Director of Public Prosecutions v Shields (pseudonym)
[2022] VCC 2136
•02 December 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL SHIELDS (pseudonym) |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 04 November 2022 | |
DATE OF SENTENCE: | 02 December 2022 | |
CASE MAY BE CITED AS: | DPP v Shields (pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2136 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Indecent act with a child under 16 – sexual penetration of a child under 16 – sexual penetration of a child aged between 16 and 17 years under care, supervision or authority – indecent act with a child aged between 16 and 17 years under care, supervision or authority – music teacher – early pleas of guilty – remorse – no prior criminal history – previous good character – objective gravity – moral culpability – rehabilitation – delay
Legislation Cited: Sex Offender Registration Act 2004; Sentencing Act 1991 s 5AA
Cases Cited:Worboyes v The Queen [2020] VSCA 169; R v Verdins (2007) 16 VR 269
Sentence: 2 years 10 months imprisonment, 1 year and 4 months imprisonment suspended for a period of 2 years, Sex Offender Registration for a period of life, s6AAA – 4 years imprisonment with a non-parole period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Grant | Office of Public Prosecutions |
| For the Accused | Mr T. Marsh (Plea) Ms Coates (Sentence) | Pica Crime |
HER HONOUR:
Introduction
1Paul Shields,[1] you have pleaded guilty to the following charges:
· Charge 1, that you committed an indecent act with Iris McKnight,[2] a child under 16 (a rolled-up charge incorporating two incidents occurring on the same occasion), which carries a maximum penalty of 10 years' imprisonment.
· Charge 2, sexual penetration of Iris McKnight, a child under 16 (a rolled-up charge incorporating two incidents which occurred on the same occasion), which carries a maximum penalty of 15 years' imprisonment as she was then under your care, supervision or authority.
· Charge 3, sexual penetration of Iris McKnight, a child aged between 16 and 17 under your care, supervision or authority, (a rolled-up charge incorporating three incidents that occurred on three separate occasions), which carries a maximum penalty of 10 years' imprisonment.
· Charge 4, that you committed an indecent act with Veronica Brooks,[3] a child aged between 16 and 17 under your care, supervision or authority, which carries a maximum penalty of 3 years' imprisonment.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
2The circumstances in which you came to commit those offences are set out in the summary of prosecution opening dated 14 October 2022, which was exhibited at your plea hearing as Exhibit A. The prosecution also relied upon the victim impact statement of Iris McKnight dated 21 October 2022 (Exhibit B); and the summary of prosecution submissions for plea dated 3 November 2022 (Exhibit C).
3In addition to the matters developed in oral argument, your counsel relied on:
· Defence submissions on plea (Exhibit 1);
· A psychological report prepared by Peter Hanley (Exhibit 2);
· A psychological report of Patrick Newton dated 20 October 2022 (Exhibit 3);
· A letter from Jess Steed, senior mental health clinician of Eastern Health, dated 17 October 2022 (Exhibit 4);
· Medical report prepared by Dr Dupuche dated 28 October 2022 (Exhibit 5);
· Character reference of HM[4] dated 20 October 2022 (Exhibit 6);
· Character reference of BH[5] dated 14 October 2022 (Exhibit 7);
· Character reference of MD[6] dated 24 October 2022 (Exhibit 8);
· Character reference of AM[7] dated 21 October 2022 (Exhibit 9);
· Character reference of JW[8] and BW[9] dated 20 October 2022 (Exhibit 10); and
· Medical report of Dale Ford dated 2 November 2022 (Exhibit 11).
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
[7] A pseudonym.
[8] A pseudonym.
[9] A pseudonym.
4I have read all exhibited documents very carefully and have taken them into account in addition to the matters developed in the oral plea.
Circumstances of your offending
5Your first victim, Iris McKnight, was born in November 1990, and at the relevant time lived with her parents and brother. She started music lessons when she was in primary school and demonstrated her clear talent in an instrument from a young age. In 2004, when she was 14 years of age, she enrolled in individual and group music lessons outside school hours with your relative, Martha Shields.[10] Your relative, like you, taught that instrument. Your relative began to collect Ms McKnight from school, to take her for music lessons after school.
[10] A pseudonym.
6In 2005, you and your relative established an ensemble which included Martha Shields’ most talented music students. Your relative was considered to be in charge of the group and you were considered one of the leaders of the group, involved in playing as well as teaching and supervising the students. You would regularly assist and guide the members of the group as they were learning to play particular pieces of music. The students were then between 15 and 19 years of age. The group began to rehearse and perform music together. Your second victim, Veronica Brooks, was also a member of the group.
7In 2006 you commenced employment as a music teacher at a secondary school.
8Plans were made for the ensemble to travel overseas, and the group intended to raise money to fund that trip. Between 2005 and 2006, the ensemble regularly rehearsed at your relative's home, and at other locations over weekends.
9You first met your victim, Ms McKnight, in 2005 during an ensemble rehearsal. During this rehearsal, your relative introduced you to Ms McKnight’s parents, and you told them that you would be the co-leader of the group and would be supervising the rehearsals.
10On the weekend of Friday, 23 June 2006 and Saturday, 24 June 2006, the ensemble performed at an event in Western Victoria. Your parents lived in that area. You, your relative, and your victim Ms McKnight, attended the performance. She was then aged fifteen. After the performance, the group travelled back to your parents' home. The student members of the ensemble slept on the floor of the lounge room; Ms McKnight slept in a separate room of the house.
11Ms McKnight and the other members of the group got ready for bed and lay down on the mattresses that they had been provided with. You came into the room where she was sleeping and lay down next to her. She was lying on her right side, and you placed your left hand under her pyjama top and began to rub her back with your hand. You then moved your hand to her stomach and moved it up and down, stroking her stomach. You then gradually moved your hand up her body and stroked the bottom and side of her left breast. This is one of the incidents rolled into Charge 1 of indecent act with a child under 16. You then placed your hand onto her waist and began to move your fingers over her waist, which is the second incident rolled-up into Charge 1. She lay in silence, but she felt excited that you were showing interest in her. She fell asleep a short time later.
12The following day, you drove Ms McKnight and a number of other members of the group home. She was excited about what had occurred the previous night and was happy to be in your car.
13After this trip, you and she became friendlier, and began to communicate regularly via SMS.
14On an occasion between 23 July 2006 and 5 November 2006, while she was still 15 years of age, the ensemble rehearsed at your relative's home. You and Ms McKnight regularly exchanged glances during this rehearsal. After the rehearsal, all other members of the group left. Ms McKnight had falsely told her parents that she was going to stay at a friend's house, and that they would not need to come and collect her. Your relative then left to stay at her partner's home, leaving the two of you at her home on your own. After your relative left, you and Ms McKnight walked into the spare bedroom and lay on the spare bed together. You hugged her and then kissed her and placed your tongue into her mouth. She kissed you back. After a period of time, the two of you went to a bathroom and removed your clothing. You showered together and kissed further. She touched your penis, and you rubbed your erect penis against her vagina. You moved your penis in a circular motion around the opening of her vagina. This is one of the incidents the subject of Charge 2, of sexual penetration of a child under sixteen. You ejaculated on the outside of her vagina, and you finished showering.
15After the shower, you both returned to the spare bedroom and lay on the bed where you kissed and rubbed your naked bodies together. You then inserted your fingers into her vagina and moved your fingers in and out of her vagina. This is the second incident the subject of Charge 2.
16You both spent the night in the spare room at your relative's home, and the following morning Ms McKnight asked you to take her to the chemist to purchase the 'morning after pill'. You drove her to the shops and waited in the car while she went into the chemist and purchased the medication, and you dropped her at a location around the corner from her home, to avoid you being seen by her family. Ms McKnight then walked home and told her parents falsely that her friend had dropped her home, but that she had had to leave in a hurry.
17You remained in contact with her, and you both agreed that there would be no penetrative sex before she turned sixteen and after she had received the cervical cancer injection, which was not to be released until 2007. Her mother had told her that the new injection was more effective for women who had not engaged in penetrative sex.
18You continued to engage in sexual activity with her while she was 15, including kissing her on the lips and touching.
19On 5 November 2006, Ms McKnight celebrated her sixteenth birthday at a party. During the party, you called her, crying hysterically and accusing her of cheating on you.
20She later started working at a fast food restaurant close to her home. After she started working there, she would frequently attend your rented premises. Your meetings were a secret, and she would tell her parents falsely that she was going to meet friends in the city, or at the local shops, when she met with you. You both spent the majority of your time at your house, where you were unlikely to be seen by friends or family. During these meetings at your house, the two of you would frequently engage in sexual activity.
21In 2006, you told Ms McKnight that you had discussed your relationship with your relative. She later spoke to your relative about your relationship.
22On an occasion in 2006, Ms McKnight's parents became aware that she was sending SMS messages to you, and they told her that she was not to communicate with you or have any contact with you. You then purchased a new mobile phone for her, which you both discussed keeping hidden from her parents.
23On an occasion in 2006, Ms McKnight’s mother came into her bedroom and saw the phone that you had purchased for her and confiscated it. Ms McKnight's parents told her that they were going to speak to you about their concerns over your relationship. Ms McKnight became extremely upset and told her parents that you 'loved each other' and she threatened that she would deny it if they visited the police.
24Shortly afterwards, her parents discovered the SMS messages between you and Ms McKnight, and they attended your home and confronted you, and told you not to contact their daughter again.
25After that meeting, Mrs McKnight supervised her daughter's music lessons with your relative for several weeks, until she felt that it was safe for her daughter to attend lessons on her own. Your relationship continued without her parents' knowledge, and Ms McKnight used a phone box to contact you, again without her parents' knowledge.
26On an occasion between 1 January 2007 and 31 December 2007, when Ms McKnight was aged between 16 and 17 years of age, she attended at your rented premises. You kissed on the couch in the living room and engaged in sexual touching. Ms McKnight asked you whether this was the right time, and you responded, 'Maybe we should wait until you'd had your vaccine'. She asked if you could have sex, you agreed.
27She lay on the couch and you lay on top of her and placed a condom onto your penis. You placed your penis into her vagina, which she found painful. This is one of the incidents referable to your Charge 3, a rolled-up charge of sexual penetration of a child aged between 16 and 17 years under your care, supervision or authority. You apparently ejaculated, and you put your clothes back on and you cuddled each other on the couch.
28On another occasion between 1 January 2007 and 31 December 2007, she attended your home, and you ate dinner and had some drinks. When it was dark, you went for a walk to a nearby tennis courts and lay on the grass. You inserted your penis into her vagina. This is another of the incidents referable to your Charge 3. The two of you attended your address on numerous occasions and engaged in acts of sexual intercourse.
29During 2007, you both began to engage in unprotected sex. Eventually, Ms McKnight noticed a small red bump on the inside of her labia and asked you to take her for a medical appointment. At that medical appointment, the general practitioner examined her and diagnosed her with genital herpes. Ms McKnight told that general practitioner that she had only ever had one sexual partner, and that she was attending the appointment with her uncle as she did not want to disclose that she was having a sexual relationship with you. Afterwards, you drove her back to school.
30On a further occasion between 1 January 2007 and 31 December 2007, you attended at her home. No one else was at her home at the time. You parked your car around the corner, and Ms McKnight let you into her home. The two of you went to her bedroom and you placed your penis into her vagina. This is the third incident referable to your rolled-up Charge 3.
31In 2007, Ms McKnight told her friend that you had had a sexual relationship. Her friend was also part of the school orchestra, and you had taught the friend music.
32In early 2008, you purchased a second mobile phone for Ms McKnight, so that she could use it to contact you without her parents' knowledge.
33In early 2009, Ms McKnight joined an overseas music tour for several weeks. You became jealous and contacted her and suggested she might hook up with other people.
34After she returned home, you contacted her by phone and raised issues about your concern that a particular male had been captured in a series of photographs. She falsely admitted that she had cheated on you with the male depicted in the photographs, and you ended your relationship. At that time in early 2009, she was 18 years of age.
35In November 2019, Ms McKnight told a friend about her relationship with you, and on 13 March 2020, that friend contacted the police on her behalf.
Offending subject of Charge 4
36On Friday, 18 August 2006, a number of the students involved in the ensemble established by you and your relative attended a workshop and performance. Your relative and Iris McKnight were present also at that performance. Your second victim, Veronica Brooks, was 16 years of age at that time, and arrived at the secondary school wearing her high school uniform, and she then changed for the performance.
37You and Ms Brooks were in a room that was used to store percussion instruments. You kissed Ms Brooks on the lips, and as you kissed her, you placed your hands onto her breasts over her clothing. This is the offending referable to your Charge 4 of committing an indecent act with a child aged between 16 and 17 who was under your care, supervision or authority. She touched your penis through your clothing. After engaging in that activity for a period of time, you suddenly stopped and said, 'I'm at work, I can't do this here'.
38Her sister, Zara Brooks,[11] was living overseas in 2006, and Ms Brooks told her sister what you had done. Her sister subsequently emailed you and told you that what you were doing was inappropriate and that it needed to stop. As a result of that email, you did not engage in any further sexual activity with Ms Brooks.
[11] A pseudonym.
Arrest and interview
39On 8 September 2020, you were arrested by police and participated in an interview. You falsely denied engaging in any sexual activity with Ms McKnight, though you accepted that your relative was teaching her music, and that you were part of the ensemble with Ms McKnight and a number of other students.
40You told police that you were not her teacher and were not teaching any of the other students who were members of the ensemble and told police that you were just another player in the ensemble.
41You also admitted that you taught students during a an ensemble workshop at the secondary school where you were then employed, and that you were teaching during an ensemble sleepover at your relative's home.
42You admitted that you had a close friendship with Ms McKnight and told police that you had parted ways after she had 'met a guy while she was over there'. You then exercised your right not to participate in the interview.
43On 15 December 2020, you were again arrested and re-interviewed. You falsely denied that you had engaged in any sexual activity with Ms Brooks. You admitted that Ms Brooks was a member of the ensemble, and you told police that you were not her teacher. You accepted that you were a music teacher at the secondary school when the ensemble was rehearsing at the school and accepted that you would hold a working with children permit at the time, because of your work with the school.
Plea of guilty and timing
44You were charged following your second police interview, and plea negotiations commenced whilst the matter was in the committal stream at the Magistrates' Court. You entered a plea of guilty to the proceeding charges at committal, and then you proceeded by way of straight hand-up brief on your plea of guilty, without any witnesses having been cross-examined. I accept and take into account that these pleas were entered at a very early stage, and furthermore that your pleas have saved the court and the community the time and expense of a trial and have saved the witnesses and victims the inconvenience and, occasionally, trauma of giving evidence. This is of considerable significance in the current era, where the effects of the COVID-19 pandemic continue to linger upon the listing of trials.
45Moreover, I consider that your pleas are accompanied by remorse. I mitigate sentence on each of these bases.
Effect on the victims
46In relation to your second victim, Ms Brooks, I have regard to the presumption of harm applicable in sexual offences against children. Your first victim, Iris McKnight, completed a victim impact statement, and this was read aloud to me in the sentencing hearing. It was a very moving and articulate explanation of the effects of your offending upon her. I am not able to do justice to her sincere and very moving words without reading them verbatim, which is what I propose to do in relation to certain passages:
'The grooming and persistent sexual abuse perpetrated against me by [Paul Shields] from when I was 15 years old for a period of two and a half years has had, and continues to have a significant impact across multiple facets of my life.
As a child at the time, I did not have the capacity to understand what was happening to me. The word grooming was not in my vocabulary. [Paul] was a teacher in his 30s who I respected, and I believed that his interest in me was because he thought I was “special” and “mature for my age.”
…
The grooming and sexual abuse began at a time that I was incredibly vulnerable … The abuse isolated me from both of my parents, and I grew to rely on [Paul] instead of them. I believed that he was the only person I could trust. I tried incredibly hard to lie about and hide the abuse from my parents, … Keeping these secrets resulted in strained, uncomfortable relationships with my parents at a time I needed them most.
…
Throughout the course of Year 10, 11 and 12 I became an increasingly angry, withdrawn, moody, unhappy teenager as a result of the relentless abuse. I was distracted from my studies at a pivotal point in my education and have no doubt that I would have performed at a higher level in VCE had the abuse not occurred.
I engaged in highly self-destructive behaviours as a 16- and 17-year-old, including cutting my wrists and binge drinking alcohol to the point of blackout in my bedroom alone at my mother’s house.
…
I missed out on momentous high school occasions… that I had looked forward to participating since I was in Year 7. As this would have involved me partnering with a male peer, I did not take part out of a fear of upsetting [Paul].
…
I kept my abuse largely secret during my late teens and for most of my 20s, including from my long-term partner. I spent this decade grappling with myself, full of guilt and shame and trying to make sense of what had happened to me. … I would constantly ask myself how I would let this happen and repeatedly blame myself until I could block it out again - something I learned to be very good at.
…
I have suffered from depression and anxiety through the entirety of my adult life and engaged in self-destructive patterns of binge drinking. I have also struggled to trust in all my relationships, and to trust in authority figures.
…
The abuse described in the charges was my first sexual experience and the only one I would have for several years. I contracted HPV and subsequently had related gynaecological health issues all throughout my 20s. …'
47Ms McKnight also told me that she has experienced frequent nightmares and flashbacks, anxiety and physiological distress, hypervigilance, irritability and anger, and has experienced difficulty sleeping as a result of your offending upon her.
Personal circumstances
48At the time of your offences, you were aged between 31 and 34 years of age, and you are now forty-seven. You were raised in the outer eastern suburbs by your parents, who are now aged in their eighties, and retired. You have a close, supportive and communicative relationship with your parents, and you remain in daily contact with them. Your parents have ongoing health needs and you are their regular assistant and carer. Your Counsel has appropriately submitted that I should take your concerns about your inability to continue caring for your parents on a daily basis into account in mitigation of sentence, as it weighs heavily upon your mind, and I do so.
49You were the youngest of four children born to them, and whilst you have no contact with your two older sisters, you communicate sporadically with an older brother.
50You attended a local primary school, followed by a year of schooling in Japan whilst your mother was studying there. You then attended a private school from Grade 2 until the end of Year 12. You considered yourself to be an average student in terms of performance, and you told Patrick Newton, clinical and forensic psychologist, who has provided me with a report, that you felt bored by academic work and so had 'just coasted through' rather than exerting effort. You received various awards for your musical skill and sporting prowess, and your musical activities were a regular part of your life.
51You experienced sustained bullying and harassment throughout your secondary schooling. You passed Year 12, then completed a Bachelor of Music followed by an Associate Diploma of Business. You then completed Honours studies in Music, and in 2015 completed a Graduate Diploma in Education followed by a Certificate IV in Training and Assessing in 2016.
52Between 2000 and 2006, you worked as a sessional music teacher at various schools, and in 2006 you commenced working at a secondary school as Head of Strings, eventually attaining promotion to Director of Music. You continued at this secondary school until 2015, then you were employed at another secondary school as Head of Performing Arts. This employment was terminated after a period of suspension, following the charges in respect of these offences being laid. Since you ceased work in the educational sector, you have been self-employed as a gardener.
53You have no prior criminal history, and prior to your commission of the first offence on the indictment, you were a person of good character. I have read the bundle of references tendered on your behalf. Your parents describe you as an outstanding and dedicated teacher with a caring attitude towards other people. I also read a favourable reference from AM, a person with whom you work, you described you as a person with a high degree of work ethic, contributes to the community helping elderly people and others with extra needs. You have not offended in any way since these offences.
54I accept your Counsel's characterisation of the offending as a relatively confined period of aberration in an otherwise blameless life. In the circumstances of this case, you came to commit your child sexual offences as a result of opportunities arising from your voluntary participation in the ensemble, and I am unable to be satisfied that your previous good character was of assistance to you in the commission of your first offence. The Sentencing Act 1991, s5AA. I therefore mitigate sentence on the basis of your good character prior to your commission of your first charge against your first victim.
55I was told that you participated in various relationships while you were studying, and that you commenced a five-year relationship until the age of 27, which ended when your partner left to study internationally. Your abuse of Iris McKnight commenced shortly thereafter.
56You met your now estranged wife, Louisa,[12] in around 2013, and you married in 2016, and you share two children aged four and two. You and your wife separated in the context of this prosecution, and you have had very limited contact with her since then. You now see your children for a brief supervised visit each week.
[12] A pseudonym.
57Prior to your arrest, you report no significant emotional or psychological problems, except for work-related stress from time to time, and some emotional turmoil at the time of your relationship breakdown.
58Mr Newton considers you have experienced significant reactive depression in response to being charged with these matters, in that the loss of your marriage, the humiliation of the publicity which the case attracted, and your social isolation from work colleagues and friends combined to result in prominent depressive symptoms. You have been a heavy drinker in the past, and report being a moderately heavy drinker for most of your adult life, but your use of alcohol increased substantially after you were charged, which exacerbated your depression and other problems.
59Whilst you experience short term relief through such drinking, in the longer term this worsened your mood and has left you feeling suicidal. Your mother's GP referred you to the local CAT team after concerns were raised of a risk of
self-harm, and you were admitted to the psychiatric care of Eastern Health. I have read reports from Eastern Health and from Peter Hanley, psychologist, as to your participation in treatment and therapy. You were prescribed a sedative medication (Zopiclone), and an antidepressant (Escitalopram), and you continue to take both. Your depression has continued to be treated by the brief intervention team of Eastern Health. You also sought and received psychological support from Mr Hanley in the context of addressing the intensity of your alcohol consumption, some offence specific treatment, and counselling for your interpersonal issues. You have responded well to the combination of psychiatric and psychological treatment, and I commend you for your participation in this rehabilitation process which will continue after today.60In Mr Newton’s opinion, your drinking would currently meet DSM-5 criteria for alcohol use disorder of moderate proportions. He suggests that should you be required precipitously to become abstinent from alcohol, for instance by placement in a custodial environment, that it would be important for your withdrawal from alcohol to be medically supervised to ensure that you do not develop serious physical complications.
61Furthermore, he diagnoses your symptoms as amounting to a Major Depressive Disorder, persisting at a moderate level of severity relative to other suffers of clinical depression.
62In Mr Newton’s view, continued medical and psychological treatment of your depression is clearly indicated for at least the medium term, and there is a significant risk that your mood could deteriorate if you are placed in a custodial environment.
63Mr Newton opines that your intelligence falls in the high average range of the population as a whole, that you have well developed reasoning skills in both verbal and non-verbal domains, and your general capacity to solve problems is good. In his view, there are no indications of antisocial personality traits, and you are generally a conscientious person who espouses prosocial personal values and respects lawful authority.
64As a result of your diagnosis of Major Depressive Disorder, your counsel submitted that there is a significant risk that your mood could deteriorate if you are placed in a custodial environment, and by extension a custodial sentence may weigh more heavily upon you than upon other prisoners, which influences the length and type of sentence that I should impose in the proper exercise of my discretion. This submission was unopposed by the prosecution, and I have mitigated sentence in proper application of these Verdins limbs.
Objective gravity of your offending; moral culpability; rehabilitation
65Your offending against each victim was grave and a disappointing and criminal exploitation and misuse of the opportunities that presented as a result of your role within the ensemble. Your offending against Ms McKnight commenced when she was initially 15 years of age, and was under your care and authority. Your actions the subject of Charge 1 constitute a rolled-up charge incorporating two acts of sexual touching which occurred on the same occasion when she was sleeping at your parents' home. You were then 31 years of age, more than 15 years older than her. Your offending then escalated to the two acts of sexual penetration which constitute your rolled-up Charge 2, of sexual penetration of Ms McKnight when she was still aged only fifteen.
66Your offending then escalated further to the three incidents that occurred on three separate occasions, the subject of your Charge 5, which involved your penetration of her vagina with your penis. By then she was aged 16 and 17 years of age. Not only did you cause her to experience a sexually transmitted infection as a result of her first sexual relationship, but understandably you have caused her lasting trauma. As she has noted in her victim impact statement, and as I have observed from the evidence led in the summary of prosecution opening, your acts of providing her with illicit mobile phones were designed to keep your relationship secret and served to isolate her from her loving parents. You exhibited controlling behaviour in the context of your offending, including by accusing her of engaging in other relationships.
67At a point in time which coincided with your Charge 2, that is, at a similar point where you were engaging in acts of sexual penetration with Iris McKnight, who was then aged under 16, you moved to your second victim, Veronica Brooks, who was also in your care and authority at the time of your offending. Ms Brooks was aged only 16 years and was another participant in the same musical ensemble. She had attended the school where you then worked to perform in the ensemble, and you kissed her and touched her breasts at your place of work. As in the case of your relationship with Ms McKnight, you were more than 15 years older than Ms Brooks. This act was another exploitation of the opportunities presented to you by the ensemble.
68In evaluating your moral culpability, it was fairly conceded by your counsel that you were in a position of responsibility with respect to each complainant by virtue of being one of the adult leaders of the ensemble. While I accept perhaps that you had no 'institutional power to exercise' over either victim, the reality of that group was that each victim enjoyed their participation in the ensemble and the challenge that it presented, and you took advantage of that enthusiastic participation for your own gains. As your status of being in a position of care, supervision or authority is an element of the offences of Charges 3 and 4, I have endeavoured carefully to avoid double punishing you for this fact.
69Your counsel submitted that your offending likely resulted from a combination of poor insight into issues of consent, sexual development and power dynamics in relationships, which came to the surface at a time of interpersonal stress and persisted in the context of interpersonal neediness. You have told Mr Newton that you considered yourself to have been in love with Iris McKnight, and that at the time you rationalised that sexual intimacy 'was an unsurprising part of the relationship'. In spite of your professed love for Ms McKnight, you kissed and fondled Ms Brooks also of a similar young age, also one of the members of your ensemble, as I have said, this time at your place of work. You told Mr Newton that you were exclusively attracted to adult women, with no sexual interest in children. You do feel that your offending conduct is a matter of shame, sadness and regret, and I have indicated that I consider you remorseful for your actions.
70However, you told Mr Newton that at the time of your offending you had believed that because the underaged complainants were not only physically mature, but had also explicitly agreed to participate in sexual engagement, this was sufficient for consent notwithstanding the fact that they were underage. You also told Mr Newton that you had not considered the issue of trust at the time of your offending. I struggle to understand and accept how you process what is 'sufficient for consent', and I am concerned that this represents a degree of retrospective minimisation on your part, when it was an exploitation of the social imbalance between you. Whilst you were not employed as either complainant's teacher, you worked with high school students generally. You were aware that Ms McKnight's parents condemned your relationship, and you needed to engage in covert meetings with her to continue the relationship, as well as purchase her additional phones so that you could bypass her parents' concern. Her parents remonstrated with you over the relationship. Your relationship was secret and underhanded and your need to continue to grapple with your professed lack of understanding of its inappropriateness. I am pleased that you have engaged in offender specific rehabilitation with Mr Hanley, and I observe that in his view you have made good progress in treatment notwithstanding your emotional distress about your legal predicament and family situation.
71Mr Newton has analysed your risk of reoffending using his skill and experience, and relevant empirical testing. Your offending was confined in time to the two complainants. I accept that it did not involve physical coercion, though I share Mr Newton's view that your relationship involved psychological coercion. Approximately 15 years have passed since your offending against the two victims, and there has been no repetition in offending. Mr Newton considers that you present a low risk of recidivism of further sexual offending, and I am of the view in spite of the seriousness of your offending and the fact that there were two victims that you have aged out of your attraction to teenagers, and that you are a good prospect for rehabilitation.
Sentencing principles, sentencing practices
72As I have mentioned, your pleas of guilty were entered at a time where the court system in Victoria was experiencing very significant impediments as a result of the unfortunate effects of the COVID-19 pandemic. There was significant utilitarian benefit in you entering pleas of guilty to the preceding charges, and I have attached significant weight to this factor.[13]
[13]Worboyes v The Queen [2020] VSCA 169
73I accept and take into account the delay of nearly 15 years between the period of offending and today's resolution of your matter. During this period you have not reoffended. I have mitigated sentence on the basis of that delay.
74Each counsel helpfully provided me with a number of prior decisions, demonstrating the range of sentences applied in other cases bearing some similarity to this one, and I consider that I am well acquainted with the range of sentences properly available to me in the sound exercise of my sentencing discretion. In my view, it might be difficult to add these reasons for sentence to the volume of cases to be distributed in future similar cases, as I consider that the outcome is closely bound to the fact that the pleas of guilty were entered in the current environment of COVID-19 occasioned delays.
75I note that each charge that you face is a sexual offence, and you are characterised as a serious sexual offender once you have been convicted of two or more sexual offences, each of which results in the imposition of a term of imprisonment.
76As I intend to impose sentences of imprisonment upon you on Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charges 3 and 4 and I will make that declaration in my order on your sentences of imprisonment on those charges. I therefore regard protection of the community from you as the principal purpose when imposing sentences on those charges, but I do not intend to impose a disproportionate sentence.
77I take into account the purposes for which sentence must be imposed and the need for deterrence, both general and, to a lesser extent, specific. Sexual offences against children by those in a position of authority are unfortunately prevalent. The sentences that I will impose will punish you and denounce your behaviour, in addition to allowing and emphasising your continued efforts at rehabilitation. I have also had careful regard to the totality principle of sentencing. Your counsel submitted that in all of the circumstances of the case, sentences of imprisonment, at least partially suspended, would be proportionate and adequately satisfy the relevant purposes for which sentence must be imposed. The prosecution counsel respectfully disagreed, and submitted that a sentence involving a head sentence with a minimum period before parole eligibility was warranted.
78I have reflected exceptionally carefully on these competing submissions. In my view, having proper regard to the parsimony principle of sentencing, and the matters in mitigation to which I have had periodic regard, a sentence of imprisonment with a minimum term is not justified. I am unable to accede to the submission that I might impose a wholly suspended sentence, and I understand that defence conceded that that sentence would be extremely benevolent in the circumstances of the case.
Sentence
79On Charge 1 of indecent act with a child under 16, you are convicted and sentenced to three months' imprisonment. One month of this sentence must be served cumulatively upon the base and upon other sentences.
80On Charge 2 of sexual penetration of a child under 16, you are convicted and sentenced to two years' imprisonment. Four months of this sentence must be served cumulatively upon the base and upon other sentences.
81On Charge 3 of sexual penetration of a child aged between 16 and 17 under your care, supervision or authority, you are convicted and sentenced to two years and four months' imprisonment. This is the base.
82On Charge 4 of committing an indecent act with a child aged between 16 and 17 under your care, supervision or authority, you are convicted and sentenced to three months' imprisonment. One month of this sentence must be served cumulatively upon the base and upon other sentences.
83This leads to a total effective sentence of two years and 10 months' imprisonment and I will suspend one year and four months of that sentence for a period of two years from today. As you have been found guilty of two class 1 offences, and two class 2 offences, I declare you liable to the obligations imposed under the Sex Offender Registration Act 2004 of Victoria for the mandatory period of life, and forms will be distributed to you explaining those obligations.
84Were it not for your pleas of guilty in this case, had you pleaded not guilty to the charges and been found guilty following trial, I would have imposed four years' imprisonment with a minimum of three years before parole eligibility.
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