Director of Public Prosecutions v Woods
[2020] VCC 1133
•28 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01101
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICOLE WOODS |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March and 29 June 2020 | |
DATE OF SENTENCE: | 28 July 2020 | |
CASE MAY BE CITED AS: | DPP v Woods | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1133 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: sexual penetration of a child under the age of 16 – offending while child in care, supervision, authority of offender– teacher’s aide – contested committal hearing – late pleas of guilty - long history of alcohol and illicit drug abuse - no previous convictions – good character - low to moderate risk of re-offending – first time in custody – registrable offender – reporting obligations for life
Legislation Cited: s.45(1) Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000, s.5AA Sentencing Act 1991
Cases Cited: Bugmy v The Queen [2013] 249 CLR 571, Marrah v The Queen [2014] VSCA 119, DPP v Ellis [2005] VSCA 105
Sentence: Total effective sentence of four years' and two months' imprisonment with a non-parole period of two years and six months before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr C. McConaghy | Solicitor for Public Prosecutions |
| For the Accused | Mr J. Barrera | Stary Norton Halphen |
HIS HONOUR:
1 Nicole Woods, you have pleaded guilty to the following charges:
Charge 1 - that at Melton between 1 April 2016 and 2 September 2016, you took part in an act of sexual penetration with Aaron Thompson[1], a child under the age of 16, in that Aaron Thompson introduced his penis into your mouth, contrary to s.45(1) Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000; and
Charge 2 - that at Melton between 1 April 2016 and 2 September 2016, you took part in an act of sexual penetration with Aaron Thompson, a child under the age of 16, in that Aaron Thompson introduced his penis into your vagina, contrary to s.45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000.
[1] Aaron Thompson is a pseudonym.
2 In respect to both charges, the indictment records that both acts of sexual penetration occurred at a time when Aaron Thompson was under your care, supervision or authority.
Circumstances of offending
3 The circumstances of your offending are set out in the amended Summary of Prosecution Opening dated 12 March 2020. That summary was not disputed by Mr Barrera, who appeared on your behalf.
4 At the time of the offences you were 51 years of age. The victim was aged 15. There was thus a 36 year age difference between you.
5 You were employed as a teacher's aide at the school where the victim was a student. You assisted in the victim's English class. Although your main role was to assist a vision-impaired student in that class, you would also help other students, including the victim, with their work. You became friendly with the victim and two other students, and the three began to spend time in your small office, which was referred to as the 'pod'.
6 In April or May 2016, you sent the victim a Facebook message asking whether he would be 'hanging out in your pod' the next day. The victim said that he would probably 'hang out' with other students. You responded that he could still hang out in the pod and added that you 'could play with him'.
7 The victim attended the pod on the following day. You and he were alone together. Whilst he was sitting down, you removed his school shorts and performed oral sex on him by putting his penis inside your mouth. You did this for approximately five minutes before you stopped and left the pod. This incident forms the basis of Charge 1.
8 On another occasion, after the incident just described, you were again alone in the pod with the victim, during a lunchtime, when you had sexual intercourse by placing the victim's penis inside your vagina. A condom was not used. This conduct forms the basis of Charge 2.
9 The Prosecution Opening refers to other incidents of oral sex being performed on the victim and other incidents of sexual intercourse. Those matters were referred to, without objection, by the learned prosecutor. They were relied on as providing a context to your offending so that it would not be seen as isolated or spontaneous offending.
10 On 1 November 2017, a teacher at the school reported a rumour that had been circulating that you and the victim were involved in a sexual relationship. Police were informed and an investigation commenced. Police obtained details of a Facebook group chat from one of the victim's friends. The group chat contained screen shots that appeared to be from your Facebook page, which included references to you and the victim having oral sex, as well as an image of a woman with an exposed breast.
11 On 1 December 2017, police attended at your address and executed a search warrant. Clothing seized from your address matched the clothing of the woman depicted in the photograph showing her exposed breast.
12 You were arrested and interviewed by police on that day. During the interview you stated that the 'school' had told you to be careful of the victim. You denied all allegations of sexual contact between you and the victim; denied any form of contact with the victim outside of school; and denied sending him any naked images of yourself.
13 You maintained your denial and the charges against you were listed for trial to commence on 21 October 2019, when the victim was to give evidence at a special hearing. Before the special hearing commenced, you entered pleas of guilty.
Victim Impact statements
14 Tendered at the plea hearing, and read to the court, were three impact statements from the victim, his mother and his brother. I have read each of those statements and have regard to them in sentencing you.
15 Aaron Thompson speaks of feeling he has lost his innocence. He feels depressed and anxious, particularly when meeting people and when in public. He did not finish his schooling as a result of the emotional impact of your offending. He now suffers from post-traumatic stress disorder, for which he receives counselling and medication. He is on a youth disability payment as he cannot work due to his fear and anxiety of being in unfamiliar and open spaces, as well as meeting new people. He stated that his safe place is at home with his family. He was a talented cricketer, having been chosen to travel overseas to play cricket. He has stopped playing cricket and football as a result of the impact of your offending.
16 Your offending has also had an impact upon his mother, who stated that as a result of the offending against her son, she was left feeling devastated, sick, fearful and angry. She believes that she failed to protect her son and is distressed to see him suffering as a result of your conduct. She hopes one day to see her son living a pain free, normal life, where he is not reliant on medication. She also hopes that she too will be able to escape the depression, anxiety and anger she feels.
17 Aaron's brother stated that he and Aaron were very close, but since the offending came to light, the relationship between them has become strained. He is anxious about sending his own daughters to school and has developed trust issues. He too is frustrated, sad and angry as a result of your offending and has feelings of guilt in not having helped his brother.
18 The above summary of the victims' impact statements should bring home to you that your conduct has a significant, destructive and lasting impact on your victim and his family.
Background and personal circumstances
19 You were born in Melbourne on 26 September 1964. You are now 55 years of age.
20 You attended primary school in Melbourne until grade 4. You then moved to Indonesia because of your father's work and there attended an 'American school' for grades 4 and 5. Your father held a senior position with British Petroleum. Your family was then very well off.
21 You lived in Indonesia in 1973 and 1974. In 1975 you and your family moved to Singapore, where you remained for 12 months. In 1976 you returned to Melbourne with your family and continued your schooling here. You completed Form 4 but did not pass successfully. There were behavioural issues at school, and you were frequently in trouble for smoking and truancy.
22 In 1979 your parents separated and this coincided, according to you, with the commencement of your behavioural issues at school. You had a very close relationship with your father, and the separation of your parents had a significant impact upon you. Following their separation, you remained with your mother and had very little contact with your father. You have not had contact with your father since your 21st birthday.
23 Your family's fortunes changed for the worse following your parents' separation. There were financial problems and your mother had difficulty coping. You were mostly looked after by an older cousin.
24 Your mother is now in her early eighties and continues to live in Melbourne. You were also close to her. However, as a result of these charges, your relationship has been strained and you have not had contact with her since your remand. Although you have written to her, you have not received a response.
25 You have two older sisters. You remain in contact with the oldest, but not the other.
26 On leaving secondary school, you attended secretarial college for 12 months. You reported that whilst you hated and struggled with your secondary schooling, you had no difficulties at the secretarial college. On completing the course, you obtained work in clerical and secretarial positions over the next decade. Your work included employment with a travel agency, courier agency and a linen company, where you progressed to become the personal assistant to the company's directors.
27 You met your former husband in 1989 when you were aged 24, and you married in 1999. You described him as a 'terrible man', who was a 'control freak'. You stated that he made you feel awful about every aspect of your life and that he would abuse you physically, verbally, emotionally and sexually. You separated from him in November 2015.
28 You have two sons, born in 1998 and 2002. Following their birth, you stayed at home to care for them. Neither child now has any contact with you as a result of your offending.
29 After separating from your husband, you became involved in another relationship that lasted approximately six months and again, according to you, was marked by abuse.
30 In about 2008, you completed a Certificate III in Integration Aide Services and began working with children from that time. You have held a number of jobs at various childcare centres, kindergartens and a primary school before obtaining work at the school where the offending occurred.
Drug and alcohol use
31 You have a long history of alcohol and illicit drug abuse. You first used alcohol at the age of 14 and cannabis from about the age of 17. You were a heavy user of both until 1998. Between 1991 and 1997 you also engaged in regular amphetamine use, including using it intravenously.
32 You reported being abstinent from both alcohol and drugs between 1998 and 2015.
33 In 2015 you started to again use alcohol and cannabis. Your use increased following the separation from your husband. You reported that you would smoke cannabis in the morning before you went to work, as well as upon your returning home. You also started to use methylamphetamine in 2016.
34 By mid to late 2016 you were using methylamphetamine on a daily basis, along with alcohol and cannabis. You reported spending approximately $1000 per week on those substances, using money you received from the sale of your family home. You told neuropsychologist, Susan Carey, that your methylamphetamine use increased to more than 1.6 grams per week and that you had also experimented with LSD, nitrous oxide, and heroin.
35 You have not had any residential rehabilitation or detoxification. In 2019 you undertook a court ordered drug treatment program as part of your bail conditions, but according to what you told
Ms Carey, you continued to use drugs whilst on that program.
Psychiatric and psychological issues
36 Tendered at your plea hearing was a report from Ms Carey dated
5 March 2020.
37 You described to Ms Carey a history of risky behaviour which tended to occur when you were affected by substances.
38 You told her that your offending was the lowest thing that you could ever do and that you were sorry and ashamed of your conduct.
Ms Carey noted, however, that you provided a degree of justification for your behaviour. You told her, 'It was consensual. I knew his age; he didn't look like a five-year-old, he looked older.' You said that you felt that your methylamphetamine use was a significant contributor to your behaviour.
39 You also reflected on the impact of your behaviour, both with respect to the victim and yourself. You stated that you understood that the victim had psychological treatment and you felt terrible about that. You also stated that your conduct has ruined your life and you expressed a belief that your own children will not forgive you.
40 Ms Carey found that you do not have a neuropsychological condition. Your cognitive abilities are normal.
41 A report from Dr Prashant Pandurangi, forensic psychiatrist, dated 14 June 2020, was also tendered on your behalf.
42 Dr Pandurangi obtained a detailed history from you. You discussed with him having been sexually abused whilst you were living in Jakarta. The sexual abuse, you said, was at the hands of the family driver, who kissed and digitally penetrated you. You did not immediately tell your parents about this abuse as you were scared. However, you later tried telling your mother, but she was dismissive of your complaints.
43 You have no history of contact with mental health services in the community and you have not previously seen a psychologist or psychiatrist. Following being charged with these offences, you attended a doctor, where you were prescribed antidepressant medication which you took for two weeks only.
44 You described to Dr Pandurangi a chaotic lifestyle in the months leading up to the offending, particularly with regard to your use of illicit drugs and alcohol.
45 You described your offending as a 'snap of brain … just so wrong'. You told Dr Pandurangi that you did not ask the victim, but rather he asked you. As I commented to Mr Barrera during the plea hearing, this is at odds with the prosecution summary. Mr Barrera acknowledged that was so and said, in effect, that the matters in the summary are accepted.
46 You also told Dr Pandurangi that you thought your behaviour with the victim was okay as he liked you. You told Dr Pandurangi that the victim asked you to show him what he could do with his girlfriend and that you had oral sex once and sexual intercourse once. You alluded to being drug affected during the period of offending.
47 When Dr Pandurangi explored your thoughts concerning 'consent', you told him that what occurred between you and the victim occurred with the victim's consent and that you thought he was able to consent. In the course of the plea hearing I asked Mr Barrera whether it was your belief that the victim was, at law, able to consent to sexual intercourse with you and he replied that was your belief.
48 When asked about the impact of your actions, you told Dr Pandurangi that your conduct has destroyed your life and you could not believe what the victim was going through. You stated it was never your intention to harm the victim. You further stated that the school had warned you to be careful of the victim and that all you wanted to do was to help him. You stated that you were sorry that you had destroyed the victim's life, as well as your own.
49 Dr Pandurangi was of the opinion that your personality was clearly shaped by the traumatic experiences of your early life and reflected a profound lack of sense of self. You displayed deficits in emotional regulation and a poor ability to cope with stress. You used illicit drugs and alcohol to cope with difficulties in your relationship and your social circumstances. You have formed a distorted view of the intentions of others around you, which is reflective of your interactions with the social world and confirmed by your experiences of being repeatedly humiliated, rejected or belittled.
50 Dr Pandurangi considered whether you suffered from a complex post-traumatic stress disorder, but in the end concluded that you did not. Further, there was no indication that you met the diagnostic criteria for a paraphilic disorder. Whilst you presented at interview with depressive symptoms, you were not diagnosed as suffering a depressive disorder.
51 With regard to the offending, Dr Pandurangi said it occurred at a time when there was significant emotional turmoil in your life. This included separation from a long-term abusive relationship and being involved in another brief and volatile relationship. He considered that your situation could probably be best described as being in a ‘personality crisis’. You described feeling wanted and liked by the victim and that you had never felt that way in your life. Dr Pandurangi stated that such cognitive distortions would have overshadowed your rational thinking process concerning the lack of appropriate consent or the wrongfulness of your conduct, and was facilitated by the use of illicit drugs which would have contributed to a clouding of your judgment.
52 As to the risk of your reoffending, Dr Pandurangi utilised the Risk of Sexual Violence Protocol tool and considered there to be a low to moderate risk of sexual reoffending. However, he stated that the assessment risk should be interpreted with caution, given the limited validity of the risk assessment tool in females.
53 Dr Pandurangi considered that you present a reasonable prospect of psychosocial rehabilitation if you receive psychological treatment and support to desist from use of drugs and alcohol.
54 He reported that since being in the management unit, you have managed custody reasonably well.
55 A report from the Mental Health Advice and Response Service Coordinator, Nick Stirling, was filed under a notice of additional evidence by the prosecution. Mr Stirling saw you in early March 2019 at the Melbourne Magistrates' Court soon after your arrest. He noted that you expressed a deep sense of shame and you told him - 'I did what I did and now I need to face the consequences'. However, you denied having an ongoing substance misuse problem and you told Mr Stirling you had used methylamphetamine on one occasion after you were charged.
56 I also received a Court Integrated Services Program report prepared by Elizabeth Crowley, who assessed you on 12 March 2019. Again, there is a differing account as to your drug use. You told Ms Crowley that your use of methylamphetamine started in September 2018, and that before you were remanded you were using the drug twice per week. You also said you had not used any illicit drugs since you were placed on bail.
Defence Submissions
57 Mr Barrera tendered a written outline of submissions which he supplemented with oral argument.
58 He relied on your difficult personal circumstances immediately preceding the offending, describing it as a ‘dark period’ in your life that left you vulnerable.
59 Added to those difficulties, it was submitted you were also experiencing financial difficulties and could not keep up your mortgage payments. The bank foreclosed on your mortgage and your two children, who were then aged 17 and 20, went to live with their father. You were homeless for periods of time.
60 Mr Barrera submitted that the explanation for your offending lay in your vulnerable personality and you developing a false sense of intimacy by reason of the attention the victim gave you.
61 He also submitted you suffered 'significant disadvantage' in your formative years. He referred specifically to the sexual abuse you experienced in Indonesia, your father leaving the family home when you were aged 14, the development of behavioural issues at school, and your subsequent use of cannabis and alcohol. Relying on the cases of Bugmy v The Queen,[2] and Marrah v The Queen,[3] Mr Barrera submitted that social disadvantage may substantially reduce moral culpability. He also submitted that it may moderate the need for specific and general deterrence.
[2][2013] 249 CLR 571
[3][2014] VSCA 119
62 Mr Barrera also relied on the hardship, he submitted, you have experienced and will continue to experience in custody. When you were remanded on 13 December 2019, after your bail was revoked, you were placed in an observation cell at the Dame Phyllis Frost Centre because you were considered a suicide risk. I was told that you were effectively in solitary confinement with a 22 to 23 hour lock down, there was little interaction with others, and you suffered a lack of privacy due to constant monitoring. On
19 December you were moved to the Murray Protection Unit, where you remain. It was submitted that the opportunities available to you for work, education and rehabilitation are more limited on protection than is the case for prisoners in mainstream. However, it was noted that you were able to complete a number of courses whilst in protection, certificates of which were tendered during the plea hearing. You also participated in a four week program conducted by Alcoholics Anonymous and you have undertaken counselling with the Caraniche organisation. Further, a letter from Veronica Meredith, psychologist, confirmed that you are on the waiting list for psychological assessment. You are also able to work with the sewing team.
63 Mr Barrera referred to the fact that because of the COVID‑19 pandemic, you are not able to have visitors. Your sister, Donna Brien, was to visit you in April this year but was not able to do so because of the restrictions.
64 Mr Barrera also relied on the inevitable loss of employment opportunities in any work involving children. He pointed to the fact that you completed a Certificate III in Integration Aide Services in 2006/2007, and since 2008 up to 2018 you worked in a variety of roles with children as an integration or teacher's aide. From 2013 to October 2016 you worked at the school where the offending took place.
65 In support of his submission, Mr Barrera relied on the DPP v Ellis.[4] At paragraph 17 of the court's judgment, Callaway JA stated that the prohibition on taking part in child-related employment will usually be irrelevant, but there will be occasions where it should be taken into account. Mr Barrera submitted that it ought to be taken into account in your case because of your extensive history of working in the field between 2008 and 2018. Your qualifications and experience as an integration or teacher's aide cannot be utilised in the future.
[4][2005] VSCA 105
66 Mr Barrera next relied on your pleas of guilty, submitting that there is significant utilitarian benefit in saving the time and cost of a trial and sparing the victim and witnesses the ordeal of having to give evidence.
67 It was also put that the victim of your offending was not required to give evidence at committal. However, it was not suggested that there was a basis for the victim to give evidence at the committal. You did, nevertheless, have a contested committal hearing, at which witnesses were called.
68 It was also put that your plea of guilty demonstrates an acceptance by you of responsibility for your conduct and a willingness to facilitate the course of justice. Mr Barrera also submitted that your pleas of guilty are indicative, to a degree, of your remorse. Further, that you expressed your remorse to Mr Stirling, Ms Carey, Dr Pandurangi, and your sister, Donna Brien. Mr Barrera conceded that your expressions of remorse must be measured against other comments you have made, which seek to minimise your role in the offending.
69 Mr Barrera also relied on the fact you have no previous convictions, and what he submitted was your prior good character. He submitted that your good character is relevant to the need for specific deterrence and your prospects for rehabilitation.
70 It was also submitted that yours was an appropriate case for the application of the totality principle, given your offending occurred against the same victim and in similar circumstances on each occasion. Mr Barrera submitted that there should be some concurrency in the sentences.
71 It was conceded that the only sentence open is an immediate term of imprisonment with a non-parole period.
Prosecution Submissions
72 Mr McConaghy, who appeared on behalf of the Director of Public Prosecutions, submitted that your offending represented a very serious breach of trust between a female school employee having the care, supervision and authority of a male student.
73 He submitted that the factors that aggravate your offending are:
(i)the position of trust you held with respect to the victim;
(ii)the significant differences in your ages;
(iii)the offending took place within the school environment;
(iv)the offending took place in circumstances where you took advantage of your position and cultivated a relationship with the victim over a significant period of time;
(v)the act of sexual intercourse followed the first act of sexual offending and therefore cannot be considered to be a spontaneous or isolated event; and
(vi)on the occasion of penile vaginal sexual intercourse, no condom was used.
74 Mr McConaghy submitted that your background, which was relatively privileged, does not give rise to Bugmy considerations. However, he accepted that your moral culpability may be moderated to a small degree by reason of your background, including, should I accept it, the fact that you were sexually abused as a child. Mr McConaghy submitted that there was nothing in the medical reports that substantially linked your upbringing to your offending. He noted that no reliance was placed on the principles set out in Verdins v R.[5]
[5](2007) 16 VR 269
75 With respect to your pleas of guilty, Mr McConaghy submitted that you entered your pleas just before the special hearing with the victim was to commence. He informed me that the victim was present that morning at the Office of Public Prosecutions, waiting to give evidence.
76 Mr McConaghy submitted that I should treat with caution your expressions of remorse for a number of reasons, including your denials when interviewed by police; your late pleas of guilty; and a number of comments made to Dr Pandurangi where you sought to justify your behaviour.
77 Mr McConaghy submitted that denunciation and deterrence were significant factors in the sentencing exercise. He submitted that strong denunciation and disapproval of your conduct was required in order to re-enforce the community expectation that children attending school should be safe from sexual exploitation, particularly when under the direct care and supervision of school employees. He submitted that specific deterrence was important given Dr Pandurangi's assessment of the risk of your reoffending.
78 With regard to community protection, Mr McConaghy conceded that the risk of you reoffending tended towards the lower end of the spectrum and the fact that you will be placed on the Sex Offender Register will deny you the opportunity of having ready access to those in the community who may be at risk.
79 As to your prospects for rehabilitation, Mr McConaghy submitted that there is a concern, given your questionable remorse and a questionable understanding of the impact of your actions on the victim and his family.
Sentencing considerations
Nature and Gravity of Offences
80 Your offending is unquestionably serious.
81 The offence of sexual penetration of a child under the age of 16 when that child is under your care, supervision or authority, carries a maximum penalty of 15 years' imprisonment.
82 The community generally, and parents in particular, have every right to expect that when children attend school they will be safe from harm and not be preyed upon by those entrusted to care for them.
83 You were significantly older than the victim and you took advantage of your position and relationship with him to satisfy your own emotional needs. I reject your suggestion that the victim asked you to show him what he could do with his girlfriend. I reject your assertion that you thought he was, at law, able to consent to having a sexual relationship with you. You were trained in, and involved in, child education since approximately 2008. It defies belief that you could hold such a view. You in fact told police during your interview that you believed the age of consent to be 18. I have no doubt you knew at the time that what you were doing was illegal.
84 Your conduct in sending a Facebook message to the victim on the day before the first charged incident, inviting him to the pod and suggesting you could play with him, in my opinion, reveals pre-meditation. It was not an incident that could be described as a 'snap' of the brain, as you suggested to Dr Pandurangi. The second charged incident also could not be described as a brain snap. You had ample time to think about what you had previously done with the victim and what you were about to do. The seriousness of the second offence is aggravated by the fact that no condom was used.
85 The impact of your offending on the victim and his family was profound, as is evident from the victim impact statements.
86 You were in a position of trust as a teacher's aide and I am satisfied that the victim was under your care, supervision or authority at the time you offended against him.
87 Your breach of trust and responsibility towards the victim is taken into account by the increase in the maximum term of imprisonment to 15 years and so, in sentencing, care will be taken to ensure you are not doubly punished for that breach.
88 I accept that your offending occurred at a particularly low period in your life and at a time when you had relapsed into serious drug abuse. That is the context in which you offended. Your substance abuse, however, provides no excuse for your conduct and your counsel did not rely on it for that purpose.
89 Your difficult personal circumstances at the time of your offending do, in my opinion, mitigate somewhat your moral culpability. You had just escaped from two violent relationships and were vulnerable. As Dr Pandurangi stated, the offending occurred at a time of significant emotional turmoil in your life. You were experiencing a 'personality crisis' and your ability to think rationally about your conduct and exercise sound judgment was impacted by that turmoil. However, to be clear, it was not suggested that you were suffering from impaired mental functioning that would enliven the principles set out in Verdins.
Pleas and Remorse
90 I take into account your pleas of guilty. I accept that they are of utilitarian value. They have saved the community the time and expense of a trial. Importantly, they have spared the victim and other witnesses the ordeal of having to give evidence at a trial. However, such mitigation is limited, given your pleas were entered just before the victim was to give evidence at trial, and they followed a contested committal hearing, at which the victim's mother, his brother, another student, that student's father and the informant were required to give evidence.
91 I am not able to find that your pleas are indicative of remorse and I have difficulty accepting the expressions of remorse you made to others. You did not give evidence as to that issue. The accounts of your remorse expressed to others are second-hand evidence and must be looked at in the context of your overall behaviour. You denied the offending when interviewed by police. Even when speaking to Dr Pandurangi, you sought to cast blame on the victim, and you maintained your assertion that you thought he was able to consent. Further, when this matter was first listed to be heard for plea, you failed to appear in breach of your bail and you sought to evade apprehension, thus prolonging finalisation of the charges and the distress to the victim. Having regard to your conduct since you were first arrested, I doubt that you fully appreciate the enormity of your offending or accept full responsibility for it.
Rehabilitation
92 I consider that your prospects of rehabilitation to be guarded at this time. As Dr Pandurangi stated, you have a reasonable prospect of psychosocial rehabilitation, provided you receive appropriate psychological support to desist from the use of drugs and alcohol. Should that happen, then I would consider your prospects to be reasonable. The fact that you were able to remain abstinent for some 17 years weighs in your favour, as does the fact that whilst in custody you have you have undertaken courses to improve your prospects. However, your history of substance abuse does go back to your early teenage years and you have engaged in heavy drug use. Your effort at drug counselling and abstinence in 2019 whilst on bail was unsuccessful.
93 I also have regard to Dr Pandurangi's cautious assessment that you present a low to moderate risk of sexual offending in the future. The fact that you will be placed on the sex offender's register, and thus never work with children again, will also mitigate the risk.
Custodial Hardship
94 You have no prior convictions and this, your first time in custody, has no doubt been difficult. With the exception of your initial time under observation, there is no evidence to show that your time on protection is rendered more onerous. You are working in the sewing team, and you have participated in a number of courses whilst on remand. The Justice Health records tendered do not suggest any difficulty.
95 I have regard to the submission that the COVID-19 measures implemented by Correctional Services will have some impact on your ability to participate fully in work and courses, and enjoy visits in the mediate future. This will make your time in custody more difficult. I note that your sister was to travel from interstate to visit you in custody, but that visit was not able to take place because of the restrictions. I accept also that the uncertainty associated with the pandemic will give rise to concerns for your health, which will add to the stress of incarceration.
Good Character
96 I have considered the respective submissions concerning the operation of s.5AA Sentencing Act 1991.
97 That section relevantly provides:
' … 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 previous findings of guilt or convictions if the court is satisfied the offender's previous good character or lack of previous findings of guilt or convictions was of assistance to the offender in the commission of the offence.'
98 The issue is whether I can be satisfied that your previous good character or lack of previous findings of guilt or convictions was of assistance to you in the commission of the offences.
99 Mr McConaghy submitted that in order to obtain employment at the school, a police check was required pursuant to the Working With Children Act 2005. He further submitted that I could take judicial notice pursuant to s.144 of the Evidence Act 2008 that you would have required such clearance in order to work at the school. Mr Barrera, on the other hand, submitted that evidence was required to make good reliance on s.5AA of the Sentencing Act.
100 I agree with Mr Barrera's submission. In order for the section to be engaged, I would need to be satisfied, on the basis of evidence, of the matters set out in the section. Whilst the Working With Children Act 2005 applied to you at the time you were employed at the school, I do not think I can take judicial notice that there was, in fact, compliance with the requirements of the Act.
101 Having reached that conclusion, I accept that I may have regard to your previous good character as a matter weighing in your favour. I accept also the submission that this offending is out of character. Good character is also a matter relevant to your prospects of rehabilitation and specific deterrence. The extent to which you may call in aid your prior good character is moderated, to a small degree, by your admission to having used illicit drugs over many years.
Deterrence, Denunciation, Just Punishment and Protection of Community
102 In my opinion, your rehabilitation, whilst important , must give way to the need for the sentence imposed to manifest the court's denunciation of your conduct, the need for general deterrence, just punishment and protection of the community. I also consider there to be a need for specific deterrence, given the lack of evidence of your remorse, Dr Pandurangi's cautious assessment of your presenting a low to moderate risk of re-offending, and what I consider to be your failure to accept full responsibility for your conduct. Specific deterrence will be moderated, however, given your previous good character.
Loss of Career
103 With regard to your loss of career as an integration aide, this is an incident of the offences you committed and the sentence to be imposed. Consistent with what was said in Ellis, the prohibition in taking part in child-related employment will usually be irrelevant. Although you have qualifications in and some 10 years' work as an integration aide, this has not been your lifetime's work. You have other qualifications. I am not satisfied that your inability to work as a teacher's aide will have the same impact on you as was found in the case of Ellis.
Disadvantaged Upbringing
104 With regard to Mr Barrera's submission that you were disadvantaged in your formative years, in my opinion, the evidence falls short of establishing significant disadvantage. Although I am prepared to accept that you suffered sexual abuse, Dr Pandurangi reported that you described a fairly affluent upbringing and you denied any deleterious experiences during your early life. Dr Pandurangi was cognisant of the sexual abuse perpetrated on you whilst in Indonesia and your parent's separation, describing them as significant events during your formative years that shaped your personality. I have already had regard to this offending occurring at a time of high emotional turmoil and personality crisis. Beyond that, I do not consider there should be further moderation in sentence based on what was submitted to be significant disadvantage in your formative years. Your sister's reference, whilst commenting on the impact of the divorce of your parents had on you, speaks of your achievements in raising a family and obtaining qualifications that enabled you to obtain good, responsible employment.
Current Sentencing Practice
105 In determining the appropriate sentence, I have had regard to the cases provided to me by your counsel; to the sentencing cases referred to in the Judicial College of Victoria's Sentencing Manual; and to the Sentencing Advisory Council's Sentencing Snapshot dated May 2019 for the offence of sexual penetration of a child aged 12 to 16. Current sentencing practise is one of a number of sentencing considerations to which I must have regard. As might be expected, it is very difficult to ascertain anything more than a general sentencing yardstick, given the wide range of conduct constituting the offence of sexual penetration of a child under the age of 16, as well as the myriad personal circumstances of individual offenders.
Sentence
106 On Charge 1, you are convicted and sentenced to three years' and two months' imprisonment.
107 On Charge 2, you are convicted and sentenced to three years' and six months' imprisonment.
108 I consider this to be an appropriate case for the application of the totality principle of sentencing.
109 I direct that eight months of the sentence imposed on Charge 1 be served cumulatively with the sentence imposed on Charge 2. This makes a total effective sentence of four years' and two months' imprisonment. I direct that you serve a minimum term of two years and six months before becoming eligible for parole.
110 Pursuant to s.18 Sentencing Act, the period of pre-sentence detention in respect of these charges is reckoned at 233 days, not including today.
111 Had it not been for your pleas of guilty, the sentence I would have imposed is one of four years and eight months, with a non-parole period of three years and two months.
Sex Offenders Registration Act
112 You have been sentenced to two class 1 offences under the Sex Offenders Registration Act 2004. Accordingly, you are a registrable offender and your reporting obligations are for life.
113 I must inform you that you must register on the Sex Offenders' Register, and I will arrange for you to be provided with documentation which sets out the requirements under the Sex Offender's Registration Act and the consequences if you fail to observe those requirements. I will also arrange to be forwarded to you, a document which you must sign, acknowledging that you have received the documentation. Mr McConaghy, are there any other matters which I need to address? No?
114 MR McCONAGHY: No, Your Honour.
115 HIS HONOUR: Mr Barrera? All right.
116 MR BARRERA: No, Your Honour.
117 HIS HONOUR: Thank you. Mr Barrera, would you like the opportunity to speak in private with your client?
118 MR BARRERA: Thank you, Your Honour, but I have a conference booked with Ms Woods tomorrow.
119 HIS HONOUR: All right then. Well, I am grateful to both of you for your very helpful submissions in the course of this difficult case. There being no other matters, I will now adjourn the court.
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