Director of Public Prosecutions v Lyons, Yolanda Caroline
[2013] VCC 695
•29 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00172
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YOLANDA CAROLINE LYONS |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 & 8 May 2013 | |
DATE OF SENTENCE: | 29 May 2013 | |
CASE MAY BE CITED AS: | DPP v Lyons, Yolanda Caroline | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 695 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S J Ballek | OPP |
| For the Accused | Ms J A Dixon S.C. with Ms S Leighfield | Galbally & O’Bryan |
HIS HONOUR:
1 Yolanda Caroline Lyons, you have pleaded guilty to four charges upon indictment, being two charges of gross indecency with a person under 16 years with the aggravating circumstance that the young person concerned was generally or at the time under your care, supervision or authority (Charges 1 and 2). You were also charged with two charges of indecently assaulting a person under the age of 16 (Charges 3 and 4). Each charge is representative in nature (see R v SBL [1999] 1 VR 706 at [70]).
2 The maximum penalty for each of Charges 1 and 2 is three years imprisonment, whilst the maximum penalty for each of Charges 3 and 4 is five years imprisonment.
3 The offences occurred between 1 January 1985 and 26 February 1986, some 27 or 28 years ago.
4 The facts that support the charges on the indictment are set out in the summary of prosecution opening upon plea which was read aloud in court and is Exhibit A on the plea. Ms Dixon, of Senior Counsel, who appeared with Ms Leighfield on your behalf, accepted the accuracy of the matters set out under the heading “Offending” in paragraphs 7 to 17 (both inclusive).
5 I will not repeat the facts of this matter save to say as a married woman and mother of two children, and whilst working as a secondary school teacher, you committed the instant offences against one of your students who at the time was a vulnerable teenager aged between 14 and 15 years. Charges 2 and 4 involve penetrative offending.
6 Your conduct was grave. It involved the manipulation of the complainant who had been the victim of rape and who confided this in you. You exploited the fact that you shared common religious beliefs with the complainant and her family. You manipulated the complainant’s mother to get her out of the house so that you might offend against the complainant. You took the complainant away from her home on holiday with you and your family and offended against her in that setting.
7 You breached the trust of the complainant who was a child in your care, her parents, your school community and the community at large.
8 By your conduct you have adversely affected the complainant, the effects are set out in her Victim Impact Statement, Exhibit B on the plea that was read aloud in court by the prosecutor. The harm done to the complainant by your offending is serious and long-lasting.
9 Your conduct was disclosed to school authorities when your liaison with the complainant ceased in 1986 but no action was taken by them.
10 In November 2011 the complainant contacted police and disclosed your offending to them. You were interviewed by police in June 2012. When asked:
“Okay, tell me why you think you are here?”
11 You responded:
“A long time ago I was involved in a – with a student.”
12 You continued:
“I can only presume this is what you were talking about, because there’s never been anything else …” (See record of interview question and answers 25 and 26.)
13 In the record of interview you laid blame at the feet of the complainant as being the instigator of your forbidden conduct and implied that the relationship between you and her, if that is what it can be properly called, continued because she pressured you into it. (See record of interview question and answer 34.)
14 On the plea, the attitude you expressed in the record of interview was explained, unconvincingly, as your reconstruction of the events looking back some 27 or so years. The attitude that you expressed in the record of interview did not reflect well on you. However, it does not appear to be an attitude that your currently hold nor have held since the time that you were charged by police.
15 Tendered on your behalf was a bundle of documents, Exhibit 2. This bundle contained a psychological report, a report from a psychotherapist, medical reports and testimonials. The information contained in each of these documents was analysed and expanded upon by your counsel.
16 Your childhood was an unhappy one. The source of the unhappiness appears to have been your mother who was represented to me as being :
“A very dominant, controlling and aggressive woman who was both verbally and emotionally and physically abusive, and who was brutal, cruel and rejecting, and who would severely punish (sic) for little reason”. (See report of Dr Michelle Wauchope, Exhibit B, tab 1.)
17 This unhappiness has cast a pall over your entire life. It impacted upon your student life at Larnook Teachers College. Your lack of self-esteem was a causal factor in your decision to marry while still very young. Your marriage, whilst not barren, was unfulfilling and ended some ten years ago. It is clear that your two children were your motivation to maintain your interest in the marriage and life generally. (See references from each of your children in Exhibit B, tabs 14 and 15.)
18 Since the time of offending you have not only led a blameless life but by reference to the many testimonials relied upon by your counsel you have contributed greatly to the lives of others. You are described as:
(a)A most dedicated, conscientious, hard working and effective teacher. An exceptional educator, one who set high standards for herself and who developed excellent relationships with staff. A person who gives of herself to others with scant regard for her own health and wellbeing. (See reference from Margaret Towner, tab 7.)
(b)A person who went far beyond her obligation to her job description. Often working during holidays and weekends as a contribution to the successful functioning of the college where you worked. A person who always put others needs before her own. (See reference from Gary Cooper, tab 8.)
(c)A person who was well respected by both colleagues and students. A person who invested a lot of time and effort into students that were disadvantaged. A workaholic. (See reference from Fiona Boileau, tab 9.).
(d)A person who has had a significantly positive impact on thousands of students. (See reference from Sue Simadri, tab 10.)
(e)An exemplary teacher. A person whose work with students with learning difficulties has been outstanding. A person, who despite her success in her career, has low self-esteem and poor self-worth. A person who was often depressed. (See reference from Lorraine Theodore, tab 11.)
19 Well prior to the intervention of the police you confided with varying levels of detail, about your offending, in Robyn and Lloyd Thomas in 1989 (see Exhibit B, tab 17), and in Gary Cooper in 2003 (see Exhibit B, tab 8). In November 1999 you commenced therapy/counselling with Anita Bentato, whose report appears in Exhibit B behind tab 2. Her description of your initial presentation, your exploration of your offending from 1999 onwards, and your present expression of shame and anger towards yourself, is evidence of your remorse. Each of the authors of the many testimonials know of the charges that you face and the factual basis for those charges, although the level of detail of which they are seized varies. Some of your referees and fellow teachers suspect that your unusually high level of commitment to your students in school was motivated, in part, by a desire in you to punish yourself.
20 Upon being charged you resigned from your teaching position at a special school. This action was motivated by your sense of shame. You have lost your career. You have become a recluse. You have lost a great deal of weight and have been observed by those who care for you to have given up on life, not caring about your personal appearance or at times cleanliness and not bothering to eat.
21 Your referees, all of whom were present in Court to support you on you plea, state that the conduct which brings you before me is entirely out of character.
22 Physically, you are in a pitiful state. You have not enjoyed good health for many years. Your referees speak of you dealing with your ill health by devoting all your time and energy to your students and your school and so ignoring the pain which you suffered as a result of your physical disabilities.
23 The report of Dr Gail Reid (Exhibit B, tab 3) lists your many ailments. You have undergone surgery on your foot, ankle, left hand, lumbar spine (L4/L5 laminectomy), clavicle and bilateral total knee replacement. You await surgery on your right hand and discectomy at the C5/6/7 levels. Further, Dr Reid opines that you have “had an impeccable work ethic, refusing on many occasions to take time off work”. Surprisingly, you have only recently been prescribed anti-depressant medication which seems to have assisted you to some degree.
24 In your case there has been a 27 or 28 year delay between the commission of the offences and being brought to court for them. In your case this is a powerful mitigating factor. By your work and commitment to others you have undertaken a lengthy process of rehabilitation. Your health, both mental and physical, is fragile and this would make service of a sentence of imprisonment more onerous than usual. Because of the nature and circumstances of the offending and your present circumstances I am satisfied that there is no risk of you re-offending. Further I am satisfied that you do not need to be specifically deterred because of the way you have conducted yourself over the last 27 years. However your offending must be denounced and you must be punished. General deterrence must play a significant role in the sentence that I must impose on you.
25 Your conduct, grave though it was, was out of character and has not been repeated by you. It was submitted on your behalf that you are not a lesbian by way of sexual orientation, indeed you could today be described as asexual.
26 Dr Wauchope opines:
“My clinical assessment is that there are no signs that Ms Lyons has any concerning obsessive sexual thoughts, fantasies or views, and there are no signs of any psychosexual disorder or paraphilia.”
27 You are presently 58 years of age, a mature woman with two adult children, yet you are described by Dr Wauchope “as an extremely troubled and emotionally immature and emotionally dysfunction woman as a result of the abusive and rejecting childhood she suffered”.
28 I am satisfied that you are remorseful. Not only is this attested to by your many referees, but it is also evidenced by your plea of guilty and the time at which it was entered. By your plea you have accepted responsibility for your offending and shown a willingness to facilitate the course of justice. You are entitled to the full benefit of your plea of guilty.
29 During the course of your plea, I was referred to a number of sentences of this Court and decisions of the Court of Appeal that dealt with offending not dissimilar to your own and which I have read but, as was said in Hudson v R (2010) 30 VR 610 at [28] and [29], these at best can provide a general guide or impression as to the appropriate range of sentence. I must sentence you for your offending which is a unique exercise.
30 I must have regard to current sentencing practices, an issue that was but faintly raised by Senior Counsel representing you. It seems to me that by having regard to the maximum penalties applicable to your offending, which are much lower than the maximum penalties that would apply to you should your offending have been committed today, as well as the nature of your offending which was, in part, penetrative and the way offences of that kind are presently viewed, I can reflect current sentencing practices and so arrive at a sentence which is just in all the circumstances.
31 I intend to sentence you to a term of imprisonment in respect of each of the charges. Accordingly, in respect of Charges 3 and 4, you will be sentenced as a serious sexual offender, and I must regard the protection of the community from you as the principal purpose for which the sentences on Charges 3 and 4 are to be imposed.
32 The Crown does not submit that in order to achieve that purpose, a sentence disproportionate to the gravity of your offending is required.
33 I sentence you as follows.
34 On Charge 1, 9 months’ imprisonment.
35 On Charge 2, 18 months’ imprisonment.
36 On Charge 3, 9 months’ imprisonment.
37 On Charge 4, 24 months’ imprisonment.
38 I treat Charge 4 as the base sentence and I order three months of Charge 1, six months of Charge 2 and three months of Charge 3 to be served cumulatively upon Charge 4, resulting in a total effective sentence of three years. I order that sentence to be wholly suspended for an operational period of 36 months.
39 I order that it be entered in the records of the court that in respect of Charges 3 and 4 you are sentenced as a serious offender.
40 Consequent upon your conviction for these offences you become a registrable offender under the Sex Offenders Registration Act 2004 and it is mandatory that you be registered under the Act and that you are subject to the reporting obligations under the Act for life.
41 Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have sentenced you to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years.
42 You may sit down, please, there are some further matters that need to be dealt with. Ms Lyons, would you listen to me, please, I need to tell you this; that should you commit an offence punishable by a period of imprisonment within the next three years you will breach your suspended sentence. You will be punished for whatever offence you have committed and you will come back to me. Unless you could demonstrate exceptional circumstances the period of imprisonment which I have imposed upon you will be restored.
43 In respect of the provisions of the Sex Offenders Registration Act my associate has a number of documents that he needs to show you that you acknowledge the orders that I have made in respect of that and that you understand them.
44 You have a matter to raise, Ms Dixon?
45 MS DIXON: No, there's no matters to raise thank you, Your Honour.
46 MR BALLEK: Your Honour may be going to do this but there's the 464 application.
47 HIS HONOUR: I beg your pardon.
48 MS DIXON: My client consents to the forensic sample, Your Honour.
49 HIS HONOUR: Yes. Mr Ballek, I am uncertain that a draft order was handed up last time. I certainly do not have it within my records. That may be my error. Do you have a draft order with you?
50 MR BALLEK: My instructor does appear to have - - -
51 HIS HONOUR: That is very kind of you, could I have that photostatted - three times, please? Unless there are three copies there. Thank you very much, Mr Ballek.
52 It appears that my personality has changed. I have become Judge Dean overnight.
53 MS DIXON: I think he was originally listed to hear the matter, Your Honour.
54 MR BALLEK: I think they were prepared in advance and I apologise for that.
55 HIS HONOUR: That is why I am reasonably confident we did not get a copy.
56 MR BALLEK: Yes I think we would have picked that up, Your Honour.
57 HIS HONOUR: I am reasonably confident that I would but I will just amend that.
58 Ms Lyons, I want you to listen to me, please. I have made an order that you undertake a forensic procedure, namely the scraping from your mouth and in order for that to take place you are to report to the officer in charge of the Knox police station during the period of four weeks commencing 28 days after this sentence. I have made the order because of the seriousness of the circumstances of the offending, that it was consented to and that the granting of the order is in the public interest. I need to inform you that if you do not consent to the taking of this sample under the supervision of an authorised member of the police then force may be used for the purposes of the taking of that sample.
59 Your instructor may wish to go with my associate, Ms Dixon.
60 MS DIXON: Yes, thank you, Your Honour.
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