R (Cth) v Cole

[2024] NSWDC 436

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R (Cth) v Cole [2024] NSWDC 436

Hearing dates:

5 September 2024

Date of orders:

17 September 2024

Decision date:

17 September 2024

Jurisdiction:

Criminal

Before:

Bennett SC ADCJ

Decision:

See [251]-[255]

Catchwords:

CRIME – Sentence – Commonwealth Crime – Use carriage service to transmit child abuse material – text based child abuse material - produce child abuse material – texting text based child abuse material – Victim aged sixteen years – Coerced into crime.

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedures) Act 1999 (NSW)

Criminal Code Act 1995 (Cth)

Judiciary Act 1903 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

DPP (Cth) v Beattie [2017] NSWCCA 301

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Edmund Heathcote (A Pseudonym) v R [2014] VSCA 37

Hoskins v R [2021] NSWCCA 169

Imbornone v R [2017] NSWCCA 144

McGregor v R (2021/283147)

Minehan v R (2010) 201 A Crim R 243

Moiler v R [2021] NSWCCA 73

R v Bredal [2024] NSWCCA 75

R v De Leeuw [2015] NSWCCA 183

R v Kelly (Edward) [1999] 2 All ER 13

R v Tootell ex parte AG [2012] QCA 273

R(Cth) v Shane Stewart

The Queen v Pham (2015) 256 CLR 550

Wong v The Queen (2001) 207 CLR 584

Xiao v R (2018) 96 NSWLR 1

Category:

Sentence

Parties:

Joanne Cole (Defendant)
The Crown (Prosecution)

Representation:

Counsel:
J Wilcox (Defence)
Solicitors:
W Glowrey (Defence)
Commonwealth Director of Public Prosecutions

File Number(s):

2023/00033707

JUDGMENT

Introduction

1. Joanne Cole appears for sentence after pleas of guilty in the Local Court for three offences, namely:

First Offence: contrary to s 474.22(1) Criminal Code (Cth)

On about 18 December 2021, use carriage service to transmit child abuse material.

Maximum Penalty: Imprisonment for 15 years

2. It is alleged she transmitted five photographs of her daughter when naked in the shower.

Second Offence: contrary to s 474.22(1) Criminal Code (Cth)

On about 18 December 2021, use carriage service to cause child abuse material to be transmit to herself.

Maximum Penalty: Imprisonment for 15 years

3. It is alleged she transmitted text-based child abuse material.

Third Offence: contrary to s 474.23(1) Criminal Code (Cth)

On about 18 December 2021, produce child abuse material with intention to be used by herself to commit an offence against s 474.22(1) Criminal Code (Cth)

Maximum Penalty: Imprisonment for 15 years

4. It is alleged she produced the five photographs of her daughter naked in the shower.

Additional Offence

5. There is also an offence before the court contrary to s 474.22A(1) Criminal Code (Cth) on a schedule pursuant to s 16BA Crimes Act 1914 (Cth) relevant to the second offence:

Between about 17 and 18 December 2021, possess child abuse material and use carriage service to obtain or access that material.

Maximum Penalty: Imprisonment for 15 years

6. It is alleged that she was possessed of text-based child abuse material.

The Pleas

7. The offender pleaded guilty in the Local Court on 12 March 2023. Consequently, I will apply a discount of 25% to the sentences that would have otherwise been imposed for the individual offences. Through her counsel she adhered to her pleas of guilty in this court, and confirmed her wish that the additional offence be considered which she also admits.

8. The offender did not give evidence in the proceedings. She attended the hearing on sentence in court at Albury. I gave her leave to appear for AVL from Albury for the judgement and imposition of sentence.

Pre-Sentence Custody

9. The offender spent no time in custody for these offences.

10. She was subject to bail conditions:

1. In respect of her daughter, or anyone with whom she has a domestic relationship, not to :

1. Assault or threaten:

2. Stalk, harass, or intimidate; and

3. Intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in their possession.

2. Not approach the victim or contact her in any way unless the contact is through a lawyer; and

3. To reside only at a specified address in Victoria.

11. There is no indication that she breached her bail. The conditions are no greater than she must in any event observe and, in the circumstances, do not ameliorate the punishment she faces.

The Facts

Background

12. According to the Crown cover sheet the offender was born in 1974, and if correct is now 50 years old and at the time of her misconduct was aged 47 and 48. However, according to the antecedent report and elsewhere she was born in 1977. Little turns on this, for whatever the correct year she was of a maturity that she must have known the evil conduct upon which she engaged with her co-offender, Shane Stewart. I proceed upon the basis that she was born in 1977.

13. She worked for Stewart as a kitchen hand at a Hotel in Tocumwal, New South Wales where she lived.

14. Stewart was born in 1979. He was a chef at the hotel, and one of the offender’s supervisors. They began a sexual relationship.

15. The victim, the offender’s daughter, was born in 2005, aged 16 at the time of the offences. She usually lived in Melbourne with her father who had primary custody.

16. 27 November 2021 aged 16 years she travelled to the offender’s home at Tocumwal for school holidays.

Categorisation of Child Abuse Material

17. Material identified by Police as child abuse material is classified into categories according to the Interpol categorisation system.

Category 1:

Real child pre-pubescent perceived to be under 13 years of age: media depicting a real pre-pubescent child/very first signs of puberty and the child is involved in a sex act, witnessing a sex act or the material is focused/concentrated on the anal or genital region of the child.

Category 2:

Other illegal content, child under 18 years of age: other child abuse material that is illegal within Australia but does not fit Category 1. Media may include images of children likely to cause offence to a reasonable adult where a child is subjected to sadism, torture, bestiality, or humiliation. Images may depict a child as the person conducting the activity or observing other persons. This includes animated, text of children and photoshopped media.

Category 3:

Non-illegal/indicative of an interest in children.

The Offending

18. Early on 18 December 2021, the victim found on the offender’s phone text-based graphic sexual conversation between the offender and Stewart which commenced on 17 December 2021. In these Stewart fantasised fictitious sexual interactions between the offender, him, and the victim. He expressed his desire for sex with the victim, encouraged the offender to show the victim pornography, and told her to encourage the victim to have sex with him.

19. The conversation is in Annexure A to the agreed facts. I have read the entirety of that document of five pages.

20. It is extraordinary that the mother of a teenage daughter would engage in such conversation with her lover as he described his fantasy of the three of them engaged in sexual conduct, including grooming of the child to the point of her willing participation. There is no need to repeat here the offensive text in which the offender clearly acquiesced, but I note the following:

1. The conversation was on 17 December 2021.

2. Stewart began with his “horny thoughts” of the victim and surrounding the offender with what he asserted was love, but which can have no description other than his fantasy of exploitation of the child and grooming her into sexual conduct with her mother for his own pleasure.

3. His fantasy included representations to the victim that they are loving, expressing themselves, and learning to bond in the purest form.

4. He encouraged the victim to remove her mother’s garments before sexual contact. He described graphically his fantasy of the child’s arousal.

5. He paused for a time, and then wrote,

I’m back Would you like me to continue?

to which the offender responded,

Yes please.

6. He described the victim fondling her mother, and her envy of her mother’s body.

7. He represented the interaction as intense and amazing, the purest forbidden love that is no longer forbidden in their family.

8. He described teaching the child how to arouse and pleasure her mother, and her mother’s response.

9. He wrote,

Wow watching this happen is the hottest thing I ever watched or seen…

This must be a reference to him imagining all that he is describing, including cunnilingus, fellatio, and digital penetration.

10. He wrote,

Read it to her. Send me a selfie. I like to see you both.

I love you both so much Did you like that story?

She responded clearly that she did. He encouraged her to tell the victim of this. The discussion extended to him seeing the child’s genitalia before it was shaven. He repeatedly asked for this. She discussed sexual conversations that she said she had with her daughter.

11. On occasions the offender affirmed receipt of the text messages from Stewart and indicated her enjoyment and sexual arousal.

21. This conversation is classified Category 2 in the Interpol categorization system.

22. On 18 December 2021, the victim showered at the offender’s residence. The bathroom had an internal window with a view to and from the kitchen, built as an extension to the house. The window blind was down. While she showered, the offender entered and told her she needed to use the toilet. The victim saw the offender do so then raise the blind slightly before exiting. She saw the offender hold her mobile phone up to the internal window from the adjacent room with the camera lens facing the victim.

23. At 3.48pm the victim sent a text message to her friend C:

I was in the shower, and my mum just came in claiming she needed to use the bathroom. Which, okay whatever. Do what you gotta do. But then as she left she put the blind up in the bathroom a bit. Which can see out into near the kitchen/front door area. I was mid shower when I looked over and saw my mum at the window...with her phone. I left it thinking I was paranoid. Bc let’s be real here, I am. I looked over at her on the couch and I swear I saw me in the shower on her phone. I swear it. I’m trying to get my mum to go outside so I can check her phone. I need to know. But yeah, there’s the update.

24. On 19 December 2021, the victim accessed the offender’s mobile phone again and found another text-based conversation between the offender and Stewart from 18 December 2021. This is detailed at Annexure B. I have read the entirety of the conversation, from which I noted the following:

1. Stewart threatened to punish the victim if the offender disobeyed him. She protested, to which he wrote:

Stewart: It’s not me it’s all up to you. Are you pushing the conversation Hey good girl I want you to do something for me and you don’t have to have the conversation You have until Tuesday day that is the dead line of showing her ok Are you listening to me miss Cole.

The offender: Ok yes definitely. And thank you.

Stewart: If it isn’t done by Tuesday then your going to be more upset than you are now You’ve been warned and this is your last warning miss Cole I hope you understand the severity of this situation.

The offender: Yes I do.

2. The offender told Stewart she and the victim had discussed anal sex and that she told her was painful at first but felt amazing. She told him the victim was interested in everything, and thought Stewart was “hot”. He told her to show the victim his pictures with him dressed, “not the dick picks”. The offender told Stewart she liked what she saw.

3. He wrote,

Oh how I would love to drive up next to her and jump and grab her and put her in the car and take her back to my dungeon.

.. already cum watching her shower.

25. The victim located five photographs of herself naked in the shower saved to the offender’s camera roll. The photographs are classified as Category 2 material in the Interpol categorization system.

26. On 1 August 2022, the victim called the Kids Helpline for advice. They notified Victoria Police.

27. On 3 August 2022, the victim provided a statement to Victoria Police.

28. On 16 August 2022, the victim participated in a recorded interview with Victoria Police.

Stewart’s Record of Interview

29. On 30 November 2022, Stewart participated in a record of interview and made the following admissions:

1. He received the photos of the victim in the shower from the offender.

2. He saved the photos in a ‘hidden vault’ application on his phone.

3. He knew the victim’s age at the time, that she was “15 or 16”.

4. He knew possession of the photos of the victim in the shower was wrong and an offence.

5. He had the sexual text-based conversations with the offender about the victim, but the offender never told him to stop it.

The Offender’s Record of Interview

30. On 1 February 2023, the offender participated in a record of interview during which she made the following admissions:

1. She took photos of the victim naked in the shower.

2. She sent the photos to Stewart at his request.

3. She acknowledged she received text messages from Stewart suggesting she should encourage the victim to have sex with him.

4. During their sexual relationship, Stewart had her participate in degrading and humiliating sexual acts, including striking her, urinating in her mouth, asking her to get her dog to ‘do certain things’ to her and photographing those acts. He put cooking implements into her while they were in the workplace.

The Offender

31. I proceed upon the basis that 1977 was her correct year of birth. She has no antecedent offences against her name, save for a drink driving offence of little relevance beyond the support it gives for her assertion of misuse of alcohol.

32. She did not give evidence but provided a letter to the court. I am aware of the caution required when considering untested representations by an offender, as discussed for example by Wilson J in Imbornone v R [2017] NSWCCA 144. I note that Dr Dayalan suggested caution in his report, to which I shall come.

33. She asserts sorrow for her crime, her mortification for allowing her mental health to deteriorate so that she did such a horrible act, which not only hurt her but also the lives of her family, extended family, and most importantly her daughter. As mother she let down and hurt her, the most important person she ever loved. She expresses complete remorse for the turbulence inflicted on her loved ones’. Her uncharacteristic, horrible act jolted her to reflection, and forced her to seek guidance to face and overcome her tumultuous past. She now understands the importance of her mental health care, which, with medication and doctors she will do everything possible to improve so as never get as low as to do something so awful. She wants to become a better person for her daughter, for her to see that she will do all to help herself and one day be someone her daughter can be proud of, and who she would be proud to call her Mum.

Sentencing Assessment Report.

34. At the time of contact for this report she lived in an assisted living environment funded through the NDIS. She reported that her parents are emotionally distant, and she is estranged from her family. Her sister, however, reported that she deliberately distanced herself from her family and unfairly characterised them as emotionally distant.

35. She is currently unemployed and has received the disability support pension since 2021. She was last employed as a kitchen hand in 2021 for three to four months, prior to her arrest.

36. She has minimal criminal history to date, with a previous conviction for drive under the influence of alcohol in 2017 which is of no significance in the assessment of sentence other than as part of the history of her misuse of alcohol .

37. She reported her belief that she was “only put on this earth to please men”, her self-worth dictated by opinions of intimate partners. She said she had never thought about behaving as she did until her co-offender imposed his sexual fantasies upon her. She engaged and maintained her offending to satisfy him.

38. Their relationship commenced through their mutual employment, where he was in authority over her. She reported that he initiated the idea and pressured her to undertake sexual acts. She denied a legitimate romantic relationship with the co-offender. She said their interactions were solely sexual and believes she was gradually manipulated through grooming. She said the co-offender exerted undue control within the relationship.

39. She reported consuming 700ml of bourbon a day, sporadically for almost 20 years, including throughout her offending. She did not attribute all blame to alcohol use, but felt it contributed to her poor decision making. Alcohol use was initially to self-medicate as a coping mechanism to deal with childhood trauma.

40. She has no prior history of sex offending.

41. She reported diagnoses with various mental health conditions, for which she is now mediated, but which remain unverified. These are discussed in detail by Dr Dayalan to whom I shall come. She attributed her behaviour to mental health, untreated at the time of her offending.

42. She described her offending as “horrendous” and acknowledged the long-lasting impact to the victim.

43. She attributed manipulation to the co-offender when her mental health was poor, and that she continued what he asked to ensure their relationship continued. She said her actions in their relationship were informed by her experience of trauma.

44. She is willing and able to undertake interventions to address her offending behaviours. She is unable to undertake community service work due to a reported diagnosis of acute oesophagus disorder and her current location.

45. She has not had prior supervision or contact with Community Corrections. Throughout the assessment period she maintained consistent contact, and attended all scheduled appointments via phone, with satisfactory engagement.

46. She was assessed at a Medium-Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R). If the court makes a supervised order, Community Corrections will supervise her at the T2/Medium-Low supervision level of the Service Delivery Standards, whereby she will be required to contact a Community Corrections Officer every 6 weeks. Community Corrections will implement the following supervision plan:

1. Referral to the CSNSW Psychologist to identify case management strategies that may need to be implemented in relation to her index offences.

2. Supervision appointments will be underpinned by cognitive behaviour-based exercises to manage her interpersonal relationships and self-awareness development of a prosocial lifestyle.

3. Referral to a local drug and alcohol service, to address alcohol consumption and develop strategies for abstinence.

4. She should telephone the Albury Community Corrections Office within 7 days to receive instructions about her obligations.

5. No conditions other than a supervision condition are required to implement the supervision plan above. She is unsuitable to undertake community service work because she is currently residing in, Victoria, approximately four hours from the closest community service agency; her reported poor health impedes her ability participate in work.

47. The report may be used to make a conditional release order, a community correction order, or an intensive correction order. Before including a home detention condition on an intensive correction order, the court must request a home detention assessment report from Community Corrections under s17D(2) Crimes (Sentencing Procedures) Act 1999.

Structured Case Note for the Sentencing Assessment.

48. This is upon file information and is not supported by direct contact with the offender. This is not a comprehensive assessment of risk.

49. The author summarised the facts, her one prior driving under the influence charge, that she made full admission to the offences, that she reported her mental health was impaired, that she was self-medicating with alcohol, that the co-offender manipulated her, and that she engaged in the offending to ensure the relationship continued.

48. She disclosed a history of trauma at 12 years of age, and beliefs that her self-worth is dictated by the opinion of intimate partners. She expressed significant remorse for her offending and impact upon her daughter.

49. Her age and present circumstances were rehearsed., together with those of her daughter, her relationship history, her contact with her sister but not her parents who she described as emotionally distant since childhood. She lacks a social support network, reported various mental health diagnoses, and marijuana use in 2018, using every couple of days, ceasing use on the day of her arrest. She reported difficult alcohol consumption from 28 years of age, consuming 700ml of bourbon per day. She engaged in AA meetings after her 2017 conviction with no benefit. She acknowledges her mental health and substance use issues and willingness to engage in necessary intervention to address her offending behaviour and comply with supervision requirements.

50. Her mental illness and substance use suggest deficits in general self-regulation, such as impaired problem solving, managing impulsivity and negative emotionality, which may have contributed to her offending Her developmental and relationship history suggest disruptions in intimacy and attachment that may have played some mediating role in her offending behaviours.

51. With respect to risk of recidivism the following interventions are recommended:

1. Referral for psychiatric assessment to clarify her diagnoses and ensure access to the most appropriate treatment.

2. Access to alcohol and other drug specific intervention.

3. Intervention to address her trauma history, to undertake therapy focusing on intimacy deficits, respectful relationships, boundaries and consent, interpersonal effectiveness, communication, anger and conflict management and healthy intimacy and attachment.

4. Interventions to address general self-regulation and mental health; topics might include emotion regulation, distress tolerance, managing impulsivity and problem solving.

5. Encouragement to expand her network of prosocial supports.

54. There is currently no custody or community-based specialist treatment options offered by CSNSW for females who sexually offend. In the event of a custodial sentence. the offender may be eligible for custody-based programs such as EQUIPS or Real Understanding of Self Help, however this would be assessed following sentence. As I announced before commencing the judgement I do not intend to immediately incarcerate the offender.

55. Should the offender receive a non-custodial sentence she would be ineligible for the community-based sex offender program with Forensic Psychology Services. Referral to a privately practicing treatment provider may be an option, however such treatment would be at her expense.

56. If the offender receives a community-based sentence, she would be referred to a CSNSW Psychologist for further assessment of dynamic risk with the aim of developing a risk and self-management plan in consultation with the supervising officer.

Reports from Dr Satish Dayalan (Forensic Psychiatrist) 29 January 2024 and 23 August 2024

57. These was tendered on behalf of the offender without objection. There was no challenge to the qualifications, or the experience earned by Dr Dayalan. He was required for cross examination.

58. The reports are comprehensive and through, the opinions are reached upon the offender’s representations, but they do not stand alone, supported by the documented history of care and treatment carefully and thoroughly analysed by Dr Dayalan.

The First Report

59. For the first report Dr Dayalan conducted a psychiatric assessment of the offender for his opinions upon her fitness to stand trial and eligibility for a mental health impairment defence.

60. His sources of information were:

1. His psychiatric assessment of the offender on 8 December 2023 via Audio-Visual Link.

2. A letter of instructions from her solicitor.

3. Police Brief of Evidence including her interview and that of her daughter.

4. Charge Certificate.

5. Crown Case Statement

6. Health Records from Geelong Hospital and Barwon Health.

61. The offender provided the following information:

1. She was a 46-year-old single mother of her daughter aged 18 years.

2. She lived in supported accommodation in Victoria for people with psychiatric disabilities. She was unemployed and received the Disability Support Pension. Her disability stemmed from bipolar affective disorder, ADHD, and dependent personality disorder.

3. She reported a difficult relationship with her parents since childhood. Her father was “tyrannical” and used corporal punishment upon her. He was emotionally abusive, and her mother endorsed his critical remarks. Her parents were emotionally detached, and she was unable to seek emotional support when distressed. As I noted this contrasts with information attributed to her sister by the author of the sentencing assessment report and in the absence of evidence there is no resolution of this topic, which might be her perception in the context of her evolving mental health.

4. Around the age of 13 a family friend sexually abused her after he groomed her and encouraged her to drink alcohol. She had difficulty saying no to others from early age and tended to please. She acquiesced in his advances and had sexual intercourse with him.

5. She was sexually abused by a chiropractor who had her remove her clothes, inappropriately touched her, and digitally penetrated her. She was 16 years old. He was a family friend; she did not disclose the abuse to anyone until in recent years.

6. At high school, she was severely bullied for the appearance of her teeth and her glasses. She was not “the cool girl…I was told I am ugly all the time…I used to hide all the time.” To please her bullies, she stole money from her mother to buy food and other items for them. Anxiety symptoms were noted since childhood. She experienced panic attacks, often triggered by exposure to any stress. She recalled symptoms of obsessive-compulsive disorder from age nine. She washed her hands excessively. She blew at objects four times to ensure they were germ free. She checked doors repeatedly and had to knock on the door four times.

7. She self-harmed in her teenage years and early 20’s. She made three suicide attempts including overdoses and cutting her wrist. She displayed features of bulimia nervosa, binging and purging since age 19. Depressive episodes were associated with social withdrawal, lethargy, self-neglect, negative ruminations, poor appetite, suicidal thoughts, and self-loathing. She described manic episodes characterised by reckless behaviour including promiscuity, excess spending, stealing, and illicit drug use. She did not worry about consequences and felt invincible. Her sleep deteriorated and she experienced increased energy levels. She engaged in excessive physical activity that resulted in injuries.

8. When prompted, she acknowledged increased rate of speech and irritability. The elated moods lasted two to three weeks. There was no history of psychotic symptoms. She had a pattern of “drifting to a fantasy world” when distressed.

9. She first received treatment with antidepressant medication around age 19 for obsessive compulsive disorder and later received multiple psychiatric medications. She stopped medications soon after feeling better without consulting her doctor.

10. When diagnosed with bipolar affective disorder in her 20’s, she received treatment with mood stabilisers. She engaged in psychological treatment but accepted that she had difficulty persisting to completion. A general practitioner diagnosed attention deficit hyperactivity disorder when at age 38 or 39 and prescribed medication but she did not comply.

11. Her first psychiatric admission was at age 46 years following a breakdown. The diagnosis of bipolar affective disorder and dependent personality disorder were reaffirmed.

12. She stopped taking medication two years before the offences upon her decision to adopt a healthy lifestyle to manage her mental health instead. She intended regular physical activity and a healthy diet. She accepted that stopping medication was detrimental.

13. Around the time of the offences, she was drinking up to a bottle of whisky a day for a couple of months and then stopped for a period of time. She struggled to engage in controlled drinking and said, “it had to be all or nothing”. She said alcohol assisted her sleep and negative ruminations. She smoked cannabis once a week. She was stressed about her financial situation. She was living with a much younger partner who relied on her financially. Her work was intermittent when her mental health deteriorated but worked hard when she attended.

14. In the days prior to the offences, she continued to attend work. She recalled instability in her mood. Her sleep pattern was worse around the time of the offences due to racing thoughts. She continued to binge and purge. Her energy levels were low. She experienced suicidal thoughts but did not act on them. Her self-esteem was “shockingly bad”. She said she engaged in degrading sexual behaviour as she felt she deserved to be treated badly. She denied associated sexual arousal. She said,

… it was a combination of I cannot say no to this person…He made me feel important…I felt like I was wanted and I was important to somebody…He was like an authority figure telling me how to be and I would be rewarded with kindness…I was so confused, I didn’t know how to get out of it…He was like the ruler”. She said, “I was a mess…I was all over the place.

15. There were no psychotic symptoms. She continued to feel anxious and experienced panic attacks about once a week. Her daughter stayed with her around that time. They cooked together and she enjoyed spending time with her. She acknowledged that she discussed sexual topics with her in the days prior to the offences. She denied having previously discussed other than safe sex with her daughter. When asked her reasons for the offending behaviour, she responded,

I don’t know….I don’t how I became to do that…I can’t relate to that person…It was like I was having an out of body experience….It is completely against my moral…I would not dream of doing it in my current state of mind…I was not in the right state of mind…It was like I was in a weird fantasy world.

16. She accepted that she hesitated before engaging in the behaviour, aware it was wrong, but was unable to explain why she proceeded with it. She later added that she was manipulated by the co-offender who took advantage of her mental state.

17. At the time of assessment, she was prescribed antipsychotic/mood stabilising medication and antidepressant medication. Support staff supervised her medication due to her forgetfulness. She acknowledged that her medication regime assisted with stabilising her mood. She had not drunk alcohol in the last three or four months. The medication assisted with sleep which could be interrupted by vivid dreams. She made efforts to eat healthily but had instances of binging and purging. She denied suicidal thoughts in the last month. The obsessive-compulsive disorder symptoms were in remission. Anxious ruminations about her finances, the welfare of her daughter, her accommodation, and court proceedings were noted. She felt tense most times and was easily startled. She had one panic attack in recent months. She did not report significant problems with temper. She related well to other residents in the accommodation. Improvement in impulse control was attributed to her medication. Her energy levels improved. An application for funding from the National Disability Insurance Scheme was made.

18. She suffered asthma, an oesophageal ulcer, and a head injury with associated loss of consciousness from a horse-riding accident when a teenager. A brain scan revealed no abnormalities. She experienced seizures from an infection that spread to her brain.

19. She started drinking alcohol at age 18, with intermittent excessive use her 30’s. She experienced withdrawals and developed tolerance. She found it difficult to control alcohol use despite adverse effects on physical and mental health. She had drink driving charges. This might be an error given there is only one such offence on the record before me.

20. She smoked cannabis but denied daily use. She experimented with other drugs but denied regular use.

21. She was born in Geelong. She was unaware of birth complications or developmental delays. Her grandfather and four cousins suffered mental health conditions including anxiety, depression, and OCD. She has an older sister. At school, she struggled academically due to concentration deficits. She denied having repeated any years or special classes. Her school records commented that she was easily distracted, disruptive, and did not achieve potential. She denied behavioural problems leading to suspension or expulsion. She completed Year 12.

22. Her employment included hospitality and retail roles. The longest period of employment was with a lighting retailer where she worked for almost eight years. She was easily overwhelmed at the workplace and struggled to perform duties. She was never terminated from work but stopped working due to decline in mental health. She described romantic relationships as “absolute chaotic messes”. She was bad in relationships tending to gravitate towards the wrong people. She was a victim of domestic violence. She did not feel secure in relationships. She admitted infidelity. The longest relationship was her marriage of twelve years that resulted in her daughter.

23. Upon mental state examination she presented casually dressed in a reasonable level of self-care. She was polite and cooperative. She was restless and distressed and tearful through parts of the assessment. She made good eye contact, and a rapport was established. Her speech was of increased rate and quantity but not pressured. She presented as anxious, and her affect was labile. There was no disorder in thought form. She denied delusional beliefs and hallucinations. She could sustain attention for the duration of the assessment of two hours. There was no gross impairment in cognition. She accepted that she suffered a multitude of psychiatric conditions and was willing to engage in treatment.

62. Records from Geelong Hospital include her presentation in April 1999 when she had taken an overdose of antidepressant medication, after an argument with her boyfriend. The overdose was preceded by alcohol. Past history of obsessive-compulsive disorder and bulimia nervosa was noted. It was noted that she was prescribed lithium by her general practitioner in 2004. She previously ended a couple of relationships lasting three and 13 years, respectively. During the assessment she presented as anxious without psychotic symptoms. She was discharged to the care of her general practitioner.

63. Records from Barwon Health included:

1. Assessment on 21 July 2010 concluding that she presented in a situational crisis (break up with partner of three years) with associated deliberate self-harm (self-inflicted laceration on her forearm). She was regarded to have poor coping skills, chronic anxiety, and cluster B personality traits.

2. On 27 July 2010: symptoms of generalised anxiety disorder against a fragile personality construct. She suffered longstanding severe odynophagia (pain whilst swallowing) in the context of bulimia.

64. From Geelong Hospital:

1. Admitted on 27 December 2022 with depression and increased use of alcohol in the previous six weeks. She expressed suicidal ideation with vague thoughts of jumping off a cliff. She had a complex mental health history but not a long history of mental health services engagement. Traumatic experiences and extensive domestic violence were noted. Repeated suicidal behaviour since age 19 was reported. She self-harmed when informed a general practitioner was not accepting new patients as she felt rejected.

2. During review on 28 December 2022, she requested that the hospital doctor not abandon her. She was commenced on medication for anxiety and sleep.

3. On 3 January 2023, she said she disengaged from psychological treatment after a few sessions finding it difficult to give her history. She was keen to trial Eye Movement Desensitisation and Reprocessing therapy used in the treatment of post-traumatic stress disorder. Reviews in January 2023 indicated she presented as bright and reactive at times. She reported going to the beach with her dog and swimming.

4. An entry by an “Access” team member dated 5 April 2023 stated that she alleged sexual assault by her housemate, in his late 60’s. He asked her to leave the residence and she performed oral sex on him twice so that he would let her stay. She gave a history indicative of kleptomania but replaced this behaviour with a pattern of having sex with strangers. She reported depressive and anxiety symptoms.

5. Review by psychiatric registrar on 9 May 2023 noted she presented with depressive symptoms including chronic suicidal ideation exacerbated in the context of interpersonal conflict with housemates and increased alcohol use. Her presentation was regarded to be more in keeping with borderline/dependent personality disorder. She was recommenced on fluoxetine and her dose of diazepam gradually reduced.

6. She was admitted to a medical unit within the hospital on 15 June 2023 following an intentional overdose on quetiapine with suspected starvation ketosis in the context of alcohol toxicity and bulimia nervosa. She presented with alcohol withdrawal symptoms and required management of delirium. Her liver function tests were abnormal.

7. History of depression, anxiety, alcohol use disorder, ADHD, borderline personality disorder and bulimia nervosa were noted in an entry by psychiatry registrar on 16 June 2023. Prior to admission she had been in a crisis accommodation due to end on the day of assessment. She reported multiple depressive symptoms and hallucinations. It was noted that she alleged sexual assault by her housemate. During the admission due to reported lack of efficacy, antidepressant medication, fluoxetine was ceased, and citalopram added. Medical issues such as genital herpes, anaemia, and oesophagitis were identified and treated during the admission.

8. Care note dated 17 June 2023 stated that she reported nightmares and flashbacks relating to childhood sexual abuse and trauma as an adult.

9. She was admitted on 30 August 2023 to a mental health facility after she presented with active suicidal ideation in the context of alcohol dependence syndrome and ongoing issues with accommodation. It was noted that she was drinking 750 ml’s of spirits daily. History of complex post-traumatic stress disorder, substance use disorder, and dependent personality disorder was reported. She discussed the trauma in her childhood and claimed to have experienced manic episodes characterised by excess spending and promiscuous behaviour. The treating team was of the impression there was not sufficient evidence to support a manic episode to justify the diagnosis of bipolar affective disorder. She presented as emotionally distressed. She was concerned about her father’s welfare; he was in a coma. She was anxious about homelessness and being discharged from the unit. Improvement in mood was noted after she completed detoxification. There was no evidence of psychosis. She was assessed to have borderline personality traits. She was recommenced on antidepressant medication. She was continued on quetiapine. The diagnosis was adjustment disorder with low mood and suicidal ideas in the context of alcohol dependence syndrome and emotional dysregulation (secondary to traumatic events in childhood). She was discharged on 14 September 2023 to supported accommodation in Geelong.

10. Review on 20 October 2023 noted she described a pattern of avoiding and running away from problems. She acknowledged tendency to please people and seek care from others. She gave a history of premenstrual dysphoric syndrome. She was keen to commence a mood stabiliser, but her presentation was not convincing for a diagnosis of bipolar affective disorder. Her difficulties were regarded as histrionic and borderline personality style.

1. She presented as teary and upset on 30 October 2023. Troubles with living circumstances were reported. Report from Pilbara Community Legal Service of 9 December 2022 indicated that she was assessed as an extremely high-risk victim.

65. From the text messages attached to the draft statement of facts with detailed sexualised conversation between offender and Stewart. it was evident that he assumed a dominant role and often instructed her to comply with his directions. Responses suggest she was sexually aroused from the conversation. There was no evidence to indicate the presence of any confusion in her texts.

66. Her police interview on 1 February 2023 noted she had reported suffering from mental health problems for a long time. She claimed she had been a mental health wreck when her daughter came to stay with her in November 2021. She claimed she did not know what she was doing. She detailed various sexualised behaviour that she was asked to do by Stewart. She claimed he urinated in her mouth and physically assaulted her for sexual gratification. She spoke about low self-worth and how she tried to please others. She repeated that she lost her moral compass.

67. In her police interview her daughter stated that the offender repeated to her that Stewart was a “good guy”. The offender also encouraged her daughter to take explicit photos together with Stewart and herself. She said that she had grown up witnessing her mother fighting with a lot of people.

68. Dr Dayalan offered his psychiatric opinion and diagnoses:

1. She described a troubled childhood, felt rejected by her parents and her peers at school. Physical and emotional abuse endured at home in conjunction with bullying at school and predisposed her to heightened anxiety in interpersonal functioning.

2. She was subject to sexual abuse in her childhood. These experiences adversely affected her development of self and identity contributing to maladaptive behaviour patterns such as seeking to appease others, disordered eating patterns, and self-destructive behaviour.

3. She described mood instability from an early age; evident from the history she has significant problems with impulse control.

4. Fear of abandonment in relationships and impaired interpersonal functioning were acknowledged by her.

5. She suffers from borderline personality disorder (one of the Cluster B personality disorders) as per the criteria in the Diagnostic and Statistical Manual for Mental Disorders Version 5. This is consistent with the opinions of multiple mental health professionals who have reviewed the offender over the years.

69. Dr Dayalan explained the impact of borderline personality disorder upon individuals.

70. The offender suffered from depressive and anxiety disorders from an early age and received treatment with antidepressant medication. The condition is associated with dissociative symptoms that she reports to have experienced. She seeks to understand and validate her unstable mental health and functional impairment through various psychiatric diagnoses. Given the complexities associated with her personality disorder and exacerbation of certain traits from excess use of alcohol caution is needed in ascribing the symptoms/behaviour reported by her to various psychiatric diagnoses.

71. She described periods suggestive of hypomanic episodes, but this was not corroborated by objective evidence and disputed by mental health professionals who reviewed her during inpatient admissions. The fluctuations in mood can be attributed to the affective instability associated with her personality structure and the impulsivity probably contributes to reckless behaviour.

72. Attention deficits are common in individuals with heightened anxiety and based on the available information a diagnosis of attention deficit hyperactivity disorder cannot be confirmed.

73. The pattern of use of alcohol supports a diagnosis of alcohol use disorder in early remission.

74. Upon her fitness to be tried assessed with regard to principles set out in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

1. She understood the offences with which she was charged, could identify her plea, and provide a rational explanation for choosing it. She appeared to have the capacity to register information provided on the consequences of entering her plea. She had the ability to enter a plea.

2. Her responses indicated a superficial understanding of the nature of the court proceedings.

3. She could sustain attention through the course of the interview and comprehend and retain information provided to her.

4. She would be able to follow the court proceedings in a general sense and understand the substantial effect of any evidence presented against her.

5. Heightened anxiety during court proceedings could impact on her capacity to follow the proceedings but special provisions such as regular breaks and presence of a support person could assist.

6. There was no evidence of thought disorder and her responses to questions were coherent and relevant. She denied persecutory beliefs incorporating her legal representatives. She appeared to have the ability to provide instructions to her counsel and explain her version of facts to her legal representative and the court. She had sufficient capacity to make a defence for her charge and decide on the defence and relay it to court. She would be able to exercise the right to challenge jurors.

75. The offender was fit to stand trial on a balance of probabilities.

76. Upon whether she had available a defence of mental health impairment:

1. She suffers from borderline personality disorder, a condition associated with ongoing disturbance in mood and thinking. resulting in impairment of the emotional well-being of the individual, their judgement, and behaviour.

2. The condition would fulfil the criteria for mental health impairment as defined in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

3. Given the chronic nature of the condition, she was suffering from borderline personality disorder at the time of the offences. She was also abusing alcohol and therefore suffering from alcohol use disorder.

4. The relationship with her partner was strained.

5. The health records indicate that her mental health deteriorated when romantic relationships ended, and she presented with acute distress and suicidal behaviour.

6. It is likely that she experienced further deterioration in her mental state around that time and probably suffered from a depressive disorder given her account of mental state and functioning.

7. Factors relating to her mental health conditions probably contributed to the offending behaviour such as fear of abandonment resulting in excessive compliance with the instructions of Stewart and poor impulse control. The disinhibition and impaired judgement stemming from excess use of alcohol could have also contributed. The text messages and the offending behaviour did not indicate the presence of any confusion or psychotic symptoms that would have rendered her incapable of knowing the nature and quality of her actions. She acknowledged she was aware of the wrongfulness of her actions but said that she experienced difficulty with refraining from the behaviour due to feeling controlled by Stewart.

8. There is insufficient evidence to suggest that her mental health condition had the effect on her that she could not appreciate the wrongfulness of her behaviour.

77. Dr Dayalan offered the opinion that the offender did not have the defence of mental health impairment available to her.

The Second Report

78. Dr Dayalan provided his second report on 23 August 2024 specifically for the sentence proceedings.

79. He confirmed with the offender the accuracy of the background material and as recorded in the first report dated 29 January 2024.

80. His principal sources of information were the offender’s psychiatric assessment on 9 August 2024 via Audio-Visual Link, a letter of instructions from her solicitor, and the transcript of the sentence proceedings in R(Cth) v Shane Stewart of 15 February 2024, and remarks on sentence in that matter of 22 February 2024.

81. The clinical interview rehearsed her age and status, and that of her daughter, now age 19, with whom has not had contact since being charged. Dr Dayalan rehearsed her current circumstances, consistently with the content of the first report.

82. He rehearsed the psychiatric history consistently with the first report. He rehearsed her treatment and management history, the information she provided regarding he circumstances of the offences and her mental state at the time. He confirmed her explanation that she stopped taking her psychiatric medications two years prior to the offences, to adopt a healthy lifestyle to manage her mental health instead. She accepted this was detrimental to her. He confirmed her alcohol use about the time of the offences, her cannabis use, her stressed financial situation, her younger partner who relied upon her financially, her intermittent work, her mental health deterioration, and in the days before the offences her continued attendances at work.

83. The report repeats her assertions that she was detached and dissociated, binging, and purging, with poor sleep, and suicidal ideation. She confirmed loss of her sense of worth reflected in masochism in the hands of Stewart who made her feel wanted and important, who presented as an authority figure in whose hands she deserved to be treated badly. As an authority figure he told her how to be and she would be rewarded with kindness. She said she was confused and did not know how to withdraw; he was like a ruler,

84. She continued to feel anxious and experienced panic attacks about once a week. Dr Dayalan noted trauma related symptoms. Asked her reasons for the offending behaviour, and he repeated her response as earlier quoted.

85. She said she was manipulated by Stewart who had taken advantage of her mental state. She said she,

… felt terrible…there’s not a day that I don’t think about it…I feel awful and sorry…just perplexed as to how that happened…I struggle with it every day - because it is wrong…it is putting my daughter in danger…I have given her a sentence...she could struggle with relationships because of what I had done…it’s shameful, disgusting…I don’t deserve happiness…I deserve every horrible thing that comes my way….so I can feel pain every day.

86. The report discussed her progress since the offences, her move to Victoria from Western Australia after being charged, hoping for assistance from her sister. She did not have stable accommodation after the move, drank to excess, her mental state deteriorated, and she was admitted to a psychiatric inpatient unit in the context of suicidal ideations. She was an inpatient for three to four months and then discharged to her current accommodation.

87. In May 2024, she was readmitted with relapse of acute suicidal thoughts and excess alcohol use. Her antidepressant medication was changed. She continued with antipsychotic/mood stabilising medication. After discharge she attended weekly appointments with drug and alcohol services. She abstained from alcohol. Her mental state Improved after the hospital admission in May 2024. Suicidal thoughts reduced. She engaged in regular physical exercises, but she became obsessed with exercise and diet. There was exacerbation of her eating disorder due to preoccupation with body image. She continued to experience fluctuations in her mood but not as extreme as before.

88. Her self-esteem remained poor. Medication assisted her sleep pattern. She enjoyed exercise and cooking for herself and other residents. She socialised with other residents and shared a good relationship with staff.

89. There were no recent panic attacks, she continued to experience trauma related symptoms, she engaged in compulsive behaviour such as repeated washing her hands and scrubbing her scalp. She repeated most behaviours in the multiples of four fearing negative consequences otherwise.

90. Her medical history, drug and alcohol history, personal and family history were discussed as in the first report.

91. Upon her mental state examination for this report, she appeared restless and was distressed during parts of it. She tolerated interruptions without irritability. She cooperated. She made good eye contact, and a rapport was established. The rate and quantity of her speech were increased but she was not pressured. Her mood was anxious and her affect reactive. There were no psychotic features such as disorder in thought form, delusions, or hallucinations. There was no gross impairment in her cognition.

92. She believed she suffered from multiple psychiatric conditions and was willing to engage in treatment.

93. Dr Dayalan rehearsed the health records and collateral information as was discussed in his first report. He noted the psychiatric diagnosis repeatedly mentioned in the health records of borderline personality disorder, one of the Cluster B personality disorders; an enduring pattern of mood instability, poor impulse control, suicidal behaviour and thoughts, unstable relationships, fear of abandonment and rejection and dissociative experiences. With reference to the criteria in the Diagnostic and Statistical Manual for Mental Disorders Version 5, she suffers from borderline personality disorder. The emotional dysregulation and dysfunction in interpersonal functioning associated with this condition predisposes her to experiencing anxiety and depressive disorders. She described:

1. Intrusive symptoms associated with early traumatic experiences;

2. She engaged in avoidant behaviour; evidence of emotional dysregulation, poor interpersonal functioning, and negative self-worth were noted from her remarks during the assessment;

3. She displayed associated features of heightened threat perception such as impaired sleep, exaggerated startle response, and hypervigilance, consistent with diagnosis of complex posttraumatic stress disorder which shares features with borderline personality disorder.

94. Dr Dayalan wrote that this is a tentative diagnosis and longitudinal assessment will be required to confirm. It was evident that she was keen to attribute her chronic impairment in functioning to various psychiatric conditions. She strongly identified with different psychiatric conditions and presented as quite suggestible when asked about psychiatric phenomena. Dr Dayalan noted that caution is needed in making diagnosis based entirely on self-report. There is no objective evidence supporting presence of manic or hypomanic episodes. I commented earlier upon this referring to Imbornone v Regina ibid.

95. The report continues:

1. The pattern of alcohol use supports a diagnosis of alcohol use disorder which has had a remitting and relapsing course.

2. Around the time of the offences the offender continued to suffer from borderline personality disorder and alcohol use disorder. The discontinuation of her psychiatric medications and abuse of alcohol would have destabilised her mental health.

3. She was in an unstable relationship with her partner around that time and there is a history of extreme emotional dysregulation in the context of strain in relationships.

4. In these contexts, she described experiences of anxiety and depression. She also reported associated impairment in functioning which led her to take days off work. She probably suffered a depressive disorder around the time of the offences. Low self-esteem and a degree of self-loathing would have contributed to her adopting a submissive and degrading role in the relationship with Stewart; her submissive attitude probably absolved her of the stress and anxiety associated with making decisions. The fear of abandonment and rejection associated with her personality disorder also influenced the dynamics in the relationship.

5. The nature of the relationship with Stewart was a key contributory factor for the offending behaviour.

6. Abstinence from alcohol and improvement in mental health following recommencement of treatment has allowed her to reflect. She presented as remorseful and articulated the impact of her behaviour upon her daughter.

7. Around the time of the offences, her reasoning ability and judgement were probably affected by the alcohol abuse, submissive stance, and depressive disorder. With improvement in her mental state after the offence she appreciates the seriousness and consequences of her actions.

8. Incarceration will be more onerous upon the offender given her underlying mental health conditions. It is likely that placement in a setting with women prone for violence will exacerbate her trauma related symptoms. She is vulnerable to influence from antisocial peers in the correctional environment. She appears to have gradually built a relationship with other residents and staff after a period of instability in life. She engaged in treatment to rehabilitate herself. Imprisonment will disrupt the progress made. She will need to continue treatment with psychiatric medication for a few years even after resolution of anxiety and depressive symptoms to minimise the risk of relapse. She will benefit from dialectical behaviour therapy shown to be effective in reducing emotional and behavioural dysregulation noted in individuals with borderline personality disorder. She will need to engage in an alcohol rehabilitation program, and it would be recommended that she maintains complete abstinence given her repeated failed attempts at controlled drinking. Vocational training and ongoing assistance from social support services are also recommended.

96. The enduring nature of personality disorders, her limited psychosocial support, her multitude of mental health problems, and history of intermittent compliance with treatment adversely impact on her prospects of rehabilitation. However, she responded favourably to current treatment and appears motivated to rehabilitate. Continued engagement in treatment in the long term and abstinence from alcohol will positively impact on her prognosis.

97. In considering factors associated with risk of reoffending such as substance use problems, association with antisocial peers, problems with accommodation, employment history, financial circumstances, educational attainment, psychosocial support, attitude towards offending, mental health, and personality disorder, she has a moderate loading of recidivism risk factors.

Dr Dayalan’s Evidence

98. Dr Dayalan gave evidence on 5 September 2024 via audio visual link to the court in Albury. He confirmed his assessment of the offender and the preparation of his reports upon fitness and whether she had a mental health impairment defence and for the sentence proceedings. He faced cross examination by the Crown focused upon his second report. He confirmed:

1. The information upon which he prepared the report including the clinical assessment over 90 minutes on 9 August 2024 via audio visual link.

2. He wrote an earlier report, 29 January 2024, for which he had seen her previously.

3. The written material provided was from before and after the offending. I note however that a good deal of the material predates the offending.

4. The services for care and treatment reviewed her on ongoing basis, with different professionals providing care rather than one specific doctor.

99. The state of dissociation and his attribution to the offender of her detachment to which he referred at page four he explained. This is a time when in a psychological sense the person detaches from what is happening around them. They could also have a sense of detachment from themselves. It includes feeling detached from one’s surroundings or from oneself as a person.

100. Dr Dayalan was asked to consider:

1. The nature of the conversation between the offender and Stewart over two days,

2. Her responses at various times with encouragement to him to continue the conversation in which she also responded about taking on shifts at work,

3. The steps she took to photograph the victim, and that she acknowledged to Dr Dayalan leading to the January report that she understood her wrongfulness of the actions at the time, and

1. Exceptional circumstances are not defined, but there is guidance provided by the observations of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [1999] 2 All ER 13 at 20 where his Lordship, also in the context of sentencing legislation, said:

We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

2. They can be made out on a cumulative basis;

3. They can be made out in part from the absence of a prior record of offences;

4. The greater the objective seriousness, the more difficult it will be to make out exceptional circumstances; and

5. While a suspended sentence is significantly more lenient than a full-time sentence, a suspended sentence involves real punishment, nonetheless.

236. Counsel argued for the existence of the following matters as exceptional circumstances under s 20(1)(b)(iii) Crimes Act justifying immediate release given the comparable outcome for Stewart who suffered a non-release period of two months:

1. The offender is less morally culpable than her co-offender, especially noting her mental health condition;

2. The offender has a profoundly serious mental condition present since childhood; it materially contributed to the present offences; the severity of the offender’s mental condition is itself ‘exceptional’;

3. There is expert evidence of the peculiarly harsh impact full-time imprisonment will have on the offender;

4. The offender has a limited record of prior convictions and is a person of prior good character;

5. The offender is extremely unlikely to ever commit an offence like this again; and

6. The offender’s mental health has improved following hospital admissions in the aftermath of being charged for the present offences, she has stabilised on medication and has access to NDIS-supported accommodation.

7. Noting the detrimental impact insecurity of accommodation has had on her mental health since being charged. culminating in hospital presentations, full-time imprisonment would be extremely destabilising for her mental health.

237. Counsel submitted that the totality of the offending is confined. The offences are of a similar nature close in time. Cumulation would not displace the appropriateness of an order under s 20(1)(b)(iii) Crimes Act, given the Court is required to impose a single recognizance release order as a component of a sentences of imprisonment for multiple offences which in the aggregate are less than three years: s 19AC(1)(c) Crimes Act.

Consideration

238. This is an unusual case. Objectively, although I agree with the assessment that the gravity of the offences is well below the mid-range, it is astonishing that the mother of this child would surrender to her amoral partner’s sexual interest in her daughter and allow her exploitation when the child was visiting for school holidays with the approval of her father who had her primary care.

239. Either the offender is evil, or her conditions and circumstances described in the well documented history of her mental health have left her to fall beneath the influence of a coercive Stewart, and that to placate him she participated in the conduct with which she is charged.

240. On balance it is plausible that Stewart so influenced the offender that she surrendered to him and engaged in the misconduct. She might have exploited her daughter for sexual arousal that she and Stewart pursued, or she acquiesced because she wanted to perpetuate the relationship with Steward. In either case it was at her daughter’s expense with the emotional damage that followed.

241. On the face of her representations to Steward she was willing to surrender her daughter to his amoral fantasises.

242. I note that in the sentence assessment report the offender’s sister is said to challenge the proposition that their parents were emotionally distant and asserted that the offender deliberately distanced herself from her family. No evidence was called regarding this, and the contrast cannot be reconciled. I put it to one side. It might mean no more than this was the offender’s perception of the relationships considering the history so thoroughly discussed by Dr Dayalan.

243. I accept the representation to the author of the sentence assessment report and Dr. Dayalan that the relationship with Stewart commenced through their mutual employment where he was in authority over her and that he initiated what occurred and pressured her to undertake her role. Her denial of a romantic relationship with the co-offender, legitimate or otherwise, is challenged though considering the sexual arousal that she said she enjoyed from this, notwithstanding there was coercion in the language by Stewart to her. He was not present when she took the pictures and engaged in the conversations with her daughter that she described to him. Her conduct was less degrading than the sexual relationship she claims she had with Stewart, but it degraded her daughter nonetheless. Nevertheless, I accept that Stewarts’s behaviour toward the offender was coercive in its nature, with his sexual gratification its purpose, with the victim the subject of it, and the offender with her limited capacity to resist surrendered to him.

244. These propositions largely depend upon self-reporting, requiring appropriate caution as discussion in Imbornone v Regina ibid, to which I earlier referred, however considering the documented history of symptoms, care and treatment, I find these facts reasonably probable. I accept that the offender is contrite and remorseful.

245. I noted the use of the term fictitious applied to the text messages in which Stewart described his fantasies and in which the offender acquiesced. This term was embraced by the offender’s council in his submissions. I accept that Stewart's description of the sexual encounter was a fiction, the product of his mind, but I do not overlook that it was accompanied by representations to the offender that she should approach her daughter with steps that were in the nature of grooming behaviour. Rather than fiction, it is more aptly described as his expression of desires. These fantasies were accompanied by his importuning the offender toward grooming the victim to participate in sexual activity with him or them.

246. The transmission of the photos of the victim taken when she showered could have been for no other purpose than to facilitate Stewart’s sexual pleasure and commensurately his interest in the offender’s daughter.

247. Judge Grant found that the offending appeared opportunistic, with Stewart describing himself embedded in a "fantasy" that was exciting to him at the time. I have another view of the matter. This might have been opportunistic in the sense that opportunity presented to Stewart upon the victim’s school holiday visit to her mother, when Stewart engaged upon the evil implicit in these offences. I accept that there could be no finding that the offending involve pre-planning at a time before the child arrived, but I do not attach the epithet opportunistic to this conduct as it is described in the circumstances in which it was perpetrated in continuous pursuit over more than a day of the sexual gratification that Stewart had as his goal.

248. I discussed the judgement in the Stewart sentence in depth, considering that he was found to have been complicit in equal measure to this offender, who upon his version was as interested in development of the sexual relationship with her daughter as he, against the background to which his Honour applied the decision in Bugmy ibid.

249. I can offer no more than my observation absent the opportunity to assess the evidence which led to his Honour’s findings. Given that I must decide this case upon the material before me, I accept the submissions made on behalf of the offender, well supported by the evidence of past mental health impairment considered thoroughly by Dr Dayalan, that this offender was subordinate to Stewart and acted according to his influence fearing that to do otherwise would detract from whatever their relationship offered. Her perception of the benefit of the relationship for her was perverse, but I accept that her state of mental health misled her into the egregious misbehaviour at the expense of her daughter.

250. I accept the submission of counsel that this is a matter in which there are exceptional circumstances which justify a sentence that will begin with the identification of an appropriate period of imprisonment, subject to her immediate release under the terms of a recognizance release order.

The Sentences and Orders

251. Adopting the Crown submission that there ought to be individual sentences for these offences, with appropriate cumulation to reflect the totality of the offending, my orders are:

252. The offender is convicted of each of the offences to which she has pleaded guilty. In respect of the offence charged as the second offence I have taken into account the additional offence before me pursuant to s 16BA Crimes Act 1914.

253. For the offences upon which sentence is imposed I allowed a discount of 25%.

1. For Charge One: I impose a sentence of imprisonment of 2 years commencing from 17/9/2024.

2. For Charge Two: I impose a sentence of imprisonment of 2 years 2 months commencing from 17/11/2024.

3. For Charge Three: I impose a sentence of imprisonment of 2 years commencing from 17/10/2024.

254. Pursuant to S 20(1)(a) and (b), Crimes Act 1914 (Cth):

255. I order that the offender is to be released, upon giving security, without sureties, by recognizance herself in the sum of $1,000.00:

1. To be of good behaviour for a period of three years,

2. During the period of two years:

1. be subject to the supervision of a probation officer appointed in accordance with the order; and

2. obey all reasonable directions of the probation officer; and

3. not travel interstate or overseas without the written permission of the probation officer; and

4. undertake such treatment or rehabilitation programs that the probation officer reasonably directs for the care and treatment of impaired mental health and misuse of alcohol.

3. The offender is to contact Albury Community Corrections office within seven days to arrange for her supervision.

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Amendments

23 September 2024 - The original judgment was published with the Complainants name and their friends name unredacted. This version has been amended to comply with their anonymity rights.

Decision last updated: 23 September 2024