Director of Public Prosecutions v Ooms

[2023] VCC 492

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BAIRNSDALE

CRIMINAL JURISDICTION

CR 22-02283

DIRECTOR OF PUBLIC PROSECUTIONS

v

MONIQUE FRANCES OOMS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Bairnsdale
DATE OF HEARING:	8 March 2023
DATE OF SENTENCE:	24 March 2023
CASE MAY BE CITED AS:	DPP v Ooms
MEDIUM NEUTRAL CITATION:	[2023] VCC 492

REASONS FOR SENTENCE

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms K. Rolfe	Sullivan Braham Barristers & Solicitors

HIS HONOUR:

1Monique Frances Ooms, you have pleaded guilty to four charges of sexual penetration of a 16 or 17 year old whilst they were under your care and supervision.  That crime carries a maximum penalty of 10 years' imprisonment.  The crimes here did involve penetration.

2I point out from the outset that there is real difficulties in terms of applying this section.  It is not penetration of a child under 16 which of course carries a maximum penalty of 15 years with a six year standard sentence.  This is a situation where the victim was within a month of his 17th birthday.  Questions of the consent, the presumption of harm.  There are all sorts of questions that are going to have to be answered in time in regard to this particular section.  I have asked counsel and they have been unable to find any comparable cases.  I have made investigations of my own and so have I.  I think at the outset I will simply say that whilst there are a number of matters that have to be dealt with I still have to look at this matter in its own single situation, though my anticipation would be that in the normal course of events this offence would call for an active custodial sentence.  I will simply leave it at that.

3You are 31 years of age.  You pleaded guilty at the first reasonable opportunity.  I accept that you have appropriate remorse, indeed shame, at your offending.  I accept that you now have insight into the potential dangers to your victim, if I can put it that way, and the psychologists have pointed out that you really do regret what you have done and understand the consequences of it.  You must get the utilitarian benefit of that plea of guilty.  Particularly in these times of Worboyes pleas such as this give a relief to the justice system and there must be a recognisable discount given for it.  You have no prior convictions and you have no subsequent matters pending.

4The offending in the normal course of events would have to be regarded as serious.  In the normal course events would have called for general and specific deterrence, denunciation and appropriate punishment.  Because of the offences you will be placed on the sex offender's registration.  You will become liable for sex offender's registration.  I advise you that the reporting period will be for life.  You are presently in a different courtroom to what I am and accordingly I put on transcript that I will not be able to have my associate give you that.  It will be forwarded to your legal practitioners, who I trust will be able to forward it on to you.

5The circumstances of the offending are that between July 2022 and

[1] A pseudonym.

August 2022 you offended by having sex with a young man, Bentley Wagon,[1] whilst he was under your direct care and supervision.  As the Crown opening points out, whilst there were four charges, it went on for longer than that and there are probably around about 10 or a dozen acts of penetration during that period of time.

6You were 30.  He was 16 and only a few weeks short of his 17th birthday.  He was a student where you were employed as a teacher and you were teaching a variety of classes across a couple of campuses from Year 7 to 12.

7The victim suffered the loss of a close friend in 2022.  That affected his mood, behaviour and overall demeanour and it became noticeable to his friends and obviously other school teachers and obviously to you.

8You were in a situation where at approximately a couple of months before that you had had a relationship that you were in end when you were found to be infertile.  Your partner, if that is the correct term at stage, had persuaded you to cease medication, and when that information came in he decided that he was not going to pursue a relationship with somebody who was mentally unwell and infertile.  I have no doubt that over the next period of time your vulnerability to irrational thinking would have been increased by that.

9In any event, you approached Wagon about a week after the loss of his friend, having noticed his general behaviour, and began to give him assistance in terms of dealing with that.  What followed was that an utterly inappropriate relationship formed.  I might say from the outset I do not find that this offending was in any way, shape or form predatory.  I think it is a situation that arose out of, as I have said, an utterly inappropriate relationship that escalated.  You were both aware of the legal wrongness of law, but it continued.  What happened was that you exchanged usernames, eventually started exchanging text messages.  Those text messages were just initially friendly with you supporting him, but over a period of time escalated to a point where you were texting each other, saying things like, 'Love you', and, 'I miss you'.

10Of concern, obviously, is that you on occasion sent him photos of yourself in your underwear.  I have taken that into account when determining whether there is a basis of predation in this, in the ultimate finding in your favour on that point.

11Some time in July Wagon messaged you, requesting that you meet up.  He snuck out of his family home.  You picked him up, took him in a car out near Rosedale.  You sat in the car and eventually kissed.  During that incident you had discussions with him about the appropriateness of a relationship between a teacher and a student and the second time the two of you met he again snuck out of his home late at night.  You again went to the same area and after a discussion about teacher/student relationships you have then had sexual intercourse with him, which is Charge 1.  That occurred a number of times in the car, as I understand it.

12Subsequently the two of you decided to start having sex at your house in Maffra as it was more comfortable and that was some time in July that that occurred and the last incident would have been some time in late July or early August.  I am not going to go into the detail of what actually occurred on each of those occasions.  Essentially it involved oral sex and penile penetration and I do not think anything else need be said about it.  Eventually the school received correspondence saying that you were having a sexual relationship with Wagon and notified police.  You were immediately, as I understand it, suspended from teaching.

13There was then a situation where Wagon was asked to make a statement and denied that these things were occurring and said that you and he were just friends.  After leaving the police station he warned you that the police would contact you and to delete the messages between you.  In the meantime you had made significant admissions to other people that you had committed the offending.  When you were interviewed, you were not prepared to admit it but I accept that you very soon thereafter did.

14After Wagon had warned you, you did delete a number of messages.  The police were able to recover them.  Ultimately police then rearranged a meeting with Wagon and he made a VARE tape in which he admitted to having sex with you.

15I think in this situation where I have got to look at the individual aspects of these, and I am not, I make it clear as I tried to before, I am not talking about presumption of harm and the like.  This more goes towards being predatory I suspect.  He was asked, 'Is there anything else you'd like to tell me about?'  And he said:

'If I'm being completely honest I know at the end of the day it's probably not considered at all, but I just - and you guys probably see it as she, you know, trying to get to me, but I just want to say that she's very nice, she's a very nice person and I know - I know for a fact that she wasn't trying to get at me to try and be a predator or anything like that and I believe that she genuinely had feelings for me and I know I did. 

As much as it's wrong, as much as I knew it felt wrong, I just - I know that she - she's not like that and I feel that I'm now, you know, making the right decision by saying that 'cause I just want to make sure that's clear on how
- how I feel.  It's because I just didn't want - I never wanted it to end like this and I never wanted her to feel, you know, have to cop it.  So I just wanted to make sure that I've made it clear that I feel that she - she didn't mean it in the way that it's typically done I guess you could say, when a teacher tries to get to a student'.

16If that was coming from a 13 or 14 year old I would probably give little credence to it but this is coming from a teenager who is very close to his 17th birthday, and when I sentence in this matter I accept his appreciation, if I can put it that way, of the situation.  He said that you were good to him in times of need and that he valued your friendship.

17I make it very clear that what I am saying about the nature of the relationship in no way, shape or form affects general deterrence.  This is a serious crime.  General deterrence has to play a very significant part in it.  I am just simply trying to look at the individual situation in which you find yourself.

18I have before me a victim impact statement from Wagon’s mother, and she very eloquently and understatedly in a way describes the impact this has had on her and so on the family.  She shows the natural concern of the mother for her boy and she said it was an exceptionally hard thing to do, writing that victim impact statement out.  She is very worried about how this may affect him in the future.  That is one of the reasons why general deterrence must play a part.  His way of dealing with it is to put his head in the sand, is probably an unfair way of describing it, but he just wants to get on with his life and make an end of it all, but I can understand that and I can certainly understand the concerns of his mother.

19In terms of this sort of offending that is one of the natural consequences of it, is the damage it does to the family of the victim and friends and especially in a country town, where this all occurred.  It is clear from her victim impact statement that many people are aware of it all and have applied pressure to him and to his family.

20Insofar as the objective seriousness of it is concerned I am satisfied there is no pressure at all put on him.  It is put by your counsel that the relationship was of short duration.  That is true but on the other hand, as I understand it, it only ceased because of disclosure.  I have already said I do not think it was predatory.  He was vulnerable himself in that situation, but again I do not mean vulnerable in the sense of you being predatory.  It was simply a situation where neither of you was thinking particularly straight and you were the one with the responsibility, not him.

21As I said, it developed from inappropriate behaviour.  There were no gifts, no threats, nothing along those lines.  As I say, I have got nothing to compare it to in terms of comparable cases but it is important to, I think, remember that he was over 16.  If he was under 16 this may have been a very, very different outcome.

22I then look to matters personal to you.  I have already indicated the last time that I was not going to incarcerate you and I had you assessed for a community corrections order.  That report has been provided to me and you have been found to be acceptable.  I am going to impose a community corrections order and I say that at the outset it will be a very significant one in these circumstances, and I will go through that more in a moment, but it will be of four years' duration and there will be 300 work hours together with a raft of treatment conditions, and I also pointed out last time that the reason I was not imposing a custodial sentence, or the principal reason, was because of your fragile mental state, and that needs to be explained and described in a certain amount of detail.  Again, as I have already said, the usual course of events for this charge, I suspect, would be custodial, but I then look at you and your personal history and I think you are in a very invidious position.

23Firstly, there is clear material that you are of good character.  There are no priors of any description.  There has been nothing subsequently.  I have references from your present employer where you are doing an apprenticeship.  I have a reference from the CFA in Maffra, all of which speak very highly of you.  You are clearly a community minded person and over the years have engaged yourself in community projects.  Your plea of guilty was early and I have already indicated there is remorse, indeed, shame associated with it.

24Since you have been charged with this your mental health situation has been parlous but to your credit you firstly obtained a job in the pharmacy in Maffra, but had to leave that because effectively there is going to be boycott apparently or a threatened boycott if you were allowed to keep working there.  You got a job at the Lindenow pub.  You lost that for the same reason.  You were suspended from the CFA, which effectively has put an end to that, as I understand it.  You were going to train to play football. 

25That put an end to that, and essentially in a country town since you have been charged you have become a pariah.  There is a reference from people who have been looking after you, saying that you were subject to threats in the street, that you have been yelled at and ridiculed.  That can obviously, and especially in a country town be a natural part of what is going to happen if you are accused of something as serious as this, but it is pretty clear that the level of that abuse and vilification for somebody who is as mentally fragile as you, as I have no doubt in the last few months caused further suicidal ideation, and I will come back to that in a moment.

26So far as extra curial punishment is concerned one has to be careful of that but I do find that this has gone beyond what might normally be expected, to be a situation where it is effectively extremely difficult for you to have got work, for you to have kept going in that circumstance and that you now have a very supportive boss gives me a certain degree of confidence.  The public opprobrium is, I suppose, a natural consequence of this type of offending and again, it has gone to a fairly extreme level with a person as fragile as you.

27Your counsel gave very helpful and very succinct submissions, if I may so, and I do not need to go into great detail about your childhood or the like.  You are the youngest of two daughters.  You went to a high school in Mount Eliza and at school you had significant bullying.  You had serious feelings of isolation.  You struggled academically.  You had education support through your school years.  You were given additional literacy and numeracy support and clearly had problems.  In any event, you were sufficiently determined that upon finishing high school you completed a Pathways course, that is a
Diploma of Tertiary Studies at Monash University, and were able to get a Bachelor of Outdoor Recreation education double degree at Monash University.  You finished your degree in 2013, graduated in 2014 and worked in various schools since then.  Up until the time of being charged with this it is clear that you had a good work record despite the difficulties you had in your childhood and earlier life.

28In 2022 you moved to Gippsland and commenced your position at the victim’s school.  I have already indicated what happened earlier in that year so far as the relationship that you were in was concerned, and this offending occurred in that context.  I am told by your counsel, and I accept, that in that period of July through August other teachers were concerned about your mental health as well as, obviously, very concerned about Wagon’s mental health as well.  I do not have the exact details of all that but I certainly take into account that you were probably unwell when making these criminal decisions.  There is no other way to describe them really.

29Insofar as your mental health is concerned it is a situation where in 2012 you lost a cousin to suicide.  That cousin was aged 19 and the two of you were very close and shared a very strong bond.  She, as I understand it, suicided because of bullying.  You yourself have been bullied severely and you sought to raise awareness of suicide by joining a group called, 'No More Angels Lost to Bullying'.  You started playing football in 2017.

30In 2018 I accept on the material before me that you were in fact raped.  You accept on the material that you were raped.  I will be referring very briefly to some of the psychological reports and psychiatric reports in a moment.  The circumstances are that because of all the difficulties you had as a child, because of the difficulties involved, the loss of that cousin and that suicide, and because of that rape, you have now been diagnosed as having complex post-traumatic stress disorder, you have been diagnosed as bipolar, you have been diagnosed as having extreme anxiety, extreme depression, and a raft of other things.  I will go through those again in a moment in a tiny bit more detail.

31Since 2013 you have been in psychiatric institutions and hospitals on multiple occasions.  You have been sectioned on a number of occasions, both in Frankston and in Sale.  Indeed, since this offending came to light in February of their year you were an involuntary psychiatric patient at Sale Hospital, as I understand it.  In 2013, 14, 2019 your medical history shows you being diagnosed post-traumatic stress disorder, emotionally unstable personality disorder.  There have been acute admissions.  There has been suicidal ideology.  It is just a litany of mental disaster.

32You have on the material severe complex post-traumatic stress disorder symptoms.  You have nightmares, flashbacks, extreme stress.  That would appear to be principally related to the rape but of course complex post-traumatic stress disorder is a combination of many factors over a significant period of time.  I was given a number of reports from a treating psychologist and from various other people who know you and who have dealt with you, and I think I will probably just read a short portion of some of those reports which give an indication of the difficulties that you have had.

33Your current psychologist, Dr Williams, who was not treating you whilst this was occurring, possibly because of that former partner, I do not know, but she said:

'Ms Ooms has described an early history coloured by significant trauma, where she grew up in a hostile environment characterised by a great deal of emotional and psychological abuse.  Exposure to such toxic environments often leads to poor development of a healthy sense of self-ability and an ability to engage in relationships effectively.  It is my opinion that Ms Ooms' low self-esteem and poor sense of self have significantly contributed to immature and poor judgment when making decisions regarding relationships throughout her adolescence and childhood'.

34She described your current mental state as quite unstable.  The psychologist, Megan Rodgers, saw you and she confirmed the diagnoses of post-traumatic stress disorder as well as borderline personality disorder.  She pointed out that you have been engaged with mental health professionals since your teenage years.  She said that you were, in terms of this matter, appeared anxious, ashamed and depressed and that that mood was congruent with that and it was consistent throughout the interview.

35I do not need to go through your personal history at home in any detail.  Once you did start to have relationships your first serious relationship was with a man who was three years older than you.  He was physically abusive.  You then had a relationship with a married man, who was also physically and sexually abusive towards you.  His wife, apparently, was encouraging you at one stage to kill yourself.  Even after that was broken off he continued to stalk you and you eventually had to get an intervention order against him.  Each relationship that you have ever been in seems to have involved a degree of either degradation or abuse.

36You reported to Ms Rodgers of being ostracised in the community:

'Including being verbally abused when she walks her dog, being refused service at the supermarket due to her offending, being unable to train with the local football team and having her employment terminated at a local pharmacy'.

37I have already mentioned you also lost the job at the Lyndenow pub.  She goes on to say how often you have been hospitalised for mental health conditions and you have been in psychiatric wards in Sale, Traralgon and Frankston.  You do not want to be admitted to those facilities again and I can probably understand why that is.  A number of those admissions, from what I can gather, have been compulsory.  You are currently on medication for it and I have had a letter from your local doctor indicating the level of medication that you are on, trying to deal with these issues.

38It is MIND, the group in this area, who report in September 2022 from the Latrobe Valley Community Health Team, after you had been assessed and went onto a program and what they said was this:

'I've been working with Monique on a regular basis for the last four months'.

39And this is in early March.  This is indeed one on one face to face support along with phone support:

'Throughout the time I've been working with Monique it has become clear to me that her longstanding mental illness and the struggles she has with her chronic anxiety and depression significantly impacts heavily upon her own daily life'.

40It then goes on to say it is an impacted mood behaviour and all sorts of other things.  There is a report from your general practitioners from when you were a child and that basically supports what the other reports have said.  As indicated, I have got a letter from your boss, which says that you are working as an apprentice bricklayer and doing well at it.  He says that you have been very honest in telling him more about these matters, but that your depression and the like sometimes causes you to leave work early as you become too upset to perform that work.

41I also have, which I have already mentioned, a reference from the
Maffra Fire Brigade.  Having been brought up in the country I understand the significance of a reference from such an organisation and it certainly would not be given lightly.  The man who sent that reference describes how you were forced to resign from a job in the local store, with threats being made to you in public, that you had been forced to hide yourself from the public, that you had been enduring abuse yelled at you from members of the public in passing.  He points out that your membership with the CFA has been suspended and he points out that you have made a very valuable contribution to the CFA while you were in it in Maffra and had your suspension as a loss both not only to you but to your community.

42There is also, again I think I have indicated, a letter from a person who has effectively take you in because of the ostracising of you in Maffra, and she said of you:

'Monique has told me everything about the charge, that she was embarrassed and very remorseful.  She's been abused and harassed to the point of suicide attempts, self-harm and suicidal ideation'.

43The report from Latrobe Regional Hospital again just simply confirms those matters, describes a past history of cutting.  There have been a number of suicide attempts and the admissions to psych wards.  It also points out the various medications you are on for these conditions.

44As I said at the outset, I think the normal situation here or the usual situation would be a custodial sentence, but in this particular set of circumstances it is clear that your risk of reoffending is low.  I am very conscious, very conscious indeed, of general deterrence.  I have to look at what the community expectation would be and, indeed, in the normal course of events community expectation would be, I think, a pre-emptive custodial sentence but, as I pointed out, this is not a charge of sexual penetration.  It is a charge in its own right and the real crime is having engaged in a relationship whilst you were a teacher, not with a child effectively being unable to consent.

45When I look at all of those matters and I look at the matter personal to you I think it is a very unusual situation in your personal circumstances, and I think it justifies the imposition of a non-custodial sentence.  The principles involved in Verdins I think clearly apply.  The overall circumstances which your mental health placed you in, I think gives rise to a reduction, albeit perhaps moderate in terms of moral culpability.  I have got no doubt that if you were put in a prison environment it would be catastrophic for you and I am taking that into account.  I have had you assessed for a CCO and I have read that report, as have indeed certainly counsel, and I do not think what is contained in there is a bluff.  I think that for you to be imprisoned would cause extreme problems for you.

46So in any event, whilst taking all those matters into account, and your rehabilitation is well underway, you are endeavouring to be a part of your community and, as I have said, the risk of reoffending is low.  Accordingly, what I am proposing to do, if you agree, is to place you on a community corrections order.  It will be with conviction, which is a punishment in itself, and it will be a very significant community corrections order.  It will be for a period of four years.  There will be 300 hours of community work.  There will be supervision.  There will be treatment and rehabilitation for mental health.  There will be treatment and rehabilitation for programs to reduce reoffending, which I have got no doubt will incorporate the sex offenders program, which is a very onerous program, particularly for somebody who is living in the country, and I will be also ordering that any hours spent doing programs is to be deducted, or can be deducted, from the 300 hours' work component that I have put into it.

47There are other matters in that report which I am certainly taking into account that I do not think need to be expressed here.  All parties have had the opportunity of reading that and I simply take it no further.

48So do you agree to that?  I can take this verbally under the COVID legislation.  Ms Ooms, you agree to - can I get her - - -

49OFFENDER:  Yes.

50HIS HONOUR:  Yes, you agree to that community corrections order?

51OFFENDER:  Yes.

52HIS HONOUR:  You understand that if you breach it, certainly by this sort of offending, there will be no option, all right, you will be going to gaol for sure, all   right?  All right.  In that situation if you are still prepared to agree to that I do not need you to sign it.  I can just simply say, 'Agreed', on the form which, as I say, can be done under the COVID legislation.

53Section 6AAA.  I have got no idea.  In this situation I will simply say it would have been a custodial sentence and I will leave it at that.  There are a number of factors involved here which I do not want to be seen to be determining absolutely, so I will just simply say a 6AAA custodial, but in this situation with all those facts, together with the plea of guilty I am not going to do that.

54All right, any other orders I need to make?

55MR MOORE:  No, Your Honour.

56HIS HONOUR:  No.  Look, I can also indicate, and just a matter for counsel, I really have concerns about how - when this charge comes up again about how to approach it my - as I said to you a previous time, I think judges are conditioned to treat it as an underage - everyone I have ever had has been under 16 and this conditioning.  I do not want to - as I said the other day, I do not want to make a guineapig of her, and I think that what I have done is - I obviously think that what I have done is the appropriate disposition.  I have deliberately avoided making pontifications of determinations in those matters because there has not been a proper argument for it.  I will simply say this, that the reasons I have given will not change but it is subject to revision.  If things I have said do not make a lot of sense I might try and clarify them a bit more because I certainly have not written this out.  It is more just how I perceive it.

57All right, so, yes, there is nothing else that needs to be done?

58MR MOORE:  No, Your Honour.  Those reasons are clear to me.

59HIS HONOUR:  Yes.  As I say, it is - yes, I will certainly leave it at that.  I think at some stage someone is going to have to sit down and really work with this charge, work out what this charge means but, yes, look, I will say no more in case I get myself into trouble.  So yes, all right.

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