Director of Public Prosecutions v Warner (a pseudonym)

[2022] VCC 287

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALICIA WARNER (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2022
DATE OF SENTENCE:	8 March 2022
CASE MAY BE CITED AS:	DPP v Warner (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 287

REASONS FOR SENTENCE
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Subject:SENTENCE - CRIMINAL LAW

Catchwords:              Sexual penetration of a child under the age of 16 years – Offender in position of trust and authority at the time of offending – Significant age disparity between offender and victims – Incomplete picture of offender’s moral culpability – Sentence inextricably bound to the pleas of guilty entered in the environment of COVID-19 occasioned delays

Legislation Cited:      Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Crimes (Amendment) Act 2000 (Vic)

Cases Cited:Azzopardi, Baltatzis and Gabriel v The Queen (2011) 35 VR 43; Worboyes v The Queen [2020] VSCA 169

Sentence:                  Three years’ imprisonment, wholly suspended for a period of two years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Grant	Office of Public Prosecutions
For the Accused	Mr R. Edney	Emma Turnbull Lawyers

HER HONOUR:

1Alicia Warner[1], you have pleaded guilty to three charges of taking part in an act of sexual penetration with a child under the age of 16 years, each of which carries a maximum penalty of 15 years’ imprisonment. 

[1]A pseudonym.

2The victim of your first charge is Ryder Alderman[2], and is a rolled-up charge comprising two acts of penetration on one occasion.

[2]A pseudonym.

3The victim of your second and third charges is Thomas Zepps[3]. The second charge is a rolled-up charge comprising four acts of penetration on three occasions. The third charge is a single act of penetration.

[3]A pseudonym.

4The circumstances in which you came to commit those offences are set out in the Summary of Prosecution Opening dated 9 December 2021 (Exhibit A). The prosecution also relied upon a Summary of Prosecution Submissions for Plea dated 17 February 2022, which included a bundle of cases and an extract from s27 of the Sentencing Act 1991 (Vic) (Exhibit B), and a Victim Impact Statement of Ryder Alderman dated 9 February 2022, which was marked as Exhibit D in your hearing, but which I will now amend to Exhibit C.

5Since the conclusion of the plea in mitigation of penalty, the prosecution has filed supplementary submissions on behalf of the prosecution for plea dated 18 February 2022, which I will now receive and mark as Exhibit D. 

6In addition to the matters developed in oral argument, your counsel relied on defence submissions for plea hearing dated 17 February 2022 (Exhibit 1), your curriculum vitae (Exhibit 2), and a letter from Arnold Wilke[4] dated 17 February 2022 (Exhibit 3).

[4]        A pseudonym.

7I have read all exhibited documents very carefully and have taken them into account in addition to the matters developed in oral plea.

Circumstances of the offending

8The prosecution provided a very detailed summary of relevant facts, which I will annex to these Reasons for Sentence and accordingly simply summarise a number of salient points.

9You were born in October 1971 and were registered as a teacher with the Victorian Institute of Teaching to teach at non-government schools from May 1996 when you were aged 24.  You commenced work as a teacher in January 1996.  In 1996 and 1997, which coincide with your period of offending across the three charges, you were employed by the school to teach.  You were also involved in other school activities including coaching a sports team, and you attended school camps.  Your employment with this school ended in February 1998, by which time you had turned 26 years of age.

10Your victims were both 15 years of age at the time of your offending and were your students.

11Your first victim, Ryder Alderman, was born in January 1981 and was a student at your school from Year 7 until he finished Year 11 in 1997.  In 1996, he was in Year 10 and you taught him as part of your responsibilities. I have mentioned that he was 15 years of age, and you were 24 turning 25. 

12In 1996, whilst he was a student in your class, Mr Alderman noticed that you would flirt with him in class, and he would deliberately misbehave so as to attract your attention.  On a weekend in March 1996, his family went away on a weekend trip and he told you that you should come over to his house.  You attended at his home and you kissed him passionately on the lips and allowed him to touch your breasts over the top of your clothing.  This is uncharged and is contextual to the offending that followed.

13You gave him your phone number and told him that if anyone else answered the phone when he called, that he should give a false name.  You subsequently arranged meetings.  You met him on at least five occasions, and you would drive him to Rowville and you would kiss each other and touch each other’s body on the outside of your clothing.

14On one occasion during the evening, he left home without telling his family and met you.  You drove him to a carpark behind a local primary school and parked at a location which was very dark.  You kissed and touched each other, and you allowed him to penetrate your vagina with his finger while you touched his penis.  You removed your pants and underwear and you climbed on top of him and straddled his lap.  You used your hand to guide his penis into your vagina.  The acts of digital penetration and penetration of your vagina with his penis are the particulars of your Charge 1, a rolled-up charge of sexual penetration of a child under the age of 16 in a position of care, supervision or authority.  At the conclusion of your sexual activity, you gave him a tissue to clean himself and you drove him home.

15A short time after this incident, you ended your relationship with him.  He later tried to make arrangements to meet you, but you told him you were unavailable, eventually telling him not to call you anymore and that it was “not going to happen” anymore.

16Many years later, the victim told a few friends over dinner that he had had sex with a teacher but did not reveal details.  In 2019, the victim disclosed further details to his parents.

17The following year, your second victim, Thomas Zepps, who was also 15 years of age at the time of your offending and attending Year 9 at your school, attended a week long camp.  You also attended the camp as a supervising teacher.  By this stage you had turned 25 years of age, on the verge of turning 26. 

18During the camp, the victim’s friends suggested that you liked him and wanted to be with him and, as a result, he approached you and asked you whether you wanted to be with him, revealed his reasoning as being “because you keep rubbing my arm and shoulder and trying to hold my hand and always trying to stand next to me”.   Later that night at the camp, you went into his dormitory and requested that he come outside.

19After a short discussion, you told him “I do want to be with you”, and you pulled him close to you and held him by the cheeks before you kissed him on the mouth in an intimate way.

20Another supervisor walked around the corner, and when you saw that person you pushed the victim away and sent him back to the dormitory. 

21After the camp concluded, you exchanged phone numbers and agreed that when you called him at home you would provide a false name.  You then spoke on the phone to one another regularly, with you initiating phone calls on most occasions.  You started meeting regularly while the victim attended training at the school gym after school, and you would go into the changerooms and kiss each other.

22On an occasion during the school holidays in November 1997, by which stage you had turned 26, you collected the victim in your car and drove him to your home.  You then kissed him and held his hand. 

23When you both arrived at your home, you walked the victim into your bedroom and undressed.  You then straddled him and kissed him while you undressed him.  You placed a condom onto his penis and, during that process, his penis penetrated your mouth.  You then straddled his lap and placed his penis into your vagina and you had sexual intercourse.  These acts of penetration are two of the events comprising rolled-up Charge 2.

24After you had concluded, you cuddled him and asked him if he was okay, and you both got dressed and sat on the couch and watched a movie.  You then drove him back home.

25The victim told his friends that he had had sex with you the same day.

26You then started meeting regularly on Monday nights before and after he attended sport practice, and you would kiss and touch each other.  There were also other acts of kissing and touching in the changerooms at the school gym.

27On an occasion when the victim was at home recovering from an arm injury, you visited him at his home while his parents were at work and his sister was at university.  You kissed him, placed your hand onto his groin area, rubbed his penis through his pants, and placed his penis into your mouth, which is another of the particulars of Charge 2.  During this act, the victim overheard his sister coming home, and you ran to the back of the house. 

28On another occasion, you attended at his home during the day when no one else was at home and kissed and undressed him.  You then engaged in sexual intercourse, which is another of the particulars of Charge 2. 

29Turning to Charge 3, on an occasion towards the end of 1997 after the school year had finished, the victim was playing at a sport tournament at the school.  The school had arranged for the students to participate in a sleepover in the Year 7 classrooms.  You stayed at the school for the event.  Each night of the tournament, you told the victim to come to the sickbay where you were sleeping to meet you after everyone else had gone to bed.  During this week, you instructed him on how to touch your vagina, and he responded by placing his hand down your pyjama pants and under your underwear, and placed his fingers into your vagina.  This is the offending referable to Charge 3 on the indictment.

30In around December 1997, you stopped calling Mr Zepps.  He subsequently learnt that you had a boyfriend and wanted to pursue that relationship.  You called him one night and told him that he was never to call you again.  You mentioned that you were leaving the school and did not want to see him again.

31As I have mentioned, Mr Zepps told friends of your offending at the time.  He reported your offending to police in February 2018, which commenced the police investigation into your criminal behaviour. 

32On 10 December 2018, police contacted you and invited you to attend for interview.  However, you chose not to participate, which is your right.

Effect on the victims

33In relation to your second victim, Mr Zepps, I have regard to the presumption of harm applicable in sexual offences against children, particularly where the accused’s position of trust or authority facilitated the offence, as was your situation. 

34In his police statement, Mr Zepps stated:

“If I had known the repercussions of the relationships, I seriously doubt I would have gone through with it.  It turned me into an emotional wreck in the months after Alicia stopped seeing me and left the school.  As an adult, I have also suffer (sic) from anxiety and multiple anxiety attacks due to these incidents and have ended up in hospital and endured days of deep depression.”

35Your first victim, Mr Alderman, completed a Victim Impact Statement which was read aloud to me in the sentencing hearing by the learned prosecutor.  It was a very moving and articulate explanation of the effects of your offending upon him.  I am not able to do justice to his sincere and very moving words without reading them verbatim, which is what I propose to do in relation to certain passages:

“Working with [my counsellor] I've discovered so many behaviours that I knew existed, but I never understood why they were there. I'm reminded of so many examples that include drugs and alcohol abuse, anger issues, relationship issues, loneliness and desperation, anxiety, suicide attempts and lack of confidence that are prevalent in my life. The reason I turned to drugs and alcohol was because it was the only time my head went silent and I actually felt something. It was peaceful to me, It was quiet, I felt calm. It wasn't about getting high, in fact it was to feel nothing. Alicia what you did to me is a common denominator in all of my behaviours since. I feel at times that you ruined my life and that's a feeling that runs very strong today even as I write this. It makes me really sad and it hurts a lot. …

I'm actually finding this really difficult to write. Not because of what happened. But more admitting that it did happen. It's the first time I've ever put this in writing and it is hard. It is hard reliving the things that I've done, the people that I've hurt, the hurt that I've done to myself. It's hard because I've gone through life thinking there was something wrong with me. I've thought that I wasn't wired properly, that this world wasn't really designed for me. And I've felt this my whole life. I now find out that this has stemmed from a moment in time where I was supposed to be protected and I wasn't. I was a kid. I was a 15 year old kid that was lured, groomed, used and then spat out just as quick as it started and that has caused relationship problems my whole life since. ...

I've given you all a snap shot of what has happened and how I've been affected. I could go on for a long time, but I think the point has been made. Alicia I want you to understand that what you did was wrong. You took so much away from me. You took my virginity, you took my ability to let people get close to me. This has affected my mental health and you've changed the course of my life. I genuinely believe that I could have been anything when I was a kid and I also believe that you took that away from me. ... You need to know that what you did was wrong and you really hurt me. ...”

Plea of guilty and timing

36You were charged on 16 August 2019, and the matter proceeded through the committal stream in the Magistrates’ Court with witnesses, including the victims being cross-examined.  You were committed on all charges and an initial trial date of 10 May 2021 was vacated due to COVID-19 restrictions.  The trial was relisted to commence on 16 February 2022.  However, in December 2021, prior to the court reaching the date for your relisted trial, and following my indication that any sentence that I impose would not require immediate service of any period of imprisonment, you pleaded guilty to the proceeding charges. 

37I accept and take into account that these pleas were entered prior to the court reaching your trial date, and your pleas have saved the court and the community the time and expense of a trial, and have saved the witnesses and the victims the inconvenience and sometimes 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.

38Moreover, I consider that your pleas are accompanied by some remorse.  I mitigate sentence on each of these bases. 

Personal circumstances

39I have mentioned that you were aged between 24 and 26 years of age at the time of your offending, and you are now 50 years of age.   You were born and raised in Melbourne, the middle child of three born to caring parents.  You have described growing up in a very protected family environment, and consider that you had limited life experience.

40You excelled at school, especially in the study of the German language, and studied languages at the University of Melbourne and Monash University.  You graduated in 1995 with a Bachelor of Arts majoring in German and Japanese.  You then obtained a Diploma of Education in 1995, and your position as a teacher at the school where the offending occurred was your first period of professional employment. 

41After you left that school, you did not develop a career as a secondary school teacher, but commenced as an executive assistant to a managing director and marketing coordinator.  This involved bringing new products in from Germany and launching them to the local sales force with all required marketing materials. 

42After your five years’ employment in that role, in April 2003 you commenced full-time home duties after the birth of the first of your three children.

43In April 2016, you returned to teaching at a college in Queensland and, in October 2016, returned to work as an executive assistant.  In February 2020, you started work as a national markets coordinator.

44You have lived in Brisbane for 20 years, and you report a very good relationship with your parents, and you are responsible for assisting your father who has battled poor lung health for many years.

45You had no prior criminal history and have not offended in any way since these offences, and I accept and take into account that you were a person of good character at the time of your offending, to which I attach some mitigatory weight. 

46Your partner told me that you were a cautious, thoughtful, kind, balanced, considerate, mature person, responsible and reasonable in her actions and behaviour, with a wide circle of impressive friends. 

47I understand that when you were 19 years of age, and whilst you were holidaying with your family, you developed a friendship with a local to the community.  Unfortunately, on an outing, that man pushed you to the ground forcefully and removed your clothes, and you were raped, which understandably has caused you significant trauma.  You did not report the matter to the police, and you never told your mother, as you believed that your mother would be very disappointed in you.

48Your counsel has told me that, also very understandably, the incident left you entirely lacking in self-confidence and you questioned, in the years following, whether you were “good enough” to be in a relationship.

Gravity of your offending, culpability, rehabilitation

49Your offending was grave and it shocks the conscience.  Your first sexual offending was against a 15 year old boy who was under your authority at the time of the abuse.  Though you are pleading guilty to a single occasion, comprising two acts of penetration, your activity occurred in the context of other sexual activity including regular illicit meetings and kissing.  You were nine years older than him and were his teacher.  You have caused him lasting trauma. 

50After you told your first victim that you were no longer interested in him, some months later you moved on to your second victim.  You were then a year older, but your second victim was 15 years of age, the same age as your first victim.  You were 10 years older than him and were, again, one of his supervising teachers.  Charge 2 is a rolled-up charge incorporating four acts of penetration over three incidents, the first being two acts of penetration occurring at your home, the second incident being a further act occurring at his home, and the final incident being on another occasion.  Charge 3 relates to a single act of sexual penetration occurring while you and your victim were staying overnight at the school.

51In evaluating your moral culpability, it was contended on your behalf that you were overwhelmed as a teacher at that time, as this was your first job, you were relatively young, and felt in many ways naïve and inexperienced.  You also did not feel adequately supported by the school administration in maintaining and negotiating professional relationships with your students.  I find this submission difficult to marry with your exploitation of the flirtation that had developed between you and your two students on successive years.  It defies credulity that there could be any ambiguity around the appropriateness of this conduct.

52I note that at the time of your offending you were still a young person and were of good character.  I also note the trauma that you experienced, understandably, as a result of your own sexual abuse.  In evaluating your moral culpability, to some extent I am prepared to infer that the lingering effects of your own trauma may have interfered with your ability to chose safe age-appropriate relationships for sexual expression in your young adulthood and, as a result, you engaged in this criminal conduct.  This is an incomplete picture, however, and I am still at a loss as to why you might have been attracted to two children, and why you would choose to enter into relationships with both in spite of your position of authority and significant age disparity with them.

53I take into account your relatively young age at the time of your offending and have had regard to the sentencing principles which permit and require my emphasis of your then young adulthood as a sentencing consideration by allowing me to recognise the potential for younger offenders to be redeemed and rehabilitated.[5]  Indeed, you have shown during the passage of 25 years since your offending to be eminently capable of your own rehabilitation and, having regard to your lack of any subsequent offending, your long and productive history of work and care, and your family supports, I consider your future prospects of rehabilitation to continue to be very good. 

[5]Azzopardi, Baltatzis and Gabriel v The Queen (2011) 35 VR 43, [34]-[40]

Sentencing principles, sentencing practices

54As I have mentioned, your plea of guilty was 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 a plea of guilty to the proceeding charges, and I have attached significant weight to this factor.[6]

[6]Worboyes v The Queen [2020] VSCA 169

55I accept and take into account the delay of approximately 21 years between the period of offending and the reports to police, and the delay in resolving this matter in the years since its initiation, which are circumstances that are not attributable to you and of course during which you have not re-offended.  I have mitigated sentence on the basis of that delay.

56Counsel helpfully provided me with a number of prior decisions, primarily from this Court, demonstrating the range of sentences applied in other cases of historical child sexual abuse, 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.  I interpolate that, in my view, it would 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 inextricably bound to the fact that the pleas of guilty were entered in the current environment of COVID-19 occasioned delays.

57I note that the charge of sexual penetration of a child under 16, contrary to s45(1) of the Crimes Act 1958 (Vic), as amended by the Crimes (Amendment) Act 2000 (Vic), is a serious 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.

58As 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 Charge 3 and I will make that declaration in my order on your sentence of imprisonment on that charge.  I therefore regard protection of the community from you as the principal purpose when imposing sentence on that charge, but I do not intend to impose a disproportionate sentence.

59I take into account the purposes for which sentence must be imposed and the need for deterrence, both general and, to a much lesser extent in your case, specific.  Sexual offences against children by those in a position of trust 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.  Your counsel submitted that, in all of the circumstances of the case, sentences of imprisonment, wholly suspended, were proportionate to all of the circumstances and adequately satisfy the relevant purposes for which sentence must be imposed.

60This submission was unopposed by the prosecution. 

61On Charge 1, of sexual penetration of a child under 16, you are convicted and sentenced to 18 months’ imprisonment.

62On Charge 2, of sexual penetration of a child under 16, you are convicted and sentenced to two years and three months’ imprisonment.  This is the base sentence.

63On Charge 3, you are convicted and sentenced to 15 months’ imprisonment, and that has the declaration that I have noted. 

64Six months of the sentence imposed on Charge 1 and three months of the sentence imposed on Charge 3 are ordered to be served cumulatively upon the base sentence and upon one another.  I order that the total effective sentence of three years’ imprisonment be wholly suspended for a period of two years.

65HER HONOUR:  Mr Edney, we will see whether I am able to do that, otherwise I will impose individual sentences and make orders for cumulation of the separate suspended sentence.

66MR EDNEY:  Yes, I understand, Your Honour, thank you.

67HER HONUOR:   I order you to comply with the provisions of the Sexual Offenders Registration Act 2004 for the mandatory period of life.

68Pursuant to s6AAA of the Sentencing Act, were it not for your pleas of guilty I would have imposed three years’ imprisonment to be served immediately with a minimum period before parole eligibility.

69Mr Donaghy, are there any ancillary orders?  I don't believe that there are.

70MR DONAGHY:  There aren't, Your Honour, thank you.

71HER HONOUR:  Yes, thank you very much.  Ms Warner, I'll trouble you please just to wait a moment for the orders to be printed, particularly there's a volume of paper that we need to provide in relation to Sex Offender Registration, so if you just hold the space - firstly, you may exit the dock of course and sit behind Mr Edney and secondly, Mr Edney, would you mind helping your client with that basic explanation that my associate needs to give in relation to its operation.

72MR EDNEY:  Yes.  I will, Your Honour.

73HER HONOUR:  That's the only part where I'll prolong your client's attendance here because she will need to sign an acknowledgement of receipt.

74MR EDNEY:  Yes, thank you, Your Honour.

75HER HONOUR:  Thank you very much.  Thank you.  I'll adjourn but I'll be ready to sign those forms out the back.  Thank you.

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