Director of Public Prosecutions v Liefting

[2020] VCC 744

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00293

DIRECTOR OF PUBLIC PROSECUTIONS

v

CRAIG LIEFTING

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2020
DATE OF SENTENCE:	28 May 2020
CASE MAY BE CITED AS:	DPP v Liefting
MEDIUM NEUTRAL CITATION:	[2020] VCC 744

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — indecent act with a child under 16 — plea of guilty — schoolteacher — position of trust — breach of trust — paedophilic disorder — risk of reoffending — serious sexual offender — protection of the community — sex offender registration

Legislation Cited:      Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:R v Verdins (2007) 16 VR 269; Crouch v The Queen (2019) 58 VR 264

Sentence:Total effective sentence of 5.5 years with non-parole period of 3.5 years

Section 6AAA declaration: 7.5 years with non-parole period of 6 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Grant (For Plea)	Solicitor for the Office of Public Prosecutions
Ms S Gray (For Sentence)
For the Accused	Ms E Clark (For Plea)		James Dowsley & Associates
Mr J McLeod (For Sentence)

HER HONOUR:

1Craig Liefting, you have pleaded guilty to three charges of an indecent act with a child under 16, for which the maximum penalty is 10 years’ imprisonment.

2You committed these offences when you were a primary school teacher. Your victims were two of your students. Your first victim, Leigh Hudson,[1] was only eight years old when you offended against her. Your second victim, Imani Wade,[2] against whom you offended over a protracted period of time, was aged six to seven years old. The combination of the young age of your victims and the gross breach of trust that your offending involves makes your offending very serious.

[1] A pseudonym.

[2] A pseudonym.

3Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’.

4In brief, the circumstances of your offending were as follows. You were first registered as a schoolteacher with the Victorian Institute of Teaching on 31 December 2002. At the primary school, you were a well-regarded teacher, but with a reputation of being affectionate with your female students and favouring your female students.

5I turn to the offending against the first victim, Leigh Hudson. Miss Hudson was a student at the primary school from the preparatory grade, before leaving during grade 3. She was taught by you in grade 1. On what was called the ‘transition day’, which was the day she transitioned from grade 1 into grade 2, she was confronted by her new teacher, who yelled at her, causing her to cry, and she was instructed to ‘go back to Mr Liefting’s class’. Miss Hudson ran back to your classroom to seek comfort and ran up to you and gave you a hug.

6You seated her on your lap and proceeded to put your hands down her pants. You began rubbing her thighs and legs near her vagina, over her underwear. Miss Hudson says your hands were shaking a lot and that you were moving your hands from her sides to her front, over and over again (charge 1). This was not the only time you had touched her in this manner. You had in the past got her to sit on your lap during class and rubbed her in the area of her thighs and her vagina, on occasions over her clothing and on occasions under her clothing.

7I turn now to your offending against the second victim, Imani Wade. You were Imani Wade’s teacher in grade 1 and grade 2. You favoured Miss Wade and you sought her out in the schoolyard, and you let her play games in class. She held you in high regard as her teacher. On one occasion, Miss Wade was observed sitting on your right foot, wrapped around your leg with her hand almost in your shorts.

8You began offending against her in grade 1. Miss Wade was made by you to hide under your desk in your office. You wheeled your chair over to her and undid the zip of your trousers and exposed your penis. You touched Miss Wade on the vagina under her clothing (charge 2), and made her touch and rub your penis (charge 3). These are representative charges. You touched Miss Wade’s vagina and got her to touch your penis on most days over a period of around two years.

9On occasions, you would get soap from the bathroom and use it on your penis and Miss Wade’s vagina. On occasions, you would tell her not to wear underwear. Miss Wade felt powerless to do or say anything to stop you, which is entirely unsurprising, given her very young age and your being her teacher, and the relentless nature of your offending against her.

10On one occasion, you were performing the role of supervisor of the grade 2 sleepover at the primary school for a group of students including Miss Wade. This event took place in the library area of the primary school. The students brought their own bedding to the event, engaging in activities from 3:20pm to 9:00am the following morning.

11On the morning of the conclusion of the sleepover, Miss Wade was unable to deflate her mattress correctly. You remained in the library with Miss Wade while everyone else was outside playing. You took the opportunity while alone with her to touch her vagina. That is encompassed by representative charge 2. Miss Wade was frightened, and you only desisted from assaulting her when other students entered the library.

12When Miss Wade moved into grade 3, you were no longer her teacher but continued to seek her out at recess and at lunchtime when you were on yard duty. On one occasion, you were observed with Miss Wade near the canteen building by an education support worker. She observed you to have your hand up Miss Wade’s dress and that Miss Wade’s underwear was visible. There was an internal investigation conducted by the principal of the primary school into this incident.

13You denied the allegation, stating that, ‘I don’t remember anything with her dress. I would always talk to children if their clothing is inappropriate’. You said that you were ‘careful’. You denied any inappropriate behaviour with Miss Wade on that date, stating that, ‘my biggest concern is her telling other people and them jumping to conclusions without all the facts’.

14I turn now to your arrest and interview. Miss Wade disclosed the offending against her to police on 11 October 2019. At this time, you had left your employment at the primary school and you were teaching at the Wonthaggi Primary School, situated in Wonthaggi. You were arrested on 15 October 2019 and taken to the Wonthaggi police station, where a record of interview was conducted in respect of the allegations made by Miss Wade. You gave a ‘no comment’ record of interview.

15On 16 November 2019, Miss Hudson disclosed the offending against her to police. On Thursday 21 November 2019, you were arrested and taken to the Wonthaggi police complex, where a record of interview was conducted in respect of the allegations made by Miss Hudson. You gave a ‘no comment’ record of interview.

16You have from an early stage indicated a preparedness to plead guilty. This matter was resolved on 17 February 2020. This was prior to any committal. Consequently, your plea is at the earliest opportunity. It has utilitarian value, as it has spared the victims and the community the cost and the trauma of a trial. Its utilitarian value is of heightened value in the present situation of extreme stress upon the administration of criminal justice in this State caused by the COVID-19 pandemic. I also accept that your plea of guilty is indicative of remorse on your part.

17I turn now to the victim impact statements. Victim impact statements were made by Imani Wade, her mother Corinne Wade,[3] and Leigh Hudson. They were tendered at the plea. Ms Corinne Wade says she is devastated by what she perceives as her failure to protect her daughter. She says she continues to worry about her daughter’s wellbeing and her future.

[3] A pseudonym.

18Imani Wade says she is still trying to come to terms with what happened to her when she was only six years old. She says she feels ‘broken and used’ and has feelings of self-hatred. She says she has come close to killing herself and feels that it would be better for everyone if she simply ‘disappeared’. Leigh Hudson says she feels ‘scared and uneasy’ in public places and, in particular, she is on her guard when dealing with male teachers and men.

19The victim impact statements of Miss Wade and Miss Hudson are a reminder of the profoundly damaging consequences of premature sexual experience, which lie at the very heart of the law’s absolute prohibition on sexual activity with children.

20I turn now to your personal circumstances and, in doing so, I refer to the report of Mr Patrick Newton, clinical and forensic psychologist, with whom you spoke on 11 March 2020 and who prepared a report tendered upon your plea, and also to the submissions made by your counsel Ms Clark.

21You were born on 5 March 1971 and you are presently 49 years old. You have no prior convictions, nor any pending criminal matters, although it is important to note here that in the circumstances of your offending, in which you relied upon your position as a trusted and well-respected teacher precisely in order to offend, you are precluded from relying upon your hitherto good character for the purpose of moderating your sentence.

22You are the eldest of a siblingship of four. Your family were devout Pentecostal Christians and you grew up in a strict religious household. You described your childhood as positive, although your upbringing was strict and, you felt, repressive. As you matured, you rejected the religious beliefs held by your parents. You progressed without difficulty through primary and high school. You completed a Bachelor Science and then a Bachelor of Education at La Trobe University. You began teaching in 1997. You have always been a primary school teacher.

23As a result of this investigation, your registration as a teacher was suspended by the Victorian Institute of Teaching, thereby rendering you ineligible to continue your employment as a teacher at the Wonthaggi Primary School, pending the outcome of the police investigation. In light of your plea to the charges on the indictment, you will not be able to return to teaching, and you are anxious and uncertain about what you will be able to do in the future in regards to your career.

24You had a number of casual sexual relationships at university. You met your wife when you were 30 and you went on to marry in 2002 or 2003. You have two sons, who are now aged 15 and 13 years old. You separated from your wife in 2016. You have negotiated informal access arrangements in order for you to see your two sons. You continue to see your sons once or twice a week.

25You commenced a relationship with Ashlee Stuckey in 2018 and you began living with her and her children. When your offending came to light, the Department of Human Services became involved with the family and you could no longer live with Ms Stuckey and her children. The future of your relationship with Ms Stuckey is uncertain, but she remains supportive of you and has written a reference to the Court in which she says you are a ‘decent man’ who is ‘extremely remorseful’. She says you are very sorry for the hurt your actions have caused the victims and your two sons.

26Your father Simon Liefting has also written a reference, in which he says that you have ‘always been a caring and loyal person’ and he considers your offending ‘out of character’. He says that you have given your life to assist and support young people.

27You are a social drinker and have used cannabis recreationally in the past but have no drug or alcohol problems. You experienced depression when your marriage was deteriorating and at present are experiencing symptoms of mild depression in response to your legal situation, your loss of career and the impact of your offending on your relationship with your sons. Mr Newton concluded your symptoms were not sufficiently severe to meet the diagnostic criteria for a mental disorder. It was not suggested that there was any application of Verdins principles in your case.[4]

[4]R v Verdins (2007) 16 VR 269 (‘Verdins’).

28You told Mr Newton that you were unequivocally attracted to adult females. However, Mr Newton concluded that on the basis of your repeated sexual contact with your victims, which you described to him as both sexually gratifying and emotionally fulfilling, and in respect to the offending against Miss Wade — your perception that, despite her tender years, she was a willing and consenting participant — these issues pointed to a severe psychosexual deviance underpinning your offending.

29Mr Newton concluded that your offending conduct was sufficiently intense to meet the diagnostic criteria of a paedophilic disorder and he assessed your risk of reoffending as moderate-high for sexual recidivism. Mr Newton considered that you must have treatment in order to address your offending and to address the risk of reoffending that you pose.

30I turn now to consider the gravity of your offending. The serious nature of your offending is obvious and hardly needs elaboration — it is the combination of the gross breach of trust involved and the very young age of your victims which makes it so. Your victims were completely defenceless, and no doubt confused and distressed about what was happening to them at the hands of their teacher. It is concerning, to say the least, that in the case of Miss Wade you had interpreted her submission as consent or a willing participation in sexual activity on her part; a view, as has been discussed, you still held when you spoke with Mr Newton only some months ago.

31In Miss Hudson’s case, the charge is a discrete act of indecent touching, but it is in the context of this kind of behaviour happening on other occasions. You are therefore precluded from asserting that your offending against Miss Hudson was an isolated incident, and it is relevant to the assessment of your moral culpability and the effect of the offending on Miss Hudson.

32Your offending against Miss Wade was, as has been described, protracted, lasting around two years. The charges are representative. The principles relating to sentencing for a representative charge were recently set out by the Court of Appeal in the case of Crouch v The Queen.[5] In accordance with these principles, you fall to be sentenced for the offending the subject of the representative charge, which is here the occasion when you touched Miss Wade’s vagina and got her to touch your penis when she was under the desk in your office.

[5](2019) 58 VR 264, 271–2 [36].

33But this conduct must be seen in its wider context, which again precludes any assertion on your part that it was an isolated incident, and is relevant to the assessment of your moral culpability and the impact of the offending on Miss Wade. The fact that it is a representative charge may also inform the sentencing court’s assessment of the weight given to sentencing principles such as deterrence, denunciation, community protection, and an offender’s prospects of rehabilitation.

34The Court of Appeal in Crouch v The Queen observed that, while there was no requirement that a representative charge must result in a higher sentence than imposed on a discrete charge, it may do so, and that as a matter of common sense if the represented instances number in the hundreds, as opposed to only a couple of instances, it is likely to do so. The sentencing court must in the end ‘impose a sentence for a representative charge that is just in all the circumstances and is not disproportionate to the nature and gravity of … the subject of that charge’.[6]

[6] Ibid.

35I turn now to the relevant sentencing principles. In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of both general and specific deterrence; that is, I must deter others from behaving as you did, and I must deter you from repeating such behaviour. I must express the community’s denunciation of your conduct, but I must promote, if possible, your rehabilitation. I must take into account the effect of your crime upon your victims, and I must have regard to current sentencing practices and to maximum penalties. In short, I must try to balance your personal circumstances with the circumstances of your offending. I am required to impose no longer sentence than is necessary in all the circumstances of the case.

36Considering first your prospects of rehabilitation, I find this a difficult assessment. On one hand, there is the opinion of Mr Newton that you meet the diagnostic criteria of a paedophilic disorder, and his assessment of your risk of sexual recidivism as being moderate-high. There is also the protracted nature of your offending. On the other hand, I consider that you have expressed deep and genuine remorse. You wrote a letter to the Court in which you stated, ‘I understand that I have caused two young people great emotional hurt and confusion and apologise to both of these young people unreservedly’.

37This will be your first time in custody and surely it will be a salutary experience, and you will access the treatment that you need in order to address your offending. In all the circumstances, I assess your prospects of rehabilitation as fair to good. You have also demonstrated your rehabilitation by not having offended since the offending for which you fall to be sentenced, although I must not let the fact that you have led a blameless life since then devalue the gravity of the offences for which you fall to be sentenced.

38General deterrence, denunciation, just punishment, and community protection are the paramount sentencing considerations in this case, as they are in all cases that involve the sexual abuse of children and young people. I also consider that specific deterrence has a role to play, given the longstanding nature of your offending, although I do accept the submission of Ms Clark that, notwithstanding Mr Newton’s diagnosis of paedophilic disorder, given that you have not offended again, your offending must also be explained to some extent by your situation at the time it occurred. And that was in the context of your deteriorating relationship with your wife.

39I also accept Ms Clark’s submission that the separation from Ms Stuckey and your sons will weigh heavily upon you during a term of imprisonment, and I take into account the anguish your separation from your family will cause you in custody.

40You fall to be sentenced as a serious sexual offender on charge 3 on the indictment. The Court is therefore required to consider protection of the community as the principal purpose for which sentence is imposed (although the prosecution do not seek a disproportionate sentence), and to impose a cumulative sentence unless otherwise ordered. The principle of totality is not displaced by the application of the serious sexual offender provisions.

41The prosecutor referred me to a number of cases, which I have read and have had regard to, both as comparator cases and for their enunciation of the relevant sentencing principles in cases involving the sexual abuse of children by those charged with their care and education. Mr Grant, who appeared to prosecute, submitted that a term of imprisonment comprising a head sentence and a non-parole period was the only appropriate sentencing disposition in your case. Your counsel Ms Clark accepted correctly that this was so.

42You are convicted on all charges. On charge 1, you are sentenced to a term of two years’ imprisonment. On charge 2, you are sentenced to a term of four years’ imprisonment. On charge 3, you are sentenced to a term of four years’ imprisonment. You are sentenced as a serious sexual offender on charge 3, and that will go on the record of the Court.

43Charge 2 is the base charge. I order that six months of the sentence on charge 1 and 12 months on the sentence on charge 3 be served cumulatively to each other and the sentence on charge 2. That makes a total effective sentence of five years and six months’ imprisonment. I am directing that you must serve a period of three years and six months before you are eligible for parole.

44Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of seven and a half years with a non-parole period of six years.

45Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served nine days of the sentence I have passed upon you, and I direct that this be entered into the records of the Court.

46You have pleaded guilty to three class 2 offences pursuant to the Sex Offenders Registration Act 2004 (Vic). Charges 2 and 3 are representative charges and cannot be treated as a single incident under the Sex Offenders Registration Act 2004 (Vic). Accordingly, you are a registrable offender for your lifetime.

47In the circumstances, we don’t seek Mr Liefting’s signature on the Sex Offenders Registration Acknowledgement.

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