Director of Public Prosecutions v Wills (a pseudonym)
[2021] VCC 2051
•7 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOIRA WILLS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 August, 11 and 29 October 2021 | |
DATE OF SENTENCE: | 7 December 2021 | |
CASE MAY BE CITED AS: | DPP v Wills (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2051 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Assault with intent to commit sexual offence – sexual assault –transgender female offender – relevant criminal history – offender subject to reporting obligations under Sex Offenders Registration Act 2004 at time of offending – early guilty pleas – significant decline in mental health due to incarceration conditions – Verdins limbs 2, 3, 5, and 6 – burden of custody due to COVID-19 pandemic – serious offender provisions – community protection – discretionary registration under the Sex Offenders Registration Act 2004.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Bowden v The Queen (2013) 44 VR 229; Bugmy v The Queen (2013) 249 CLR 571; Rossi v The Queen [2021] VSCA 296; R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J Warren (Plea) Ms A Loughnan (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr Z Menon (Plea) Ms E Murphy (Sentence) | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Moira Wills[1], you have pleaded guilty on indictment to Charge 1, assault with intent to commit a sexual offence pursuant to s42(1) of the Crimes Act1958 and Charge 2, sexual assault pursuant to s40 of the Crimes Act 1958.
[1] A pseudonym.
2Charge 1 carries a maximum penalty of 15 years’ imprisonment and Charge 2 carries a maximum penalty of 10 years’ imprisonment.
3The circumstances of your offending are set out in the Amended Summary of Prosecution Opening for Plea dated 3 August 2021.[2] Your counsel indicated that the amended opening was an agreed document for the purposes of sentencing.
[2] Exhibit A.
Circumstances of the offending
4The offending took place on the evening of 1 February 2021.
5The victim of your offending, Monica Konstantopoulos,[3] was unknown to you. At approximately 8.40 pm, Ms Konstantopoulos left a restaurant in Richmond having enjoyed dinner with her sister and her sister’s two children.
[3] A pseudonym.
6At around 9.20 pm, she made a phone call to her mother. The two engaged in a conversation whilst Ms Konstantopoulos continued walking home. She walked down Lennox Street and then turned right into Firebell Lane.
7CCTV footage shows that you began following Ms Konstantopoulos as she walked down Lennox Street.[4]
[4] Exhibit B.
8As Ms Konstantopoulos turned right onto Firebell Lane, she paused momentarily to remove her house key from her bag. You followed Ms Konstantopoulos onto Firebell Lane and approached her from behind. You grabbed Ms Konstantopoulos by the arm and pulled her arm, forcing her to swing around and face you.
9Ms Konstantopoulos described you as a Caucasian male who appeared transgender, approximately 180cm tall, medium build with a slightly effeminate voice, aggressive, with a very strong grip. She observed that you were wearing a knee-length dress with a white woven blanket draped over your shoulders.
10As you held Ms Konstantopoulos by the arm you said to her, ‘Have sex with me, why won’t you lie down and have sex with me’. (Commencement of Charge 1.)
11Ms Konstantopoulos tried to break free from you, but you would not let go of her arm. She began screaming for help. She saw on her mobile phone that her call to her mother was still connected, so she shouted out ‘I’m in Firebell Lane’. You tried to take Ms Konstantopoulos’ mobile phone from her, but she resisted and pulled her phone back. The phone call with Ms Konstantopoulos’ mother was disconnected.
12While you had hold of Ms Konstantopoulos’ forearm, you put your other hand down the front of Ms Konstantopoulos’ jeans and touched the outside of her vagina with your fingers. This resulted in skin on skin contact. Ms Konstantopoulos pulled away from you, and in doing so was able to remove your hand from the inside of her jeans. (Charge 2.)
13Ms Konstantopoulos continued to scream for help, but you persisted and attempted to pull down her jeans. She wrestled with you and managed to keep her jeans up.
14The incident was captured on CCTV footage. Ms Konstantopoulos’ screams for help can be heard on the audio recording of the CCTV footage.[5]
[5] Exhibit C.
15Two passers-by, Lisa Milton[6] and Rodney Rich[7] were walking down Lennox Street when they heard a female screaming for help. Ms Milton looked down Firebell Lane and saw you holding Ms Konstantopoulos. She saw that your hand was down the front of Ms Konstantopoulos’ pants. Both Ms Milton and Mr Rich ran to Ms Konstantopoulos’ aid and yelled at you to stop. They confronted you and it was then that you let go of Ms Konstantopoulos and backed away. You walked away towards Lennox Street. (Conclusion of Charge 1.)
[6] A pseudonym.
[7] A pseudonym.
16Ms Konstantopoulos was left crying and highly distressed. Ms Milton and Mr Rich both tried to comfort her. Other members of the public arrived on the scene. Several members of the public had called Triple 0 and requested police assistance.
17Ms Milton then followed you onto Lennox Street. She approached you and said to you that you should not do that. You responded with words to the effect ‘I didn’t do anything. It was her fault’.
18A nearby resident, Greg Duncan[8], spoke with Ms Milton and obtained a description of you. Mr Duncan observed you on Lennox Street. He ran up to you and took hold of you, whilst also calling Triple 0. You attempted to break free from him and said ‘I didn’t do anything to her. I didn’t do anything’. Mr Duncan held you until the police arrived and arrested you.
[8] A pseudonym.
19Ms Konstantopoulos’ mother phoned Ms Konstantopoulos’ sister in a highly distressed state and told her what had happened. Ms Konstantopoulos’ sister immediately drove towards Ms Konstantopoulos’ address in search of her. Having arrived on the scene, she was able to attend to Ms Konstantopoulos.
20Ms Konstantopoulos was later taken to the Royal Women’s Hospital where she underwent a forensic medical examination.
Arrest and procedural history
21You were arrested at the scene and interviewed that same day. During your record of interview you gave the following account:
I was having some drinks and I decided to go out for a walk and I was walking about Richmond and I was on my way home…I was walking through an apartment building block and I ran into a girl, into a woman. Like we basically walked into each other and she was frightened, she got frightened. And I – I was frightened too actually because…we just ran into each other. And then…she just started freaking out…she just started screaming and stuff and it was, like really strange.
22You told the police that you had tried to calm the victim down and then other people turned up and began to accuse you of ‘something’. You denied saying the words, ‘lie down and have sex with me now’. You also denied touching Ms Konstantopoulos’ vagina. You told the police that Ms Konstantopoulos ‘made up that she was being raped or something that she was being assaulted’.
23You were remanded in custody and have remained there since. A bail application made on 18 March 2021 was refused. At a second committal mention hearing on the 4 June 2021, the matter resolved to a plea of guilty. However, there remained a dispute regarding what sexual act you intended to engage in, in respect of Charge 1. You contended that the Court should sentence you on the basis that you intended to commit an offence of sexual touching. The prosecution submitted that the evidence indicated that you intended to commit a penetrative act involving penetration of the victim’s vagina with your penis.
24The matter was listed before me for a contested plea on 3 August 2021. It was not intended that any evidence be called, rather it was a question of what conclusions could be drawn from the evidence as to your intent in respect of Charge 1. Following further discussions between the parties, the contested aspect resolved without any submissions or evidence being called. It is agreed that in respect of Charge 1, you will be sentenced on the following basis:
· Your intention was that the victim take part in a sexual act with you, namely sexual penetration. The prosecution accepts that it is open to the Court to infer that you intended an act involving penetrating the victim’s vagina digitally.[9]
[9]See [32] of the prosecution opening (exhibit A).
25The contested aspect having resolved, you were arraigned. The matter was then adjourned to 11 October 2021 for a plea hearing. This adjournment was necessary to allow the prosecution to obtain your criminal history from Germany. Further, bearing in mind no reports were filed on your behalf, a Forensicare report was ordered.
26On 11 October 2021, the case was opened and a plea in mitigation commenced. Your criminal history from Germany was still not available. As your offending in Germany involved sexual offending, it had real bearing on issues arising in this matter. The plea was adjourned part-heard to 29 October 2021.
27On the 29 October, your German criminal record filed was admitted by you. The Court also heard evidence from Jennifer Hosking, the Assistant Commissioner of the Sentence Management Division of Corrections Victoria.[10] Further submissions were made. The implications of your German priors on the serious sexual offender provisions and sexual offender registration requirements were clarified.
[10]In addition to an affidavit filed by Ms Hosking sworn on the 2 August 2021 (exhibit 3).
28The matter was then adjourned for sentence.
Criminal record
29You have admitted a criminal record which reveals offending in Victoria, the ACT and Germany.
30You have one prior appearance for two dishonesty offences before the Melbourne Magistrates’ Court in 1999. You were sentenced without conviction to an adjourned undertaking with which you complied.
31You have two court appearances in the Munich Local Court on 11 January 2006 and 7 August 2007. Both appearances attracted financial penalties for offences of negligent drunk driving in combination with grievous bodily harm in combination with intentional bodily harm.
32The most relevant prior history relates to your appearance before the Munich District Court for sexual offending committed upon your biological daughter in 2011. The criminal record states that you were sentenced in respect of this offending on 18 June 2014 to a term of 6 years’ imprisonment. The offending involved you penetrating your daughters mouth with your penis, rubbing your penis against her body until you ejaculated and pressing your penis against her vagina. Your daughter was aged 6 at the time of the offending. The offending occurred over some period of time in 2011 during access visits. A complaint was made some time after the offending and you were remanded in custody in 2012.
33Having served your sentence in a male prison in Munich, you were deported to Australia in 2018. On 14 February 2018, having arrived at Melbourne Airport, you were served with a Notice of Reporting Obligations under the Sex Offenders Registration Act 2004.[11]
[11]In accordance with s54 of the Sex Offenders Registration Act 2004.
34Bearing in mind your convictions in Munich in respect of two offences of aggravated sexual abuse, you were a registrable offender and ordered to report for a period of 15 years from 14 February 2018.[12]
[12]The s54 Notice appears to have treated Ms Wills as committing two separate Class 2 offences. The offending included a penetrative offence, which would qualify as a Class 1 offence. Either way, Ms Wills was ordered to comply with the reporting conditions for period of 15 years.
35Having arrived in Melbourne on the 14 February 2018, you went to live in the ACT. You secured public housing and commenced hormone replacement therapy (‘HRT’). You commenced study for a Bachelor of Business Degree at Southern Cross University. I am told you have four subjects left to complete your degree.
36Whilst you lived in the ACT, on a number of occasions you failed to comply with your reporting obligations. On 21 June 2019, you were sentenced by the ACT Magistrates’ Court in respect of four offences of failing to report, to a term of 3 months’ imprisonment, to be released after serving 2 months, with one month suspended on condition that you be of good behaviour for a period of 18 months.[13]
[13]The conditions also included reporting to corrective services and being subjected to probation for a period of 6 months or such lesser period as deemed appropriate by the supervisor.
37In June 2020, you moved from the ACT to Melbourne. You rented an apartment in Richmond. That is where you were living at the time of your offending upon Ms Konstantopoulos.
Victim Impact
38Ms Konstantopoulos made a victim impact statement declared on 23 July 2021. Immediately after the offending she struggled to sleep or eat for two to three weeks. She didn’t return to work for three weeks, as she was afraid to walk to work, as this involved walking the path where the offending occurred. She struggled to go to shops in the middle of the day due to anxiety. She was, and is still startled by sudden noises or people walking too close to her on the street. Several times a day she would become tearful and distressed for no reason. This still occurs three or four times a week. Despite living in the neighbourhood for more than ten years, she now feels unsafe. She has been using ride sharing services more frequently. She checks in with family and friends when arriving home. She expresses her anger at having to do this as a mature woman living in 2021. She had planned to undertake further education but has lost all motivation to do so. She is hesitant to socialise in larger groups or meet new people.
39Ms Wills, the inescapable fact is your offending has disturbed the life of Ms Konstantopoulos, robbing her of enjoyment and peace of mind. It has had a significant detrimental impact upon her.
Personal circumstances
40Ms Wills, you were born in February 1977 and are now aged 44 years of age. You were born as a male but now identify as a transgender woman. You have been living as a female for the last nine years and have been undertaking HRT for the last three years.
41You were raised on the south coast of New South Wales by your mother and stepfather. You describe your stepfather as being “ ‘militaristic’ and controlling, and discipline involved being intimidated, yelled at, and occasional physical punishment”.[14] Strict rules were imposed, prohibiting socialising outside of school hours and enforcing homework to be done within a certain time. Both your mother and stepfather worked a great deal and the family did not share meals or spend time together.
[14]See [8] of Ms Wood’s psychological report.
42You had contact with your biological father once a year and have never developed a close relationship.
43You experienced an awareness of your female gender identity from an early age. You found small ways to express your femininity, which included giving yourself female names. Your stepfather made derogatory comments about transgender and gay people which you took as being directed at you. Your parents were not accepting of your expressions of femininity. Your stepfather became increasingly intense and threatening about you having to be a boy. Whilst you do not recall what happened, at the age of eight you experienced a breakdown following an intense altercation with your stepfather. You realised you had to live as a boy in order to survive your family life.
44School was not easy as a result of being misgendered. You felt forced to do ‘male’ things instead of being treated as a female. You were teased, bullied, and even threatened. You told some close friends about your gender confusion and were met with mixed reactions. You started a queer hangout space with peers, but it was shut down because it attracted further bullying.
45You lived as a male until the age of 35. At the age of 16, when you were in Year 10, you moved out of home. You initially lived with family friends, before living independently. You obtained the Austudy allowance and completed Year 12. You then worked in hospitality, including bar service work and waitering. You undertook and completed a Certificate IV in Hospitality. At the age of 24, you moved to Sydney where you continued working in hospitality, managing a restaurant and also working in a hotel. In 2004, having moved to Munich, you continued working in the hospitality industry. In addition, you worked for three and a half years as a customer services representative for an IT company.
46In addition to your employment, you have been involved in writing music and playing in bands.
47Since your teenage years, you have identified as bisexual. You have had numerous intimate relationships with females, each lasting approximately three years. At the age of 27, you had a brief relationship with a German tourist who fell pregnant. You moved to Germany in 2004 to start a family. Your partner gave birth to a daughter. The relationship ended after three years when you explained your gender dysphoria to your partner. You realised you were not in love and had different interests. You remained in Germany and had shared custody of your daughter every second weekend. As already alluded to, it was in 2011 that you committed the offending against your daughter during access visits.
48About one year prior to your arrest for the sexual offending against your daughter, you had commenced gender transition and began living as a woman.
49You served close to six years in a male prison in Germany. It was a deeply traumatic experience, coinciding with your recently re-emerged female identity. You described to Dr Melisa Wood, a clinical and forensic psychologist, the discrimination, threats and abuse by prison officers and other prisoners. You were prevented from showering because you were seen as ‘dirty’, ‘different’ and ‘not welcome’ in the shower room. You were sexually assaulted on two occasions, causing you to retreat to your cell, withdraw from groups and programs and fear for your safety. You were refused HRT despite your transgender status being pre-established and supporting letters from a doctor psychologist and prison pastor.[15]
[15]Ibid [21].
50As I stated to your counsel, your harrowing experience in a male prison in Germany should have acted as a real deterrent against any further offending. Regrettably, you have returned to a custodial environment as a result of further sexual offending, this time perpetrated upon a complete stranger.
51You have also had a few brief relationships with men. Since your transition, your preference for intimate relationships is with men. You met your current partner on a dating app.
Objective gravity
52Your counsel, Mr Menon, commenced his plea by acknowledging that the two offences for which you fall to be sentenced were serious. He also acknowledged the considerable impact of your offending upon Ms Konstantopoulos. It was entirely proper for him to make those concessions.
53Having enjoyed dinner with her loved ones, Ms Konstantopoulos was walking home. Out of the blue, she was confronted by you, a complete stranger. You physically restrained her. Despite her screams for help and telling you to stop, you persisted with the offending. You only desisted once members of the public intervened. In relation to Charge 1, your intention was to penetrate Ms Konstantopoulos’ vagina digitally. You attempted to pull her pants down. In relation to Charge 2, you forced your hand inside her pants, making direct contact with her vagina.
54Your actions violated Ms Konstantopoulos’ bodily integrity and her sense of personal safety. This was brazen and opportunistic offending against a complete stranger who was simply walking home as she was entitled to do. As already alluded to, your offending has had a profound impact upon Ms Konstantopoulos.
55At the time of this offending, you were a registered sexual offender. That should have been a constant reminder to you that you must not re-offend.
56Women should be free to walk the streets alone without fear of being attacked by a stranger.
57The sentence this Court imposes must denounce your offending. It must also send out an unequivocal message to anyone who may be so inclined to offend, that such offending upon women will be taken seriously and met with stern punishment. Further, in addition to general deterrence, this is a case where any sentence must specifically deter you from any further similar offending. You are someone who comes before this Court with a history of sexual offending that sent you to prison in Germany for six years. Not only did you serve a long sentence, but your experience in the male prison was traumatic and harrowing. That sentence and experience, regrettably, did little to deter you from further sexual offending. Just punishment and community protection also assume importance.
58In relation to Charges 1 and 2, you fall to be sentenced as a serious sexual offender. That means, I must regard community protection as the principle sentencing purpose when sentencing you on these charges.
59In addition, I must also pay regard to your rehabilitation. In short, as your counsel submitted, this matter brings into play all sentencing purposes.
Matters in Mitigation
60You indicated an intention to plead guilty at an early stage in the Magistrates’ Court. By entering pleas of guilty, you have facilitated the course of justice and have taken responsibility for your actions. You have also saved the community the time and expense of a trial and importantly have spared your victim the trauma of re-living the incident in court. You are entitled to an additional and palpable discount, having entered pleas of guilty, when this Court is facing a considerable backlog of trials.[16]
[16]Worboyes v The Queen (2021) 96 MVR 344, 356-7 [35] – [39]. See also Rossi v The Queen [2021] VSCA 296 [13].
61As far as remorse is concerned, you were quick to deny your offending when challenged at the scene by members of the public. You maintained your denials when interviewed by the police. However, on balance, I am prepared to accept, bearing in mind your pleas of guilty and your contrition expressed to your partner,[17] you have displayed a degree of remorse.
[17]See Exhibit 6.
62I accept that the COVID-19 pandemic has placed additional hardship upon you. Over and beyond your exceptionally harsh custodial conditions, which I will deal with later, the pandemic has led to increased anxiety of contracting the virus in a custodial environment over which you have little control. I was told that as at 5 October 2021, there were three active cases amongst prisoners at the Dame Phyliss Frost Centre (‘DPFC’). You have had no personal visits and rehabilitative and counselling programs have been significantly curtailed.
Hardship of custody and deterioration in the offender’s mental health
63You arrived at the Melbourne Assessment Prison on 3 February 2021. Given the nature of your offending and your priors abroad, you were classified as a maximum security risk and placed into protection. You spent two weeks in protective quarantine. Thereafter, you remained separated from other male prisoners. Due to your experience in Germany, you raised concerns for your safety in a male prison, bearing in mind your transgender status. You requested a placement at the DPFC.
64On 12 March 2021, you were transferred to the DPFC. From 13 March 2021, you have been housed in the Swan 2 Management Unit (‘Swan 2’). This unit accommodates 20 female prisoners who are either on remand or serving their sentence. It is a secure unit where all movements in and out are controlled. Unlike mainstream units, Swan 2 employs a restrictive regime where time out of the cell is very limited and there is no social interaction with other prisoners. It is fair to say, the conditions in Swan 2 are bleak and more onerous than the protection unit at the DPFC.[18]
[18]Murray Unit.
65I have had regard to both the affidavit of Jennifer Hosking sworn on 2 August 2021[19] and her oral evidence given in Court on 29 October 2021. In her evidence, Ms Hosking stated that you were placed in Swan 2 due to the nature of your current offending raising concerns for other female prisoners. The fact that you are a transgender woman was also a factor, as your personal safety was also an important consideration. However, Ms Hosking stressed your offending was the significant consideration in placing you in Swan 2 where you have continued to remain.
[19]Exhibit 5. ([8] of her affidavit incorrectly records Ms Wills being in custody in the ACT for attempting to rape a female).
66I am told that until the end of June 2021, you have had to spend up to 23 hours in your cell. Spending all that time alone in a small cell with no social interaction with any other prisoner and very limited interaction with clinicians and counsellors has taken a toll on your mental health.
67In a custodial environment desperately lacking in social interaction, Mr Witt Gorrie has been a much needed support. Mr Gorrie is a social worker with ten years of experience. He works within the ‘Beyond Bricks & Bars’ project based at the community organisation Flat Out. He provides specialist support to transgender and gender diverse people who are in custody, with the aim of assisting with reducing their isolation, building connections and increasing their safety. The support extends to post-release assistance with re-engagement in the community and establishing support networks to prevent recidivism.
68A letter written by Mr Gorrie dated 28 July 2021 was tendered on the plea.[20] Mr Gorrie also gave evidence before me on 11 October 2021.
[20] Exhibit 3.
69Upon receiving a referral, Mr Gorrie met you via teleconference on 9 March 2021. At this point in time you had been in solitary confinement in a men’s prison at the Melbourne Assessment Prison. Two days later, on the 11 March 2021, you were transferred to the DPFC.
70Mr Gorrie has engaged with you since March on a regular weekly or fortnightly basis via Zoom. In your early sessions, whilst identifying the negative impact of solitary confinement upon your mental health, you still expressed feelings of hope, optimism, and had a generally positive outlook on life. However, over the past few months, Mr Gorrie has witnessed an ‘extreme and very concerning decline in [your] mental health and well-being’. The impact of prolonged isolation has been profound. You have expressed a deep sense of hopelessness. You have been struggling to take care of yourself, such as showering regularly. You have had thoughts of suicidal ideation.
71Mr Gorrie in his letter states ‘In my ten years as a social worker, I have never witnessed such a rapid decline in someone’s mental health within a correctional facility as I have in Ms Wills over the past few months.’ He further adds that Ms Wills has engaged with him consistently in a respectful manner and has indicated a willingness to continue with the support into the future. Mr Gorrie will assist in providing you with support upon your eventual release into the community, linking you with ‘meaningful, affirming and appropriate services’.
72In his oral evidence, Mr Gorrie confirmed the accuracy of his letter but added that you were now much more unwell than at the time of writing the letter. You presented with unusual bodily movements such as twitching and you space out during conversations. You are finding it extremely difficult to hold conversations over a longer period. As a result, Mr Gorrie is now communicating with you two times a week, with each session lasting only 20 minutes. He described Swan 2 as a cold environment with small locked cells. The unit houses female prisoners in distress and a great deal of yelling could be heard during your sessions. Mr Gorrie added that this environment was not conducive to conducting therapeutic counselling. He stated that Swan 2 was very different to mainstream. Mainstream prisoners enjoy social interaction constantly and have access to programs, support and employment. Further, absent lockdown they have access to fresh air at any time. Of course, the pandemic has resulted in the curtailment of courses and programs, as well as lockdowns, for all prisoners.
73Mr Gorrie stated that he would ensure that you are supported post-release in any way necessary, including access to mental health support with experts experienced in counselling and treatment of transgender women.
74Mr Gorrie’s observations of your decline in mental health are confirmed in the comprehensive psychological report prepared by Dr Melisa Wood dated 17 September 2021.[21] Dr Wood interviewed you for a total period of three hours via teleconference over three consecutive days on 30 August 2021 to 1 September 2021.
[21]Exhibit 2.
75Despite your placement conditions and diagnosed adjustment disorder, your mental state remained relatively stable for the first five months of your incarceration. However, a sharp decline was noted at the end of June.
76On 30 August 2021, you appeared markedly depressed. Your hair was matted and you had not showered for a week. A mild improvement was noted in your mental state on 31 August. On 1 September, you showed further improvement, although still reported a low mood, sadness and tearfulness. You demonstrated some warmth and optimism for the future.
77Dr Wood states that you are not coping with solitary confinement and reported symptoms indicative of major depression. You reported feeling really sad, crying a lot, feeling tied down, poor energy and disrupted sleep.
78Under the heading, Opinions and Recommendations, Dr Wood states:
Ms Wills’ gender dysphoria and trauma symptoms have clearly re-emerged and worsened in the context of long-term segregation and isolation in custody, where her differential treatment even from other transgender offenders and female sex offenders acts as a persistent reminder that she is ‘different’ and ‘inferior’. Her reduced access to HRT has likely contributed to the loss of her feminine identity and bodily disorientation, but this gender suppression also appears to be linked to re-traumatisation (feeling she must act male in a socially deprived environment). The environmental reminders of past traumas have also re-triggered traumatic memories and re-enactment, dissociative symptoms, and fractured self-identity. Over time, the uncertainty and loss of hope has led to the development of a severe major depressive episode. While her depression is reactive to her circumstances. (she herself clearly identifies she would feel much better in different conditions), she nonetheless meets full criteria for the disorder, which supersedes the previous diagnosis of adjustment disorder with depressed mood. I do not consider that her symptom reporting is exaggerated or feigned, in view of the clearly observed features that are very difficult to successfully feign; including cognitive and psychomotor slowing, thought disorder, disassociation, possible catatonic features, and her poor self-awareness of these symptoms that are readily observed by others. I do note the graded improvement in cognition, orientation, and spontaneity across sessions, which indicates her mental state fluctuates markedly, likely in response to external stimuli (i.e., benefiting from our persistent interpersonal contact across three days). This indicates that her mental state is likely to improve with increased social stimuli, consistent with the comprehensive research literature on the mental health impacts of prolonged solitary confinement. Nonetheless, there is also a potential for longer term mental health impacts, particularly in vulnerable persons with pre-existing mental health issues.
There is a significant likelihood that Ms Wills’ mental state could further deteriorate in custody, particularly should she remain segregated under the management regime. She is at risk for further cognitive and functional decline due to lack of stimuli, increased disorientation, disassociation, and suicidality, and even development of psychotic symptoms secondary to severe depression. There is additional risk of agitation or aggression in the context of her growing frustration over her treatment, particularly in the context of a confused and overwhelmed mental state. If she were to be successfully integrated into the women’s prison, this would most likely take the form of a protection placement (due to her transgender and sex offender status) which, whilst still isolative, may afford her some controlled socialisation, compound and program access, and sense of ‘normality’ which is likely to have a positive impact on her mental state as well as increasing accessibility to medical and mental health treatment.[22]
[22][34]-[35] of Dr Wood’s report.
79I accept that your mental state has declined over the months, with a noticeable sharp decline since June 2021. This decline is linked to your onerous conditions in the Swan Management Unit, involving solitary confinement and very little social interaction.
80There is a significant likelihood that your mental state could further deteriorate in custody, particularly if you remain segregated in the same manner under the current management regime.
81In view of the matters alluded to above, as submitted by your counsel, and conceded by the prosecution, Verdins[23] limbs 5 and 6 have real application in your case.[24] There can be absolutely no doubt about that.
[23]R v Verdins (2007) 16 VR 269 (‘Verdins’).
[24]Limb 5 - the existence of an impairment at the time of sentencing, or its reasonably foreseeable re-occurrence, may mean that a specific sentence may weigh more heavily on the offender than it would on a person in normal health.
Limb 6 - if there is a serious risk that imprisonment will have a significantly adverse impact on the offender’s mental health, this will be a mitigating factor.
82I make it plain that I have considered all of the material with care. In addition, I have considered the journal article titled ‘To keep me safe from harm? Transgender prisoners and the experience of imprisonment’[25] and the report prepared by the Victorian Ombudsmen titled ‘Implementing OPCAT in Victoria: report and inspection of the Dame Phyllis Frost Centre’ dated November 2017.
[25]Written by Richard Edney, Deskin Law Review Volume 9, No 2.
83It is imperative that Ms Wills’ current management regime be reconsidered as a matter of urgency. Ms Hosking stated that a placement in mainstream was unlikely, however, consideration would be given to placing you in the Protection Unit. In sentencing you, I will proceed on the basis that you will remain in a restrictive regime, possibly in Swan 2.
84According to Dr Wood, there is a degree of optimism if you can be successfully integrated into the women’s prison. Controlled socialisation, compound and program access is likely to have a positive impact on your mental state, as well as increased access to medical and mental treatment.
85Dr Wood firmly advises against a return to a male prison and notes that the increased risks of victimisation of physical and sexual violence, harassment, discrimination and segregation of transgender women in men’s prison has been widely reported in research literature. A return to a men’s prison, bearing in mind your experience in Germany, would place you at an increased risk of post-traumatic stress, anxiety and fear of victimisation.
86Ms Hosking in her oral evidence stated, once you are sentenced a full risk assessment will follow to determine your future placement and treatment needs. Ms Hosking stated that the recommendations made by Dr Wood will be taken very seriously.
87In order to properly address the question of your rehabilitation and the related matter of community protection, it must be a priority that your current deteriorating mental state be addressed. Dr Wood states that increased interpersonal connectedness and supportive engagement on a daily basis is likely to have the most immediate and substantial impact for you. Further, you would benefit from psychological treatment to assist in the management of your mental health and distress. Once your mental state is more settled, continued intensive psychological intervention is necessary to address your underlying complex trauma.
88You have indicated your desire to participate in courses addressing your offending. Dr Wood recommends that offence specific treatment should commence once your mental health has stabilised. Further, any such treatment should be individualised rather than group based. This is to ensure sensitivity to your complex needs and vulnerability.
89Dr Wood also stresses the importance of supportive transgender community connections and friendship groups for gender affirmation. You would benefit from increased access to transgender peer support in custody. Dr Wood singles out Mr Gorrie’s support as being ‘noteworthy’. It is hoped, as envisaged, this support will continue upon your release to facilitate a smooth transition into the community.
90Dr Wood’s report will be made available to the prison authorities. However, I have taken some time in emphasising the recommendations, and the Court hopes that they are acted upon. If the support is offered both in the custodial environment and upon eventual release, then that will aid Ms Wills rehabilitation and consequently, the protection of the community.
91In addition to limbs 5 and 6, both parties were in agreement that limb 2 had application. Limb 2 of Verdins relates to the kind of sentence imposed and the conditions under which it should be served. Ms Warren, on behalf of the prosecution, conceded that due to Ms Wills’ deteriorating mental health and the absence of appropriate treatment or offence specific programs, it is difficult to assess her prospects of rehabilitation. Ms Warren submitted that bearing in mind Ms Wills’ current conditions in custody, a sentence that involved extended supervision in the community would encourage and foster her rehabilitation. Of course, Ms Wills’ release from custody is a matter for the parole board to determine.
92Mr Menon also submitted that Limbs 3 and 4[26] of Verdins had application. It was submitted that given Ms Wills’ current condition, general deterrence should be moderated to a greater extent. Mr Menon similarly submitted that specific deterrence also required moderation but not to the same extent as general deterrence.
[26]Limb 3 – General deterrence may be moderated or eliminated as a consideration depending on the nature and severity of the offender’s symptoms, and the effect of their impairment at the time of offending, sentence, or both.
Limb 4 – Specific deterrence may be similarly moderated or eliminated in the same circumstances.
93Unlike limbs 2, 5 and 6, the application of limbs 3 and 4 are opposed by the prosecution. Ms Warren submitted that your marked decline in mental health occurred some five months into your remand and is directly related to your remand conditions and therefore, is of a transient nature. In relation to limb 4 specifically, Ms Warren submitted that you are able to understand your role in the offending and capable of learning from the experience of being punished.
94As already indicated, your extremely harsh custodial conditions have led to a sharp deterioration in your mental health. Despite the harsh conditions, you maintained a relatively stable mental state for the first five months of your incarceration. However, perhaps not surprisingly, at the end of June 2021, a sharp deterioration in your mental state followed. Dr Wood has diagnosed you with Gender Dysphoria, Major Depressive Disorder and some symptoms of Post-Traumatic Stress. Your depression is reactive to your current circumstances. You have told Dr Wood that you would feel better in different conditions. Indeed, Dr Wood noted a gradual improvement in your mood during his three interactions with you over three consecutive days. Dr Wood states that your mental state is likely to improve with increased social stimuli. However, that will largely depend upon your future management once sentenced. The position at this stage remains uncertain but it is hoped that you will be moved, at least, to a protection unit. Dr Wood opines that a placement in protection, whilst still isolative, would afford you some controlled socialisation and a sense of normality which would positively impact upon your mental state.[27]
[27]Dr Wood’s report [35].
95In considering the application of limb 3, I must also bear in mind the nature and gravity of the offending. There is no doubt the offending is serious. It is not suggested that your mental state was compromised at the time of the offending or contributed to your offending. I note that no reliance was placed upon limb 1 of Verdins.
96However, enduring the social isolation for a very lengthy period has taken a significant toll on your mental health. On a humanitarian level, your condition must attract a reduction in the application of general deterrence. I do make it plain, whilst there is some moderation, it remains an important sentencing principle in this case.
97In respect of specific deterrence, I note that your mental state is not such that you are incapable of learning from being punished and consequently being deterred from re-offending. You are able to appreciate the wrongfulness of your offending. Indeed, through your counsel, you apologised for your offending and indicated a desire to complete any programs aimed at addressing future offending. Further, you have relevant prior sexual matters for which you served a lengthy and onerous custodial sentence in Germany. You committed this offending whilst a registered sexual offender. Your experience in a German male prison and your registration should have been a constant reminder to you that you must not re-offend. You also served a short term of imprisonment followed by supervision in the ACT in 2019. Despite this history, you went on to commit this current and serious offending. In my judgment, specific deterrence has an important role to play in the sentencing exercise without any moderation.
98At the plea hearing, I had initially formed the view that the Bugmy[28] principles were not enlivened in this matter. However, after careful and anxious consideration, I have determined on balance that the subjective circumstances of your childhood are such that they do operate to reduce your moral culpability to a limited extent. I note that your experience of gender confusion and dysphoria during your formative years resulted in repeated traumas culminating in a psychological breakdown at the age of eight. Concerning your childhood and upbringing, Ms Wood noted the following:
Her upbringing was marked by repeated complex traumas, commencing with early gender confusion, resulting in gender dysphoria and secondary depression from age six. Early attempts to express her femininity were met with mocking, anger, denial, abuse and even rage by her parents, resulting in an ultimate traumatic event and psychological ‘breakdown’ at the age of eight which Ms Wills is unable to clearly recall or articulate. Following this incident, she engaged in a complete reversal and repression of her gender identity to feel psychologically safe within her own family and amongst the community. Moreover, Ms Wills experienced further maltreatment in the form of coercive, militaristic parenting, harsh discipline, and differential treatment as the ‘stepchild’, such that she continued to be treated as inferior, different, and unworthy even following her gender conformity. She continued to be singled out at school and at home for being feminine, ‘sissy’, ‘gay’, and different, and received adverse reactions even by those she trusted enough to disclose her inner feelings.
[28] Bugmy v The Queen (2013) 249 CLR 571.
99I note that despite your issues in your formative years, you have generally done well in life. Having left home at the age of 16, you went on to complete Year 12. In addition to working primarily in hospitality, you completed further study at TAFE. You have pursued your interests in music, both writing music and playing in a band. You remained in consistent employment from the time you left school until you were incarcerated in 2012 in Germany. You have held age-appropriate and meaningful relationships.
100Despite moderation, your moral culpability remains high for this offending. You have relevant priors and were a registered sexual offender at the time of this offending.
Registration under the Sexual Offenders Registration Act 2004 (‘the Act’)
101As a result of your prior convictions for sexual offences in Germany you have been ordered to comply with reporting obligations for a period of 15 years.
102The prosecution make application pursuant to s11(1) of the Act for you to comply with the reporting obligations of the Act. As the victim is an adult, registration as a sex offender under the Act is discretionary.
103Section 8 of the Act states:
…
(2) A Class 4 offence is an offence listed in Schedule 4 committed against a person other than a child by a person who is (whether because of, or apart from, that offence) a serious sexual offender for the purposes of this section.
(3) For the purposes of this section a person is a serious sexual offender if he or she has at any time (whether before, on or after 1 October 2004) been sentenced by a court for 2 or more offences listed in a Schedule to this Act whether—
(a) in the one trial or hearing; or
(b) in different trials or hearings held at different times; or
(c) in separate trials of different charges in the one indictment.
Note - The term serious sexual offender is also defined in section 6B of the Sentencing Act 1991 for the purposes of Part 2A of that Act. However, the term is differently defined in that Act.
104Section 3(1) defines ‘the court’ as including a court (however described) of a foreign jurisdiction.
105The offences of assault with intent to commit a sexual offence and sexual assault are both listed in Schedule 4 of the Act.[29]
[29]Schedule 4, Clauses 1 and 2 of the SORA.
106Therefore, you qualify as a serious sexual offender for the purposes of s8 of the Act. Accordingly, the two charges for which you fall to be sentenced are each Class 4 offences.
107Section 11 provides:
(1) If a court finds a person guilty of an offence committed as an adult that is not a Class 1 or Class 2 offence (including an offence that is a Class 3 or Class 4 offence), it may order that the person comply with the reporting obligations of this Act.
…
(3) The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.
(4) For the purposes of subsection (3), it is not necessary that the court be able to identify a risk to particular people, or a particular class of people.
108Pursuant to s11(11) of the Act, if the Court makes an order under s11, you will be subject to the order for the remainder of your life, regardless of the period for which you must comply with the reporting obligations of this Act, unless the order is quashed or set-aside by the Court.
109If an order is made under s11, Charges 1 and 2 on the indictment become ‘registrable offences’ pursuant to s7(1)(c) and you will become a ‘registrable offender’ pursuant to s6(1).
110On your behalf, the application under the Act is not opposed. It was fairly conceded that given the circumstances of the current offending and your prior criminal history, the application was made on a sound basis.
111In considering the risk posed in accordance with s11(3) of the Act, it is important to note that the primary purpose of the Act is to enhance community protection by reducing the likelihood of re-offending, to facilitate the investigation and prosecution of any future offences that the person may commit, and protecting potential victims, particularly children. Bearing in mind the primary purposes of the Act, the evaluation of risk is directed to the risk upon release into the community.[30]
[30]Bowden v The Queen (2013) 44 VR 229 at [36]. See also s1(1) of the Act.
112Having considered this matter carefully, I am satisfied beyond reasonable doubt, that you will pose a risk to the sexual safety of one or more persons or to the community upon your release from custody.[31] In coming to that conclusion, I bear in mind that you have committed sexual offences against a child and now an adult. The offending against the child was committed in 2011. From 2012 until your deportation back to Australia in 2018, you served a term of imprisonment in a male prison in circumstances that you found harrowing. Despite that stern punishment, you went on to commit these offences against an adult female who was walking home alone. It occurred at a time when you were already subject to reporting obligations. You have sought to minimise your offending and demonstrated little insight into your offending conduct. At present, primarily due to your solitary confinement and current mental state, you have been unable to undertake any programs or treatment addressing your offending behaviour. Whilst Dr Wood was unable to comment upon your future risk of committing sexual offences, I am satisfied beyond reasonable doubt that you present a real risk as opposed to a fanciful risk.
[31]Ms Wood was unable to complete a risk assessment for a number of reasons, including, a lack of details regarding Ms Wills’ prior offences, her current mental state which precluded an accurate psychosexual history taking, and scant research on transgender sex offenders.
113Determining risk is the first stage of the process. The second stage involves balancing the risk posed by you against the onerous consequences of you having to register and report for the rest of your life.[32]
[32]Ibid [40] –[42].
114Despite serious offending against a young child and the reporting obligations imposed upon your arrival in Australia, you have again committed serious offending, on this occasion against an adult female victim. Your offending has had grave consequences as far as the victim in the current matter is concerned. I regard the magnitude and the nature of the risk posed by you and the consequent gravity of possible harm as high. I repeat, there was no opposition on your behalf to the making of the order. Ultimately, whether the order is made is a discretionary matter for this Court.
115For the reasons articulated, it is necessary to give effect to the purposes of the Act by making the order sought by the prosecution.
Registration period is for the remainder of your life
116Pursuant to s34(3)(a) of the Act, two or more offences arising from the same incident are to be treated as a single offence. Further, pursuant to s34(4), as you are already subject to a sex offender registration order and have now been found guilty of a Class 4 offence, you are deemed to have been found guilty of a Class 2 offence.
117The effect of these provisions is that, if declared a registrable offender, you will be sentenced for a single Class 2 offence on this indictment.
118According to the s54 notice, you are already registered as a consequence of being convicted of two Class 2 offences. Therefore, you will now be sentenced for a third Class 2 offence. This means that you are required to report in accordance with the Act for the remainder of your life.[33] Even if your convictions in Germany are interpreted as one Class 1 offence as was raised in the submissions, it makes no difference to the reporting period being the remainder of your life.[34]
[33]See s34(1)(c)(iii) of the Act.
[34]s34(1)(c)(ii) of the Act.
119I therefore order that you comply with the reporting obligations of this Act for the remainder of your life. A notice setting out your reporting obligations will be sent to you in prison.
Sentencing
120Sentencing is no easy exercise. It requires giving appropriate weight to many different factors in the instinctive synthesis process. The offending is undoubtedly serious. However, any sentence must give weight to your harsh conditions in custody which have had a significant impact upon your mental health.
121Ms Warren conceded that your custodial conditions represented an exceptional hardship. Mr Menon invited the Court to consider a combination sentence in the circumstances of this case. In the alternative, he submitted, that the harsh regime you have endured should be reflected by a reduction in both the head sentence and the non-parole period. He submitted that despite the application of the serious sexual offender provisions and the presumption of cumulation,[35] bearing in mind these two charges arise out of the same incident, the impact of custody upon you and the principle of totality, significant concurrency was appropriate.
[35]s6E Sentencing Act 1991.
122Ms Warren rightly conceded that substantial concurrency was warranted. As I stated earlier, Ms Warren accepted that bearing in mind your current conditions in custody, the opportunity for treatment and supervision for an extended period in the community would encourage your rehabilitation.
123I have come to the conclusion that a sentence of imprisonment comprising a head sentence and a non-parole period is the only appropriate disposition in order to do justice to all the sentencing objectives.
124Recognising the limited utility, I have considered the sentencing statistics as outlined in Mr Menon’s written submissions.[36] Neither party referred me to any comparable cases, bearing in mind the unique circumstances of this case.
[36]Exhibit 1, [51] – [53].
125As a result of your sentence to a term of imprisonment on at least two sexual charges in Germany,[37] you now fall to be sentenced as a serious sexual offender on both Charges 1 and 2. In determining the length of the term of imprisonment the Court must regard the protection of the community as the principal purpose. It has not been submitted that a disproportionate sentence is necessary to achieve community protection.
[37]See Schedule 1, Clause g of the Sentencing Act 1991.
126Having carefully considered all the matters in this case, I sentence you Ms Wills as follows:
127In respect of Charge 1, assault with intent to commit a sexual offence, you are convicted and sentenced to 3 years’ imprisonment.
128In respect of Charge 2, sexual assault, you are convicted and sentenced to 2 years’ imprisonment.
129Charge 1 will the base sentence. I direct that 3 months of the sentence on Charge 2 be served cumulatively upon Charge 1.
130This makes a total effective sentence of 3 years and 3 months’ imprisonment. I set a non-parole period of 22 months’ imprisonment.
131You have been sentenced as a serious sexual offender in respect of Charges 1 and 2. I direct that such declaration be entered in the Court’s records.
Pre-sentence detention
132Pursuant to s18 of the Sentencing Act 1991, the period of 308 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
133
Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had Ms Wills pleaded not guilty to Charges 1 and 2 and been convicted of them, she would have been sentenced to a term of four years and four months' imprisonment with a
non-parole period of three years.
134HIS HONOUR: Anything arising Ms Loughnan?
135MS LOUGHNAN: (Inaudible response.)
136HIS HONOUR: On mute.
137MS LOUGHNAN: Can you hear me Your Honour.
138HIS HONOUR: Yes, I can hear you now, thank you.
139MS LOUGHNAN: Yes.
140HIS HONOUR: Yes, I was just checking with you there's nothing?
141MS LOUGHNAN: No, there's nothing.
142HIS HONOUR: Thank you.
143MS MURPHY: No, Your Honour, thank you.
144HIS HONOUR: All right. And whilst you can have an opportunity to speak to Ms Wills, once I rise you may want to speak to her at a later stage.
145MS MURPHY: Yes, of course, Your Honour.
146HIS HONOUR: Yes. And as I indicated in the sentencing reasons, the notice of her reporting requirements will be sent by the court to the prison.
147MS MURPHY: Yes, thank you, Your Honour.
148HIS HONOUR: Thank you. And can I thank you both and can you also pass on my thanks to both Ms Warren and Mr Menon.
149MS LOUGHNAN: Thank you, Your Honour.
150HIS HONOUR: Thank you, adjourn the court.
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