Director of Public Prosecutions v Phan

[2025] ACTSC 423

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Phan

Citation: 

[2025] ACTSC 423

Hearing Date: 

30 January 2025, 18 July 2025

Decision Date: 

18 September 2025

Before:

Baker J

Decision: 

See [100]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency on a person under 16 – grooming – use carriage service to possess child abuse material – persistent sexual abuse of a young person under special care – act of indecency – offender sentenced to five years and six months’ imprisonment – non-parole period of three years and six months imposed – recognizance order not made

Legislation Cited: 

Crimes Act 1900 (ACT) ss 56, 60, 61, 66

Crimes Act 1900 (NSW) ss 73, 73A

Crimes Act 1914 (Cth) ss 19AC, 19AJ

Crimes (Sentencing) Act 2005 (ACT) pt 4.4, ss 33(1)(c), (za)

Criminal Code 1995 (Cth) s 474.22A

Cases Cited: 

Director of Public Prosecutions v Padreny [2024] ACTCA 4

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

Hili v R [2010] HCA 45; 242 CLR 520

Morrison v Maher [2021] ACTSC 312

O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244

R v AEM [2002] NSWCCA 58

R v Campbell [2010] ACTCA 20

R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32

R v Pham [2015] HCA 39; 256 CLR 550

R v White [2023] ACTCA 35

Texts Cited:

Explanatory Statement, Crimes Legislation Amendment Bill 2012 (No 2) (ACT)

Parties: 

Director of Public Prosecutions ( Crown)

Angela Phan ( Offender)

Representation: 

Counsel

D Swan ( Crown)

J Sabharwal ( Offender)

Solicitors

ACT Director of Public Prosecutions

Tim Sharman Solicitors ( Offender)

File Number:

SCC 188 of 2023

BAKER J:      

Introduction

1․The offender, Angela Phan, has pleaded guilty to the following offences:

(a)Act of indecency on a person under 16 years (course of conduct charge), contrary to s 61(3) of the Crimes Act 1900 (ACT) (CAN 6277/2023), committed against the first victim;

(b)Grooming, contrary to s 66(1)(b) of the Crimes Act (CAN 9567/2022), committed against the first victim;

(c)Use carriage service to possess child abuse material, contrary to s 474.22A(1) of the Criminal Code 1995 (Cth) (CAN 10072/2022), committed against the first victim; and

(d)Persistent sexual abuse of a young person under special care, contrary to s 56(1) of the Crimes Act (CAN 2689/2023), committed against the second victim.

2․Pursuant to a list of additional offences dated 30 January 2024, the following offence is also to be taken into account pursuant to Part 4.4 of the Crimes (Sentencing) Act 2005 (ACT) when sentencing the offender for the offence of persistent sexual abuse:

(a)Act of indecency, contrary to s 60(1) of the Crimes Act (CAN 11992/2022), committed against the third victim.

3․The maximum penalties for these offences are as follows:

(a)Act of indecency on a person under 16 years – 10 years’ imprisonment;

(b)Grooming – 7 years’ imprisonment;

(c)Use carriage service to possess child abuse material – 15 years’ imprisonment

(d)Persistent sexual abuse of a child or young person under special care – 25 years’ imprisonment;

(e)Act of indecency – 7 years’ imprisonment.

4․The matter was first listed for sentence on 30 January 2025. The proceedings were then adjourned to 17 April 2025 to allow counsel for the offender time to seek a new Pre-Sentence Report (PSR) for the offender, a PSR not previously being fully prepared as a result of a misunderstanding between the offender and Corrective Services. On 14 April 2025, the matter was again adjourned to 18 July 2025, as the new PSR did not cover all relevant issues, specifically the offender’s likelihood of sexual reoffending. The matter was then heard to completion on 18 July 2025.

5․The offender comes before the Court to be sentenced for the above offences.

The offences

Background

6․From 2016, the offender was the owner and operator of a bakery in Gungahlin, ACT. The offender’s then romantic partner, Ms Tegan Ficken, also worked at the bakery. At the direction of the offender, Ms Ficken hired several casual staff, predominantly young girls aged between 14 and 20, including the first, second and third victims.

7․The offender was responsible for managing the roster of the casual staff, and worked at the bakery every day. The offender would often discuss her sex life in front of the younger female staff at work.

8․The offender encouraged the female staff, individually and in groups, to discuss their sexuality and sex lives, whether they were achieving orgasms and how many sexual partners they had had. The offender would also compliment the female staff on their appearances.

Offending against the first victim

9․The first victim commenced working at the bakery on 27 August 2018, when she was aged 14 years and 9 months. The offender was aged 24 years at the time, and interviewed, hired and was present for the first victim’s training. The offender was aware that the first victim was 14 years old.

10․The first victim worked two shifts each week, each of two and a half hours’ duration. The first victim recalled the offender was initially formal in her interactions with her. She often felt excluded by the offender at this time.

Grooming – CAN 9567/2022

11․The first victim turned 15 in November 2018, after which the offender began to pay her more attention. The offender began initiating conversations, giving the first victim leftover food from the bakery and offering a lift home. The offender and the first victim began to grow closer together and began exchanging text messages outside of work. As the relationship intensified, the offender became the first victim’s primary confidant. Both the first victim and the offender discussed their respective traumas with each other.

12․The first victim’s parents noticed a change in her behaviour, and in around March or April 2019, the first victim broke up with her boyfriend at the time. The text messages that the first victim was having with the offender became more sexual, with the offender encouraging the first victim to discuss her sex life. The offender encouraged the first victim to experiment with masturbation, and told her she found it “really hot” when girls did that and that the offender liked it when girls did it in front of her. During work hours, other staff observed that the offender would initiate sexual conversations with the first victim, flirt with the first victim and touch her inappropriately.

13․The offender told the first victim to lie to her parents about their relationship. The offender “made a rule” that they should not text after 10:00pm and told the first victim to change her (the offender’s) contact name in her phone so as to avoid detection.

14․The offender’s then partner, Ms Ficken, noticed the offender and the first victim had become close. In around May 2019, Ms Ficken confronted the offender and told her “she's 15-years-old, you need to stop doing this”. The offender told Ms Ficken she could not see any issue with their relationship and that they would only discuss work and school matters. Ms Ficken continually questioned the offender’s relationship with the first victim, which created ongoing conflict between Ms Ficken and the offender.

Act of indecency with a person under 16 – course of conduct – CAN 6277/2023

15․On a day in July 2019, the first victim attended the bakery for her shift. The offender was the only other person working at the time. As the shift continued, the offender began to initiate physical contact with the first victim, which included standing behind her and running her fingers down her legs.

16․The first victim told the offender that her last date had been a bad kisser. The offender said words to the effect of “oh, have you ever had a good kiss?”, “I can show you how to give good kisses” and that this was just a “mutual friend thing”.  

17․The first victim told the offender she was unsure as she had never kissed a girl before. the first victim was curious about her sexuality and trusted the offender. The offender led the first victim to an area of the bakery out of view of CCTV cameras and kissed her. The offender said words to the effect of “that was more intense than I thought it would be”, that she “felt a really deep connection” and that they should try again after the shift.

18․Later during the shift, the first victim and the offender kissed again. The offender ran her hands through the first victim’s hair, held her waist, pulled the first victim on top of her and used her tongue. The offender was sitting on the floor and the first victim was sitting on her lap, straddling her. The offender and the first victim kissed in this position for around 3-4 minutes.

19․The following day, the first victim was working at the bakery with the offender and two other girls. The first victim felt the offender was paying the other girls more attention than her. After the offender and the first victim took the bins out together, they went into the disabled bathroom. The offender sat on the toilet and said “I’m so tired”. The offender learnt forwards and pulled the first victim towards her and then onto her lap. The offender then started kissing the first victim’s neck, pulling her hair back, moving the first victim back and forth on top of her and touching her buttocks and breasts. The first victim recalled this lasted around 5 minutes and was more intense than the previous two kisses.

20․The offender increased the first victim’s shifts to up to four times per week so they could see each other more frequently. Whenever they were alone during a shift, the offender would come up behind the first victim and kiss her neck. The offender made a rule that she and the first victim were not allowed to have sex. However, the offender would touch the first victim’s buttocks and breasts over her clothes, and rub her genitalia on the outside of her underwear. She would also hold the first victim tightly, softly bite her neck and lip, and press her nails into the first victim’s skin. This was sometimes too intense for the first victim.

21․The first victim began to stay late after every shift so they could kiss more often. Over the next month, this conduct occurred during the four shifts the first victim worked each week. The offender also continued to message the first victim outside of work.

22․On 26 or 27 August 2019, the offender and the first victim had an argument over the phone. The first victim told the offender she wouldn’t be able to speak to her much as she had exams that week. The offender became angry and yelled at the first victim. The offender later called the first victim on the family home phone, and apologised to her, telling her she missed her and did not want to lose her.

23․The first victim’s parents overheard the first victim on the phone to the offender, and later that evening, the first victim confessed to her parents that she and the offender had kissed, were in a relationship, and had engaged in sexual touching but that all touching had occurred over clothing. The first victim’s parents called the police and applied for a personal protection order (PPO). The first victim did not return to work and sent the offender an email saying she couldn’t talk to her anymore.

24․The offender was personally served with the PPO on 1 October 2019. In February/March 2020, the offender reinstated contact with the first victim via TikTok, while the PPO was still in force. They eventually moved their contact to Snapchat. The first victim made a fake account to hide the communication from her parents.

Using carriage service to possess child abuse material – CAN 10072/2022

25․During these communications, the offender encouraged the first victim to have sex and began telling her about her own sexual experiences. The offender told the first victim she loved it when other girls sent her nudes and asked the first victim if she had ever done that. When the first victim said she hadn’t, the offender encouraged her to do so. The first victim sent the offender an image of her in her bra and underwear, which the offender screenshotted and saved.

26․After this first occasion, the first victim began to send more and more nude images of herself over Snapchat. The offender would imply she would like to see nude images of the first victim by saying things such as “I really want to see boobs right now”. The images were initially of the first victim in her underwear but progressed to topless images and images of her genitals, which were all saved by the offender. The offender would describe the sexual acts she wished to perform on the first victim. This proceeded for 3-4 months.

27․In April 2020, the offender and the first victim began seeing each other in person. In late April 2020, the offender collected the first victim from her parents and drove to a parking lot of a golf range. The offender digitally penetrated the first victim and performed cunnilingus on her. This conduct was repeated 4-5 times. The offender dropped the first victim home at around 4:00am.

28․This conduct reoccurred on multiple occasions for a period of one month. The offender asked the first victim to become her girlfriend and introduced the first victim to some of her family. This continued until the first victim’s parents discovered she was seeing the offender again. The offender pleaded guilty in the Magistrate’s Court on 1 April 2020 for one charge of breaching a PPO.

29․The first victim and the offender reconnected one further time in early 2021, and resumed meeting up in person. The first victim’s mother discovered this was occurring, and confiscated the first victim’s phone. The first victim’s parents sought and were granted a further PPO. Following this, there was no further contact between the first victim and the offender.

Offending against the second victim

30․The second victim commenced working at the bakery in October 2020, aged 15 years. She worked two shifts during the week and on each day of the weekend. The second victim and the offender became closer in February 2021, and would hang out after work, either with a larger group of girls or with just the two of them. The second victim and the offender would also message frequently, often until 2:00am.

Persistent sexual abuse of a young person under special care – CAN 2689/2023

31․On 21 June 2021, the offender collected the second victim from her home and drove her to either Black Mountain or Red Hill. The offender parked and they remained in the car listening to music with the seats reclined. The offender and the second victim cuddled and kissed briefly twice. The second victim was stressed afterwards as the offender was her boss, and the offender drove her home.

32․The following day at work, the second victim raised that she was under 18, the offender was her employer and that the offender’s conduct was “unethical”. The offender told the second victim words to the effect of “if you don’t want to do it, then don’t do it”. They discussed liking each other during this conversation.

33․For the remainder of June and July 2021, the offender continued to collect the second victim from her home. They would drive around and engage in kissing. The offender also snuck the second victim into the family home, where they would kiss on the offender’s bed. The messaging between the offender and the second victim also became more sexual, including references to sexual acts they wanted to perform.

34․From June 2021, the second victim also sent the offender several images of herself, either in lingerie or naked. She also sent explicit videos of herself masturbating. Material would sometimes be sent in response to the offender messaging requests for “boobs”, or “pussy”. The offender also took images and videos of the second victim and herself with the second victim performing sexual acts.

35․The offender asked the second victim to be her girlfriend on 18 August 2021. The sexual activity between the offender and the second victim escalated and included digital penetration, sexual touching, cunnilingus and the rubbing their genitals against one another. This conduct occurred approximately twice a week, at the offender’s address, the second victim’s address, in the offender’s vehicle, at hotels or at the bakery.

36․The second victim ceased working at the bakery between November 2021 and April 2022, and was thus no longer under the special care of the offender from that time, although their intimate relationship continued.

37․In April 2022, when the second victim was 17 and the offender was 27, the second victim moved in with the offender after an argument with her family, and recommenced working at the bakery.

38․On 5 May 2022, the offender and the second victim moved into private accommodation together. The second victim continued to work at the offender’s bakery. They continued their sexual relationship until the offender’s arrest on 29 September 2022.

Offending against the third victim – CAN 11992/2022 (to be taken into account)

39․The third victim commenced working at the bakery in September 2019, aged 20 years. Throughout her employment the third victim observed, and became concerned about, the offender's behaviour in the workplace.

40․In approximately June 2020, the third victim was standing at the sink washing the dishes. The offender walked up behind her and placed her hands on her hips and thrusted her pelvis into the third victim’s lower back and buttocks, before walking away. On another occasion in 2021 when the third victim was bent over cleaning the fridge, the offender slapped her on her buttock.

41․The third victim confronted the offender about her interactions with the second victim, and was subsequently fired. The third victim signed an agreement prepared by the offender which stipulated that the third victim would receive two weeks’ wages on the condition that the third victim leave the bakery and not contact anyone who worked there.

Investigation and Procedural History

42․On 27 September 2022, the police executed a search warrant at the offender’s home. The police located a number of explicit polaroid photos, eight of which captured the second victim.

43․The offender made several admissions to police regarding the first victim, including that “we also started talking and it was very - you know, the same thing, sort of like, you know, kind of got along very quickly” and that they had kissed three times. The offender also told police that the first victim would send images of her breasts and genitals, sometimes in response to a request from the offender.

44․The offender also told police that she and the first victim later “engaged in kissing and sexual play”. She continued:

Everything that was happening wasn't genuine, and it's just a - a time to kill and a time to - to waste, and just sort of pull-in someone else for her small, little game. I know that - I know that at the time, obviously, you know, I admit, I was wrong. I was probably just very, you know, mind-blown and just very, like - everything was sugar-coated, so I just wanted it. You know, and it was nice to have someone paying attention to you and - and it was someone that, you know, you just got along with so well, but that - yeah, that's how I saw it afterwards. Before I didn't see it like that. Afterwards I did... I think I wanted her attention. I think I wanted someone's attention that was so smart and so creative and - and so bright with everything, and had their- their future going for them, and something that's so different to me, and something that's so nice. It was just so brand new. I - yeah, it was just how I felt a bit.

45․The offender also made several admissions regarding the second victim, including the following:

(a)The second victim had been her girlfriend for a year and a half;

(b)That the second victim was “very comfortable telling [me] everything”;

(c)That after their relationship became official in June 2021, there was “kissing here and there...but like we didn't do anything until there was, like, consent on both sides obviously”;

(d)That they were concerned about judgment regarding the age gap in the relationship, and “we had to be very secretive about it. But we both had to work a little bit harder just to get what we wanted”;

(e)After June 2021, they decided "to explore a lot with each other and sort of connect with each other in a more sexual way...actually having sex”.

46․The offender was arrested on 27 September 2022. Bail was refused on 30 September 2022, but subsequently granted on 11 October 2022. The offender has spent 15 days in custody solely attributable to these offences.

47․The offender entered pleas of guilty to several offences in the ACT Magistrates Court on 20 December 2022 and 12 May 2023. The charges were committed to the Supreme Court for sentence on 11 August 2023. On 30 April 2024, following case conferencing, the offender entered pleas of guilty to the remaining offences in this Court.

48․I will afford the offender a 15% reduction in relation to the charges relating to the first victim by reason of the early guilty plea which avoided the need for a trial, and a 25% discount of the sentence to be imposed with respect to the offending against the second victim, also in recognition of the fact that the plea of guilty has avoided the need for a trial: Director of Public Prosecutions v Padreny [2024] ACTCA 4 at [69]–[74]. The overall non-parole period will be roughly 20% less than it would have been had the pleas not been entered.

Subjective circumstances

Evidence of Mr Sutton

49․The offender’s subjective circumstances are set out in a report prepared by clinical psychologist Mr Tom Sutton, which was commissioned by the offender’s legal representatives. Mr Sutton also gave evidence before me in the proceedings on 30 January 2025.

50․Mr Sutton noted the offender has a strong social and family structure and is in full-time employment. During her interview with Mr Sutton, the offender informed him that she was then in a long-term relationship with one of the victims, the second victim. She described her partner as supportive and informed Mr Sutton they were engaging in IVF treatment to have a child together. At the hearing, it became apparent that the second victim and the offender had ceased their relationship, and the relationship had ended by the time of the offender’s interview with Mr Sutton. In cross-examination, Mr Sutton maintained that this misrepresentation had not affected his assessment of the offender.

51․When questioned further on the offender’s previous relationship with the second victim, Mr Sutton gave evidence he did not consider it to impact the offender’s likelihood of re-offending, but later conceded that the testing he administered was not specifically addressed towards that. However, Mr Sutton gave evidence the offender may “seek inappropriate partners”, due to her “interpersonal relationship issues”. Mr Sutton also did not question the offender about her motivation for offending against the first or third victims.

52․Mr Sutton diagnosed the offender with major depressive disorder, with high levels of suicidal ideation. Mr Sutton also noted the offender has “significantly elevated traumatic anxious recall of the events involved in her actions and legal predicament”. The offender reported some excessive cognitive disruption including to her memory, concentration, thinking and processing speed. Mr Sutton determined the offender is “unsure of her future and identity” and has a harsh, negative sense of self.

53․Mr Sutton further determined the offending occurred due to “poor inhibitory controls over sexual, and relationship needs and interpersonal dynamics” as opposed to “predatory antisocial characteristics”.

54․The prosecutor put to Mr Sutton that many of the facts the offender has pleaded guilty to, including encouraging the first victim to change the offender’s name in her phone and increasing the first victim’s hours at the bakery (which occurred over several months), were indicative of planning and premeditation, irrespective of what Mr Sutton’s testing revealed about disinhibition. Mr Sutton agreed that the offender was “consciously organising that”, but maintained that her behaviour was not predatory.

55․When the prosecutor referred to further facts that the offender had pleaded to, including that the third victim confronted the offender about her interactions with the second victim, and the offender’s continued pursuit of the first victim even after the protection order, Mr Sutton agreed the offender’s actions were premeditated and conscious but again maintained they were not predatory. Mr Sutton also agreed the offending against the first and second victims was similar but maintained the offender was not likely to reoffend. In support of that conclusion, Mr Sutton gave evidence that the offender did not score highly on any test for antisocial psychopathy-type disorder. Mr Sutton agreed that the offender also would not have scored highly on these at the time of offending, as the test is based upon “enduring characteristics”. Mr Sutton gave evidence that at the time of the offending, the offender was not as depressed, suicidal and anxious as she was currently, and as such, she was now less likely to reoffend.

56․Mr Sutton was also cross-examined about his finding that the offender was remorseful for her actions, when the offender had continued to maintain a relationship with the second victim. Mr Sutton gave evidence that the offender’s severe depression was not independent of contrition and remorse, but accepted that there may be multiple causes of the offender’s depression and suicidal ideation, including the fact that the relationship had ended.

Character references

57․The offender’s legal representative tendered two letters from the offender’s mother and grandmother. The offender’s mother and grandmother referred to the offender’s difficult upbringing. The letters described the family’s migration from Vietnam and subsequent financial struggles and difficulties with the language barrier. The offender’s mother and grandmother described the offender’s kindness and care after the offender’s mother was diagnosed with stomach cancer and referred to the responsibilities she shouldered in raising her younger siblings.

58․The offender’s mother described the impact that her daughter’s arrest had had on the family, including her siblings who are struggling with depression. The offender’s mother and grandmother also referred to the offender’s remorse and extended apologies to the victims’ families.

59․I will address the weight to be given to this evidence below.

Victim Impact Statements

60․Victim Impact Statements were provided by the first victim, the first victim’s parents, the second victim and the second victim’s sister.

61․In her Victim Impact Statement, the first victim described how the offender was initially hostile towards her, but gradually began paying her more attention until she became the offender’s “favourite”. She said the relationship became more sexual over time, including sexual intercourse which was often “painful and rough”. The offending caused the first victim to view verbal and sexual abuse as a normal aspect of intimate relationships.

62․The offender isolated the first victim from her parents and friends, convincing her to lie to her family and calling her parents abusive. The first victim noted that she would try to protect the offender during police interviews, stating that “I was protecting my predator for years without realising it.”  

63․After her relationship with the offender ended, the first victim’s body image and self-worth “crumbled”. She began abusing drugs and alcohol in Year 12 as a coping mechanism, and attempted suicide when she was 18 years old. She stated that “[i]t has been 7 years since the first incident, and it runs through my mind daily.”

64․The first victim’s mother and father describe how they moved to Australia in 2012, seeking a better future for their children. Both her parents described their guilt at failing to protect the first victim and being unable to keep her safe. Her mother states that due to the offender’s actions, the first victim’s “mental health, her sense of self, and her ability to trust have all been shattered.” Her father notes that the offender’s actions “have caused immeasurable psychological damage and trauma not only to [the first victim] but also to us parents.”

65․The second victim described her relationship with the offender as “extremely toxic”. The offender encouraged the second victim to stop contact with her friends, and would get upset when the second victim spent time with family, causing the second victim to reduce her time with her family. The second victim noted that she and the offender would fight often, and that she was unable to talk to anyone about what was happening.

66․Since leaving the relationship, the second victim has struggled to open up to people, and finds it difficult to make friends. Her self-image has been damaged, and she feels like “less of a human being and more as a toy or game” because of the offending. She is worried that she will struggle for the rest of her life, and she notes that “[the offender’s] disgusting actions have caused me a life’s worth of pain and healing.”

67․The second victim’s younger sister described how the second victim became “unrecognisable” while in the relationship with the offender. She stated that her own relationship with the second victim was “ruined” during this time. She describes her feelings of sadness, loss and anger, as well as blaming herself for not immediately informing others about the second victim and the offender. The second victim’s sister described how the second victim has had to work hard every day to move forward, and how the second victim has a “long journey of discovery ahead of her”.

Pre-Sentence Report

68․The PSR dated 22 January 2025 disclosed that the offender failed to engage with the service for the purpose of the report. Multiple letters were sent to the offender’s address requesting her attendance at interviews. Each time, the offender failed to attend.

69․A new PSR was sought and obtained on 9 April 2025. The offender successfully attended interviews for that PSR. The PSR author assessed the offender as having a low risk of general reoffending, due to protective factors such as family support, stable accommodation, and a lack of a substance abuse history.

70․However, the PSR author expressed that they held “significant concerns” surrounding the offender’s lack of insight into her offending. It was explained that the offender appeared to lack understanding of the criminality of her behaviour, and the severity of the offending. The offender appeared to be unable to explain why child sexual offences were criminal offences, and did not acknowledge the possible developmental or emotional impacts on the victims. While the offender did not attribute any blame to the victims, she nonetheless portrayed the relationships as “consensual” to the PSR author, minimising her own behaviour.

71․The offender was assessed as suitable for a Community Service work condition. The offender reported that she would be willing to complete a Sexual Offending Program as part of any community-based order.

Sentencing considerations

Remorse/attitude to offending

72․In his report and in his evidence, Mr Sutton expressed the view that the offender had “accepted full responsibility for her actions and her behaviours regarding the females under her care”.

73․I have given Mr Sutton’s evidence very careful consideration. Concerningly, when giving evidence about the offender’s insight into the pattern of her offending, Mr Sutton volunteered that “over 50 years, I’ve seen some very interesting relationships occur through odd beginnings – and flower”. When questioned further on this topic, Mr Sutton stated that he “really would have wanted to know the whole picture before I made a comment on it”. After careful consideration, I do not accept Mr Sutton’s opinion concerning the offender’s remorse and insight into her offending, nor do I accept the generalised statements of remorse as contained in the offender’s character references.

74․As the prosecutor submitted, the offender told the PSR author that she pleaded guilty because she did not want to cause more trouble or make anyone angry. Significantly, she continued a relationship with one of the victims, even after being charged.

75․Although the offender did not blame the victims, she minimised the extent of her offending in the PSR. She has stated that she should have maintained better control of the business so that she was more aware of her employees’ ages. However, in the Agreed Facts, and consistently with her role in interviewing and appointing the victims, she expressly agreed that she knew the victims’ ages.

76․I am not satisfied that the offender has demonstrated remorse for her offending.

Prospects of rehabilitation/risk of reoffending

77․In his report, Mr Sutton expressed the view that Ms Phan “enacted her behaviours due to poor inhibitory controls over sexual and relationship needs and interpersonal dynamics rather than predatory antisocial characteristics”.

78․I had significant concerns about Mr Sutton’s evidence concerning the offender’s risk of reoffending. He repeatedly maintained that he found the offender to be honest simply because she did not score highly on any deception or malingering scales on the tests that he administered. Mr Sutton’s evidence did not grapple with the fact that the offender had misrepresented the nature of her ongoing relationship with the second victim at the time of her interview with Mr Sutton. Further, Mr Sutton’s opinion that the offender had a low risk of reoffending was inconsistent with his finding that the offending was caused, at least in part by the offender’s disinhibition, impulsivity and lack of self-control, particularly as these matters remain unresolved.

79․Whilst the PSR author indicated that testing had found the offender to be at low risk of re-offending, the author identified significant concerns in relation to the offender’s insight, noting that the offender maintained that she engaged in genuine consensual relationships with the victims, and lacked understanding of the criminality of her behaviour and the severity of the offences.

80․I do not accept that the offender’s risk of reoffending is low, given the number of separate victims, the duration of the offending, the fact that the offender committed the offences despite the existence of a PPO, and despite the offender being warned about the inappropriateness of her actions by her partner and by one of the victims during the course of the offending. I do not accept that the offender’s current depression is such as to reduce the risk of reoffending, given the length and seriousness of these matters.

81․Nonetheless, I do accept that the offender is willing to engage with sexual offence programs and counselling to address the underlying causes of her offending. If the offender engages with offence-specific programs, I find that her prospects of rehabilitation would be reasonable.

Character

82․As the offender’s prior good character enabled her to operate a business where she had access to children, the offender’s good character will not operate to reduce the sentences to be imposed: s 34A of the Crimes (Sentencing) Act.

Mental health

83․I note that Mr Sutton diagnosed the offender as suffering from a major depressive disorder with high levels of suicidal ideation, However, as Mr Sutton emphasised, that condition was not operative at the time of the offending. I do not consider that the offender’s mental illness is such as to reduce in any way her moral responsibility for her actions. I will take into account the offender’s depression in determining the weight to be given to the sentencing purpose of punishment, however.

Comparative cases

84․The Court is required by s 33(1)(za) of the Crimes (Sentencing) Act to consider sentences imposed in comparative cases when determining the sentences to be imposed on the offender. A table of comparative cases relevant to this matter is attached to this judgement.

85․I have taken the sentences imposed in those decisions into account, whilst bearing in mind the limitations of comparative decisions: see, for example, R v Pham [2015] HCA 39; 256 CLR 550 at [29]; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53]; Hili v R [2010] HCA 45; 242 CLR 520 at [48]-[49].

86․I note that the prosecution has also provided comparative cases from New South Wales concerning the offence of persistent sexual abuse of a young person under special care, there being an absence of any like cases in this jurisdiction I have approached these comparative cases with care, particularly noting the differing maximum penalties. Importantly, the Crimes Act 1900 (NSW) does not contain an equivalent offence of persistent sexual abuse of a young person under special care, but rather has offences for sexual intercourse and sexual touching of a young person under special care (ss 73 and 73A respectively).The maximum penalties are lower than the present offences: 8 years for an offence against s 73, and 4 years for an offence against s 73A.

87․Whilst the principles expressed in the NSW cases are of some assistance, the actual sentences imposed provide little to no guidance, by reason of these differing maximum penalties and differing sentencing patterns in those jurisdictions: see similarly R v Duffy [2014] ACTCA 53; 297 CLR 359 at [92].

Determination

88․As the prosecutor submitted, the offences against the first victim were particularly serious:

(i)The offending constituted a profound breach of trust: the offender was the first victim’s employer and was in a position of authority and power over her;

(ii)The offending was committed solely for the offender’s sexual gratification. She has reported that she committed the offences because she was feeling “bored” in her own relationship at the time;

(iii)The offender was approximately 10 years older than the first victim;

(iv)The offender persisted with the offending, despite intercession from her partner, and the imposition of a PPO;

(v)In respect of the offence of grooming, the offence involved both online and physical contact. There was a level of premeditation involved in the offending;

(vi)In respect of the offence of act of indecency (course of conduct), the offences occurred when the victim was 15 years old; all of the offending occurred in the workplace; and the offences were committed during every shift for a month (that is, there were approximately 16 distinct offence periods)

(vii)With respect to the offence of using carriage service to possess child abuse material, the offender actively encouraged the first victim to send her indecent material when the first victim was 16 years old. The offender “screenshotted” the material so that it would not be lost. At the time of the police search, the offender continued to possess 7 indecent images of the first victim (out of a total of around 20 – 40 images), despite claiming to have deleted all material.

89․The offence against the second victim is an offence of persistent sexual abuse of a child between 16 and 17 years of age, under the special care of the offender. The enactment of this offence recognises the particular vulnerability of young people to psychological harm which can be caused by an abuse of authority in sexual relationships. As the Explanatory Statement to the Crimes Legislation Amendment Bill 2012 (No 2) (ACT), which introduced the offence, stated:

By prohibiting sexual relations between 16 – 17 year olds and adults who are in a position of authority over them a clear boundary is drawn, making it less likely that adults in such positions will abuse their authority and engage in sexual relations with young people. Such a limitation is proportionate and justifiable as most young people aged 16 – 17 are at a much higher level of risk of being subject to harm (including psychological and other types of harm) than adults when they are in a relationship with adults in a position of authority due to the power imbalance inherent in such a relationship.

90․These comments have particular force in relation to the present offending.

91․In the present case, the following matters are relevant to the objective seriousness of this offending concerning the second victim:

(i)The offending was committed shortly after the first victim ceased contact with the offender, and at a time that was proximate to the offender being sentenced for breaching the PPO;

(ii)The offender was approximately 11 years older than the second victim;

(iii)The offender offended against the victim, despite the victim cautioning the offender that her conduct was “unethical”;

(iv)The sexual activity encompassed by the offence incorporates many acts, including digital penetration, sexual touching and cunnilingus;

(v)The offending was committed at various addresses, including at the workplace and in the home;

(vi)The offending continued over a period of more than one year (from June 2021 up until the offender’s arrest on 29 September 2022) and involved an element of planning and premeditation.

92․When sentencing the offender for the offence of persistent sexual abuse against the second victim, the Court must also take into account the “rolled up” count relating to the conduct against the third victim, which consisted of two distinct acts, separated in time by 12 months. This conduct also occurred in the workplace. I will apply the principles set out in R v Campbell [2010] ACTCA 20 at [46]–[50] when taking this offence into account.

93․As counsel for the offender properly acknowledged, the offences have caused profound harm to each of the victims and their families. As the victim impact statements powerfully described, the offender exploited the victims’ vulnerabilities for her own selfish desires. She abused her power and authority over the victims, isolated them from their families, and manipulated them for her own sexual gratification. The offending represents an acute breach of trust.

94․The extent, duration and severity of each of the offences compel the conclusion that the s 10 threshold is crossed for each offence. No sentence other than one of fulltime imprisonment can meet the need for general deterrence, specific deterrence, denunciation, punishment and recognition of the harm caused to each victim.

95․The effective sentence to be imposed on the offender must represent a proper period of incarceration for the total criminality involved: R v AEM [2002] NSWCCA 58 at [70]. The task of assessing the “total criminality involved” involves consideration of competing factors which pull in different directions. As the Court of Appeal has held in R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [92]:

There is no single correct approach to the structuring of multiple sentences, and the totality principle can be implemented in a variety of acceptable ways. In determining questions of accumulation or concurrence, his Honour was required to look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences. A sentence should not be “crushing” in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result or accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length). Against these considerations, a sentence should not lead to a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences, or that an offender is being offered a discount for multiple offending. Making two counts wholly concurrent may reveal error in that to do so fails to take account of the differences in the conduct which were the subject of punishment on each count. (citations omitted)

See also O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26].

96․Section 33(1)(c) of the Crimes (Sentencing) Act requires the sentencing court to consider whether the offences from part of a course of conduct consisting of a series of criminal acts of the same or similar character; see also R v White [2023] ACTCA 35 at [58].

97․Applying these principles, and mindful of the particular difficulties that are involved in sentencing for a combination of federal and Territory offences, I will adopt the following approach to the structure of the sentences so as to ensure totality. The sentence for the Commonwealth offence (possess child abuse material) and the grooming offence against the first victim will commence on the same day and will be entirely concurrent, in recognition both of the fact that the grooming offence encompasses the conduct in seeking the child abuse material from the first victim, and so as to comply with the statutory requirements for sentencing for both Commonwealth and Territory offences. There will be some accumulation for the offence of act of indecency relating to the first victim, in recognition of the fact that this offence relates to different conduct, and resulted in different harm, albeit that it was committed against the same victim. There will be greater accumulation between the sentences to be imposed for the offence relating to the second victim, as that offending involved a different victim. In my view, this approach is necessary to ensure that the overall sentence is of a severity that is appropriate in all of the circumstances.

98․A joint non-parole period cannot be imposed for the Territory and federal offences: s 19AJ of the Crimes Act 1914 (Cth); Morrison v Maher [2021] ACTSC 312 at [49]. In the present case, the most appropriate structure is to decline to make a recognizance order for that offence (s 19AC of the Crimes Act 1914 (Cth)), on the basis that the more serious ACT offences will provide the offender with a period of supervision on parole, during which the offender will be able to undertake offence specific treatment. The non-parole period, which will apply only to the Territory offences, will date from this date.

99․The sentences to be imposed will be subject to the reductions that I have outlined above resulting from the offender’s early guilty pleas, and will also be backdated by 15 days to take account of the offender’s pre-sentence custody. The individual sentences for each offence will be as follows:

(a)Use carriage service to possess child abuse material (CAN 10072/2022) – imprisonment for 1 year, discounted by 15% to 10 months and 6 days.

(b)Act of indecency with person under 16 years (course of conduct charge) (CAN 6277/2023) – imprisonment for 3 years, discounted by 15% to 2 years, 6 months and 17 days.

(c)Grooming (CAN 9567/2022) – imprisonment for 18 months, discounted by 15% to 1 year, 3 months and 9 days.

(d)Persistent sexual abuse of a young person under special care (CAN 2689/2023) – imprisonment for 5 years, discounted by 25% to 3 years and 9 months.

Orders

100․For the above reasons, the following orders are made:

(1)The offender is convicted of use carriage service to possess child abuse material, contrary to s 474.22A(1) of the Criminal Code 1995 (Cth) (CAN 10072/2022) and sentenced to 10 months and 6 days’ imprisonment, commencing on 3 September 2025 and expiring on 8 July 2026.

(2)The offender is convicted of act of indecency with person under 16 years (course of conduct charge), contrary to s 61(2) of the Crimes Act 1900 (ACT) (CAN 6277/2023), and sentenced to 2 years, 6 months and 17 days’ imprisonment, commencing on 3 September 2025 and expiring on 19 March 2028.

(3)The offender is convicted of grooming, contrary to s 66(1)(b) of the Crimes Act (CAN 9567/2022), and sentenced to 1 year, 3 months and 9 days’ imprisonment, commencing on 11 February 2027 and expiring on 19 May 2028.

(4)The offender is convicted of persistent sexual abuse of a young person under special care, contrary to s 56(1) of the Crimes Act 1900 (ACT) (CAN 2689/2023) and sentenced to 3 years and 9 months’ imprisonment, commencing on 3 June 2027 and expiring on 2 March 2031.

(5)The overall sentence will be a term of imprisonment for 5 years and 6 months, commencing on 3 September 2025 and expiring on 2 March 2031.

(6)I decline to make a recognizance order in relation to the offence of use carriage service to possess child abuse material, pursuant to s 19AC of the Crimes Act 1914 (Cth).

(7)A non-parole period of 3 years and 6 months will be imposed for the Territory offences, commencing on 3 September 2025 and expiring on 2 March 2029.

I certify that the preceding one hundred [100] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate:

Date:

ANNEXURE A – TABLE OF COMPARATIVE CASES

Objective Circumstances	Subjective Circumstances	Sentence imposed
Act of Indecency
Agarwal v Coutts (No 2) [2024] ACTSC 92	Charges: 1x act of indecency on a person under 16 Offender was the employer of the 14-year-old victim. The offender would roster shifts so he would work alone with the victim. Two incidents relied on for the rolled-up charge: first, the offender rubbed his groin against the victim’s backside while her arms were either side of her, and second, the offender followed her into a storeroom, pushed her arm behind her back, grabbed and squeezed her breast for 10 seconds and rubbed his groin against her backside.	Victim experienced significant trauma Guilty plea (10% discount) No prior convictions Low risk of re-offending, medium risk of sexual offending Qualified remorse	21 months’ imprisonment Non-parole period of 11 months Upheld on appeal.
Grooming
Porter v The Queen [2024] ACTCA 9	Charges: 1x using a child under 12 to produce child exploitation material 1x persistent sexual abuse of a child under special care 1x grooming 1x possessing child exploitation material Offender was convicted of multiple sexual offences against multiple victims. The victim of the grooming count was 12 years old. Offender was the football coach of the victim. Grooming conduct was over approximately 3 months, including having personal conversations with the victim via an app which stated that he was “falling so hard” for the victim, describing the victim’s “butt” and saying that their relationship was “moving beyond that coach/player thing.”	Guilty plea (20% discount) Offender had undertaken sexual offence treatment, ‘moderate weight’ to remorse	Grooming: Re-sentenced on appeal to 1 year and 7 months’ imprisonment. Total effective sentence of 17 years. Non-parole period of 11 years.

Persistent sexual abuse of a young person under special care
R v Kellan (a pseudonym) [2021] ACTSC 314	3x persistent sexual abuse of a child under special case 1x act of indecency on a person under 16 Offender was the father of all the victims who were aged 9-16 during the offending. Conduct occurred during the giving of “massages” to the victims, during which the offender would touch the victim’s genitals and legs. The offender digitally penetrated two victims, and engaged in oral sex with one victim.	Profound impact on all victims Guilty plea (25% discount) Maximum penalty not 25 years for Count 3. No prior offending. Low risk of general reoffending, below average risk of sexual reoffending.	Count 1 - Persistent sexual abuse: 8 years and 3 months’ imprisonment Count 2 – Persistent sexual abuse: 4 years and 6 months’ imprisonment Count 3 – Persistent sexual abuse: 3 years and 9 months’ imprisonment Total effective sentence of 13 years and 3 months’ imprisonment. Non-parole period of 8 years and 6 months.
DPP v Small (No 2) [2023] ACTSC 274	1x persistent sexual abuse of a child under special care Offender was the older brother of the victim’s friend. Offender was 21-23 and victim was 11-13. Acts included kissing, touching the victim’s genitals, having the victim touch his genitals and two instances of digital penetration.	Guilty plea (18% discount) Evidence of harm suffered by victim and her mother ASD diagnosis of offender relevant – custody would be more onerous Genuine remorse Minimal criminal history Maximum penalty 7 years due to historical offences	2 years and 18 days’ imprisonment Suspended after 6 months.
R v Degionannis [2019] ACTSC 47	1x maintaining a sexual relationship with a young person 1x using a child for the production of child exploitation material 1x possessing child exploitation material 1x failing to report a change of personal details as a registerable offender Offender was 39, and victim was 15. The victim lived with the offender for approximately three months. The accused admitted to having regular sexual intercourse with the victim at this time. On occasion, the offender would film the offending. Further, the offender was a registerable child sex offender, and failed to report his unsupervised contact with the victim.	History of various mental health conditions Dysfunctional childhood Irregular employment Drug use Extensive criminal history Pleas of guilty (15% discount)	Maintaining a sexual relationship with a young person: 7 years and 7 months’ imprisonment Using a child for the production of child exploitation material: 2 years and 6 months’ imprisonment Possessing child exploitation material: 2 years and 6 months’ imprisonment Failing to report a change of personal details as a registerable offender: 12 months’ imprisonment Total effective sentence: 10 years’ imprisonment NPP: 7 years
DPP v Fitzgerald (a pseudonym) [2023] ACTSC 194	1x maintaining a sexual   relationship with a young person The victim was the offender’s daughter. The offending occurred while the victim was 13 – 15 years old. The offending included frequent inappropriate touching, cunnilingus, and masturbation in the presence of the victim. The offender also exercised considerable control over the victim.	Demonstrable remorse Socially isolated Cared for elderly mother Guilty plea (25% discount)	7 years and 6 months’ imprisonment NPP: 4 years and 2 months
Sexual intercourse with young person under special care
R v Jeremiah [2024] NSWDC 206	1x sexual intercourse with young person under special care (17-18 years old) Offender was a 35-year-old youth worker who engaged in one act of digital penetration with 17-year-old victim. No evidence that the victim did not willingly participate.	Guilty plea (25% discount) Maximum penalty 4 years Good prospects of rehabilitation Reduced moral culpability due to upbringing Genuine remorse Impact of COVID-19 restrictions on prisoners Hardship on family and 3 child dependants	9 months’ imprisonment. Non-parole period of 3 months.
Ferner v The Queen [2022] NSWCCA 48	7x sexual intercourse with young person under special care (17-18 years old) Offender was a male teacher who engaged in multiple sexual acts with 17-year-old female student over 2 months. Offending involved penile-vaginal penetration, oral sex and digital penetration.	Guilty plea (25% discount) Good character given reduced weight, but still considered Remorse No reference to harm suffered by victim	Re-sentenced on appeal to 3 years’ imprisonment (reduced from 3 years and 9 months). Non-parole period of 1 year and 10 months.
R v DU (No 4) [2020] ACTSC 174	4x sexual intercourse with young person under special care Offender was 40 years old, and was the bowling coach of 16-year-old victim. The role was “informal” and his authority due to that position was “unclear”. The charges addressed 4 instances of penile-vaginal intercourse. On the facts, the victim was a willing participant but the offending was initiated by the offender.	Guilty plea (15% discount) Maximum penalty 10 years No prior convictions Good prospects of rehabilitation	18 months’ imprisonment for each count. Aggregate sentence of 3 years’ imprisonment, to be served by way of ICO.