges, pursuant to s 241(2)(b) of the Criminal Procedure Act 2009 (as to which, see paragraph 2 and footnote 2 above for further details). After those verdicts were entered, the prosecution was permitted to rely on the evidence relating to this incident for tendency and context purposes.
55Rachel Harris gave evidence about this incident which was originally the subject of Charges 20 and 21 but ultimately dealt with by way of directed verdicts of not guilty when it became clear that the prosecution could not prove that the incident occurred on or after the date on which the newly created offence of indecent act with a 16 or 17 year old child under care, supervision or authority came into effect.[28] However, the evidence that Ms Harris gave regarding that incident was ultimately left for the jury’s consideration for tendency and context purposes.
[28] Again, see paragraph 2 and footnote 2 above for a fuller explanation of this issue.
56In particular, the evidence provided an important context to the later events of the night of 11 December 2006 which were the subject of Charges 22 and 23. As the jury found, on two occasions that evening, Mrs Leifer entered a dressing room of the Phoenix Theatre and touched Ms Harris on her breast over clothing.
57Given the close temporal proximity between the alleged events in the teacher’s office and the proven events in the theatre dressing room only a few weeks later, it is highly likely that the jury accepted this complainant’s account of the earlier incident. For me to now approach the matter on that basis would, I consider, be acting consistently with the jury’s verdicts, and in particular with those returned in respect of Charges 22 and 23.
58The relevance that this evidence has is limited and restricted to providing a context for the charged offending for which Mrs Leifer has been convicted. By various means, including via favourable treatment, Mrs Leifer led Rachel Harris into believing that she was special and loved by her. That fact, together with the occasion of the first initial physical touching that occurred in the teacher’s office, explains how Mrs Leifer was able to engage in the offending the subject of Charges 22 and 23 and the further offences of which she has been convicted.
59For example, what may at first blush appear to have been somewhat brazen behaviour on Mrs Leifer’s part relating to the dressing room incidents the subject of Charges 22 and 23, is more plausible when one knows that only a few weeks earlier, Mrs Leifer had already tested Ms Harris’ reaction to being touched by her. Given that Ms Harris did not protest at the time or make any complaint in the following days, Mrs Leifer may well have felt confident to act as she did some weeks later on the night of the school play.
60Again, I make it clear that I will only have regard to that evidence in the limited way I have explained, and I have been careful not to punish Mrs Leifer in relation to conduct that she does not fall to be sentenced for.
61Before concluding this background and context part of my sentencing reasons, I want to briefly refer to Ms Harris’ selection and time as a first year student teacher.
62On being selected, Rachel Harris was assigned to teach Jewish studies to a class in the primary school. During her first year of student teaching, Mrs Leifer conducted more than 10 private Sunday lessons with Ms Harris at the school. According to Ms Harris, those lessons related to teaching, as well as extra instruction about Judaism.
Circumstances of the offending
63The circumstances of the offences for which Mrs Leifer was convicted were fully ventilated at trial. In determining those circumstances, I have had regard to the relevant evidence and to the verdicts returned by the jury. I have been mindful of the need to sentence in a manner consistent with the verdicts delivered by the jury.
64In detailing the charged acts for which Mrs Leifer has been convicted and for which she therefore falls to be sentenced, I will also need to refer to additional but uncharged sexual acts which she is alleged to have engaged in during many of the incidents in which one or more of the proven charged acts occurred.
65There are a few observations I need to make about that other uncharged sexual misconduct engaged in by Mrs Leifer. With respect to any charged offence for which the jury found Mrs Leifer guilty, it is clear that the jury must have accepted the credibility and reliability of the complainant in relation to the evidence she gave about the incident in which that charged offence occurred. As a matter of logic, and consistent with any such verdict, it follows that the jury must have accepted the complainant’s credibility and reliability insofar as what else she said occurred during the same incident.
66I intend to refer to that other sexual misconduct evidence when describing the charged offending for which Mrs Leifer falls to be sentenced, but only for the purpose of explaining the context in which the charged offences occurred. But, that is the limit of its use. Mrs Leifer will not be sentenced or additionally punished for any of those uncharged acts of sexual misconduct.
Offences against Laura Watson
67I will now turn to describe the circumstances of the offences that you committed against Laura Watson, Mrs Leifer.
68Charge 6 relates to an offence of indecent assault that occurred in the early part of 2004. At that time, Ms Watson was 16 and starting Year 11. She attended your home for one of the private Sunday lessons you had been giving her. After sending your daughter to her room, you commenced the lesson at the dining room table by asking the complainant to read from a Jewish text containing Aramaic words. As she struggled with the task, you rubbed her back and thighs and then put your hands under her jumper and undid her bra. You then directed her to a couch where you got her to sit on your lap. Then, you lifted up her top and bra, sucked her nipples and played with her breasts for ‘a little while’. You also picked up her hand and placed it on your breasts. Throughout this time, the victim did not react and ‘couldn’t move’. It is your act of sucking the victim’s nipples as just described for which you fall to be sentenced on this charge. At one point, you were interrupted by the sound of a door opening and footsteps. After yelling to your daughter to go back to her room, you re-fixed Ms Watson’s bra and pulled down her jumper. Her father picked her up from your home late that night.
69Charge 7 relates to an offence of sexual penetration of a 16 or 17 year old child under care, supervision or authority that occurred on the last night of the 2004 winter school camp held in the Gippsland area.[29] Ms Watson was still in Year 11 but had recently turned 17. On the evening in question, she was a Year 11 group leader and assisting other students to prepare a play to perform later that night. You approached Ms Watson and told her that you needed to talk, after which you led her to one of the bedrooms in the camp complex. Once inside, you undressed her while she was standing in front of you. After doing so, you hugged her and sucked her breasts. Ultimately, you penetrated her vagina with one of your fingers. It is that act of digital penetration for which you fall to be sentenced on this charge. Ms Watson estimated that the entire incident lasted for about 45 minutes to an hour. When it was over, she re-joined the students she had been helping earlier.
[29] Ms Watson was unable to recall where the camp was held. In the indictment, the offence is alleged to have occurred at Rawson (which is in fact near Moe). Trial exhibit 5 is a school letter sent to the parents in which the forthcoming camp’s location is referred to as ‘South Gippsland near Moe’.
70Charge 8 relates to an offence of sexual penetration of a 16 or 17 year old child under care, supervision or authority that occurred in early August 2004, during an overnight school excursion to Emerald attended by the Year 11 and 12 students. At that time, Ms Watson was still aged 17 and in Year 11. On this occasion, she had just changed into a bathing costume and was standing around a swimming pool with other students who were commenting on the large friction burn on her leg that she had sustained in a tobogganing accident some days earlier. You approached and told Ms Watson that you needed to have a look at the injury to decide whether she could go swimming. After telling her to follow you into the house on the property, you took her to one of the bedrooms and closed the door.
71As she stood facing you while you sat on the bed, you proceeded to remove her swimming suit, leaving her completely naked. You then started touching her skin and pulled her onto your lap. As you hugged her, you told her that you loved her. At one point, you guided her so that she was lying on the bed. You then removed your own top, exposing your breasts, and bunched up your skirt around your hips. As you lay beside her, you touched her all over her body and kissed her. Then, you sucked her breasts and penetrated her vagina with your fingers. Later, you picked up her hand and placed it on your breasts. When she did not respond, you moved her hand across your breasts and used your fingers to trace around her anus. It is the just described act of digital penetration for which you fall to be sentenced on this charge.
72Ms Watson estimated that this incident lasted for between half an hour and 45 minutes. In her evidence, she explained why she did not say anything during this incident, as follows: “I didn’t feel like I could speak, I felt like completely unable to say anything or do anything…I was very disassociated…I couldn’t tell her to stop…besides not feeling like I could speak, I was also scared of her…she knew a lot of things about me and she implied that if I said anything that she would share those things about my home life which was of a big shame to me at that time”.[30]
[30] TT at 437(29)-438(16). Further evidence in relation to this implied threat by Mrs Leifer can be found at TT 818(10)-(29).
73Charges 9 and 10 involve two offences of indecent assault that were committed during the course of a single incident in early 2005. Ms Watson was still aged 17 but had just started Year 12. It was another occasion on which you had her attend your home for a private Sunday lesson. On this occasion, it was at night. As the two of you were seated at the dining room table, you drew a triangle to represent the three areas of her life and told her how much focus she should be giving to each area in order to be ‘a good Jewish religious girl’. After moving to the kitchen table, you removed her jumper and bra and then sucked her breasts and nipples. It is that act of sucking her nipples for which you fall to be sentenced on Charge 9. After that, you rubbed her stomach and put your hands down her tights and underwear. You then proceeded to rub her vagina for about half an hour, which is the act for which you fall to be sentenced on Charge 10. Following that, you dressed Ms Watson who was later picked up by her father.
74Charge 11 relates to an offence of sexual penetration of a 16 or 17 year old child under care, supervision or authority that occurred on 26 May 2005, at which time Ms Watson was still in Year 12 and aged 17. It was during the Jewish holiday of Lag B’Omer, and the high school students were taken on an excursion by bus. Ms Watson did not go, however, as you asked her to remain at the school so you could talk to her. After initially helping at a community creche at your request, she returned to the school after lunch. You met her at the front gates and then took her back to your office. The door was locked and the blinds were drawn. While you were seated on a chair, you pulled her onto your lap so that she was sitting facing you. After removing her jumper and bra, you kissed her and sucked her breasts. Later, while the two of you were on the floor, you took off her skirt and pulled down her tights and underwear. You then proceeded to suck her breasts and penetrate her vagina with your fingers. It is that act of digital penetration for which you fall to be sentenced on this charge. Following that, you touched her all over her body. After pulling up your own top, you took her hand and put it on your breasts. Ms Watson distinctly remembered the fact that you were pregnant and wearing a tight fitting top.[31] She believes she finally left your office at about 4pm, when the school buses returned.
[31] Mrs Leifer gave birth to a son in late August 2005 (See trial exhibit N, paragraph 6 h).
75Charge 12 relates to an offence of indecent assault that occurred in 2005, during an overnight school trip to a community member’s holiday house in Frankston. The Year 12 students attended, including Ms Watson. It is unclear from the evidence whether she was 17 or 18 when this incident occurred.[32] After trying to settle your baby, you approached Ms Watson when she and other students and teachers were sitting in a circle having a group discussion. You told her that you wanted to talk to her and then led her into one of the bedrooms of the house. While the two of you sat on the bed, you rocked your baby in a pram and whispered to the complainant that you were going to show her what it was like to kiss someone on their mouth. You then proceeded to do so. You told her that it was something that is supposed to be nice between two people. It is that act of kissing Ms Watson on the mouth for which you fall to be sentenced on this charge.
[32] The complainant was not asked how old she was at that time and did not refer to the relevant timeframe beyond saying that it was during Year 12 (which for her was 2005). A tendered letter written by Mrs Leifer thanking the owners for the use of their holiday house is dated 12 December 2005 but does not refer to when the house was used for the excursion (See trial exhibit K). The witness Mrs Measey produced the letter but gave no evidence clarifying when the excursion took place (See TT at 1267(28)-1268(9)). Of potential relevance to this issue is the fact that Mrs Leifer gave birth to a daughter in mid-March 2004 and to a son in late August 2005 (See trial exhibit N, paragraphs 6 g and h).
76In her evidence, Ms Watson explained that back then she had no idea that people kissed each other on the mouth and had never seen it occur. As she also explained, when you kissed her on the mouth she felt quite confused about the whole concept.
77Charge 14 relates to an offence of indecent assault that occurred at your home on a school day towards the end of 2005, when Ms Watson was in Year 12 and aged 18. A short time earlier, you had been breastfeeding your baby in front of the complainant in your school office.[33] When a female member of the community arrived to pick you up, you told Ms Watson that she was going to come home with you. After dropping your baby off at a babysitter’s house, you had the driver drop you and the complainant off at your home. After Ms Watson had some soup, you sat with her on a couch. You then lifted up her top, took her breasts out of her bra and then sucked them for about half an hour. It is that act of sucking her breasts for which you fall to be sentenced on this charge. Shortly afterwards, you arranged for a driver to attend and that person drove you and Ms Watson back to the school.
[33] As previously noted, Mrs Leifer gave birth to a son in late August 2005.
78Charge 15 relates to an offence of rape that occurred on an unknown date in the four month period leading up to the early to mid-part of September 2006. At that time Ms Watson was engaged and working as a first year student teacher at the Adass Israel School. She was aged either 18 or 19. On this occasion, you rang her mother and told her that you wanted her daughter to sleep over at your house so that you could have some time to talk to her. After her mother gave her permission, Ms Watson’s father drove her to your house late that night. You arranged for your oldest daughter to sleep in your bed and for Ms Watson to sleep in that daughter’s bed. The complainant wore a housecoat to bed, underneath which she wore tights and underwear. After settling your infant with a bottle, you undid the zip of Ms Watson’s housecoat and unclipped her bra. As she lay on her back, you sucked her nipples for what seemed to her to be ‘a very long time’. You also used your hand to play with her breast. You then proceeded to pull down her tights and underwear and used what she thought was ‘more than one’ of your fingers to penetrate her vagina. You were making murmuring noises but not speaking. It lasted ‘for a while’ during which, according to Ms Watson’s evidence, she felt ‘paralysed’ and ‘unable to move’. It is the just described act of digital penetration for which you fall to be sentenced on this charge.
79Charge 19 relates to an offence of rape that occurred in the same timeframe as the offence in Charge 15, but on a different occasion. Ms Watson believed it was during winter. As with Charge 15, it is unclear from the state of the evidence whether Ms Watson was 18 or 19 when the offence occurred.
80The context to this offending was that you had agreed to the victim’s mother’s request to provide Ms Watson with Kallah lessons in the lead up to her getting married.
81To that end, Ms Watson’s father drove her to your house late on the night in question. She had to wait for you to become free as you were very busy. Ultimately, you took her to your daughter’s bedroom where you gave her a ‘goodnight hug’ and told her that you would return later and speak to her. On returning, you got onto the bed and lay on top of the complainant who had gone to bed fully dressed. After pulling down the blanket, you pulled up her top and undid her bra. You then played with and sucked her nipples for ‘a long time’. In addition, you touched her all over the body and kissed her stomach. You then removed her tights and underwear and used your fingers to rub and penetrate her vagina. It is that act of digital penetration for which you fall to be sentenced on this charge.
82In her evidence, Ms Watson described feeling ‘completely paralysed’ and ‘unable to move’ by the time that you left the room. She said that she just lay in the bed until her phone alarm rang at about 6am, after which she got dressed and waited outside for her father to pick her up.
Offences against Rachel Harris
83Mrs Leifer, I will now describe the circumstances of the offences that you committed against the second complainant, Rachel Harris.
84Charges 22 and 23 involve two offences of indecent act with a 16 or 17 year old child under care, supervision or authority that occurred within a short space of time of each other in a dressing room of the Phoenix Theatre in Elsternwick. The 2006 end of year school play was to be performed there over two nights, commencing on 11 December. Ms Harris had a major part in that play. She was in Year 12 and aged 17.
85Shortly before the play was to commence on the first night, Ms Harris was alone in a dressing room getting ready. She was wearing a long sequined robe over her clothes. You came into the room, closed the door and positioned your body so as to bar anyone else from entering. You wished the complainant ‘good luck’ and told her that she was going to do well. You then started kissing her on the neck, face and cheeks and ran your fingers over her breasts. Ms Harris described this incident as happening ‘very fast’. When someone outside called Ms Harris’ name, she told you that she had to get ready and, in response, you said ‘We’ll continue this later’ and then left. It is the just described act of touching Ms Harris’ breasts over her clothing for which you fall to be sentenced on Charge 22.
86During the play, Ms Harris noticed that you were smiling and winking at her from the audience. In her evidence, she explained that when she saw you doing that it made her feel ‘special’ and believe that you were ‘looking out for her’.
87After the play finished, the complainant’s mother confronted her in an angry state without justification. It was an embarrassing incident, occurring as it did in front of a number of other people, including you, Mrs Leifer. Feeling a bit shaken, Ms Harris returned to the dressing room where you chose to join her a short time later. You attempted to calm her down and persuade her to come back to your home with you by saying that if she went back to her own home she might get ‘beaten up’. When she told you that she had to go back to her own home, you kissed her on the neck and then put your hand over her breast while hugging her. She then told you that she had to go and left. It is this act of touching Ms Harris’ breast over her clothing for which you fall to be sentenced on Charge 23.
88Charge 24 relates to an offence of indecent act with a 16 or 17 year old child under care, supervision or authority that occurred in very early 2007, when Ms Harris was still aged 17. Almost immediately after completing Year 12, Ms Harris commenced working as a first year student teacher at the Adass Israel School. This incident occurred on a school day in the first week of that 2007 school year. You approached Ms Harris at school and said that you wanted to help her with the subjects she was teaching, to give her some further help. You told her to work it out with her mother so that she could come over to your house. Once she got permission from her mother, Ms Harris attended at your home after school. On arrival, she sat on a couch. Almost immediately, you started touching and hugging her. You also touched her breasts over clothing by cupping and fondling them. You ran your hands on her inner thighs over clothing and kissed her. And, you directed her hand to touch you in the same way that you had touched her, essentially showing her what to do. It is your act of taking Ms Harris’ hand and placing it on your breast over clothing for which you fall to be sentenced on this charge. Ms Harris estimated that the entire incident lasted for about 20 minutes. Later, she was collected by her father and driven home.
89The offences the subject of Charges 25, 26, 27 and 28 were all committed during the course of a single incident that occurred at your home one evening in October or November of 2007 when Ms Harris was 18 and still a first year student teacher.
90The house was quiet and dark. At about 9pm, you took her into your bedroom, where you kissed her on the neck and cheek and hugged her. When you started to take off her top, she became very uncomfortable and just ‘froze’. You must have noticed this because you said “It looks like you don’t feel comfortable. I’ll get undressed”.[34] As you then started to get undressed, you said “Do you feel more comfortable now?”.[35] In her evidence, Ms Harris said that she could not recall responding to that question. In any event, you proceeded despite what you had just observed. You undressed the complainant and lay on top of her on your bed. You kissed her on the lips, sucked her breast and made her suck your breast. Then, you made your way down to the lower part of her body and kissed her vagina, which is the act for which you fall to be sentenced on Charge 25, an offence of indecent assault. After that, you penetrated her vagina with your finger and made what she described as ‘an up and down motion’. It is that act of digital penetration for which you fall to be sentenced on Charge 27, an offence of rape. Following that, you directed Ms Harris to do the same thing to you and she complied by putting her finger into your vagina and moving it up and down. It is that act of compelled sexual penetration for which you fall to be sentenced on Charge 28, an offence of rape by compelled sexual penetration.
[34] TT at 890(24)-(27).
[35] TT at 891(7)-(10).
91The next part of this incident involved the use of an object that was, in all likelihood, a dildo. When you produced it, the complainant felt ‘frozen’. In her evidence, she described what then occurred in the following terms: “I recall her pulling out an object and she put the object into my vagina and it really hurt, and I said “Stop”…She was pushing it up and down”.[36] As Ms Harris told the jury, she did not know what the object was at the time but now believes it was a dildo.[37] It is that act of sexually penetrating Ms Harris’ vagina with a dildo for which you fall to be sentenced on Charge 26, an offence of rape.
[36] TT at 892(18)-(24).
[37] TT at 892(25)-(29).
92In addition, you made Ms Harris put the dildo between your breasts, hold her breasts together, and kiss you on the vagina like you had earlier done to her.
93At one point during this Charge 25-28 episode, the complainant noticed that you appeared ‘really flustered’ and were ‘breathing heavily’ but then it stopped.
94Charge 29 relates to an offence of rape that occurred on a date subsequent to the Charge 25-28 incident. As best she can recall, Ms Harris estimates that it took place sometime between October and December 2007. As with the previous incident, Ms Harris was 18 and working as a first year student teacher.
95On this occasion, Mrs Leifer, you phoned Rachel’s mother and obtained her permission for her daughter to come over to your house to do some housework. It was after school on a summer day and still quite light. When she attended your house, you were the only person there. As the two of you sat on a couch, you hugged her and kissed her face and neck. You also used your hand to cup her breast over clothing. When she asked you to stop, you ignored her and said nothing. Next, you moved your hand under her skirt and underwear, put your finger into her vagina and then made what the complainant described as ‘an up and down motion’. It is that act of digital penetration for which you fall to be sentenced on this charge.
96During the same incident, you also sucked the victim’s nipples and had her touch you on the breast and vagina area. On a couple of occasions, you asked her if she wanted to lie down but she declined. During the incident, Ms Harris’ shirt was off. She had removed her own skirt at your request but refused a further request to remove her underwear. The complainant estimated that the entire incident lasted for about 20 minutes. In describing how the incident came to an end, she said of you, “She was breathing heavily and then at one point it stopped and…she said “Oh, you have to go home now”…”.[38]
[38] TT at 928(16)-(19).
Victim impact
97One of the factors that this court must have regard to when determining sentence is the impact of any offence on the victim.[39] In that context, the term ‘offence’ means any offence for which the accused has been convicted, whether by jury verdict or following a plea of guilty. In the same context, the term ‘victim’ is given a relatively wide meaning and includes any person who has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence.[40]
[39] Section 5(2)(daa) of the Sentencing Act 1991.
[40] Section 3 of the Sentencing Act 1991.
98Parliament has legislated to allow any victim of an offence to make a victim impact statement for the purpose of assisting the court in determining sentence.[41] To be admissible for that purpose, the contents of any statement must contain particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence.[42] A sentencing judge is prohibited from relying on any inadmissible portions of a victim impact statement.[43]
[41] Section 8K(1) of the Sentencing Act 1991.
[42] Section 8L(1) of the Sentencing Act 1991.
[43] Section 8L(6)(a) of the Sentencing Act 1991.
99In June of this year, each of the two principal victims made a written victim impact statement.[44] At the plea hearing, each elected to read aloud the contents of her statement in open court. The parties accepted that the contents of each statement were admissible. I agree with that assessment and so will have regard to the contents of those statements.
[44] Ms Watson’s statement was declared on 16 June 2023 (See plea exhibit A) and Ms Harris’ was declared on 28 June 2023 (See plea exhibit B).
100In late June, Ms Harris’ husband also made a written victim impact statement.[45] The parties were of the view that portions of that statement were not admissible.[46] Again, I find myself in agreement with the assessment made by the parties. When reading from his statement at the plea hearing, Ms Harris’ husband confined himself to the admissible portions of that statement and I will only have regard to those sections. This is not a discretionary decision on my part as the relevant legislation states in unequivocal terms that a sentencing judge must not have regard to the inadmissible portions of any victim impact statement.[47]
Laura Watson
[45] Declared on 28 June 2023 (See plea exhibit C).
[46] As to which, see the agreed highlighted portions of that statement (See plea exhibit C).
[47] Section 8L(6)(a) of the Sentencing Act 1991.
101In her statement, Laura Watson describes the significant and enduring impact that Mrs Leifer’s offending has had on her. It is a measured but powerful illustration of the legacy that she has been left with as a result of this insidious offending.
102She believes that Mrs Leifer’s exploitation of her need for love and security has forever fractured her ability to trust people. Every gesture is analysed for any sign of danger even though Ms Watson doubts her ability to accurately detect deceit or truth in others.
103She is regularly reminded of the abuse through triggering events, flashbacks and nightmares. She feels a sense of shame for having allowed the abuse to occur and for not being able to erase the pain that it continues to cause her despite having undergone the burden of years of therapy. She feels stressed and remains hypervigilant. She fears that she may never feel safe. Ms Watson describes herself as ‘a traumatised adult’. The harm caused by the offences committed against her has exacted a major toll on her mental well-being, financial and employment prospects, and educational pursuits. As a result, she has required extensive therapy and medication.
104One of the most significant aspects of the harm caused to this complainant is the permeating effect it has had on her role as a mother. She was unable to continue breastfeeding her daughter and feels an overpowering need to shield her from harm. The taxing nature of maintaining such vigilance sometimes taints moments of joy and connection. And, whether because of absence through periods of hospitalisation, or otherwise, Ms Watson believes that she is not always ‘fully present’ with her daughter.
105Despite feeling that the abuse perpetrated by Mrs Leifer has forever altered the course of her life by, amongst other things, tarnishing her view of religion and adversely impacting on her connection with community and on her marriage, Ms Watson is commendably resilient and surprisingly optimistic, refusing to allow that abuse to break her spirit. She now sees herself as a survivor rather than a victim and refuses to be defined by what Mrs Leifer did to her. And, she intends to continue to grow, heal and even thrive in the years ahead.
Rachel Harris
106The observations made by Ms Harris in her victim impact statement are just as powerful. As a result of Mrs Leifer’s offending, she has experienced immense pain which feels ‘all-encompassing’ and leaves her little respite. As she states, the impact on her has been profound and has lasted for about half of her life.
107Mrs Leifer’s betrayal of her expressed love towards Rachel has left Ms Harris feeling ‘utterly broken’. She continues to experience vivid flashbacks and nightmares. The medication she has taken for these intrusive thoughts has only provided fleeting relief. On occasions, she has required hospitalisation. Her ability to trust people has been tarnished. At times, she is unable to let others touch her, including her own husband, because of what she sees as the fraudulent way in which Mrs Leifer touched her.
108The feelings Ms Harris experiences include, but are not limited to, guilt, shame and fear. She continues to blame herself for allowing Mrs Leifer to love her. She feels ashamed for not being able to stop the abuse at the time and for not telling anyone about it sooner. Ms Harris is afraid that she will not be able to protect the people that she loves, especially her young daughter. Her concerns about a similar thing happening to her daughter can, at times, destroy her ability to be ‘in the present’ and to trust people. And, she is afraid of not being able to heal as the triggering events which cause panic attacks and depression continue to occur without warning despite the therapy and medication she has received.
109However, like her sister, Ms Harris has managed to adopt a commendably resilient stance and an optimistic approach to the future. She has learnt to live with the ongoing impact of the offending and is transitioning from feeling like a victim to seeing herself as a survivor who refuses to let this experience defeat her. Ms Harris wants to continue to heal and embrace the future with a positive outlook.
Ms Harris’ husband
110The statement from Ms Harris’ husband relevantly describes the effect that the offending against his wife has had on their relationship and their family unit. The difficulties she experiences trusting people sometimes include him and there are times when she pushes him away as if to sabotage their relationship. It took a long time for her to realise that he was not going to abandon her as Mrs Leifer did. It has been an exhausting process to navigate their relationship and deal with triggering events. There are times when their ability to do the things that are necessary for a balanced relationship, is limited. On occasion, Ms Harris’ distrust of people in authority makes it difficult to leave their daughter in childcare and to plan for their daughter’s future schooling.
Concluding observations
111Before leaving this topic of victim impact, I wish to make the following brief observations. There has been a significant delay, more than 15 years, between when these offences were committed and when the trial was held. As their victim impact statements were not made until after the jury convicted Mrs Leifer, Ms Watson and Ms Harris have been able to address the ongoing impact that this offending has had on them during that entire period. For each of them, it has been profound and life changing. What they have described comes as no surprise given the nature and seriousness of the offending. Our criminal courts are regularly informed about the serious and deleterious impact that sexual offending against the young and/or vulnerable has.
112To the extent that Ms Watson and Ms Harris feel a personal sense of guilt or shame for what occurred, they should not. They were completely innocent victims of the predatory behaviour of Mrs Leifer and it is she and she alone who should feel guilty and ashamed for what occurred.
113(Short adjournment)
Police investigation and ultimate extradition
114Before dealing with the issues of delay and the time Mrs Leifer has spent in custody and house arrest while facing extradition proceedings in Israel, I will briefly outline the history of this matter.
115The first complainant to disclose anything about Mrs Leifer’s sexual abuse was Laura Watson, to a counsellor she was seeing while in Israel in February 2008.[48] As a result, the counsellor spoke briefly to Laura’s sister, Lucy, and then to a psychologist she knew from within the Melbourne Jewish community. That psychologist then spoke to Rachel Harris on 10 March 2008.[49]
[48] The counsellor had a previous professional relationship with the Adass Israel School.
[49] As a result of the new principal of the school, Mrs Spiegelman, bringing Rachel to see her. The psychologist already had a professional working relationship with the school.
116Senior members of the Adass Israel School’s administration were made aware of the allegations in late February 2008. The school’s Board stood Mrs Leifer down on 5 March 2008. At approximately 1.20 am the next morning, Mrs Leifer and her family caught a flight from Melbourne and returned to Israel.
117As the matter was not reported to the police, no investigation was undertaken in relation to this matter at that time.
118The police investigation commenced in mid-2011, after Rachel Harris came forward and made the first of her police statements on the 26th of June. Later that year, the other two complainants also came forward and made statements.
119The police filed criminal charges against Mrs Leifer in the Melbourne Magistrates’ Court on 14 March 2012.
120The process for an extradition request was commenced in 2013 and formally filed by the Australian authorities in Jerusalem in August 2014.
121On 17 August 2014, Mrs Leifer was arrested in Israel and formal extradition proceedings were commenced.
122The extradition request was opposed by the legal representatives acting on behalf of Mrs Leifer. The extradition proceedings were protracted and only finalised on 16 December 2020, when the extradition order was signed in Israel.
123On 26 January 2021, Mrs Leifer was taken into the custody of Victoria Police and flown to Melbourne where she faced a filing hearing in the Melbourne Magistrates’ Court on 28 January 2021 and was then remanded in custody.
124Mrs Leifer has remained in custody in Melbourne from that time. The period of pre-sentence detention from 26 January 2021 up to but not including today’s date totals 940 days.
Time spent in custody and under house arrest in Israel
125Mrs Leifer had also spent two previous periods in custody while facing extradition proceedings in Israel. The first period was from the date of her arrest on 17 August 2014 until 7 October 2014, a period of 52 days.
126On 7 October 2014, Mrs Leifer was released on condition she remain under house arrest. From 6 November 2014, Mrs Leifer was required to wear an electronic bracelet while under house arrest. The house arrest continued until an Israeli District Court judge terminated the extradition proceeding on 2 June 2016 upon being satisfied that Mrs Leifer was unfit to stand trial. Mrs Leifer remained subject to court supervision and was required to submit to regular psychiatric assessment.
127However, following a subsequent police investigation into her circumstances, Mrs Leifer was arrested on 12 February 2018 and remanded in custody in relation to obstruction charges which were discontinued after Mrs Leifer was extradited.
128From 14 February 2018, Mrs Leifer was held in Israeli custody in relation to the extradition proceedings which were renewed on that day by order of a different District Court judge. Mrs Leifer then remained in Israeli custody until 25 January 2021. That second period of time spent in custody totals 1,077 days.
129It is common ground between the parties that the combined total of the two periods Mrs Leifer spent in Israeli custody while facing extradition proceedings for these charges, is 1,129 days.
130The prosecution and defence agree that this period should be declared as a period of pre-sentence detention already served in respect of the sentence imposed on Mrs Leifer today.
131In relation to the two days spent in custody for the obstruction charges, the prosecution submitted that such period could be taken into account in a general way, in line with the principle in R v Renzella.[50] I consider it appropriate to have regard to that period in that way and will take it into account.
[50] [1997] 2 VR 88.
132The total period that Mrs Leifer spent under house arrest while facing extradition proceedings for these charges is 608 days.
133The parties agree that such house arrest amounts to a form of quasi-custody which should be taken into account in Mrs Leifer’s favour during the court’s instinctive synthesis of the matters which relevantly bear on the determination of an appropriate sentence in this case.
134I agree with the abovementioned approaches to the periods that Mrs Leifer has spent in custody and under house arrest.
135There is, however, a question as to what weight should be given to the time spent under house arrest. In that context, I note that it is common ground between the parties that there is a sufficient evidentiary basis for this court to find that Mrs Leifer was responsible for frustrating and delaying the extradition proceedings to some extent while under house arrest by exaggerating and intensifying her mental health issues. I will return to that matter shortly, as the same issue is relevant to an assessment of the weight to be given to delay as a sentencing consideration.
Delay
136The defence seek to rely on the period of delay in this case, and in particular, the period from the date on which police filed charges against Mrs Leifer.
137The defence are entitled to point to the fact that in the 15 year period since Mrs Leifer returned to Israel, she has not been charged with or found guilty or convicted of any other offences. I will return to this issue later in these reasons.
138The defence are also entitled to rely on part of that same period, but for a different reason. That period is from the date Mrs Leifer was first charged in 2012 until the date of her conviction at trial, a period of over 11 ½ years. During that time, Mrs Leifer had a large number of serious criminal charges hanging over her head and experienced some anxiety in relation to her uncertain fate. She was acquitted of some of those charges by the jury. I will take those matters into account.
139Before leaving the topic of delay, I should note that the two complainants are not, in any way, responsible for the delay in reporting this matter or in the initial laying of charges. The very nature of sexual abuse against young and vulnerable victims almost inevitably results in some delay before the matter is reported to the police, if it is. In this case, the fact that Mrs Leifer threatened to expose the conduct of Laura Watson’s mother to the Adass community if Laura ever said anything about what was occurring, no doubt played a part as likely did the fact that Mrs Leifer swore Rachel Harris to secrecy during the incident in Mrs Rosenbaum’s office, when she said, “This is between us”.
Conditions of Mrs Leifer’s house arrest
140Before dealing with the relevance and weight to be accorded to the period of Mrs Leifer’s house arrest in Israel, I first need to describe the nature and conditions of that house arrest.
141When Mrs Leifer was first released on condition she live under house arrest, she was required to live in a location and premises approved by the police. She was not permitted to live in her own home or with the immediate members of her family. As a result, Mrs Leifer was required to live in an apartment in Bnei Brak in northern Israel, approximately one hour’s drive from where her husband and children lived in the family home in Immanuel.
142Mrs Leifer was required to be supervised on a 24 hour basis. That supervision was undertaken by someone other than an immediate family member being in the apartment with Mrs Leifer at all times. Initially, that person was a court approved Rabbi, but thereafter various people performed that role, including members of Mrs Leifer’s extended family. Electronic supervision was undertaken by the authorities via monitoring of the electronic bracelet that Mrs Leifer was required to wear for the vast majority of the time that she remained under house arrest.
143Mrs Leifer was prohibited from leaving her apartment unless she received prior approval. The only times she was able to leave involved her attending pre-approved medical appointments and, on four occasions, undertaking ‘Mikvah’,[51] a ritual bath. This meant that Mrs Leifer was unable to attend family events and celebrations as well as certain religious duties and functions, including attending synagogue for prayer.
[51] This is a monthly Jewish cleansing ritual undertaken by ultra-Orthodox women.
144Whilst members of Mrs Leifer’s immediate family could visit her, they could not live together as a family. However, each night one of her family would stay overnight with her in addition to whoever was performing the supervisory role.
145I note that there were no restrictions or prohibitions on Mrs Leifer using a telephone or computer, either generally or so as to access the internet.
Relevance of house arrest
146In Akoka v The Queen (‘Akoka’),[52] the Court of Appeal considered the punitive effect and quasi-custodial nature of the time that the offender spent in residential drug rehabilitation while on bail pending sentence.
[52] [2017] VSCA 214.
147The Court concluded that such time could be taken into account in the offender’s favour as part of the instinctive synthesis process in which the sentencing court has to consider all relevant matters bearing on the determination of an appropriate sentence. The Court was, however, at pains to make clear that time spent at an inpatient drug rehabilitation centre was not as punitive as time spent on remand in prison and was not to be treated as if it were or as part of a mathematical exercise.
148I note that in South Australia, a court has the power to release an accused person on condition that they remain in home detention. In the event that the person is ultimately sentenced to a term of imprisonment, it seems to be accepted practice that a specific portion of that time is declared and deducted from the sentence imposed rather than treated as part of the instinctive synthesis process.[53]
[53] See for example, R v Franceschini (2015) 123 SASR 396. See also Pappin v The Queen [2015] NTCCA 2, [17]-[18].
149In the present case, the parties agreed that the proper approach to take to the time Mrs Leifer spent under house arrest in Israel was that approved in Akoka. To my mind, analogous reasoning is open and there is logic to such an approach.
150Quite clearly, the conditions of Mrs Leifer’s house arrest can fairly be described as quasi-custodial in nature. She was required to remain in her apartment under close supervision, with very few exceptions.
151To my mind, the key aspects to be considered in determining the weight to be accorded to time spent under house arrest are the length of the period and the degree to which it was punitive in nature. In that regard, each case is no doubt different and must be considered on its own facts and circumstances.
152The period of 608 days, approximately 20 months, is on any view a significant one. And, the conditions under which Mrs Leifer was held under house arrest were quite onerous and clearly punitive. Her liberty was curtailed and there were very few occasions on which she was permitted to leave her apartment. She was subjected to daily and ongoing monitoring and supervision. Further, she was required to live distant from her family and prevented from attending family events and certain religious duties and functions.
153Of course, Mrs Leifer was able to do things and have access to members of her family and friends that a person held in prison cannot. Her experience of house arrest was not as punitive as time spent on remand in prison and should not be equated to such. However, it was quasi-custodial in nature and is a relevant sentencing consideration.
154In all of the circumstances, I consider the house arrest to have been a penalty of some significance. It is appropriate that it be taken into account in Mrs Leifer’s favour and I will do so to the extent permitted by law.
Modest reduction in weight to house arrest and delay
155At one point in the course of opposing the extradition proceedings in the District Court in Israel, counsel for Mrs Leifer successfully submitted that she was unfit to stand trial and, as a result, the proceedings were terminated. However, following a police investigation of Mrs Leifer’s circumstances, the extradition proceeding was renewed. A question then arose as to whether Mrs Leifer had feigned mental illness leading up to the termination. The issue was contested and ultimately determined by a District Court judge, whose decision was appealed to the Supreme Court of Israel. I note that s 91 of the Victorian Evidence Act 2008 prohibits this court from having regard to those overseas decisions and to any finding of fact that was in issue in those proceedings.
156However, the parties in this matter agreed that it was open to this court to have regard to the reports of, and evidence given by, the various psychiatrists and psychologists involved in those proceedings, to the extent that any parts of a report and/or that evidence is referred to in those Israeli cases.
157A careful reading of those cases reveals that the panel of experts appointed by the District Court judge concluded that Mrs Leifer at least suffered from an adjustment disorder with embedded symptoms of depression and anxiety related to her arrest and the authorities’ attempts to extradite her for these serious criminal charges. However, it is equally clear from the available evidence, that Mrs Leifer exaggerated or intensified her mental health problems so as to delay and even frustrate the extradition proceedings.
158Ultimately, there was no issue as between the prosecution and the defence in this case, that such factual findings were open and that it would be appropriate in those circumstances for this court to reduce the weight that would otherwise be given to the issues of time spent under house arrest and delay. Furthermore, there was no issue as between the parties that any such reduction ought to be ‘modest’ in degree. I consider that taking such a course is both open and appropriate.
159There are several reasons why any such reduction should only be modest. A person is entitled, by legitimate means and arguments, to oppose any extradition proceeding to which they are subject. In this case, Mrs Leifer’s adjustment disorder was one of a number of matters that could have been put before the District Court judge for consideration when deciding if it was appropriate to extradite her. However, Mrs Leifer was not entitled to exaggerate or intensify her condition. By doing so, Mrs Leifer was personally responsible for delaying the proceedings and for extending, to some extent, the time that she was required to spend under house arrest. So, it seems to have been a somewhat nuanced situation in which Mrs Leifer’s opposition to extradition was neither wholly legitimate nor wholly illegitimate.
160Further, it is unclear whether, and if so to what extent, her underlying condition influenced her decision to exaggerate her symptoms as none of the experts were asked to consider that potential issue. And, it is simply not possible to fix, with any degree of precision, the date on which Mrs Leifer’s improper attempts to delay and frustrate the proceedings commenced. In addition, neither the expert reports nor a transcript of any evidence given by any of those experts is available to this court. Furthermore, any references to such matters in the Israeli cases, particularly in the District Court case, are necessarily selective and even opaque in some respects.[54] And, finally, it has to be recognised that in any extradition proceeding, there are inbuilt factors and reasons that inevitably lead to some delay.
[54] For example, where there is simply a reference to a section of a report or to the relevant transcript pages with little or no elaboration.
161For the abovementioned reasons, I consider it appropriate to effect a modest reduction to the weight that should be accorded to Mrs Leifer’s period under house arrest and to delay. So, those sentencing considerations will not be accorded their full weight, but rather be subjected to a modest reduction in that weight.
Pre-sentence Detention
162The periods that Mrs Leifer has spent in custody for these charges, both here and in Israel, will be the subject of a s 18 pre-sentence detention declaration[55] immediately after I impose sentence. The total period to be declared and reckoned as already served under the sentence is 2,069 days, not including today’s date.
[55] Pursuant to the Sentencing Act 1991.
No discount for plea or remorse
163Before turning to outline your personal circumstances Mrs Leifer, I want to address the fact that you pleaded not guilty to these charges.
164As already noted, you were convicted of these charges following a trial.
165It was your legal right to enter such pleas and to stand trial as you did and you are not to be punished for exercising those rights.
166That said, it must also be noted that consequentially, you are not entitled to rely on a very important matter in mitigation that a person who pleads guilty can, namely a sentencing discount for pleading guilty, which has a higher utilitarian value at the moment due to pandemic case backlogs.[56]
[56] See Worboyes v The Queen [2021] VSCA 169.
167And, whilst you also have a right to continue to maintain your innocence as you have,[57] there is no evidence of remorse or contrition upon which I could rely to mitigate your sentence.
[57] See for example, report of the prison psychiatrist, Mr Mazzolini (Plea exhibit 9, page 2, answer to question 7).
Personal circumstances
168I will now outline Mrs Leifer’s personal circumstances, to which I will have regard.
169Mrs Leifer is now aged 56.
170She was born in Tel Aviv and is the youngest of four children in her family. All of her siblings work in the teaching profession. Her parents were ultra-Orthodox in their beliefs in respect to Judaism. Her father was a teacher and died in 2015. Her mother is aged 94, lives in Israel and is not in robust good health.
171Mrs Leifer married a Canadian Rabbi when aged 20. They remain married and he works at a local synagogue in Immanuel. They have eight children, six sons and two daughters, who are now aged between 17 and 34. Save for two of her sons, all of Mrs Leifer’s immediate family members live in Israel. One of her sons lives in New York while another lives in London. Mrs Leifer and her husband also have 17 grandchildren, the youngest of whom is only a few months old.
172Mrs Leifer was educated in Israel and developed an early passion for teaching. While aged 17 or 18 and undergoing seminary, she taught religious studies on Saturdays to students two years younger than herself.
173After completing high school, Mrs Leifer taught students in a primary school for five years, initially Grades 5 and 7 and later, Year 10. Ultimately, she was appointed head religious teacher and worked in that role for a number of years.
174On accepting the offer of employment from the Adass Israel School, Mrs Leifer travelled to Melbourne with her family and commenced her duties at the school in early 2001. Mrs Leifer and her family returned to Israel in March 2008, after she was stood down by the school’s Board. She has not worked since that time.
175Mrs Leifer was assessed as suffering from an adjustment disorder with embedded depression and anxiety while in Israel and the evidence from a number of mental health professionals working in the Victorian custodial setting suggests that she has also been experiencing depression and anxiety while in Australian custody for these charges. I note that the defence eschewed reliance on any of the principles in Verdins case.[58] However, the defence placed great reliance on the hardship that Mrs Leifer has experienced whilst in Australian custody and, in that context, relied on Mrs Leifer’s problematic mental health as one of a number of relevant considerations. I will therefore have regard to that issue when dealing with the custodial hardship point.
[58] R v Verdins (2007) 16 VR 269.
No prior or subsequent criminal history
176The offending for which Mrs Leifer now falls to be sentenced occurred over a period of approximately four years between early 2004 and late 2007.
177Prior to that offending commencing in early 2004, Mrs Leifer had never been convicted or found guilty of any criminal offences.
178And, in the nearly 16 years since the last of those offences was committed against Ms Harris in late 2007, Mrs Leifer has not been convicted or found guilty of any criminal offences save those for which the jury convicted her in this trial. And, there are no pending charges.
179The fact that she falls to be sentenced as a 56 year old woman with no previous or subsequent criminal history is a matter that Mrs Leifer is entitled to rely on in mitigation of sentence and I take that fact into account in her favour.
Good character
180During the course of the trial, a number of the adult school witnesses gave evidence about Mrs Leifer’s duties and performance while employed at the Adass Israel School. In addition, there is a character reference from Mrs Malky Fixler dated 3 June 2023.[59] Mrs Fixler had a close professional relationship with Mrs Leifer between 2001 and 2008 as she was the Coordinator of the preschool.
[59] Plea exhibit 5.
181The essence of that evidence is that during her time at the school, Mrs Leifer was a well-respected educator, administrator and Adass community member and leader. In particular, she was a dedicated and knowledgeable educator who gave of her time generously.
182Whether, and if so to what extent, her good character can be taken into account in her favour, is a nuanced question, the answer to which depends on the type of charge being considered.
183In relation to the offences of rape and indecent assault of which Mrs Leifer has been convicted,[60] it is a relevant matter to take into account in her favour although the weight to be accorded is somewhat reduced because such offences are commonly committed against young victims by offenders who are of otherwise good character or who exploit their respectability to further their offending.[61] The correctness of this approach was common ground between the parties.
[60] Charges 15, 19, 26, 27, 28 and 29 (rape) and 6, 9, 10, 12, 14 and 25 (indecent assault).
[61] See R v T (1990) 47 A Crim R 29 at 39.
184In relation to the remaining offence types, namely sexual penetration with a 16 or 17 year old child under care, supervision, or authority[62] and committing an indecent act with a 16 or 17 year old child under care, supervision, or authority,[63] good character cannot be taken into account in mitigation as s 5AA of the Sentencing Act 1991 is engaged.
[62] Charges 7, 8 and 11 (Laura Watson).
[63] Charges 22, 23 and 24 (Rachel Harris).
185In this context, s 5AA(1) relevantly states that in sentencing an offender for a child sexual offence, a court must not have regard to the offender’s previous good character if the court is satisfied the offender’s previous good character was of assistance to the offender in the commission of the offence.
186That section is in mandatory terms and applies to all such offences for which sentence is imposed on or after 5 April 2018.
187‘Child sexual offence’ is relevantly defined in s 5AA(3) as a sexual offence within the meaning of the Criminal Procedure Act 2009, committed in relation to a person under the age of 18 years. Both parties agree that each of those pre-conditions are satisfied in respect of Charges 7, 8, 11, 22, 23 and 24, all of which have a common element that the complainant was 16 or 17 years, that is under 18 years, when the offence was committed.
188The prosecution submitted that s 5AA was clearly engaged for those offences because of the age of the complainant and the manner in which Mrs Leifer used her good character and reputation to facilitate her commission of those offences. The defence ultimately indicated that they could not reasonably argue that s 5AA was not engaged in light of the evidence given at trial as to the context in which Mrs Leifer’s offending occurred and the relevant and contrasting analysis undertaken by the courts in such cases as Ryan,[64] SD,[65] and Wakim.[66] In essence, the defence acknowledged that the advantage that Mrs Leifer took of her good character and reputation was similar to the manner in which the offending was facilitated in Ryan and to be contrasted to the situations in SD and Wakim.
[64] Ryan v The Queen (2001) 206 CLR 267.
[65] SD v The Queen [2013] VSCA 133.
[66] Wakim v The Queen [2016] VSCA 301.
189In Ryan, the offender was a priest who offended in the course of his duties over many years.
190In SD, the offender was alleged to have exploited his prior good character to offend against his niece. However, it was an isolated offence and the connections which were present in Ryan between the offending, the offender’s prior good character, and his position of trust, were absent.
191In Wakim, the offender had an extensive history of social work and community involvement for which he had been recognised by the award of an Order of Australia Medal. He came to know the victim’s family through a religious connection and offended after befriending them. The prosecution acknowledged on the appeal that the offence was an isolated one and that the sentencing judge had erred in giving less weight to good character.
192I am satisfied that Mrs Leifer’s good character and reputation was of assistance to her in the commission of the six offences for which the prosecution submits that s 5AA is engaged. The evidence reveals that at all relevant times, Mrs Leifer was a highly respected teacher and principal of the school and widely respected within the ultra-Orthodox Adass community, including by the two complainants and their mother. Indeed, she seems to have been viewed as a leader in the school and in the Adass community and her actions and decisions went unquestioned. Laura Watson was in awe of Mrs Leifer who she believed was as revered as much as a rabbi in the community.[67] And, Ms Watson was afraid that she would not be believed over a woman that everyone loved and respected and looked up to.[68] Rachel Harris was aware that Mrs Leifer was respected at the school[69] and believed that she was the most respected person in the community.[70]
[67] See TT at 409(9)-(15).
[68] See TT at 818(2)-(5).
[69] See TT at 845(4)-(11).
[70] See TT at 930(13)-(18).
193The reverence that Mrs Leifer enjoyed and the position that she held came about as a result of the community’s acceptance of her as a person of good character. Her acceptance by both the community and by the two complainants and their mother assisted Mrs Leifer in the commission of these offences.
194It enabled Mrs Leifer to gain private access to Laura Watson while on an overnight school camp or excursion (Charges 7 and 8), and to keep Laura back from the school bus trip she would otherwise have been a part of (Charge 11).
195It also enabled Mrs Leifer to gain access to the dressing room at the Phoenix Theatre (Charges 22 and 23) and to conduct a one on one student teacher lesson with Rachel at Mrs Leifer’s home with the mother’s consent and without being questioned by the school’s administration (Charge 24).
196In many ways the connection between her good character and reputation and her offending was similar to that of the priest whose offending was considered by the High Court in Ryan.
Need to avoid doubly counting the breach of trust
197The breach of trust involved in this case is an aggravating factor for some but not all of these offences.[71] Before I deal with that issue, I want to acknowledge the need to take care so as to avoid doubly counting any breach of trust. As it was put in the defence written submissions, the breach of trust as an aggravating factor must be kept separate from Mrs Leifer’s character and its implications in mitigation.[72]
[71] It is to be treated as an aggravating factor for the purposes of Charges 6, 9, 10, 12 ,14, 15, 19, and 25-29 but not for Charges 7, 8, 11, and 22-24.
[72] Dated 27 June 2023, [6], (Plea exhibit 2), referring to Torrefranca v The Queen [2021] VSCA 157, [39].
198In Torrefranca v The Queen,[73] the Court of Appeal highlighted the need to avoid double punishment in circumstances where good character has been diminished as a sentencing consideration by virtue of the offender’s breach of trust. In such circumstances, that breach of trust cannot also be taken into account in aggravation of the penalty to be imposed and vice versa.[74] The Court also went on to explain that this does not mean that good character cancels out the breach of trust and the sentencing judge need not give equal weight to the aggravating impact of a breach of trust and to the offender’s prior good character. The sentencing judge must, however, ensure that the same breach of trust is not counted twice so as to amount to double punishment.
[73] [2021] VSCA 157.
[74] Ibid [39].
199I have borne those cautionary observations in mind when sentencing Mrs Leifer. Having treated Mrs Leifer’s breach of trust as an aggravating feature of her offending in respect to Charges 6, 9, 10, 12, 14, 15, 19 and 25 to 29, I have been astute not to treat Mrs Leifer’s good character as mattering less because it facilitated the breach of trust. It would be wrong to treat that breach of trust as an aggravating feature and to then treat it simultaneously as reducing the weight to be attached to Mrs Leifer’s prior good character in respect of those charges.
Hardship while in Australian custody
200I will now turn to consider the issue of hardship in custody.
201As I previously noted, Mrs Leifer has been in Australian custody since 28 January 2021. During that time, she has been kept in protective custody at the Dame Phyllis Frost Centre (‘DPFC’).
202Being so placed, Mrs Leifer is far removed from her culture, religion and, in particular, her family.
203Mrs Leifer has only had two personal visits from her immediate family to date, one from each of her two oldest children. Her husband has not visited as he has the continuing care and responsibility of their younger children, who remain living with him in the family home in Immanuel. Mrs Leifer has not been able to attend numerous family celebrations. She harbours an understandable concern that her elderly mother may pass before she is released from prison.
204Mrs Leifer is the only ultra-Orthodox Jewish woman in custody at DPFC. In fact, she is the only Jewish woman. English is not her first language. She is unable to speak to others in prison using her first and second languages of Hebrew and Yiddish. Nor is she able to engage in communal spiritual teachings and thoughts with other ultra-Orthodox women in custody.
205The importance of this aspect of custodial hardship was explained in the letter from Mrs Fixler, an ultra-Orthodox Jewish woman who has lived in Australia for 28 years and who is a member of the Adass Jewish Orthodox community in Melbourne. She had a professional relationship with Mrs Leifer between 2001 and 2008 as she was the Coordinator of the Adass Israel Preschool from 2000-2016. Mrs Fixler was from the same community as Mrs Leifer and they would see each other at synagogue and at social gatherings where inspirational thoughts and spiritual teachings would be discussed.
206According to Mrs Fixler, for an ultra-Orthodox woman like Mrs Leifer, the Australian custodial experience is far different from that in an Israeli prison where Mrs Leifer would be permitted to observe Judaism fully, culturally, and religiously, and be able to have personal visits from her family and eat Kosher food readily.
207As Mrs Fixler explains, in Orthodox Judaism, women are guided by a strict adherence to religious practices, rituals and customs that permeate various aspects of daily life. Orthodox Jewish women are guided by a specific set of laws and tradition that govern their behaviour, modesty, and religious obligations. Communal support and engagement in religious activities, including regular synagogue attendance, lectures and study groups are integral parts of an Orthodox Jewish woman’s life.
208Mrs Fixler has visited Mrs Leifer in custody on a number of occasions and regularly speaks to her on the phone. From her personal observations, she is able to say that the disruption to those practices has caused Mrs Leifer, a strict adherent, significant distress which she is unable to speak about with anyone in custody. According to Mrs Fixler, Mrs Leifer presents as angry, agitated, anxious and nervous and is now a depressed shadow of her former self.
209As both parties indicated at the plea hearing, Corrections Victoria are to be commended for the concerted efforts that they have made to try and accommodate the particular cultural, religious, and other needs of Mrs Leifer. Those efforts are set out in some detail in the affidavit of Ms Jennifer Hosking, the Assistant Commissioner, Sentence Management Division, of Corrections Victoria.[75] Whilst the parties may have differing views about the extent to which those steps had ameliorated the challenges and difficulties faced by Mrs Leifer as an Israeli born, ultra-Orthodox Jewish woman being held in Australian custody, they agreed that there had been some amelioration. In this context, I note the following.
247In respect of the offences of rape[90] and indecent assault,[91] that breach of trust is to be viewed as an aggravating feature of those offences.
[90] Charges 15, 19, 26, 27, 28 and 29.
[91] Charges 6, 9, 10, 12, 14, and 25.
248However, and as acknowledged by each of the parties, the situation is different for the offences of sexual penetration and indecent act relating to a 16 or 17 year old child under care, supervision or authority.[92] For those offences, the role of Mrs Leifer, either as a teacher or as a principal, was relied on to prove one of the elements of the offence, namely that the accused was in a position of care, supervision or authority over the complainant. As a matter of law, it would be wrong to treat as an aggravating circumstance a feature of the offending which is a necessary element of the offence.[93]
[92] Respectively, Charges 7, 8 and 11 (Laura Watson) and 22, 23 and 24 (Rachel Harris).
[93] Torrefranca v The Queen [2021] VSCA 157, [42].
249Within those offence types, there is a spectrum of circumstances in which an offender can be in a position of care, supervision or authority over a complainant, ranging from the momentary and involving two persons of near equal age and standing to the much more serious.
250Thus, whilst not to be seen as aggravating the offence itself, an analysis of the type of relationship between an offender and the victim of such an offence is capable of shedding some light on the nature of the care, supervision or authority element, which in turn informs a better understanding of the offence committed. In this context, I note that the positions of teacher and principal are at the more serious end of the spectrum for this element. However, I also note that there is little scope for distinguishing between individual cases within the sub-spectrum of schoolteachers or principals.
Age of the complainants
251In respect to the offences of rape and indecent assault, it is relevant to note the relatively young age of the complainants.
252The two rape offences against Laura Watson were committed when she was 18 or 19 (Charges 15 and 19).
253The four rape offences against Rachel Harris were committed when she was 18 (Charges 26, 27, 28 and 29).
254The indecent assault offences against Laura Watson were committed when she was 16 (Charge 6), 17 (Charges 9, 10, and 12) and 18 (Charge 14).
255The single indecent assault offence against Rachel Harris was committed when she was 18 (Charge 25).
256The age of the complainants is not as significant in respect of the two other types of offences in light of the very narrow age range as a complainant must be either 16 or 17 years of age. So, the relatively young age of a complainant is already encompassed within an element of the offence itself.
Non-consent elements for the offences of rape and indecent assault
257In respect to each offence of rape and indecent assault, one of the elements that the prosecution had to prove was that the complainant did not consent to the sexual act alleged. In respect to each of the proven charges of rape and indecent assault, the prosecution case was that the complainant was incapable of consenting to the sexual act because she was not aware of the sexual nature of the act. In addition, the prosecution also relied on the fact that the complainant did not say or do anything to indicate that she was consenting to the sexual act. In light of the evidence given by Laura Watson and Rachel Harris, whose credibility and reliability the jury must have accepted, I consider it would be consistent with the jury’s verdicts for me to proceed on the basis that each complainant was incapable of giving informed consent and did not say or do anything to indicate that she was consenting.
258Another element that needed to be proven for each offence of rape and indecent assault, was that when Mrs Leifer acted as she did, she was aware either that the complainant was not consenting or that she might not be consenting to the sexual act. The evidence in this case amply demonstrates that Mrs Leifer was aware that each complainant was ignorant in sexual matters and therefore incapable of giving informed consent to any sexual act. Furthermore, the evidence of each complainant was to the same effect, that she did not say or do anything to indicate that she was consenting to any sexual act. Again, I consider that it would be acting consistently with the jury’s verdicts for me to proceed on the basis that Mrs Leifer was aware that each complainant was incapable of consenting and also aware that each complainant did not say or do anything to indicate that she was consenting.
259It is worth noting at this point that for the two rape incidents relating to Rachel Harris, there was clear evidence as to how uncomfortable she was feeling at the time. In relation to her evidence about the lengthy episode in which the offences the subject of Charges 25-28 occurred, she said she became ‘very uncomfortable’ when Mrs Leifer started to take her top off and just ‘froze’, by which she meant her body became stiff. It is clear that Mrs Leifer picked up on this as she told Rachel she did not look comfortable and then, perversely, started to take off her own clothing to rectify the situation. In relation to the Charge 29 incident, notwithstanding that Ms Harris told Mrs Leifer to “Stop” while she was touching her breasts over clothing, Mrs Leifer ignored that request and proceeded to digitally rape her.
Sexual penetration of a 16 or 17 year old child under care, supervision or authority
260In the particular and unusual circumstances of this case, the three offences of sexual penetration of a 16 or 17 year old child under care, supervision or authority which Mrs Leifer committed against Laura Watson are, in my view, serious examples of their type.
261This type of offence can be committed in a myriad of ways given the different types of penetrative acts that are prohibited and the variety of circumstances that can arise concerning the relationship between the offender and the victim, including but not limited to, the nature and duration of the care, supervision or authority that the offender has over the victim, the extent of any age differential, and whether, and if so to what extent, there is a power imbalance.
262Cases which fall at the lower end of the spectrum for this type of offending usually involve little in the way of an age difference and power imbalance.
263Notwithstanding those circumstances, and even where there might be at least ostensible consent on the part of the complainant, the law prohibits such conduct in order to discourage people in a position of care, supervision or authority from taking advantage of their position vis a vis the complainant.
264This case is far removed from those that fall in or towards the lower end of the spectrum of seriousness for this type of offence. Here, Mrs Leifer was much older than the complainant and there was a very significant power and maturity imbalance between the two of them. Further, the complainant did not possess the ability that very many 16 or 17 year old children from the broader community would possess, of being able to recognise the sexual nature of the conduct Mrs Leifer was engaging in.
Indecent act with a 16 or 17 year old child under care, supervision or authority
265The same observations can be made in respect of the three offences of indecent act with a 16 or 17 year old child under care, supervision or authority that Mrs Leifer committed against Rachel Harris. It may also be said that the range of acts that this type of offence can encompass is even broader than that for the equivalent offence involving sexual penetration.
266In this case, the physical act alleged in Charges 22 and 23 involved Mrs Leifer touching Rachel Harris’ breast over clothing and, in each case, for a brief period. However, the surrounding circumstances must not be lost sight of. In respect of the first of those offences, Mrs Leifer was interrupted and unwittingly stopped from what she was doing by whoever it was that called Rachel’s name from outside the dressing room. Furthermore, the touching in the second of those offences occurred after Mrs Leifer had an opportunity to assess and re-think her sexualised touching of Rachel an hour or two earlier. And, that second touching was engaged in with a callous indifference for the welfare of the complainant. Under the guise of comforting Rachel who had, to her knowledge, become upset after being verbally abused by her mother, Mrs Leifer took advantage of the situation by touching her breast whilst hugging her. And, Mrs Leifer well knew what the complainant’s mother was like, as evidenced by her attempt to get Ms Harris to come home with her that night rather than return to her own home where she might get ‘beaten up’.
267The offence in Charge 24 is different again as it involved Mrs Leifer taking Rachel Harris’ hand and placing it on her own, that is Mrs Leifer’s breast, over clothing. Again, the fact that the touching occurred over rather than under clothing and appears to have been of short duration must be considered. However, the fact that on this occasion Mrs Leifer made a deliberate choice to transition the complainant from a passive albeit unwilling observer of what Mrs Leifer was doing to her, to a physical participant in what was happening, lends an extra and disturbing element to Mrs Leifer’s sexual abuse of this complainant. It is also noteworthy that Mrs Leifer committed this offence after luring the complainant to her home under the pretence of helping her with her teaching duties in what was only her very first week as a student teacher.
Indecent assault
268As with the indecent act offences, indecent assault is an offence that encompasses a wide range of non-penetrative sexual acts and surrounding circumstances. The level of intimacy involved and the duration of the crime are two very relevant factors to take into account.
269In relation to Charge 12, the conduct engaged in by Mrs Leifer was, perversely, showing a totally naïve complainant how nice it was for two people to kiss on the mouth. Of necessity, that was very intimate contact. And, until that point, the complainant had never been kissed and didn’t even know that people kissed on the mouth. It was, for her, a very confusing experience.
270In respect of Charges 6, 9, and 14 involving Laura Watson, Mrs Leifer undressed the complainant to expose her breasts and then sucked her nipples or breasts. This was clearly very intimate contact and, in the case of the offence in Charge 14, lasted for a significant period, about half an hour.
271For Charge 10, the offending conduct was different and at least as serious as that in Charge 14. On this occasion, Mrs Leifer rubbed Laura Watson’s vagina under clothing for a lengthy period, about half an hour.
272In relation to Charge 25, the offending conduct involved Mrs Leifer undressing a clearly ‘uncomfortable’ Rachel Harris and then kissing her on the vagina. In my view, this was the most serious of all the indecent assault offences.
Rape
273Both rape offences committed against Laura Watson, and two of the four rape offences committed against Rachel Harris, involved Mrs Leifer using a finger or fingers to penetrate the complainant’s vagina.
274The offence in Charge 15 occurred at Mrs Leifer’s home after she had obtained Laura’s mother’s permission to ‘sleep over’ so that she could talk to her. It was a pre-meditated exercise in gaining access to the complainant so Mrs Leifer could sexually abuse that complainant for her own sexual gratification.
275The offence in Charge 19 also occurred at Mrs Leifer’s home, after she accepted Laura’s mother’s request to give her daughter Kallah lessons. No doubt, this is a significant moment for a young ultra-Orthodox Jewish woman. Rather than assist Laura Watson at that important moment, Mrs Leifer chose to take advantage of the situation in order to sexually abuse her. There is, to my mind, something quite disturbing and callous about such conduct.
276Charges 27 and 29 relate to the two separate occasions on which Mrs Leifer digitally penetrated Rachel Harris’ vagina. On each of those occasions, Mrs Leifer knew that the complainant was feeling very uncomfortable about what was occurring, but proceeded, nonetheless.
277The rape offence in Charge 26 is clearly the most serious of the rape offences committed by Mrs Leifer. It involved the insertion and manipulation of a dildo in Rachel Harris’ vagina in a manner that caused her significant pain.
278And, the offence in Charge 28 involved Mrs Leifer compelling Rachel Harris to digitally penetrate Mrs Leifer’s vagina. As with the Charge 24 offence, this is an offence in which Mrs Leifer chose to make the complainant a physical participant in the sexual activity, not just a passive albeit unwilling observer.
Global view of the offending
279When viewed globally, the sexual offending in which Mrs Leifer engaged must be considered as very serious. It was predatory in nature, involving as it did the exploitation and manipulation of two very vulnerable victims over whom she had absolute control. It was also persistent and took place over an extended period of almost four years. It was undertaken for no better reason than her own sexual gratification. And, unsurprisingly, it has had a devastating impact on each victim.
280There is really nothing mitigatory about the manner in which Mrs Leifer committed these offences.
281In my considered view, the level of moral culpability involved in undertaking the course of sexual abuse that Mrs Leifer did, can only be described as very high.
282It calls for condign punishment.
Current sentencing practices
283Pursuant to s 5(2)(b) of the Sentencing Act 1991, the court is required to take account of current sentencing practices when sentencing an offender. But, as the High Court noted in DPP (Vic) v Dalgleish (a pseudonym),[94] this consideration is just one of a number of considerations to be taken into account and is not to be regarded as the primary consideration.
[94] (2017) 262 CLR 428.
284The term ‘current sentencing practices’ is not defined in the Sentencing Act 1991 but has been held to mean the court’s practices at the time of sentencing as opposed to practices at the time of the commission of the offence.[95]
[95] See Stalio v The Queen (2012) 46 VR 426.
285If, however, it is possible to demonstrate that sentencing practices at the time an offence was committed required the imposition of a materially lesser sanction for like offences than current sentencing practices would suggest for the offence under consideration, then the principle of equal justice would require the court to also take into account the sentencing practices at the time the offence was committed.[96]
[96] Ibid, at [9] and [54].
286Neither of the parties suggested that sentencing practices at the time of this offending required a materially lesser sentence than what current sentencing practices would and I see no reason to come to any different view.
287At the plea hearing, the prosecution provided the following documents for the court’s consideration:
(a)Sentencing Snapshot No 83 for the offence of rape, published by the Sentencing Advisory Council in June 2009;[97]
(b)Sentencing Snapshot No 255 for the offence of rape, published by the Sentencing Advisory Council in August 2021;[98]
(c)A JCV publication containing select cases involving rape and indecent assault offences committed by authority figure offenders and breach of trust from position of authority cases;[99] and
(d)A Table of Cases of purportedly comparable cases involving the offence of sexual penetration of a 16 or 17 year old child under care, supervision, or authority.[100]
[97] Plea exhibit E.
[98] Plea exhibit F.
[99] Plea exhibit G. It referred to a total of five Court of Appeal cases and five County Court cases
[100] Plea exhibit H. The table contained six Court of Appeal cases and four County Court cases.
288The sentencing snapshots for rape covered the periods of 2003-04 to 2007-08 and 2015-16 to 2019-20, respectively.
289During the earlier of those periods, 226 people were sentenced for rape in the higher courts over a five year period, of which 81% received a period of imprisonment. Imprisonment terms ranged from two years to twenty years, while the median length of imprisonment was five years.
290During the later of those periods, 214 people were sentenced for rape in the higher courts for a principal offence of rape, 19 of whose offending attracted standard sentence classification. The percentage of people who received a period of imprisonment differed year by year, including in the last three years when a number of people were subject to the standard sentence regime. The non-aggregate imprisonment terms ranged from 1 month to 12 years, while the median length of imprisonment was 5 years and 6 months, however each of those figures seem to include the people who were subject to the standard sentence regime.
291I have found these sentencing statistics of very limited utility for all of the usual reasons, including the lack of detail regarding the offending, the offenders and the numbers of guilty and not guilty pleas. There is even more reason to be cautious as the later statistics include both non-standard and standard sentencing cases in a way that makes it hard to assess some of the figures for non-standard sentences.[101] That is relevant because Mrs Leifer does not qualify to be sentenced under the standard sentence regime for rape and any statistics relating to standard sentence cases must not be taken into account.[102] Furthermore, in all likelihood none of the people who were sentenced for rape during the periods covered by those statistics would have served any time in custody during the COVID-19 pandemic and so would not have been entitled to have their sentence discounted for any of the reasons referred to in Worboyes.
[101] E.g. the imprisonment term range and the median sentence.
[102] Further, none of these offences of rape qualify as Category 1 offences.
292As for the remainder of the material provided, again I have not found it of much assistance. I make no criticism of the prosecution for providing it but the very unusual confluence of circumstances and considerations in this case make it quite unique in my experience. None of the other cases to which I have been referred could truly be suggested as comparable and I did not understand either party to say otherwise. Other sentencing cases are not to be treated as precedents to be followed unless distinguished. It just reinforces in my mind the importance of the principle of individualised justice whereby the sentence is to be determined by reference to the particular circumstances of the offences under consideration and by reference to the personal circumstances of the offender who falls to be sentenced.
Sentencing Principles
293As s 5(1) of the Sentencing Act 1991 makes clear, the only purposes for which sentences may be imposed are:
(a)to punish the offender to an extent and in a manner that is just in all of the circumstances; or
(b)to deter the offender or other persons from committing offences of the same or a similar character; or
(c)to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
(d)to manifest the denunciation by the court of the type of conduct in which the offender engaged; or
(e)to protect the community from the offender; or
(f)a combination of two or more of those purposes.
294In the circumstances of this case, the sentencing principles of general deterrence, denunciation and just punishment are very important sentencing considerations.
295The community has a justifiable concern about the prevalence of sexual offending against its most vulnerable members and expects the courts who sentence an offender who has committed such offences to deal with them in a way that clearly signifies that such criminal behaviour is abhorred and totally unacceptable.
296Further, the sentence in this case must be of such an order as to play a meaningful role in discouraging and deterring any like-minded members of the community from behaving in this or any similar fashion. So, the sentence must be such as to make those would-be offenders in the community think twice.
297But of course, the punishment imposed must be a just one according to all of the circumstances of this case. Individualised justice is what is required. So, the court must have regard to the nature and gravity of this offending, including any aggravating or mitigating factors, and to the personal circumstances of this offender. Having undertaken that task, I am of the view that any such punishment must be a significant one.
298Specific deterrence and protection of the community are still of some relevance notwithstanding that Mrs Leifer has no prior or subsequent criminal convictions or findings of guilt. She continues to deny any involvement in the offences of which a jury has convicted her and has displayed no remorse.
299In relation to the offences for which Mrs Leifer is to be sentenced as a serious sexual offender,[103] the relevant legislation states that the protection of the community must be the paramount sentencing consideration for those offences.
[103] All of the charges except Charges 6 and 7.
300Mrs Leifer’s age and prospects of rehabilitation are an important consideration. As already noted, Mrs Leifer is now 56 and has, this matter aside, no criminal history.
301This offending occurred in a very specific setting where Mrs Leifer, as a teacher and principal, was entrusted with the care of female high school students and young female student teachers at an ultra-Orthodox Jewish school. It seems most unlikely that she will ever have the opportunity to gain access to girls and young women in any similar setting again, whether in Australia, Israel or some other country. So, I consider that the opportunity for Mrs Leifer to re-offend in this or any similar fashion is therefore negligible, if not non-existent. The extent to which she may otherwise have access to girls or young women in the future is uncertain and not something about which it is appropriate to speculate.
302Mrs Leifer continues to strenuously maintain her innocence of the offences for which a jury has convicted her. With respect to that offending, she has no insight and no remorse. To date, she has not sought or received any professional treatment or counselling in relation to her offending. As the sentencing judge, I am not convinced that Mrs Leifer has, in any way, reformed.
303Thus, in terms of prospects, I consider that Mrs Leifer is unlikely to re-offend due to the high likelihood that she will never find herself in the same position of authority again, not because she has re-assessed her offending behaviours and chosen to reform.
304One way of trying to facilitate Mrs Leifer’s rehabilitation would be to ensure that she undergo a suitable sex offender’s course. But, that is not something that this court can mandate as part of this sentence. Whether it is something that the Adult Parole Board considers necessary and appropriate is a matter for them. So, in reality, all that this court can do to try and facilitate Mrs Leifer’s rehabilitation, is to fix a suitable non-parole period. In saying that, I am not overlooking the practical problems which may arise. Whether Mrs Leifer will be released when she first becomes eligible for release on parole or at some later stage before the head sentence expires cannot be known and is speculative. And, unless her personal status or situation changes, the very high likelihood is that whenever she is released from prison it will be into immigration detention for the purpose of facilitating her deportation.
Non-parole period and deportation
305The prospect of Mrs Leifer being released on parole and the likelihood of immediate deportation once Mrs Leifer is released from prison were the subject of discussion at the plea hearing.
306Mrs Leifer has no visa to permit her to remain in Australia. She is an illegal non-citizen in effect and therefore liable to be deported unless her status or personal circumstances change. At present, and for understandable reasons, she wishes to return to Israel at the first available opportunity.
307The various considerations that may arise for the Adult Parole Board are set out in an email dated 27 June 2023.[104]
[104] Plea exhibit 6.
308When making parole decisions, the Adult Parole Board considers whether an offender sentenced to a head sentence and non-parole period is at risk of immigration detention and/or removal from Australia at the end of their imprisonment. If a prisoner’s visa is cancelled and they are released on parole they may be removed from Australia even in circumstances where they still have a substantial portion of their sentence to serve on parole. Any parole conditions will have no practical effect for a person in immigration detention as the detainee will be under the sole control and supervision of the Department of Home Affairs.
309The Board considers each parole application on its merits, including by reference to considerations of risk and community safety in the country of nationality, considered in the context of practical limitations on supervision and enforcement of parole conditions in that country. A Victorian prisoner on parole who is removed from Australia is not ordinarily subject to parole conditions as they would be effectively unenforceable.[105] The paramount consideration of community safety continues to apply in cases of deportation and includes the community in the country of origin.
[105] There is an exception with respect to New Zealand.
310The relevant sections of the Adult Parole Board’s Manual dealing with the situation of a prisoner who is likely to be deported immediately upon being released from custody, were set out in the defence written submissions[106] and discussed during the plea hearing. When considering if and when a prisoner in that position is released on parole, the Board engages in a balancing exercise to ensure, so far as possible, that the prisoner is in no more or less favourable position as compared to a prisoner who is released on parole in Victoria and can therefore have their parole conditions monitored and enforced. That balancing exercise may result in the prisoner still being released on parole but not at the earliest eligibility date.
[106] Dated 27 June 2023, at [15] (See plea exhibit 2).
311In the end, however, as both parties acknowledged, there is a degree of uncertainty and speculation involved in trying to second-guess what the Parole Board will do in Mrs Leifer’s case when it comes time to consider her for release on parole.
312And, as s 5(2AA) of the Sentencing Act 1991 relevantly states, ‘in sentencing an offender, a court must not have regard to any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind’.
313As with any sentencing exercise, this court must fix a head sentence that is appropriate having regard to all of the sentencing considerations that legitimately arise for consideration. When determining the appropriate sentence, the court must assume that the accused will be required to serve each and every day of the head sentence.
314When fixing the non-parole period, the court must assess what the minimum period that the justice of the case requires before the accused should be eligible to be considered for release on parole. Again, that must be done by reference to all of the sentencing considerations that legitimately arise for consideration, although a different emphasis may be placed on some of those considerations at that time.
315In the end, whether and if so how Mrs Leifer’s likely deportation may influence the Adult Parole Board’s decision regarding her release on parole, is not something that I, as the sentencing judge, can have regard to when determining the appropriate sentence in this case.
316However, as I understood the submissions of each of the parties, it would be open to me to take into account the fact that Mrs Leifer will worry about the prospect that she will not in fact be released on parole at the earliest opportunity, or even at all, due to her almost certain deportation once released from custody. I have taken those concerns into account.
Cumulation and totality considerations
317When assessing whether, and if so to what extent, there should be a degree of cumulation of the sentence on one charge on the sentences imposed for other charges, a number of relevant considerations must be taken into account.
318There are two victims not one.
319The 18 offences were committed over a period of nearly four years, from early 2004 until late 2007.
320The offending encompasses 14 separate incidents,[107] albeit the two incidents involving Charges 22 and 23 have a close temporal connection, occurring as they did within an hour or two of each other on the same night.
[107] Nine in relation to Laura Watson and five in relation to Rachel Harris.
321There are two incidents in which multiple offences were committed. The first relates to Charges 9 and 10 involving Laura Watson. The second involves Charges 25-28 involving Rachel Harris. In such circumstances, a tempered approach to cumulation is necessary. However, the approach taken must not put at nought the effect of the serious offender provisions and must not ignore the fact that each of the offences committed during a multi-offence incident involves a separate and an additional degree of criminality on Mrs Leifer’s part and no doubt added to the impact on the relevant complainant.
322For all charges bar 6 and 7, the serious offender provisions apply and there is a presumption of cumulation.
323Ultimately, after engaging in the necessary analysis the court must make appropriate orders for cumulation and arrive at a total effective sentence that is just and that properly reflects the total criminality involved in Mrs Leifer’s course of offending against two victims. When undertaking such a task, it is important to stand back and take a final look at the individual sentences and orders for cumulation to ensure that the sentence is appropriate in all the circumstances, and I have done so.
324(Short adjournment)
Table of Sentencing Orders
325Counsel, I am about to formally sentence Mrs Leifer. In my published sentencing reasons I will attach as annexure A, a sentence table that contains, among other information, the sentence imposed for each charge, the orders for cumulation, and the total effective sentence and non-parole period.
326To assist the parties to follow the sentences as I impose them, I intend to provide each counsel and the instructing solicitors with a copy of that table in a moment. Once I complete my sentencing of Mrs Leifer, I am happy to stand down for a brief period to allow the parties to check the numbers and the maths, if they need to. Please now distribute the copies of the sentence table, Madam Associate.
Sentence
327Mrs Leifer, after having carefully considered, balanced, and weighed all of the relevant sentencing considerations in this case, I have decided to sentence you as follows. You will be convicted on each charge and sentenced to the following terms of imprisonment.
328On Charge 6, indecent assault, 2 years.
329On Charge 7, sexual penetration of a 16 or 17 year old child, 3 years and 6 months.
330On Charge 8, sexual penetration of a 16 or 17 year old child, 3 years and 9 months.
331On Charge 9, indecent assault, 2 years and 3 months.
332On Charge 10, indecent assault, 2 years and 6 months.
333On Charge 11, sexual penetration of a 16 or 17 year old child, 3 years and 9 months.
334On Charge 12, indecent assault, 6 months.
335On Charge 14, indecent assault, 2 years and 6 months.
336On Charge 15, rape, 7 years.
337On Charge 19, rape, 7 years.
338On Charge 22, indecent act with a 16 or 17 year old child, 12 months.
339On Charge 23, indecent act with a 16 or 17 year old child, 15 months.
340On Charge 24, indecent act with a 16 or 17 year old child, 15 months.
341On Charge 25, indecent assault, 2 years and 9 months.
342On Charge 26, rape, 8 years.
343On Charge 27, rape, 7 years.
344On Charge 28, rape (compelled sexual penetration), 7 years.
345On Charge 29, rape, 7 years.
346The sentence of 8 years’ imprisonment imposed on Charge 26 will be the base sentence.
347The following periods are to be served cumulatively on that base sentence and on each other:
·6 months on Charge 7;
·8 months on Charge 8;
·3 months on Charge 10;
·8 months on Charge 11;
·1 month on Charge 12;
·3 months on Charge 14;
·12 months on Charge 15;
·12 months on Charge 19;
·2 months on Charge 23;
·2 months on Charge 24;
·3 months on Charge 25;
·6 months on Charge 27;
·6 months on Charge 28; and
·12 months on Charge 29.
348The total effective sentence is therefore 15 years’ imprisonment.
349In respect of that head sentence, I fix a non-parole period of 11 ½ years.
Pre-sentence detention declaration
350Pursuant to s 18 of the Sentencing Act 1991, I declare that Ms Leifer has served a total of 2,069 days of pre-sentence detention, not including today’s date, in respect of the sentence she has received today. I order that such period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this court.
Section 6F declaration
351Pursuant to s 6F of the Sentencing Act 1991, I direct that the fact that Mrs Leifer has been sentenced as a serious offender, more particularly, as a serious sexual offender, for Charges 8, 9, 10, 11, 12, 14, 15, 19, 22, 23, 24, and 25 to 29 be entered in the records of the court.[108]
[108] See definition of ‘serious offender’ in s 6B(3) of the Sentencing Act 1991.
Provision of Notice of Reporting Obligations under SORA
352Pursuant to s 50 of the Sex Offenders Registration Act 2004, the court is required to give a registerable offender written notice of their reporting obligations and the consequences which may arise if they fail to comply with those obligations.
353With the agreement of the parties,[109] the court will arrange for Mrs Leifer to be provided with the relevant notice by a prison officer at DPFC following this sentence hearing.
[109] This agreement was communicated via an email sent to the court.
354As earlier stated in these reasons, Mrs Leifer will be required to comply with the reporting obligations for life.[110]
[110] Pursuant to s 34 of the Sex Offenders Registration Act 2004.
Other matters
355Mr Hill, does the defence need any further time to consider the numbers and maths in relation to the sentences I have imposed?
356MR HILL: No, Your Honour. They seem to mathematically add up.
357HIS HONOUR: Does the prosecution need any time Mr Lewis?
358MR LEWIS: No, Your Honour.
359HIS HONOUR: Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Hill?
360MR HILL: No, Your Honour.
361HIS HONOUR: Thank you. Mr Lewis?
362MR LEWIS: No, Your Honour.
363HIS HONOUR: Thank you. Please now adjourn the court until 9.30 am tomorrow, Mr Tipstaff.
ANNEXURE A
| Charge on Indictment | Offence | Maximum Penalty | Sentence | Cumulation | |
| 6 | Indecent assault | 10 years | 2 years | --- | |
| 7 | Sexual penetration of a 16 or 17 year old child | 10 years | 3 y 6 m | 6 months | |
| 8 | Sexual penetration of a 16 or 17 year old child | 10 years | 3 y 9 m | 8 months | |
| 9 | Indecent assault | 10 years | 2 y 3m | --- | |
| 10 | Indecent assault | 10 years | 2 y 6 m | 3 months | |
| 11 | Sexual penetration of a 16 or 17 year old child | 10 years | 3 y 9 m | 8 months | |
| 12 | Indecent assault | 10 years | 6 months | 1 month | |
| 14 | Indecent assault | 10 years | 2 y 6 m | 3 months | |
| 15 | Rape | 25 years | 7 years | 12 months | |
| 19 | Rape | 25 years | 7 years | 12 months | |
| 22 | Indecent act with a 16 or 17 year old child | 5 years | 12 months | --- | |
| 23 | Indecent act with a 16 or 17 year old child | 5 years | 15 months | 2 months | |
| 24 | Indecent act with a 16 or 17 year old child | 5 years | 15 months | 2 months | |
| 25 | Indecent assault | 10 years | 2 y 9 m | 3 months | |
| 26 | Rape | 25 years | 8 years | Base | |
| 27 | Rape | 25 years | 7 years | 6 months | |
| 28 | Rape (compelled sexual penetration) | 25 years | 7 years | 6 months | |
| 29 | Rape | 25 years | 7 years | 12 months | |
Total Effective Sentence: | 15 years | ||||
Non-Parole Period: | 11 ½ years | ||||
Pre-Sentence Detention: | 2,069 days | ||||
| Other Relevant Orders: 1. Sentenced as a serious sexual offender on Charges 8, 9, 10, 11, 12, 14, 15, 19, 22, 23, 24, 25, 26, 27, 28 and 29 (pursuant to s 6F of the Sentencing Act 1991) 2. Registration under the Sex Offenders Registration Act 2004 3. Reporting for life | |||||
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