DPP v Ooms

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0062

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
MONIQUE OOMS	Respondent

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JUDGES:	NIALL, KENNEDY and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2023
DATE OF JUDGMENT:	5 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 207
JUDGMENT APPEALED FROM:	[2023] VCC 492 (Judge Smallwood)

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CRIMINAL LAW – Director’s appeal – Sentence – Respondent guilty of four counts of sexual penetration of child aged 16 or 17 years and under care, supervision or authority – Sentenced to 4-year community correction order – Whether trial judge misapplied section 5AA of the Sentencing Act 1991 by taking into account offender’s good character in mitigation – Minimal submissions made at trial on application of section 5AA – No evidence led at trial whether good character assisted the offending – No error on behalf of trial judge – Whether sentence manifestly inadequate – Sentence wholly within range open to trial judge – Appeal dismissed.

Sentencing Act 1991, s 5AA considered.

Bhatia v R [2023] NSWCCA 12; Fichtner v The Queen [2019] VSCA 297; Ryan v The Queen (2001) 201 CLR 297; Wakim v The Queen [2016] VSCA 297; AH v R [2015] NSWCCA 51; R v Stoupe [2015] NSWCCA 175, considered.

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Counsel
Applicant:		Ms EH Ruddle KC with Ms J Wang
Respondent:		Mr J Gullaci SC with Ms K Rolfe
Solicitors
Applicant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Sullivan Braham Barristers & Solicitors

NIALL JA
KENNEDY JA
MACAULAY JA:

Section 49C of the Crimes Act makes it an offence, carrying a 10 year maximum imprisonment term, if a person intentionally sexually penetrates another person, or causes or allows that other person to sexually penetrate them, when that other person is a child aged 16 or 17 years and is under the first person’s care, supervision or authority. Section 37 of the Crimes Act provides that a child is under the care, supervision or authority of a person if that person is the child’s teacher.
The respondent, Monique Ooms, pleaded guilty to four charges of sexually penetrating a child aged 16 or 17 under her care, supervision or authority, contrary to s 49C(1) of the Crimes Act 1958 (which is a ‘child sexual offence’ under the Sentencing Act). At the time of her offending, the respondent was a 30 year old teacher and the relevant child was a 16 year old male student at the school where she taught. On 24 March 2023, the respondent was convicted and sentenced in the County Court to a 4 year community correction order with 300 hours of unpaid community work, along with other requirements.[1]
[1]The additional requirements were that the respondent be supervised by a Community Corrections Officer, undergo mental health assessment and treatment, and undertake programs and/or courses that address factors relating to the offending.
Pursuant to s 287 of the Criminal Procedure Act 2009, the Director appealed that sentence.
Ordinarily, when sentencing an offender, the Court is required, by s 5(2) of the Sentencing Act 1991, to have regard to the offender’s previous character and the presence of any mitigating factor concerning the offender.[2] However, s 5AA of the Sentencing Act1991 provides an exception to that requirement —
(1)Despite section 5(2), 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.
[2]Section 5(2)(f) and (g).
The Director relies upon two grounds of appeal. The first is that the judge erred in taking into account the respondent’s previous good character and lack of prior convictions in circumstances where this was not permitted by s 5AA of the Sentencing Act 1991. The second is that the aggregate sentence of a community correction order for a period of 4 years imposed in respect of all charges was manifestly inadequate. For the reasons that follow we would dismiss the appeal.

Circumstances of offending

The Prosecution Summary for Plea dated 18 January 2023 contained an agreed summary of facts. In short compass, the relevant facts are set out in the paragraphs that follow.
The respondent was born on 4 December 1991 and was 30 years old at the time of the offending. The student, referred to in the sentencing judge’s reasons as Bentley Wagon,[3] was born on 22 August 2005 and was 16 years old.
[3]A pseudonym.
In 2022, Bentley was a Year 11 student at a government secondary school in Gippsland. He commenced studying VCE Units 3 and 4 Outdoor Education, which was a subject taught by the respondent.
In late May 2022, Bentley’s close friend died in a motor accident. This incident had a noticeably deleterious effect on Bentley’s mood, behaviour, and overall demeanour at home and at school. Approximately one week after the accident, the respondent approached Bentley after class and began giving him assistance concerning his loss. The respondent and Bentley exchanged Instagram details to facilitate out of school contact.
This contact progressed to the exchange of personal mobile numbers. The respondent and Bentley would text one another and have phone calls late at night for a period of around one month prior to the offending. Initially, the messages were just friendly with the respondent giving Bentley support but over time they became increasingly affectionate and personal. On one occasion, the respondent sent Bentley photos of herself in her underwear.
Bentley asked if he and the respondent could meet up. He began sneaking out of home late at night to meet with her. On the first occasion, sometime in July 2022, the respondent picked Bentley up in her car and drove to a pine forest where they talked and then kissed. They discussed the appropriateness of a relationship between a teacher and a student. On this occasion, matters did not progress further and the respondent drove Bentley home.
On the second occasion they met, the respondent again picked Bentley up in her car and drove him to the pine forest. Again they spoke and began kissing. They discussed having sex. The respondent asked Bentley if he was comfortable having sexual intercourse, given their teacher-student relationship. He said he was. They then engaged in penile-vaginal intercourse (charge 1). Bentley used a condom on this occasion.
The respondent and Bentley engaged in sexual intercourse in the same way approximately four more times in the car throughout July and early August 2022.
In July 2022 the respondent and Bentley also had sexual intercourse at the respondent’s house. On the first occasion, the respondent performed oral sex on Bentley (charge 4) which was followed by penile-vaginal intercourse (charge 3). No condom was used on this occasion. The respondent and Bentley engaged in sexual intercourse at the respondent’s house five or six times in a similar fashion.
The last incident occurred in late July or early August, one to two weeks before the offending was revealed. It involved penile-vaginal intercourse in the respondent’s car (charge 2). No condom was used on this occasion.
The offending ceased as a result of two anonymous letters sent to the school on 1 August 2022. The letters stated that the respondent was having a sexual relationship with Bentley. The school notified police and the respondent was suspended from teaching.

Ground 1: Did the judge err in applying s 5AA of the Sentencing Act 1991?

In the prosecution’s written summary for plea, the prosecutor submitted that s 5AA of the Sentencing Act 1991 applied and that the court ‘must not have regard to the offender’s previous good character or lack of criminal record if the Court is satisfied that the good character or lack of criminal record was of assistance to the offender in the commission of the offence’. That was the totality of the written submission. The prosecution did not articulate the means by which the respondent’s good character or lack of criminal record was of assistance to her in the commission of the offending.
In response, in written submissions, counsel for the respondent submitted that good character was a matter relevant to sentencing and that s 5AA of the Sentencing Act did not apply in this case. Counsel put that submission by arguing
that the evidence does not reflect Ms Ooms’ previous good character or lack of previous findings of guilt or convictions was of assistance to her in the commission of the offences. The offending was facilitated (and constituted by) Ms Ooms’ position of care and supervision as opposed to her good character.
At the oral hearing of the plea, the prosecutor referred to these two passages in the written submissions, and continued
I decided to ring a senior Crown prosecutor just a short time ago. I’m instructed to submit that it’s actually 5AAA of the Sentencing Act,[4] I’m instructed to submit that it applies in this case in that under that provision, the court must not have regard to an offender’s previous good character or lack of criminal record if the court is satisfied that their good character or lack of criminal record was of assistance or help in the commission of the offence.
Now, I have trouble — sorry. My troubles shouldn’t bother the court but I had some queries about that. I spoke to [a senior Crown prosecutor] about it and we resolved to make the submission and it’s suggested on behalf of the Crown that her lack of — her good character — previous good character and lack of previous convictions operated to give her the opportunity. Now, I — it’s difficult to think of - - -
HIS HONOUR: Well I — that’s extraordinarily tenuous in my view.
[PROSECUTOR]: Well - - -
HIS HONOUR: For me to do that would be running a real risk of appealable error.
[PROSECUTOR]: Well anyway, that’s the submission, and I don’t take it any further.
HIS HONOUR: No, I hear what you’re saying, I know these sections are sort of stuck in by armchair experts, as we all know.
[PROSECUTOR]: Yes.
HIS HONOUR: I wouldn’t — look — anyone who’s got a job — it’s going to apply to anyone who’s got a job. You know, if you’re living in a town, you’ve shifted to a town as a teacher, even if the child is — and is under 16 say — the opportunity arises because you shifted to that town. It’s just too tenuous.
[PROSECUTOR]: I hear what Your Honour says.
[4]This appears to be an erroneous reference to s 5AA.
At the plea hearing, there was no other reference to the operation of s 5AA other than, at one point in the judge’s discussion with counsel for the respondent, his Honour stated that he had already ‘rejected the Crown submission on good character’.
In his reasons for sentence,[5] the judge did not refer to s 5AA at all. But he twice mentioned that the respondent had no prior convictions and that there were no subsequent matters pending,[6] including when discussing matters that were personal to the respondent relevant to mitigation. In that context, the judge said:
Firstly, there is clear material that you are of good character. There are no priors of any description. There has been nothing subsequently. I have references from your present employer where you are doing an apprenticeship. I have a reference from the [local] CFA, all of which speak very highly of you. You are clearly a community minded person and over the years have engaged yourself in community projects. Your plea of guilty was early and I have already indicated there is remorse, indeed, shame associated with it.[7]
[5]DPP v Ooms [2023] VCC 492 (‘Reasons’).
[6]Reasons, [3], [23].
[7]Reasons, [23].
It was against that background that the Director submits that the judge made an error in the way he applied s 5AA of the Sentencing Act 1991.

Submissions

The Director drew attention to the fact that, on the plea, the prosecutor had submitted that s 5AA applied because the respondent’s previous good character ‘operated to give her opportunity’. The Director submitted that, having regard to the text, context and purpose of s 5AA the provision was applicable to the respondent because her previous good character and lack of priors ‘enabled her to gain employment as a teacher which provided the opportunity for, and therefore was of assistance in, her offending against the child under her care and supervision’.
As for the context and purpose of the section, the Director referred to passages from the Explanatory Memorandum for the Bill which introduced the provision into the Sentencing Act 1991, the second reading speech, and the relevant parts of the Criminal Justice Report of the Royal Commission into Institutional Responses to Child Sexual Abuse (‘the Royal Commission’), which had contained a recommendation for the enactment of the provision.
Finally, the Director drew upon the recent NSW Court of Criminal Appeal decision in Bhatia v R,[8] and to observations made about the cognate NSW provision, s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which she submitted were equally apposite in the context of the Victorian provision.
[8]Bhatia v R [2023] NSWCCA 12 (‘Bhatia’).
The respondent relied on her written submission, and further submitted that the sentencing judge did not err in failing to apply the provision because, on the plea, the prosecution did no more than raise the provision but failed to explain why it applied or the basis for its application. According to the respondent, the sentencing judge would have been justified in concluding the prosecution were not really pressing the point. The respondent submitted that it was for the prosecution to make appropriate submissions why the provision applied, yet it simply did not do so.
In this connection, the respondent relied upon a passage from Fichtner v The Queen[9] in this court emphasising the need for the court’s satisfaction of the requisite connection between the offender’s previous good character or lack of convictions and commission of the offence. The respondent also relied upon passages from Bhatia in support of a submission that a practical, if not evidential, onus was on the Crown to point to evidence of that connection.
[9]Fichtner v The Queen [2019] VSCA 297 (‘Fichtner’).
As for the report of the Royal Commission, the respondent highlighted a particular passage to submit that, in making its recommendation for statutory reform, the Commission was not of the view that the provision which it recommended would apply in every case in an institutional setting, such as a church or school.[10]

Construction of s 5AA

[10]See the relevant passages extracted at [47] below.

It is convenient to start with the construction of s 5AA having regard to its text, context and purpose. Because the section was expressly intended to alter the law[11] as expressed in Ryan v The Queen[12] and Wakim v The Queen,[13] it is appropriate to begin with that law. Next, it useful to trace through the statutory change in NSW in response to Ryan, the recommendation of the Royal Commission to extend that change throughout Australia, the extrinsic material accompanying the enactment of s 5AA in Victoria and, finally, some cases that have considered the statutory provisions.

Ryan

[11]See passage from the Explanatory Memorandum and [50] below.

[12](2001) 206 CLR 267; [2001] HCA 21 (‘Ryan’).

[13][2016] VSCA 301 (‘Wakim’).

Ryan concerned an appeal from the sentence of a priest, Vincent Gerard Ryan, in the New South Wales District Court. Ryan was sentenced to 16 years’ imprisonment with a minimum term of 14 years after pleading guilty to 14 counts of sexual offences against 12 young boys over a period of 20 years. He also disclosed 39 additional offences of a similar kind which were taken into account in the sentencing. Despite his offending, numerous testimonials were tendered to establish that Ryan had performed substantial good works over a long period of time in his role as priest. Nevertheless, the sentencing judge found ‘no good in him’ and held that his unblemished character and reputation did not entitle him to any leniency whatsoever.
Ryan unsuccessfully appealed to the New South Wales Court of Criminal Appeal and then appealed to the High Court.
For present purposes the relevant issue before the High Court was whether the sentencing judge erred by not allowing any leniency at all for being of ‘otherwise good character’. By majority (McHugh, Kirby and Callinan JJ), the High Court found that the judge did make in error in that regard.
McHugh J explained that it is first necessary to determine whether the offender is of ‘otherwise good character’. In doing so the sentencing judge does not consider the offences for which the prisoner is being sentenced. If the prisoner is of otherwise good character, the sentencing judge must take that fact into account. The weight that must be given to that good character will vary according to all of the circumstances in the case. Thus, Ryan was entitled to ‘some leniency’.[14]
[14]Ryan (2001) 206 CLR 267, [36]–[37] (McHugh J).
McHugh J explained the relevance of good character in sentencing. Good character might assume both a positive aspect, that is, actual good deeds and behaviour, and a negative aspect, namely the absence of prior convictions.[15] Thus, in the sentencing context, being of otherwise good character may suggest the prisoner’s actions were ‘out of character’ and that he or she is unlikely to reoffend, or it may tend to suggest that a person is less deserving of punishment.[16]
[15]Ryan (2001) 206 CLR 267, [27] (McHugh J).
[16]Ryan (2001) 206 CLR 267, [29]–[30] (McHugh J).
Nevertheless, the offender’s otherwise good character — to be understood apart from the offending — is to be weighed against factors which might diminish its mitigatory weight in a particular case. Such factors may include the occasions and duration of the offending; the extent to which the offending coexisted with the very actions that contributed to the establishment of the relevant good character status; the extent to which the offending occurred in the course of the role that was at the heart of the offender’s good character; and the extent to which the offending involved a breach of trust (that is, the exploitation of the position held).[17]
[17]Ryan (2001) 206 CLR 267, [34] (McHugh J).
Ryan concerned a situation in which there was a clear link between the performance of the office that enabled the commission of the offending and the good character that was earned through the performance of that same office. When assessing whether any leniency for Ryan’s otherwise good character deserved to be lessened or expunged, several members of the Court emphasised the linkage between the role in which Ryan built up his claim of good character and the role in which he carried out the offending.[18]

NSW legislative response

[18]Ryan (2001) 206 CLR 267, [34] (McHugh J); [70] (Gummow J); [148] (Hayne J); and [177] (Callinan J).

To overcome the effect of Ryan, s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 was introduced in New South Wales to take effect on 1 January 2009. The NSW provision reads as follows:
(5A)In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.
In AH v R,[19] the New South Wales Court of Criminal Appeal upheld a ground of appeal that the sentencing judge had wrongly applied s 21A(5A) to the particular facts in question, although ultimately dismissed the appeal against sentence on the basis that no lesser sentence was warranted. The offender pleaded guilty to a number of child sexual offences over the course of 14 to 15 months and was sentenced to a term of imprisonment of 10 years with a non-parole period of 6 ½ years. The female victim was aged between nine and 10 years. The offender, a 39 year old man at the time, had been in a de facto relationship with the victim’s mother for a period of two years prior to the offending which took place in the home they all occupied.
[19]AH v R [2015] NSWCCA 51 (‘AH’).

The sentencing judge declined to take into account the offender’s prior good conduct, finding that s 21A(5A) applied. The Court of Appeal noted that the basis of that finding had not been explained. Whilst accepting that the applicant’s relationship with the victim’s mother and the trust which that had engendered ‘created an environment in which the offences could be committed’ the Court was not persuaded that the applicant’s good character assisted his commission of the offences.[20]
[20]AH [2015] NSWCCA 51, [25] (Hidden J, Beazley P and Fullerton J agreeing at [1], [34]).
A different outcome occurred in R v Stoupe.[21] The offender was a 27 year old male childcare worker who had been employed for six years at a child care centre. The offender had been appointed supervisor at the centre during the course of the period in which he offended. He pleaded guilty to three charges of aggravated indecent assault and one of aggravated filming of a person engaged in a private act, all of which occurred at the child-care facility during its hours of operation. The victim of the offending was an eight year old girl who attended after-school care at the childcare facility. The offending took place over a number of months. In the course of the offending, a parent of another child observed the victim seated on the offender’s lap and expressed a concern to staff. When confronted with that concern, the offender claimed that the child had been unwell and that ‘he knew her mother’. Thereafter the offending continued until a further complaint resulted in the matter being reported to police.
[21]R v Stoupe [2015] NSWCCA 175 (‘Stoupe’).
The sentencing judge did not apply s 21A(5A) and took into account the fact that the offender had no prior contact with the criminal justice system and was a person of prior good character.[22] The Court of Appeal held that to be an error. Significantly, in the Court of Appeal both counsel for the Crown and the respondent-offender accepted that s 21A(5A) applied. The Court said —
It may be accepted that the Respondent’s prior good character assisted him to hold the position of childcare worker, which he abused by the offences committed against the victim … Although there may be circumstances where s21A(5A) has no application. (See, for example, AH v R [2015] NSWCCA 51), the present case falls squarely within the terms of that provision.

Wakim

[22]Stoupe [2015] NSWCCA 175, [56].

The Victorian Parliament did not introduce s 5AA of the Sentencing Act until 2018. Before then, in 2016, the Victorian Court of Appeal decided Wakim v The Queen.[23] In that case, the offender, a 53 year old man, pleaded guilty to one offence of sexual penetration of a child under 16 and was sentenced to a combined sentence of 20 months’ imprisonment and a community correction order of 2 years’ duration. The offending concerned a single incident of sexual penetration involving a 13 year old boy.
[23]Wakim [2016] VSCA 301.
A significant body of material was presented in support of the offender’s good character. Without repeating all of it, he had no prior convictions, and had been a social worker who founded an inner city street-work foundation. He had been appointed a Victorian Multicultural Affairs Commissioner, established the Australian Arabic Association, and was a longstanding member of the Maronite Church where he participated in various committees and councils. He received the Order of Australia medal in 2001 and, for about three years before his indictment, was a member of the New South Wales Police Multicultural Advisory Council.
Throughout late 2014 and 2015, he came to be associated with the complainant’s parents, the complainant and his three younger brothers. Over the course of the 2015 calendar year, he became increasingly involved with the family. The complainant’s parents knew he was highly regarded within their community and was a respected church member and said they were encouraged by the offender’s credentials to accept his offers to look after their children. He was invited to family occasions and was once flown from New South Wales at the family’s expense to visit the family because the children wanted to see him. The complainant came to view the applicant as a father figure who cared for him, so that he would confide in the applicant and seek his advice. The applicant sometimes stayed at the family’s home, including looking after the children one night when the parents went out for dinner. In the presence of the complainant’s mother, the applicant had massaged the complainant’s head, shoulders and back, which the complainant enjoyed.
Toward the end of the year, the applicant’s conduct towards the complainant became more and more affectionate and intimate, expressing his love for the child. The offending took place on Christmas Day of 2015 at the complainant’s home, involving an incident of sexual penetration in the complainant’s bedroom.
On the application for leave to appeal the sentence, one ground was that the sentencing judge had given insufficient weight to the applicant’s good character and the extra curial punishment suffered by reason of his dramatic fall from grace in a very public way (including loss of employment and handing back his OAM). The Court applied Ryan, holding that, in cases that concern sexual offences against children, an offender is ordinarily entitled to have his sentence reduced by virtue of his previous good character.[24] In the result, the Court reopened the sentencing discretion and imposed a total effective sentence of 18 months’ imprisonment followed by a community correction order of 2 years’ duration.

Royal Commission

[24]Wakim [2016] VSCA 301, [43].

The Royal Commission published its Criminal Justice Report in December 2017. In its report, the Royal Commission discussed ‘excluding good character as a mitigating factor’ in respect of child sexual offences.[25] The commission noted the High Court case of Ryan and the New South Wales legislation enacted to overcome the effect of that decision. The commission observed:[26]
Most institutional child sexual abuse offending in New South Wales may come within s 21A(5A) because prior good character may be likely to give the offender access to the institution. However, the requirement that the good character in question specifically aid the offence may limit the application of the provision, both in some institutional offending and in offending that is not in an institutional context.
[25]Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (2017) Parts VII–X and Appendices, section 34.6.1, 291–299 (‘Criminal Justice Report’).
[26]Criminal Justice Report, 293.
The commission cited Stoupe as an example of the application of s 21A(5A), and AH v R as an example of a case in which the provision was not found to apply. The commission specifically referred to Wakim as an example of a case where, in the absence of a statutory provision precluding a court from doing so, a child sex offender’s sentence had been reduced due to the offender’s ‘otherwise good character’.
In this context, the Royal Commission made recommendation 74:
All state and territory governments (other than New South Wales and South Australia) should introduce legislation to provide that good character be excluded as a mitigating factor in sentencing for child sexual abuse offences where that good character facilitated the offending, similar to that applying in New South Wales and South Australia.

Victorian legislative response

Following that recommendation, the Victorian government introduced s 5AA. The Explanatory Memorandum for the amending legislation contained the following explanation for that provision —
The operation of section 5(2)(f) and (g) of the Sentencing Act 1991 and the common law in Victoria means that where an offender’s previous good character or lack of previous findings of guilt or convictions may be considered in mitigation of sentence for child sexual offences—even where those attributes have assisted the offender in the commission of such offences (see Ryan v The Queen (2001) 206 CLR 267 and Wakim v The Queen [2016] VSCA 301). The intention of new section 5AA(1) is to alter the sentencing law on this point and give effect to recommendation 74 of the Royal Commission into Institutional Responses to Child Abuse’s Criminal Justice Report.[27]
[27]Explanatory Memorandum, Justice Legislation Amendment (Victims) Bill 2017.
Similarly, in the second reading speech for the Bill, the then Attorney-General stated that the provision:
…will ensure that those who take advantage of their good reputation to commit sexual offences against children cannot then rely upon that reputation to argue for leniency in sentencing. This change is intended to displace the High Court’s position on this matter in Ryan v. The Queen [2001] 206 CLR 267 and will implement recommendation 74 of the Royal Commission into Institutional Responses to Child Sexual Abuse’s Criminal Justice Report.[28]

Recent cases

[28]Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2017, 4359 (the Hon. Martin Pakula, Attorney-General).

Since the enactment of s 5AA of the Sentencing Act, there has only been one decision at the appellate level in Victoria which has considered it. In Fichtner, Maxwell P and Kaye JA heard a sentence appeal from an applicant who had pleaded guilty to six charges of sexual offending and one charge of common assault committed between 1976 and 1982. He was sentenced to 17 years and 4 months’ imprisonment with a non-parole period of 13 years. The Court refused leave to appeal on the proposed ground that the total effective sentence was manifestly excessive. In the course of its reasons, the Court observed that the applicant had no prior convictions and referred to s 5AA of the Sentencing Act. In finding that s 5AA did not apply in that case, it was of particular significance that there had been no submission made by the prosecution on the plea that the section did not apply. The Court said —
As can be seen, the section is only engaged when the sentencing judge is affirmatively satisfied that the offender’s prior good character or lack of previous convictions ‘was of assistance to the offender’ in the commission of the offences. Ordinarily, therefore, a submission from the prosecution would be required before a judge would consider whether the circumstances of the case satisfied the statutory condition. The defence would, of course, need to have the opportunity to make submissions as to why the judge should not be so satisfied. None of those things occurred in this case.[29]
[29]Fichtner [2019] VSCA 297, [86] (Maxwell P, Kaye JA).
Finally, very recently the New South Wales Court of Criminal Appeal (‘NSWCCA’) again considered s 21A(5A) of the Crimes (Sentencing Procedure) Act in Bhatia. The applicant, Bhatia, was convicted by a jury of one count of sexual intercourse with a child under the age of 10 years. The complainant was six years of age at the time of the offence. The applicant committed the offence while taking care of the complainant when the child’s parents were at work.
The NSWCCA found that the sentencing judge erred by applying s 21A(5A) in those circumstances. The sentencing judge had found that the case fell within the provision because the offender’s good character and long-term relationship with the victim’s family enabled him to have access to the complainant. In substance, the NSWCCA held that where the offender was a family friend, evidence must go beyond the fact of that relationship to suggest the commission of the offence was materially assisted by the offender’s good character or reputation. In the case before the NSWCCA, the complainant’s father had given no evidence that he had assessed the applicant’s character or history. No evidence suggested that the applicant actively used his good character or befriended the family to gain access to the complainant.
Beech-Jones CJ at CL said that the finding that an offender’s good character or lack of previous convictions was ‘of assistance’ to the offender in the commission of the offence is ‘not an especially high causal threshold to overcome’. However, the judge held that at the very least it would involve the good character or lack of prior convictions making ‘some material contribution’ to the offender in the commission of the offence. The judge continued that ‘presumably’ in most cases the offender’s good character or lack of conviction will have played some material part in the offender ‘having access to the victim’. But emphasis was laid on the Court being satisfied of the relevant connection, which meant that there was a practical, if not evidential, onus on the Crown to point to evidence of the relevant connection.[30]
[30]Bhatia [2023] NSWCCA 12, [13]–[14] (Beech-Jones CJ at CL).
Referring to s 21A(5A), Hamill J said —
The language of the section is quite broad and is apt to catch a wider range of offenders than those who trade on their trusted position and good reputation to gain access to unsuspecting children because the child or parent is misled into believing the perpetrator is a person of good character. Some obvious examples would include priests and other members of the clergy, politicians, teachers and community leaders. The section would also apply to offenders, with no other connection to the family, who act as babysitters or carers by providing references attesting to their good character and reputation. It may also apply, in some instances, to family friends and relatives, but only where there is evidence going beyond the fact of the relationship and which suggests that the offender’s good character or reputation played a role in assisting them to gain access to the child or to commit the offence. As I said at the outset, it would be wrong to be prescriptive and the application of the section turns on the facts of the individual case.[31]
[31]Bhatia [2023] NSWCCA 12, [144] (Hamill J).
Hamill J drew upon the Attorney-General’s statement in the second reading speech for the introduction of the NSW provision that the section would apply to an offender who had ‘misused his or her perceived trustworthiness and honesty’, to suggest there should be some ‘active use of good character’.[32]
[32]Bhatia [2023] NSWCCA 12, [146] (Hamill J).
Having regard to its text, common law context and these extrinsic materials, a number of things may be noted about the construction of s 5AA of the Sentencing Act.
First, it only applies in sentencing an offender for a child sexual offence.
Secondly, the provision was intended to alter the common law and displace the law as stated in Ryan and Wakim so as to prohibit the court, subject to the condition expressed, from having regard to identified mitigatory factors personal to the offender. That said, by requiring a causal connection to be shown between the mitigatory factor and the offending, the legislature plainly intended to place a boundary around the application of that prohibition. So much was foreseen by the Royal Commission in making its recommendation for the enactment of the provision by observing that the requirement of a causal requirement might limit its application.
Thirdly, picking up that second point, the mandatory prohibition only applies if the court ‘is satisfied’ of the requisite connection between the offender’s characteristics identified in the section and the commission of the offence. As stated in Fichtner, this requires the court to be affirmatively satisfied of the connection, ordinarily requiring at least a submission (if not evidence) that the connection is made out so that proper opportunity is given to the offender to make contrary submissions. Further, with respect, there is much to be said for the view of Beech‑Jones JA in Bhatia that the requirement to be ‘satisfied’ suggests a practical, if not evidential, onus on the Crown to point to evidence of the relevant connection.
Fourthly, that connection is expressed in a particular way. The required link is between the offender’s previous good character or lack of previous convictions, on the one hand, and the commission of the offence, on the other. But that link is further defined by requiring the previous good character or absence of convictions to have assisted the offender in committing the offences. Whilst care must be taken not to add to the words of the section, one potential way in which the previous good character or lack of convictions might assist the offender is, to adopt the language used in the second reading speech, if the offender ‘takes advantage’ of that status in some discernible way to commit the offending. Of course, that is not the only way in which the offender might be assisted to offend by the relevant characteristic and is not a substitute for the statutory language.
Fifthly, the word ‘assistance’ appears to be deliberately flexible and broad. It is neither narrowed nor expanded by the use of any adjectival expression. It therefore affords the sentencing court some scope to apply it practically in the given circumstance to ensure that it operates justly. As stated by Hamill J in Bhatia, it is prudent not to be prescriptive but, rather, to allow the application of the section to turn on the individual facts of the case.
Beech‑Jones CJ proposed two sensible guideposts in approaching the provision: on the one hand, the requirement of ‘assistance’ does not establish a particularly high causal threshold but, on the other, it at least requires that the good character or lack of convictions have made some material contribution to the offender committing the offence. Between those two guideposts, other evaluative considerations might also apply. For example, the contribution might more readily be seen if the particular attributes of the offender (good character or absence of convictions) were earned or built up during the performance of the role in which the offending occurred, as emphasised in Ryan. It would not be correct however, to adopt some form of ‘but for test’: the word ‘assistance’ connotes a higher level of involvement in the offending.
Sixthly, the ‘assistance’ is to be gained from either the offender’s previous good character, or his or her lack of prior convictions, or both. Recognising these possible distinctions underscores the need to identify the actual mechanism by which the assistance operated in the particular circumstances of the case with some degree of specificity.
Seventhly, the prohibition in s 5AA is expressed to apply ‘despite section 5(2)’. But the section does not explain what effect the prohibition has in applying the sentencing purposes set out in s 5(1). For example, an assessment of the need for and prospects of rehabilitation, or the need to specifically deter the offender, may often be influenced by a consideration of the offender’s past character and prior criminal history. For similar reasons, an assessment of the need to protect the community is also commonly influenced by taking these matters into account. In this regard, s 5AA may be contrasted (for example) with s 5(2HC) which, in precluding the court from having regard to previous good character, early guilty plea, prospects of rehabilitation or parity with other sentences, also directs the court to give greater or lesser importance to certain purposes set out in s 5(1).
Finally, in applying s 5AA of the Sentencing Act to the task of sentencing a person for an offence under s 49C of the Crimes Act in particular, care should be taken not to conflate the distinct concepts reflected in each provision. As already mentioned, to be guilty of an offence under s 49C the child must be under the care, supervision or authority of the offender. Section 37 of the Crimes Act deems a teacher of a child to be a person who has the child under their care, supervision or authority. Once the teacher‑student relationship is established, no further evidence is required to prove that element of the offence under s 49C.

But s 5AA does not contain any similar deeming provision. For example, it does not deem a person exercising a particular role to be a person of previous good character. Still less does it deem the existence of a particular relationship to a child to be one that will assist in committing a child sexual offence. Therefore, care should be taken not to take it as granted, for example, that a person who has a child in their care, supervision or authority must either have a good character attribute or, necessarily, have deployed some good character attribute associated with that role in order to commit the particular child sexual offence for which they are to be sentenced. That is not to say that such good character or its deployment might not be readily demonstrated; simply that it is not generally to be assumed.

Consideration

The judge was informed that the respondent had no prior criminal history. No evidence was led of the respondent’s ‘previous good character’, certainly not by the prosecution. On the plea, the respondent tendered three character references, referred to by the judge, which generally attested to the consequences to the respondent of her own offending, the ostracism she suffered for it within the community, and her remorse, general decency and kindness as a person.
No evidence was given of the influence that the respondent’s particular character attributes, or lack of criminal history, played in her being entrusted to any particular role with Bentley; neither from the school’s perspective or from the perspective of Bentley or his parents.
The offending occurred in July and August 2022, not long after the respondent and Bentley had begun their communication from late May and through June. The respondent had only moved to Gippsland at the beginning of 2022 to commence her employment there as an outdoor education teacher. In short, the respondent was in the role for less than six months before the offending commenced and was new to the town. These facts are a far cry from the sort of case, of which Ryan, Wakim and AH are examples, where some longstanding position of the offender contributed to the character attributes of trust worthiness and decency that enabled the offending to take place.
We have already referred to the way in which the Director argued that the respondent’s previous good character and lack of prior convictions assisted her in the offending. Logically, that causal connection has the following steps:
•her good character and lack of convictions enabled her to gain employment as a teacher;
•being a teacher brought her into a relationship of care, supervision and authority over students, including Bentley;
•in that role, she had ‘access’ to Bentley and made initial contact with him;
•that initial contact progressed to her having sexual intercourse with Bentley offsite and out of school hours;
•therefore, her good character and lack of prior convictions were of assistance to her in the commission of that offending.
The first thing that must be said is that such an argument was not put to the judge. Presumably, something along those lines was intended by the submission that her character attributes ‘gave her the opportunity’. But the steps inherent in the argument were not fleshed out and, once challenged by the judge, the argument was not pursued. Whatever may have been intended by it, these steps did not need to be addressed by the respondent in reply because, if not abandoned, the argument was not pressed.
Not being pressed, no attention was paid to whether or not the proposition that good character or lack of prior convictions enabled the respondent to gain employment as a teacher could be made good. On appeal, the Director referred to teaching as the type of role which requires ‘police checks and good character’. One might ask rhetorically, do all prior convictions or character blemishes stand in the way of employment as a teacher? On the state of the evidence, that is an unknown which rather highlights the problem. For what it is worth, in other cases it might well be conceded that lack of convictions is a necessary prerequisite to employment as a teacher, or brief evidence could be given to that effect. But even so it is not to be assumed that, in all cases, that fact alone would be sufficient to satisfy the court that good character assisted the offending.
Employment as a teacher did no more than place the respondent in the position of care, supervision and authority with respect to her students. As pointed out, while that status is an element of the offence under s 49C of the Crimes Act and is deemed to arise by virtue of being a teacher, that status alone does not answer the question whether good character or lack of prior convictions assisted the respondent to engage in sexual relations with her student, being the additional element necessary to constitute the offending. Being in a position of care, supervision and authority may, no doubt, be a relevant factor: even a good starting point. But it is not, of itself, the end of the inquiry under s 5AA.
As appears from the transcript, the judge announced that he rejected the application of s 5AA in discussion during the plea hearing finding that, in the circumstances of this case, the connection between the respondent’s character attributes and the commission of the offence was simply too tenuous and had not been made out. The judge did not return to the issue or explain this conclusion in his reasons for sentence. Nevertheless, the judge’s findings with respect to way in which the respondent behaved toward Bentley, her discussions with him before commencing a sexual relationship, the respondent’s own mental health, and Bentley’s reflections about the situation as given to the police, together, explain why the judge took the view he did. The judge’s conclusion was correct for the following reasons.
First, while it was the respondent’s role as a teacher that brought her into contact with Bentley, enabled her to observe and obtain information about his grief and, probably, sanctioned her initial approach to him to offer comfort and support, those were the direct outcomes of her position of care, supervision and authority. By contrast, the role played by the respondent’s good character (however that might be characterised) or her lack of convictions in assisting her to make that initial contact, in any practical sense, is more difficult to discern.
Even so, assuming that the respondent’s position as teacher was gained through lack of convictions at the least, and that position enabled her to make that initial pastoral contact, exercising that pastoral role does not necessarily mean that it assisted the respondent to commit the acts of sexual penetration essential for this particular offending. This again highlights the problem about the lack of evidence. Because the use of that pastoral role was not raised or articulated on the plea, it was never explored as a matter of evidence whether, by the time of the offending, the circumstances that gave rise to the need for care in May or June continued to operate in any material way. In matters of fact and degree, this is not unimportant.
The offending did not take place on the school site or under cover of a school activity, or because the student, Bentley, was specifically entrusted to the respondent’s pastoral care due to school or pastoral permission. The teacher/student relationship was instrumental to the initiation of the first contact, but progressively less relevant to the course of the relationship toward it becoming a sexual one. Bentley was nearly 17. Without in any way diminishing the respondent’s full responsibility for what occurred, nor suggesting any fault on the part of Bentley, it is nonetheless relevant, in evaluating any assistance that the respondent gained from her previous good conduct or absence of convictions in order to offend, to acknowledge that Bentley exercised a degree of agency in the progress of the relationship. For example, it appears that he first suggested that he and the respondent ‘meet up’, and he anticipated their first sexual encounter by having a condom.
Instead of being of assistance to the commencement of a sexual relationship, the teacher‑student relationship loomed as an impediment. Twice, before their sexual encounters, the respondent and Bentley discussed the appropriateness of having sex whilst in the context of the teacher/student relationship, agreeing to proceed despite it. Of course, the occurrence of such a discussion might not always stand as an obstacle to establishing the connection between the teacher’s good character attributes and some subsequent offending. But in this particular case, it is of significance due to the specific factual context in which it occurred.
An important contextual feature, as the judge found, was the absence of any predatory behaviour by the respondent. During the plea hearing the judge said, ‘I wouldn’t be finding there’s anything at all predatory in it’. The judge repeated this view in his reasons, stating that this offending was not ‘in any way, shape or form predatory’. He pointedly set out a portion of what Bentley said in his video and audio recorded evidence,[33] in these terms:
If I’m being completely honest I know at the end of the day it’s probably not considered at all, but I just — and you guys probably see it as she, you know, trying to get to me, but I just want to say that she’s very nice, she’s a very nice person and I know — I know for a fact that she wasn’t trying to get at me to try and be a predator or anything like that and I believe that she genuinely had feelings for me and I know I did. As much as it’s wrong, as much as I knew it felt wrong, I just — I know that she — she’s not like that and I feel that I’m now, you know, making the right decision by saying that ‘cause I just want to make sure that’s clear on how — how I feel. It’s because I just didn’t want — I never wanted it to end like this and I never wanted her to feel, you know, have to cop it. So I just wanted to make sure that I’ve made it clear that I feel that she — she didn’t mean it in the way that it’s typically done I guess you could say, when a teacher tries to get to a student.[34]
[33]Criminal Procedure Act2009, Part 8.2, Division 5.
[34]Reasons, [15].
Bentley did not present as a particularly impressionable or gullible youth. It is true that he was emotionally affected by the loss of his friend and, in that sense, vulnerable to an adult’s care. But his own ardent defence of the respondent in his statement to the police depicts a young man who was alive to the potential of predatory behaviour, yet staunchly rejected it. The judge neatly summarised the various considerations of vulnerability, predatory behaviour and criminal responsibility, saying:
I have already said I do not think it was predatory. He was vulnerable himself in that situation, but again I do not mean vulnerable in the sense of you being predatory. It was simply a situation where neither of you was thinking particularly straight and you were the one with the responsibility, not him.
As I said, it developed from inappropriate behaviour. There were no gifts, no threats, nothing along those lines. As I say, I have got nothing to compare it to in terms of comparable cases but it is important to, I think, remember that he was over 16. If he was under 16 this may have been a very, very different outcome.[35]
[35]Reasons, [20]–[21].
On the hearing before this Court, the Director conceded that the facts did not demonstrate any ‘significant coercion of grooming’ on the part of the respondent. Significantly, the Director also conceded, correctly in our view, that although care, control and supervision was an ingredient in the offence, that same care, control and supervision was not an influential factor in the offending itself. We took this to be a concession that although care, control and supervision was deemed to exist by reason of s 37 of the Crimes Act, there was no misuse, exploitation or taking advantage of that care, control and supervision in the commission of the sexual offending.
Another contextual factor relevant to an assessment of whether the respondent’s character attributes made some material contribution to the offending was the respondent’s own mental health. To the extent that her mental ill-health accounted for her poor decision-making and, in turn, contributed to her crossing the boundary from a messaging relationship to a sexual relationship, any factor that assisted her to make the initial contact may be seen as ultimately immaterial in terms of the commission of the actual offence.
As demonstrated by the psychological reports tendered on the plea, the respondent was, herself, in a fragile mental state around the time of the offending. The judge noted that only a couple of months before the offending commenced, the respondent found out that she was infertile, which increased her own vulnerability to irrational thinking to which she was disposed because of a constellation of mental health conditions afflicting her (to which more reference will be made later). A psychologist, Megan Rodgers, expressed the opinion that the respondent was ‘experiencing a high level of personal vulnerability which led her to poor decision making regarding the nature of the relationship with the victim’. Dr Suzanne Williams was of the view that her low self‑esteem and poor sense of self significantly contributed to immature and poor judgment in making decisions about relationships. As discussed further in relation to ground 2, the judge accepted a causal relationship between the respondent’s psychological ill‑health and her offending saying, ‘I certainly take into account that you were probably unwell when making these criminal decisions’.[36]
[36]Reasons, [28].
Patently, none of these matters excuse the offending. It was a crime for which the respondent had to be sentenced. But this exercise is not about excusing the offending: it is about whether s 5AA applied in the circumstances. All of the features that have been mentioned were matters to be weighed in determining what factors actually contributed to the offending in this particular case, and the extent to which (if at all) the respondent’s previous good character and lack of convictions ‘assisted’. In our view, on the evidence before him, the judge was well justified in not being satisfied that the respondent’s previous good character (whatever that was) or her lack of prior convictions were of assistance to her having sex with her student in her car, and at her house, in the circumstances that have been described.
One last point should be addressed. The Director repeatedly submitted that the purpose and intention of s 5AA was to prohibit reliance on good character and lack of convictions where the offender’s role has been gained by reason of good conduct and that role has ‘enabled access’ to the child. When challenged that the section, in terms, does not condition its application on whether performance of a particular role provides a means of access to a child, the Director submitted that it would not often be the case that a court would tie the offending directly to good character, so ‘it’s about access to children’.
We reject that submission. The cases of Ryan and Wakim, which in part inspired the enactment of the section, were cases in which the offenders’ good character could be directly tied to the offending. Similarly, in AH, the childcare worker had worked at the centre for six years; he had earned the position of supervisor; the offending took place in the performance of his role; and the continuation of his offending was enabled by him asserting that he ‘knew’ the parents, implying that he could be trusted and that there was no cause for concern.
Further, the role played by an offender’s good character or absence of convictions in gaining access to a child may, in a given case, be sufficient to cement the relevant causal connection. But it wholly overstates the proposition to suggest that the intent of the section is solely about ‘access to children’. It finds no support in the language of the provision itself. Nor is it supported by any explicit statement in the Explanatory Memorandum or the second reading speech. Further, in saying that most institutional child sex offence cases would come within the NSW equivalent of s 5AA because prior good conduct ‘may be likely to give the offender access to the institution’, the Royal Commission recognised that the requirement that good character specifically aid the offence may limit the application of the provision in some institutional offending and in offending that is not in an institutional context. Having ‘access’ to a child is not a proxy to be applied in all cases for ‘the commission of the offence’ or for the ‘assistance’ required under s 5AA. Further, the submission conceals a ‘but for’ casual connection that is not supported by the text or context and would extend the operation of the section to circumstances in which the characteristics played no practical role in the commission of the offence. Like most legal inquires as to cause, the section requires a common sense assessment based in the evidence as to the extent to which good character or an absence of convictions has played in the offending.
We would dismiss ground 1.

Ground 2: Was the sentence manifestly inadequate?

The dismissal of ground 1 is of some significance to a consideration of whether this sentence was manifestly inadequate. It means, of course, the judge was permitted to take into account the respondent’s previous good character in mitigation and, if it was in doubt, her prospects of rehabilitation.
For the Director to succeed on this ground, she must persuade the Court that the imposition of a 4 year community correction order was wholly outside the range of dispositions reasonably open to the sentencing judge.[37] In our view, having regard to the seriousness of the offence, the matters personal to the respondent and the correct application of the sentencing purposes, the sentence imposed by the judge, whilst lenient and perhaps merciful, was not wholly outside of the range of dispositions reasonably open to him.
[37]Clarkson v The Queen (2011) 32 VR 361, [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’).
The judge stated that, in the normal course of events, the respondent’s offending would have to be regarded as serious calling for generic and specific deterrence, denunciation and appropriate punishment.[38] The judge accepted that that this was a ‘serious crime’ and that general deterrence had to ‘play a very significant part in it’.[39] Principally, the reason for not imposing a custody or sentence, which the judge acknowledged would be ‘the usual course’, was because of the respondents ‘fragile mental state’ which the judge considered needed to be explained and described in a certain amount of detail.[40]
[38]Reasons, [4].
[39]Reasons, [17].
[40]Reasons, [22].
Before summarising the judge’s findings about the respondent’s fragile mental state, it is convenient to mention the other matters personal to the respondent which the judge took into account. They were that the respondent:
•was 31 years of age (30 at the time of offending);
•pleaded guilty at the first reasonable opportunity, deserving the utilitarian benefit of that plea, with a further entitlement to a recognisable discount due to the plea being made in the time of the pandemic;[41]
•had no prior convictions and no subsequent matters pending;
•was of good character — referring to references from her present employer, the officer in charge of the local CFA, a long-standing friend, and a family who had been supporting her since the offending;
•had demonstrated remorse and shame for her offending;
•had suffered significant extra-curial punishment, referring to the fact that she had lost her position as a teacher and also her subsequent employment in a local pharmacy and a hotel whose businesses were boycotted due to her offending, and she had been suspended from the CFA — all of which, the judge found, showed that she had become a ‘pariah’ in the town which, although a natural consequence of the type of offending, had gone ‘beyond what might normally be expected’ to a ‘fairly extreme level with a person as fragile as you’;[42] and
•was ‘well underway’ with rehabilitation and her risk of re-offending was low.
[41]Worboyes v The Queen [2021] VSCA 169, [35] (Priest, Kaye and T Forrest JJA).
[42]Reasons, [26]. On the plea, counsel for the respondent relied, inter alia, on Duncan v R [2012] NSWCCA 78, [28] and Kenny v The Queen [2010] NSWCCA 6, [49].

The judge outlined the respondent’s schooling where she experienced significant bullying and struggled academically, with additional literacy and numerously support. Nonetheless, she completed high school and obtained a Diploma of Tertiary Studies at Monash University and ultimately a Bachelor of Outdoor Recreation, finishing in 2013. She commenced work in 2014 and worked in various schools until she moved to Gippsland in 2022 commencing at school where Bentley was a student.
Since 2013 the respondent had been in psychiatric institutions and hospitals on multiple occasions. She was diagnosed with post-traumatic stress disorder (‘PTSD’) and an emotionally unstable personality disorder as early as 2013. On the plea, numerous psychological and psychiatric materials were presented dating back to 2013 but including a letter from her treating psychologist, Dr Suzanne Williams of 3 January 2019 and 9 January 2023; a letter from Dr Louis Lee, psychiatrist, from Latrobe Regional Hospital dated 1 September 2022; reports of a psychologist, Ms Megan Rodgers dated 22 February 2023 and 5 March 2023, a letter from a Mental Health Clinician at Latrobe Regional Hospital dated 1 March 2023 and a letter from her general practitioner, Dr Angela Tallarida dated 3 March 2023.
The judge noted the comments of her current psychologist, Dr Williams, who expressed the view that her early history and experience of significant trauma lead to poor development of a healthy sense of self ability and ability to engage in relationships effectively. That history included growing up ‘in a hostile environment characterised by a great deal of emotional and psychological abuse’. According to Dr Williams, these things contributed to a poor sense of self and immature and poor judgment when making decisions regarding relationships. Importantly to her mental health evolution, in 2012 a very close cousin of the respondent committed suicide because of bullying. The judge accepted that, on the material before him, the respondent had been raped in 2018. She had been involved in several relationships with men which had involved a degree of either degradation or abuse although, in the five or so years from the age of 23 to shortly before moving to Gippsland, the respondent had been in a more positive relationship.
The report from the Latrobe Regional Hospital confirmed a past history of self‑harm and her history showed a number of suicide attempts. The judge accepted that because of her childhood difficulties, the loss of her cousin and being raped, the respondent had been diagnosed as having a complex post-traumatic stress disorder, diagnosis of bipolar, extreme anxiety and extreme depression. Since the offending came to light, in February 2023 she was admitted as an involuntary psychiatric patient at a hospital in Gippsland.
Throughout July and August 2022, teachers at the school had become concerned about the respondent’s mental health.
It was against this background of facts that the judge concluded:
As I said at the outset, I think the normal situation here or the usual situation would be a custodial sentence, but in this particular set of circumstances it is clear that your risk of reoffending is low. I am very conscious, very conscious indeed, of general deterrence. I have to look at what the community expectation would be and, indeed, in the normal course of events community expectation would be, I think, a pre-emptive custodial sentence but, as I pointed out, this is not a charge of sexual penetration. It is a charge in its own right and the real crime is having engaged in a relationship whilst you were a teacher, not with a child effectively being unable to consent.
When I look at all of those matters and I look at the matter personal to you I think it is a very unusual situation in your personal circumstances, and I think it justifies the imposition of a non-custodial sentence. The principles involved in Verdins I think clearly apply. The overall circumstances which your mental health placed you in, I think gives rise to a reduction, albeit perhaps moderate in terms of moral culpability. I have got no doubt that if you were put in a prison environment it would be catastrophic for you and I am taking that into account. I have had you assessed for a CCO and I have read that report, as have indeed certainly counsel, and I do not think what is contained in there is a bluff. I think that for you to be imprisoned would cause extreme problems for you.
The Director submitted that a number of factors underscored the seriousness of the respondent’s particular offending, namely: that this was not isolated offending but had occurred on multiple occasions; there was a significant age gap between the respondent and her student; Bentley was vulnerable at the time of the offending due to the death of his close friend; the offending involved some planning and was neither spontaneous nor impulsive; the respondent was well aware that her conduct was wrong; and, correctly, the judge did not find that the presumption of harm had been rebutted given the difficulty of predicting long-term consequences of this kind of offending.[43]
[43]See Clarkson (2011) 32 VR 361, [53] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
Furthermore, with respect to the judge’s application of the first limb of R vVerdins[44] — namely, the moderate reduction in respondent’s moral culpability — the Director submitted that the judge failed to apply any rigorous examination of any causal link between the alleged impairment of mental functioning and the offending such that the respondent could be adjudged lest blameworthy as a result. It was submitted that the views of both Dr Williams and Ms Rodgers were only general in nature and their evidence fell well short of what was required.
[44]R v Verdins (2007) 16 VR 269, [32] (‘Verdins’); [2007] VSCA 102.
In conclusion, the Director submitted that the respondent’s psychological conditions did not warrant the ‘moderate’ reduction in relation to her moral culpability as allowed by the judge; the judge should not have taken into account the respondent’s previous good character in mitigation (ground 1); and too little weight was given to general deterrence and denunciation.
Given that s 5AA of the Sentencing Act did not apply, the judge was bound to take into account the respondent’s lack of prior convictions and good character. Such matters properly contributed to his view about the need for specific deterrence as a sentencing purpose, and the respondent’s good prospects for rehabilitation.
This was a difficult sentencing exercise. The offending was serious and, as the judge correctly noted, ordinarily a custodial sentence of some duration would be expected in order to fulfil the sentencing purposes. There was quite an age gap, and the offending persisted with deliberation and planning. But the judge considered this to be a very unusual situation. It is a conspicuous example of a judge concerned to do ‘individualised justice’ and to exercise the judicial sentencing discretion to ‘do justice’ in the particular case.[45]
[45]DPP v Dalgliesh (2017) 262 CLR 428, 445–9 [49] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41.
The findings the judge made about the respondent’s complex mental health condition were well founded on the evidentiary material.
On the hearing of the plea, proceeding from that evidence, counsel for the respondent put detailed submissions to the judge on the application of all of the limbs in Verdins. Specifically, counsel submitted the respondent’s impairment to mental functioning contributed to the offending because the evidence supported a conclusion that her ability to make calm and rational choices and think clearly was impaired at the time of offending. For that reason it was submitted that the respondent’s moral culpability should be reduced (first limb). For the same reason, and because of her mental health at the time of sentencing, it was also submitted that the principles of general and specific deterrence should be moderated (third and fourth limbs). Further, it was submitted that there was clear evidence that by reason of her ongoing mental health diagnoses and symptoms a sentence would weigh more heavily on the respondent than on an individual who did not suffer them (fifth limb), and that her mental state and well-being would be negatively impacted by a term of imprisonment due to an increased risk to self (sixth limb).
On the plea, the prosecutor did not resist or oppose the application of any of those principles. Before this Court, the Director only made submissions directed to the moderation of moral culpability.
In our view, it was open to the judge to find that there was a realistic link[46] between the respondent’s impaired mental functioning and her offending such as to attract the operation of the first limb of Verdins. The evidence for that link could be derived from a combination of the long-standing and entrenched psychiatric and psychological conditions from which the respondent suffered, the expert evidence as to the way in which such conditions could be expected to impact the person suffering them, the nature of the offending itself, and the fact that teachers at the school observed the respondent’s deteriorating mental health around the time of the offending.
[46]Brown v The Queen (2020) 62 VR 491, [61]–[62] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA); [2020] VSCA 212; Langton (a pseudonym) v The Queen [2022] VSCA 79, [33]–[34] (Maxwell P, McLeish and Macaulay JJA).
The respondent was a first time offender. She pleaded guilty and was remorseful for her crime. Her moral culpability for this serious crime was properly reduced in view of the role played by her mental illness. Significantly, that same illness would potentially render a term of imprisonment ‘catastrophic’. The judge found that the collection of circumstances leading to her offending produced an ‘unusual situation’. Her risk of re‑offending was low and her rehabilitation was already underway. Balancing all considerations, we are not persuaded that the 4 year community correction order with its onerous conditions was, in all of the circumstances of this particular case, a manifestly inadequate sentence.
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[2023] VSCA 207

5 September 2023