Director of Public Prosecutions v Woods

[2024] VCC 139

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01487

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN WOODS

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JUDGE:	Her Honour Judge Blair
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2024
DATE OF SENTENCE:	23 February 2024
CASE MAY BE CITED AS:	DPP v Woods
MEDIUM NEUTRAL CITATION:	[2024] VCC 139

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE

Catchwords: Sexual penetration – sexual assault – sexual activity in presence – encourage to be involved in sexual activity – child aged 16 or 17 under care, supervision, or authority – child abuse material – breach of trust – s 5AA Sentencing Act 1991 consideration – serious sexual offender – plea of guilty

Legislation Cited:      Sentencing Act 1991 (Vic); Sex Offender Registration Act 2004 (Vic)

Cases Cited:DPP v Ooms [2023] VSCA 207; Director of Public Prosecutions v McCoy (a pseudonym) [2019] VCC 680; Director of Public Prosecutions v Woods [2020] VCC 1133; Director of Public Prosecutions v Ferris [2023] VCC 1672; Director of Public Prosecutions v Smalley [2023] VCC 456; Director of Public Prosecutions v Carnie [2023] VCC 996

Sentence:                  Total effective sentence of 4 years and 2 months with a non-parole period of 2 years and 4 months. 7 days declared served by way of pre-sentence detention.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. MacDougall	Office of Public Prosecutions
For the Accused	Ms E. Clark for Plea Mr S. Pica for Sentence	Pica Criminal Lawyers

HER HONOUR:

·Damien Woods, on 7 February 2024 you pleaded guilty on Indictment P10155813 to five charges of sexual assault of a child aged 16 or 17 under care, supervision or authority, one charge of sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority, one charge of encouraging a child aged 16 or 17 under care, supervision or authority to engage in or be involved in sexual activity, one charge of involving a child in the production of child abuse material, one charge of possession of child abuse material, and three charges of sexual penetration with a child aged 16 or 17 under care, supervision or authority.

Background

1You were born in 1975 and grew up in Ararat. Your family have always lived in the Ararat area and your parents continue to reside there. Your father ran a local earth moving business for many years. He is well known in the Ararat community as a result of this, and his involvement in fire services and community fundraising organisations. You had a loving and stable childhood. The support of your parents has continued and you moved home to live with them after the discovery of your offending and the consequent breakdown of your marriage.

2You are the eldest of two children, your younger sister, like your parents, remains supportive of you and you regularly see her and her two sons. She attended court for your plea hearing and your parents attended online.

3In terms of your early schooling you attended local primary and secondary schools in Ararat. You had no behavioural, academic or social problems at school, nor were you the target of bullying or harassment. Rather you had a solid and supportive friendship group. You achieved above average results upon completion of your secondary education. You moved to Melbourne to attend university and completed a Bachelor of Music and a Bachelor of teaching.

4At approximately 15 years of age you met the woman who was to become your wife. The relationship with your wife is the only significant and intimate relationship you have had in your life. Whilst you were studying in Melbourne you would frequently travel home to Ararat on weekends to spend time with your then girlfriend and family.

5Upon completion of your degree you found your way back to the country region and took up a placement at Ballarat High School. You were 26 years old. You worked at Ballarat High School, predominantly as a music teacher for Years 7 to 10.

6You married and together with your wife you had two children, a daughter and son. From an early age your son was diagnosed with a life threatening condition, that affected the functioning of his adrenal glands. As a result there was a period of particular stress in your life with much time spent in and out of hospital. Ultimately this was the motivation for your wife to become a nurse and together you established a support group for country parents whose children had the same condition. Through this group you shared education, knowledge and support.

7Your two children are now in their 20’s and have gone on to make their way in the world and have productive lives. You are no doubt proud of them and they remain supportive of you.

8You continued to work at Ballarat High School for more than two decades. Ultimately, you were promoted to the position of Head of Performing Arts. You organised music events outside of school, took private music lessons, played in bands and you were heavily involved in the Ballarat Arts Foundation.

9Music teaching was your career and your life, you were strongly committed to your role. Often you worked very long hours and at times felt unappreciated by your employers. By 2020-2022 you began to feel burnt out. This was exacerbated by funding cuts to the music department which contributed to your demoralised feelings. The long work hours contributed to feelings of detachment from your wife and over time the intimacy between you significantly declined.

Circumstances of offending

10Your offending began in August 2022 against this background. You were 46 years of age. Your victim, Macie Simmons[1] was born in 2005 and was aged 17 years and 7 months at the time your offending began. She was one of your students.[2]

[1] A pseudonym.

[2] The complete factual basis of your offending is detailed in the Summary of Prosecution Opening for Plea dated 31 January 2024. This document was tendered on your plea as exhibit A.

11You first met the victim in 2017. You were engaged to provide her private music lessons which were conducted at Ballarat High School, in the band room.

12Sometime in 2017, you gave the victim your personal phone number for the purposes of coordinating lessons. In 2018, you and the victim began to discuss her mental health, which included talking about her self-harm. These discussions would occur during piano lessons, and via text after school hours. You spoke to the victim about her anti-depressant medication. The victim viewed you as a close support.

13During 2019, you started hugging the victim at school, however it was never in front of others. You said, “we probably shouldn’t do this, but I love hugs”. In 2021, hugs between you and the victim became longer, and you would touch the victim’s waist during hugs, and would keep you hand there during conversations and when saying goodbye.

14The victim’s parents became aware of you providing emotional support to the victim. Her mother would ask you for updates, and on several occasions, you disclosed numerous details of the victim’s ongoing mental health.

15During 2020, COVID lockdowns meant the victim had to study remotely. You began to text with the victim every night. You disclosed personal details about your life, including that you were not sleeping in the same bed as your wife. You both began telling each other that you missed each other.

16During 2021, the daily texting continued, and started to involve you and the victim exchanging selfies. You would comment that the victim was really beautiful, cute, or pretty. In June 2021, you told the victim that you didn’t wear pyjamas and slept naked. In the latter half of 2021, you began texting the victim things such as “I really trust you” and “love you mate”. During a car ride in September 2021, you held the victim’s hand.

17In 2022, you began asking her sexual questions, both in person and over text message. For example, on one occasion, you asked her to explain the sexual term “scissoring” but she refused.

18In August 2022, whilst the victim was at a school musical performance, standing on the side stage, you approached her and hugged her. It was a long hug, and the victim could feel your erection pressed against her pelvis area. This was the start of your offending behaviour and is the factual basis for charge 1 – sexual assault of a child aged 16 or 17 under care, supervision or authority.

19On 23 August 2022, during a car ride, whilst the victim was wearing a crop top and skirt, you ran your hand over her exposed waist, slightly up her top, and told her you like seeing her stomach. This is an uncharged act.

20Charge 2 – sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority is a rolled up charge that relates to three occasions where you had an erection in the victim’s presence:

(a)   One was in response to requesting and receiving a photo of the victim in her bra and underwear. You text her saying you were ‘so hard’, referring to your erection.

(b)   In September 2022, whilst driving the victim home from school, you made a joke about having an erection and you did in fact have an erection.

(c)   In September 2022, the victim was on location for a performance. You made comments to her such as ‘wow you look so hot’ and ‘you look so sexy’ whilst having a visible erection. There was later a text exchange about this incident.

21During that same performance, the victim became upset as she felt she was not performing well. You comforted her, wiped tears from her cheeks, and asked her if she would like a kiss on the cheek. She said yes, and you kissed her on the cheek (uncharged).

22From this point, you would regularly touch the victim, either brushing your hand against hers, or putting your hand on her thighs. When alone in your car, you would ask the victim sexual questions like whether she used sex toys or touched herself. At times you would attend the victim’s workplace and sit and watch her work (uncharged).

23In September 2022, the victim was sitting next to her friend in the music studio. You came in and stood on the opposite side of the victim. You rubbed your erection on the back of her arm for 30 seconds. The victim was shocked. This is the factual basis of charge 3 – sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority.

24Charge 4 - encouraging a child aged 16 or 17 under care, supervision or authority to engage in or be involved in sexual activity encompasses sexualised conversations between you and victim in text messages and in person occurring between 1 August 2022 and 26 December 2022.

25Those conversations include:

(a)   In August 2022, you told the victim that you never touched yourself anymore and that the conversations with the victim were the only thing that ‘got [you] hard’ in a long time, and that was special.

(b)   In October 2022 you told the victim you no longer had sex with your wife. You discussed sexual activity over the phone. You asked if the victim was ‘wet’ and would talk about having an erection. You would tell the victim what you wanted to do to her and say, ‘I wish I was with you right now’ or ‘I wish I was inside you right now’.

(c)   A number of text message exchanges between 22 October 2022 and 13 December 2022 form the basis of this charge have been extracted from the victims laptop and listed in appendix A. I do not propose to summarise or recite these messages other than to say they were clearly sexual in nature. Appendix A will be annexed to these reasons.

26In order to provide some certainty as to the quantity of text messages included in this rolled up charge, the prosecution have indicated there were 20 text conversations that occurred on 17 different days.

27Between 1 October 2022 and 26 December 2022, you requested and were sent images by the victim of the victim in sexualised positions, where she was naked or partially naked.

28You regularly asked for photos of the victim and would direct her to send photos of herself in certain sexualised poses, ask for images of intimate body parts and directing her to wear particular underwear or lingerie. This is the factual basis of charge 5 – involving a child in the production of child abuse material.

29In order to provide some certainty as to the quantity of text messages included in this rolled up charge the prosecution have indicated there were 29 different conversations that occurred on 21 different days. Appendix B which contains the relevant messages will also be annexed to these reasons.

30A forensic examination of the victim’s laptop, revealed 68 files that were sent to you that were categorised as Child Abuse material. 58 of these were unique images.

31Whilst no material was found on your devices, it appears that you deleted the images received so that they would not be discovered. You possessed these images on various dates between 1 October 2022 and 26 December 2022. In December 2022, the victim stopped sending you photos. This is charge 6 – possess child abuse material.

32Charges 7, 8 and 9 occurred on the one day being 2 November 2022. On this day you picked the victim up from her work and took her to your school. It was about 5pm and the only other people at school were the cleaners. You made the victim a coffee. As you drank your coffees, you chatted, and you gave the victim a hug and ran your hand up and down her leg. (uncharged).

33Just before leaving, you told the victim you had to lock up and ask her to accompany you. While in the hallway, you gave the victim a hug, during which she could feel your erection. You then kissed the victim on the lips, briefly stopped, before kissing her again and inserting your tongue into her mouth.

34You continued to kiss her and pushed her against the wall of the hallway. You touched her breasts over her clothes while kissing her. During the kiss you said, ‘I shouldn’t be doing this’ and ‘This is really bad’ - Charge 7 covers this behaviour and is a rolled up charge of sexual assault of a child aged 16 or 17 under care, supervision or authority.

35You heard the cleaner and left the school with the victim in your car. On the way home you pulled over on a dirt road. You kissed the victim, touched her breasts above and under her bra, and rubbed her vagina both over her pants and in her pants over her underwear - Charge 8 is a rolled up charge of sexual assault of a child aged 16 or 17 under care, supervision or authority.

36You then put your hand inside the victim’s underwear and digitally penetrated her vagina. This caused the victim discomfort and pain. - Charge 9 Sexual penetration of a child aged 16 or 17 under care, supervision or authority.

37During this offending, you kept saying “we should stop” and “I shouldn’t be doing this”. The offending stopped when you asked the victim if she “had come” and she lied saying yes. You then asked the victim if she wanted to see your penis, before unzipping your pants, taking your penis out and masturbating in front of the victim (uncharged act). The victim did not touch your penis, saying you should take her home instead.

38On 6 November 2022, you called the victim. You were crying uncontrollably, as your wife had confronted you and asked if you were having an affair. You explained to the victim that your relationship with her would need to stop.

39The victim became upset, thinking she had ruined your family. She told her friend about the offending and the nature of the relationship. The relationship between yourself and the victim did not change after this conversation. It was also around this time that you spoke about having sex with the victim and tried to make plans for that to occur when she turned 18.

40Between 2 November and 30 November 2022, you digitally penetrated the victim’s vagina three or four times at school, sometimes multiples times in one day – Charge 10 is charged as a course of conduct involving several incidents of sexual penetration of a child aged 16 or 17 under care, supervision or authority.

41Charges 11 and 12 both occurred on 30 November 2022. The victim was at school doing some music recording on this day. You arrived, around 2.00pm when people were still on school grounds you kissed the victim and also grabbed and squeezed her breast. You did this with the door open and people could have walked in.

42You wanted to take the victim to the garage, however, she said no, and used her concern, that someone could walk in as an excuse. You told the victim to come with you to the balcony at the top of the theatre, where you pushed her down on the couch, you tried to pull her pants down, and told her you wanted to “lick her pussy.” The victim refused, so you sat next to her and kissed her again.

43The two of you then went downstairs to the garage, where you again kissed the victim, you then penetrated the victim’s vagina with your fingers. You did this whilst facing the victim, and also bent her over a table and digitally penetrated her from behind.

44The victim stood up and turned to face you, and you again penetrated her vagina with your fingers. You put your hand down the back of the victim’s pants, placing your finger between her buttocks but the victim pushed your hand away.

45Whilst face to face, you kissed the victim, you pulled her shirt down, squeezed her nipples, touched her breasts, kissed her stomach and licked her breasts and nipples. When this was over, you took your penis out of your pants and placed the victim’s hand on it. You were erect at this time.

46Charge 11 – is a rolled up charge of sexual assault of a child aged 16 or 17 under care, supervision or authority that encompasses all of the non-penetrative conduct on this occasion. The multiple digital penetrations of the victim’s vagina on this occasion have been rolled up as the factual basis of charge 12 - Sexual penetration of a child aged 16 or 17 under care, supervision or authority.

47You continued to text the victim after this time, which included specific texts about the offending on 30 November. The victim began to distance herself from you, and also spoke again to her friend. They decided to confront you.

48The victim and her friend called you, where the victim’s friend sought an explanation for your actions. You stated that it was just a relationship that grew and evolved, and that you were not trying to groom or manipulate the victim.

49On 2 January 2023, the victim disclosed the offending to her mother, who then told the victim’s father. The victim’s parents decided to report the matter to the police. On 3 January 2023, the victim, her parents, and her friend attended Ballarat SOCIT and reported what had occurred.

50The victim’s laptop was forensically examined by police. Between February 2020 and December 2022, a total of 110,804 messages were exchanged between yourself and the victim.

51You were arrested on 19 January 2023, at which time clothing and electronic devices were seized. During your lengthy police record of interview you made a mix of admissions and denials in relation to the offending.

52Upon the revelation of your offending your life changed dramatically. You lost your job and your marriage. You moved from the family home in Ballarat back to your parent’s home in Ararat. Your reputation has been destroyed and the significant media coverage has resulted in you being the target of public abuse, harassing phone calls and general condemnation.

53To your credit you have been open with those close to you about what occurred, you have sought counselling and you are on the pathway to developing insight and a deeper understanding of your wrongdoing. Rather than sitting idle whilst waiting for your court case and your inevitable incarceration you obtained part-time work in construction and volunteered at the local Anglicare Church, transforming the church grounds.

54I remanded you in custody on 16 February 2024 in circumstances where you have no prior convictions and as a mature man this represents your first time in prison. You have served 7 days of pre-sentence detention.

Victim impact statements

55There are many factors that I need to take into account in the formulation of your sentence. This includes the three victim impact statements from the victim, her mother, and her father. Each of these statements were tendered and read aloud by their authors at your plea. There is no way that I can do justice to the eloquent, and emotional statements.

56It was clear to those who witnessed the victim reading their statement that your offending has had a profound impact on them. The victim spoke of the isolation they felt in their community due to your offending, and the anger they felt at the way the Ballarat community spoke about the offending.

57The victim explained how they have continued difficulty creating relationships, as a result of their anxiety around trust creating barriers between themselves and others. Your offending continues to take a heavy toll on the victim’s mental health. The victim also suffered financially, in moving to escape Ballarat.

58Both of the victim’s parents read their own victim impact statements at your plea. Your offending has had a significant emotional impact on both parents, with the victim’s mother describing how she has not been the same since discovering your offending. She also described the way your offending has impacted on the victim’s younger siblings, and indeed the victim’s relationship with her siblings.

59The victim’s father explained that your offending has left an intense anger in him that affects his everyday life. Your offending has tainted cherished family memories and will clearly have a long-lasting impact on the victim and her family.

60In sentencing you, I have taken into account the relevant and admissible parts of each of these victim impact statements, and take into account the impact that your offending has had not only on the victim but also her parents.

61Ms Simmons your voice has been heard by the court. Through his plea of guilty Mr Woods has accepted responsibility for what he has done to you, he will be held accountable and there will be consequences to him for the harm he has caused.

Nature and gravity of offending

62Mr Woods, as you acknowledged through your counsel Ms Clark, at the outset of her plea, your offending is serious and you have caused harm to the victim and her family.

63Your offending occurred over a 5 month period from 1 August 2022 until 26 December 2022, you have been charged with 12 offences that occurred on 8 occasions. Your offending occurred against a background of uncharged acts which put your offending in context, but for which you do not fall to be sentenced. You had time to consider your actions, which you chose to continue despite having the responsibility and stated desire to stop.

64Charges 2, 4, 5, 7, 8, 11 and 12 are rolled up charges and charge 10 is a course of conduct charge. Charges 1, 3, 6 and 9 relate to single instances of sexual wrongdoing.

65Charge 3 involves 3 occasions where you had an erection in the presence of the victim. Charges 4 and 5 largely relate to text messages exchanged between yourself and the victim. Charge 4 relates to 20 conversations that occurred on 17 different days and charge 5 relates to 29 conversations requesting explicit images, that took place on 21 different days. Charge 6 relates to the possession of child abuse material that was received by you as part of charge 5. The police found no child abuse material on any of your devices as you viewed and deleted the images you received. You did not store, disseminate or catalogue the images.

66Charges 7 and 8 occurred on the same day in two separate locations. Charge 7 relates to several occasions of you kissing and touching the victim’s breasts. Charge 8 relates to you kissing the victim, rubbing her breasts and touching her on the vagina both over and under her underwear. This offending occurred whilst you were in your car. Charge 9 also occurred on this day almost immediately after the conduct subject of charge 8.

67Charge 10 is a course of conduct charge that covers a 28 day period from 2 November to 30 November 2022. The conduct alleged is that you penetrated the victim’s vagina with your fingers on 3 to 4 occasions whilst at school and sometimes occurred multiple times in one day. In sentencing you for a course of conduct offence I must sentence you within the maximum penalty for the charged offence but I must also reflect the totality of your conduct. In this way, it is similar to the way I must deal with the rolled up charges.

68Charges 11 and 12 occurred on one day being 30 November 2022. Charge 11 relates to non-penetrative conduct that occurred on this day including you kissing the victim on the mouth, touching and kissing her breasts, pulling her pants down, touching between her butt cheeks and causing the victim to touch your penis. Charge 12 occurred soon after charge 11 and relates to 3 occasions where you put your finger in the victim’s vagina over a relatively short period of time.

69The maximum penalty of an offence is an important yardstick when considering the objective seriousness of particular offending. In this regard the maximum penalty for the sexual penetration and child abuse material charges is 10 years imprisonment. The sexual assault and sexual activity charges are punishable by up to 5 years imprisonment.

70Your counsel, Ms Clark, submitted that your offending arose in the context of detachment within your marriage, issues with self-esteem, dissatisfaction with work and a relationship with the victim that developed over a number of years. She submitted that these matters in no way excused your offending but rather provided some understanding of how a respected teacher and father came to offend in the way that you have.

71Ms Clark raised a number of factors that were relevant to assessing the objective gravity of your offending. She submitted that your victim was particularly vulnerable owing to her poor mental health and the power imbalance between you. She noted that the complainant was towards the upper end of the age range for the offending as she was between 17 years and 7 months and 17 years and 11 months and the time you offended.

72Further, with regard to the penetrative offences Ms Clark submitted that your offending lacked some of the aggravating features that can be seen in similar cases. This included that you acted alone, the instances of penetration were relatively short in duration, albeit there were several instances, there were no physical violence, threats, injuries suffered, or weapons used during the offending.

73Ms Clark also pointed to the fact that the victim was not humiliated or degraded beyond the point which is necessarily present in any penetrative sexual offence. There was also no penile penetration, therefore no risk of pregnancy or the transmission of sexual diseases. Further, you did not actively ignore warnings or protests by the victim. These absence of these factors does not mitigate your offending.

74Lastly, your counsel submitted the inability of the victim to consent and the breach of trust involved are not aggravating features of your offending rather they are both necessary elements of the offences to which you have pleaded guilty.

75I accept the submissions made by your counsel.

76Your offending involved a gross breach of trust and has had a significant and detrimental effect on the victim and her family. Your offending is serious because it involves penetrative offending and sexual activity of a repeated nature with a vulnerable victim over a number of months.

Good character

77You are a mature man without any prior criminal history. You have not engaged in subsequent offending. Your counsel has tendered 11 character references on your behalf.

78S 5AA(1) provides that in sentencing an offender for a child sexual offence a court must not have regard to the offender’s previous good character or lack of prior convictions or findings of guilt if the court is satisfied the offender’s previous good character or lack of prior convictions was of assistance to the offender in the commission of the offence.[3]

[3] Sentencing Act 1991 (Vic) s 5AA(1).

79The onus is on the prosecution to point to evidence of a relevant connection between an offender’s previous good character or his lack of prior convictions or both and the offending. The use of the word assistance in this provision connotes the offender taking advantage of that status in some discernible way, what is required to be established is a causal connection where there is some material contribution to enable the offender to commit the offences.[4]

[4] DPP v Ooms [2023] VSCA 207 [62].

80The test is not a “but for test”. It cannot merely be accepted that a person who has a child in their care, supervision or authority must either have a good character attribute or must have deployed a good character attribute associated with their role in order to commit the particular child sexual offence for which they are to be sentenced.[5]

[5] Ibid [68].

81Ms MacDougall, for the Crown, submitted that the court should be satisfied that your previous good character and/or lack of previous findings of guilt or convictions assisted you in the commission of the offences before the court. To support her argument she relied upon various factors including the following; your lack of prior history allowed you to hold a position as a teacher which in turn allowed you access to the victim and the opportunity to gain her trust. She submitted this went beyond the mere fact that you were a teacher, your position as a teacher of one on one music lessons allowed you private access to the victim, and your position as music teacher and band organiser gave you the opportunity to obtain the victim’s phone number. This in turn led to the exchange of text messages which escalated to found the factual basis of charges 4 and 5, you were known to the victim’s mother in your capacity as a musician and a good bloke, the victim’s family encouraged unsupervised access because you offered emotional support for the victim who suffered serious mental health issues. If you had prior convictions, depending on the nature of such convictions, it is unlikely you would have held a teaching position and therefore your access to the victim would have been limited. The fact that you had no prior convictions materially contributed to the building of a relationship of trust with both the victim and her parents which led to the offending.

82Your counsel, Ms Clark, referred to the Court of Appeal case of Ooms in the course of her submissions on this point.[6] It was her submission that s.5AA requires a causal link between good character and lack of prior convictions and the offending. That fact necessarily puts boundaries around the application of the section. Further she submitted good character or lack of priors has to have assisted the commission of the offence that is the prosecution must show that advantage was taken of the status to commit the offence.

[6] Ibid.

83Ms Clark acknowledged that the definition of ‘assistance’ was deliberately flexible and broad and that each case turns on their own individual facts. She submitted that there still must be some material contribution to the commission of the offence and that it is more than a “but for” test. The court cannot reason that but for your good standing or character you would not have had an elevated position in the school and would have been able to commit the offending.

84In your case, Ms Clark submitted it was not your status or good character or lack of priors that assisted you to offend. Those factors may have helped in the beginning by engendering extra trust and access to the victim through private piano lessons but this is not when the offending commenced. Your offending commenced 5 years later in 2022. Ms Clark contended that there is no sufficient temporal connection. Further, she submitted it was the particular relationship you developed with the victim over those 5 years that facilitated your offending and that showed there was a different causal connection.

85I have given this matter careful consideration and I have come to the conclusion that your previous good character was not of assistance to you in the commission of the offence. I agree with the submissions of Ms Clark that a causal and temporal connection is required to engage this section. In your case, I accept that there is no such connection, this is in circumstances where your offending occurred 5 years after your initial introduction to the victim. Further, I accept that it was the particular relationship that developed over that significant period of time that facilitated your offending as opposed to your good character or lack of prior history.

86For these reasons I do not accept that s.5AA has application in your case. Having made this finding I am of the view that given your offending is not isolated but rather spans several months the weight I can give to your previous good character must be moderated.

87A total of eleven character references were tendered to the court on your behalf. The majority of people spoke about your genuine remorse for your offending and your acknowledgement and understanding of the significant and negative impact your offending had on your victim, her family and those close to you. Many people spoke of your skill, commitment and obvious talent as a teacher and musician. Others spoke of your willingness to give of your time freely for community projects and the wellbeing of others. Certainly many of those closest to you were shocked that you could have offended in this way. Nonetheless, it is clear to me that you have the support of those close to you and there are many who believe you are capable of reform and that you are unlikely to offend in the future.

88In the circumstances of your case I have placed moderated weight on this evidence of your otherwise good character. I do however note, you have no prior convictions and this in combination with the clear support you have and the observations as to your capacity for reform are highly relevant to my assessment of your prospects for rehabilitation. Which I will return to shortly.

Dr Matthew Barth

89On 20 November 2023, you underwent a psychological assessment with psychologist, Dr Mathew Barth. Dr Barth opined that it was highly likely there was a degree of denial or defensiveness in your reporting of your current mental state. It was his view that you had attempted to portray yourself in an unrealistically positive light which led to minimisation of difficulties and faults. Dr Barth noted that your fragile self-esteem and dependency on others contributed to your relationship with the victim, one which reinforced your sense of agency and control, due to the position of authority you held over the victim.

90In relation to the offending Dr Barth stated that your sexual adjustment has been impacted by your interpersonal problems. Specifically, your difficulties with assertive communication  and your fragile self-esteem. In regards to the offending it would appear that the detachment in your marriage and work stressors you were reportedly experiencing at the time awakened particular insecurities for you.

91You also viewed the victim as being “mature beyond her years” and viewed her as being as advanced in her sexual and emotional development as an adult would be. Dr Barth noted these views are “grossly distorted and dysfunctional”.

92While Dr Barth thought you showed limited insight into your behaviour, you were able to show some signs of challenging your dysfunctional cognitions about the victim.

93In assessing your risk of re-offending, Dr Barth considers you to be a low-moderate risk of sexual re-offending. Importantly, Dr Barth opined that you do not present with entrenched sexual deviance and do not possess any antisocial or psychopathic traits.

94Your counsel does not rely on the case of Verdins in your case. However, she submitted that the opinion of Dr Barth as to your fragile self-esteem and the youth of the victim, that allowed you to feel a sense of control that was missing in your life whilst receiving admiration from the victim which bolstered your fragile self-esteem is relevant to my assessment of your moral culpability.

95I accept that this context and background helps to explain your offending and is relevant to the court’s assessment of your moral culpability generally.

Mr Peter Hanley

96You are also undergoing offence specific treatment with psychologist Peter Hanley. This treatment, which relates specifically to sexual offending, was self-initiated, which is to your credit. Your sessions with Mr Hanley started in May 2023. Mr Hanley was of the opinion that you showed poor self-awareness and engaged in efforts to manage Mr Hanley’s impression of you. Your tendency to present yourself in an overly favourable manner has been a target of therapeutic intervention.

97Mr Hanley noted prominent distortions in your description of the offending, including a denial of intent, viewing the victim as more emotionally and sexually developed for her age than is realistic, and projecting your own problems on to the victim.

Plea of guilty

98As submitted by your counsel, you pleaded guilty at the earliest possible opportunity. Your plea has facilitated the course of justice and has significant utilitarian value in that you have spared the victim the need to relive the traumatic events she suffered as a result of your offending by giving evidence. Additionally, you have spared the time and cost of a trial. These factors permit me to allow a discount for your plea of guilty.

99Further, given the timing of your plea and the fact that your case resolved at a time when the court backlogs were still in existence due to the COVID-19 pandemic I will allow some further amelioration of your sentence.

100Your counsel submitted that your early plea of guilty, as well as the observations as to your remorse in the numerous character references provided to the Court, are indicative of your genuine remorse for your offending. These references speak of your regret and shame about your actions. I note that this is slightly at odds with the degree of minimisation you showed about your offending in the phone call with the victim and her friend, your interview with police, and your discussions with Dr Barth and Mr Hanley. I do accept though that remorse can be developed with treatment, education and through disclosure and discussion with others. On balance I accept that your remorse is genuine.

Extra-curial punishment

101Ms Clark also submitted that you have suffered some level of extra-curial punishment throughout these proceedings. Following your arrest, you were subjected to repetitive and ongoing abusive and nuisance phone calls, as well as harassment on the street. Further, you have lost your career, in circumstances where this was effectively your life’s work.

Rehabilitation

102There are many factors that lead me to the conclusion that you have very positive prospects for rehabilitation. These include the fact that you attended 11 sessions of sex offender specific treatment with Peter Hanley. By accessing this treatment you have demonstrated commitment to your reform. You have begun to deal with the very factors that led you to offend and you are in the process of developing insight. I am confident you will again commit to treatment when you are able.

103Your assessment as a low moderate risk of sexual re-offending and that you do not present with entrenched sexual deviance and you have no psychological or other disorders. You have capacity for change and upon completion of further treatment your risk will reduce.

104Further, you have excellent family and community support, you have been honest and open with these supporters. You have a long history of stable employment and a demonstrated ability and motivation to obtain alternative employment. You have no prior history.

Serious Offender Provisions

105Upon sentencing you to imprisonment on charges 1 and 2 your status changes to one of a serious sexual offender. This means that community protection becomes the predominant sentencing purpose.

106Pursuant to s. 6F of the Sentencing Act 1991 I cause to be entered into the records that for charges 3 through to 12 you are sentenced as a serious sexual offender.[7] I note section 6E applies and that every term of imprisonment imposed by a court on a serious sexual offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any sentence of imprisonment imposed on that offender, whether before or at the same time as that term.[8]  That section must, however, give way to some extent to the principle of totality. In this regard I do consider there to be a degree of overlap between some of your offending as I have already mentioned. The prosecutor Ms MacDougall on behalf of the crown did not seek a disproportionate sentence.

[7] Sentencing Act 1991 (Vic) s 6F.

[8] Ibid s 6E.

Sentencing principles

107I consider that the relevant sentencing principles that must be applied in this case are general deterrence, denunciation and just punishment.  In my view specific deterrence plays little or no role in the sentencing matrix, given your age, your background and the community condemnation you have experienced. The term of imprisonment that I impose will sufficiently deter you from offending in the future and I do not expect to see you back inside a court.

108Other sentencing principles that I must apply are parsimony and proportionality. This means I must do no more than is necessary to punish you and your punishment must fit your crime.

109In addition, I have had regard to several recent decisions of this Court as provided by Ms Clark.[9]

[9] Director of Public Prosecutions v McCoy (a pseudonym) [2019] VCC 680; Director of Public Prosecutions v Woods [2020] VCC 1133; Director of Public Prosecutions v Ferris [2023] VCC 1672; Director of Public Prosecutions v Smalley [2023] VCC 456; Director of Public Prosecutions v Carnie [2023] VCC 996.

110Mr Woods after consideration of all of the above matters, including the oral and written submissions of both the defence and the prosecution, the victim impact statements from the victim and her mother and father, your character references and all of the tendered material, I have come to the view that the only sentence that can be imposed for the serious offending before the court is one of imprisonment.

111In relation to the offending before the court you are convicted of each of the charges and I sentence you as follows:

#	Charge	Max	Sentence	Cumulation
1	Sexual assault of a child aged 16 or 17 under care, supervision or authority	5	3 months	1 month
2	Sexual activity in the presence of a child aged 16 or 17 under care supervision of authority rolled up charge	5	6 months	2 months
3	Sexual assault of a child aged 16 or 17 under care, supervision or authority	5	3 months	1 month
4	Encouraging a child aged 16 or 17 under care, supervision or authority to engage in or be involved in sexual activity rolled up charge	5	6 months	2 months
5	Involving a child in the production of a child abuse material rolled up charge	10	9 months	3 months
6	Possess child abuse material	10	2 months	Concurrent
7	Sexual assault of a child aged 16 or 17 under care, supervision or authority rolled up charge	5	6 months	2 months
8	Sexual assault of a child aged 16 or 17 under care, supervision or authority rolled up charge	5	6 months	2 months
9	Sexual penetration with a child aged 16 or 17 under care, supervision or authority	10	10 months	3 months
10	Sexual penetration with a child aged 16 or 17 under care, supervision or authority course of conduct	10	27 months	Base
11	Sexual assault of a child aged 16 or 17 under care, supervision or authority rolled up charge	5	6 months	2
12	Sexual penetration with a child aged 16 or 17 under care, supervision or authority rolled up charge	10	18 months	5
Total effective sentence		4 years 2 months (50 months)

112That is the head sentence. I now turn to the issue of parole.

113Your counsel submitted that while a term of imprisonment with a head sentence and a non-parole period is the only disposition available to the Court, a sentence with significant period on parole would be appropriate in your case.

114It was submitted that I should have regard to your lack of criminal history, the fact a longer period on parole would allow for greater supervision and support as you reintegrate into the community, and your prospects for rehabilitation. I accept this submission.

115The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation through conditional release where appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. In your case, I am satisfied it is in the interests of justice to order a lesser non parole period and accordingly, I order that you serve a period of 2 years and 4 months imprisonment before becoming eligible for parole, this is approximately 55 per cent of the head sentence.

116You have now served 7 days in custody, I declare that this be deducted from the period of imprisonment that I have imposed.

117Pursuant to s. 6AAA Sentencing Act 1991 but for your plea of guilty I would have imposed a term of 6 years imprisonment, with a 4 year non-parole period.[10]

[10] Sentencing Act 1991 (Vic) s 6AAA.

118Pursuant to s 11 of the Sex Offender RegistrationAct 2004 I declare that you are a registrable offender as you have pleaded guilty to 3 class 1 and 9 class 2 offences.[11] Pursuant to s. 34 of the Sex Offender Registration Act 2004 you are required to report for life.[12]

[11] Sex Offender Registration Act 2004 (Vic) s 11.

[12] Ibid s 34.

119I make the orders for forfeiture and disposal sought by the crown.