R v Collins

[2023] NSWDC 599

District Court

New South Wales

Medium Neutral Citation:

R v Collins [2023] NSWDC 599

Date of orders:

13 October 2023

Decision date:

13 October 2023

Jurisdiction:

Criminal

Before:

Beckett DCJ

Decision:

Impose an aggregate sentence of 30 months, with a non-parole period of 15 months. The sentence commences on 12 October 2023 and expires on 11 April 2026. The non-parole period expires on 11 January 2025.

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child >14; Teacher; Coach; Suppressed Sexuality; Moral Culpability; Heteronormative Society

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) s 25AA; s 21A(2); s 21A(3); s 21A(5A)

Crimes Act 1900 (NSW) s (3A); s 61M(1); s 61M(2); s 66C(3)

Cases Cited:

Blackett v R [2012] NSWCCA 201

FB v R [2011] NSWCCA 217

Hogan v R [2008] NSWCCA 150

Muldrock v R [2011] HCA 39

Nelson v R [2016] NSWCCA 130

Pannowitz v R [2016] NSWCCA 13

R v MJR (2002) 54 NSWLR 368

R v Palu [2002] NSWCCA 381

R v Wong (2001) 207 CLR 584

R v Zerafa [2013] NSWCCA 222

Savvas v The Queen (1995) 183 CLR 1

Wakeling v R [2016] NSWCCA 33

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)

Sarah Elizabeth Collins (Offender)

Representation:

Counsel:
Mr Marney (Crown)
Mr Randall (Offender)

File Number(s):

2021/275405

Publication restriction:

Statutory non-publication order regarding the name of the victim

SENTENCE

Introduction

1. The offender, Ms Sarah Collins comes before the Court for sentence following jury trial in respect of findings of guilt entered on 20 March 2023 at Penrith District Court in respect of 17 counts concerning sexual acts committed against a single complainant, referred to in these proceedings by the initials “AW”. Ms Collins was acquitted on a further two counts.

2. The 17 offences in which findings of guilty were entered, concern the following matters:

1. A single offence of aggravated indecent assault, the victim being under the age of 16 years in contravention of s 61M(1) of the Crimes Act 1900 (NSW) (“Crimes Act”). Maximum penalty, seven years, standard non parole period five years.

2. Six offences of indecent assault, the victim being under 16 years in contravention of s 61M(2) Crimes Act. Maximum penalty, 10 years, standard non parole period, eight years.

3. Ten offences of sexual intercourse with person over the age of 14 years and under 16 years in contravention of s 66C(3) Crimes Act. Maximum penalty, 10 years.

3. The offender has spent a single day in custody to date.

4. The offences took place over a 12-month period between October 2008 and October 2009 prior to AW turning 16 years of age. Ms Collins was arrested for the offences on 27 September 2021.

5. The imposition of sentence has been delayed, having proceeded to sentence hearing initially on 30 June 2023, to allow the offender to undertake a surgical procedure whilst still at liberty.

Facts

6. The facts are to be gleaned from the evidence adduced during the trial. The parties did not provide me with an agreed set of facts on sentence.

7. As to fact finding after trial, the Court in Savvas v The Queen (1995) 183 CLR 1 at [8], (per Deane, Dawson, Toohey, Gaudron and McHugh JJ), stated that a sentencing judge may form his or her own view of the facts so long as it does not conflict with the jury’s verdict. A second constraint is that findings of fact made against the offender by a sentencing judge must be arrived at beyond reasonable doubt.

8. The offender did not deny in the trial proceedings that she had a sexual relationship with the victim. The sole issue was when the sexual relationship between them commenced, whether it was after the victim had turned 16 years of age, or before. The offender divorced her husband in 2010, and the victim went on to have a consensual sexual and later de facto, relationship with Ms Collins for another five years after the victim had turned 16 years of age. The couple broke up in 2014. The focus of the criminal offending therefore relates to the sexual acts that occurred after the victim turned 15 years of age and prior to the victim’s 16^th birthday. The charges arose when the victim reported the offences to police in 2021, having come, with the benefit of her training and experience as a social worker, to see her relationship with the offender in a different light.

9. The offender had initially met the victim when the victim was a student at the school where the offender taught. For some limited period in her early high school years, the offender was her PDHPE teacher and a coach on the soccer team. At the time, the victim was and had been for some time, a talented soccer player. The offender was 11 years and 7 months the victim’s senior, and (at least at the time of the offending) about 25 years of age and married in a heterosexual relationship. Following a sporting injury incurred on the soccer field when the victim was 13, the offender accompanied the victim to the local hospital and remained with her before the victim’s mother arrived. Thereafter, the victim was unable to attend school for a period of time due to her injury. During the period of convalescence a friendship developed between the victim and the offender where the offender effectively took on a role as an unofficial mentor and confidante. In the year that followed, the victim was reported to have developed an eating disorder. The offender supported the victim and encouraged her to seek treatment for her condition and disclosed her concern as the extent of the victim’s illness to the victim’s parents. She also encouraged the victim to see a school counsellor and made arrangements for the counselling to take place. Prior to the commencement of their relationship, the victim described a reasonably fractious relationship with her parents. The offender was accepted into the family on the request of the victim and the family appeared content for the offender to play a significant role in their daughters’ life, her father stating her behaviour improved in Ms Collin’s presence. The offender commenced to drive the victim to and from soccer practice and to thereafter drop her home. The victim’s father described the victim as strong-willed at that time and he shared the concern with his wife that if they did anything to upset her, she would simply run away.

10. The relationship between the offender and the victim became romantic with the victim admitting she had developed an emotional infatuation for the offender before it turned sexual. The victim and the offender shared an apparently mutual emotional intensity for each other, evidenced in their respective diary entries and correspondence between them, both prior to and over the year in which the sexual relationship commenced. They had a shared interest in sport, music and culture, writing to each other about these matters and visiting galleries and the like.

11. Shortly after the physical aspects of the relationship had commenced the victim and offender had a discussion about the offender being professionally compromised whilst the victim was a student at the school in which she taught. In a letter, the offender referred to the victim as the “most unprofessional thing in my life”. After this conversation, the victim decided, in consultation with her parents, that she would move to a different school, which took place when she was at the end of year 10, commencing in year 11. I am unable to find that the victim’s relationship with the offender was the sole reason for her decision to move to a new school, noting that it was agreed that the school that she moved to likely improved her academic performance consistent with the reason she told her parents for moving schools at the time. It is likely however the relationship between them played some part in the decision to change schools, however it is unclear that this motivation was determinative, nor that the change in schools was in any way detrimental to the victim.

12. After the victim moved to a new school the relationship continued with the sexual conduct between them increasing in intensity and seriousness. The offender had asked the parents of the victim if she could maintain contact with their daughter despite her changing schools, clearly without disclosing the sexual interest that had by that time developed. The relationship was kept secret at this point, no doubt as a result of the victim’s age, the offender’s profession, and the fact the offender remained in a domestic relationship with her husband. Whilst the victim’s parents were aware of the friendship and broadly supportive of the relationship, (being of the view it improved the victim’s mood and attitude and that they considered her to be happier and healthier during those years of high school), they were unaware that the friendship was anything other than platonic, the victim having denied the sexual nature of the relationship when questioned about it by her mother.

13. Later, when the victim was of age and the offender had ended her marriage, the victim’s relationship with the offender was openly acknowledged and accepted by their respective families and friends. The evidence indicated the offender was devastated when in 2014 the victim brought the, by then, defacto relationship to an end and rebuffed any subsequent attempts by the victim to rekindle contact between them, even in the years leading up to the victim reporting of the offending conduct to police.

14. The offending conduct is grouped into nine separate incidents, all of which occurred when the victim was 15 years and the offender, 26 years of age or thereabouts. As stated, the sexual conduct took place several years after the friendship and mentoring relationship between them had commenced.

15. I will outline the precise sexual acts when it comes to the assessment of the objective criminality of the respective offences. It is correct to say, as the defence submits, that the acts in themselves are unremarkable in the range of sexual behaviour, noting there was nothing illegal about the activity once AW turned 16. However, respectfully this rather misses the point. Any sexual activity prior to the victim being 16 was unlawful and the extent of the intimacy is nonetheless relevant to the assessment of objective criminality to which I will later turn.

16. A further observation is that the counts on the indictment were not isolated. During the year, the sexual contact was described as becoming reasonably routine. The victim was, at the time, a willing participant but, as is obvious, was incapable of giving her lawful consent to the sexual acts until she was 16 years of age.

VICTIM IMPACT STATEMENT

17. The victim provided the Court with a detailed victim impact statement. As previously stated, she has clearly come to see the relationship she entered into at 15 years of age in a stark new light. She spoke of the harm the offender had caused her and spoke about carrying a misplaced sense of shame and responsibility for the relationship. She said she felt her innocence had been corrupted by the relationship and that she had been “robbed” of her virginity, and that “love and care were illusions”. She stated that at the commencement of the relationship, she was emotionally vulnerable and easily influenced. She said that the relationship weighed particularly heavily upon her, and she felt the responsibility to protect the offender by keeping it secret, which had the impact of isolating her from her own peer group.

18. The victim referred to having been diagnosed with complex PTSD, panic disorder, depression, anxiety, and associated symptoms. She said that these diagnoses resulted from these crimes. She said that she continued to have nightmares and that the relationship had caused her confusion as to her own sexuality and resulted in intimacy difficulties. She said that she had entered other relationships that she considered destructive following breaking up with the offender and has remained in a state of fear since the sexual abuse and had attempted to take her life on occasion.

SENTENCING PRINCIPLES APPLICABLE TO THE OFFENCES CHARGED

19. In recent times, the community and the courts are more conscious than ever of the long-term and serious harm, both physical and psychological, which premature sexual activity can cause: R v MJR (2002) 54 NSWLR 368, at [57]. Section 25AA of the Crimes (Sentencing Procedure) Act 1999 NSW requires me to have regard to the trauma of sexual abuse on children as understood at the time of sentencing.

20. The courts recognise by the imposition of a threshold age as to when sexual activity can lawfully take place and, that premature sexual activity before that time can carry the real risk of the very harm that I have just outlined, in more than a transitory way.

21. As to the assessment of objective criminality, it is relevant for the s 61M offences to take into account the age of the victim, given the age range of the offence is between zero and 16 years. Clearly within this range, there is a vast range and differential of maturity between those two extremes. Clearly also, the maturity of 15 year olds varies widely.

22. Whilst some may regard the age of 16 as arbitrary, the law is and has for over a century been clear and unambiguous. A person who is below 16 years is incapable of giving informed consent to sexual contact or at least, this is as it has applied to girls for that period of time. Lack of consent also is not an element of a s 66C offence. This is said to be because at such an age, it is assumed they do not appreciate the nature and consequences of the activity: Nelson v R [2016] NSWCCA 130 (“Nelson v R”) at [25]. It appears to me that such an assumption may not apply to all persons at this age, particularly in the current culture of mass media and exposure to sexual content that many (if not most) young people are now subject to. However, the law draws a line in the sand and recognises that a person under this age is assumed to be too young to handle the physical acts and potentially, the psychosocial ramifications of engaging in such activity. These consequences are magnified when the age difference between the parties is pronounced. In this case, the age difference of 11 plus years when the victim was 15 years of age is not insignificant. The age differential between the offender and the victim is clearly a significant issue in determining where these matters fall within the relevant range when assessing objective criminality.

23. The critical factor in respect of sexual offences involving children is the degree to which the offender is said to have exploited the youth and innocence of the child. The degree to which a child may have been groomed for such activity and the degree of planning will increase the seriousness of the offending. The type of acts within the range of the offence charged are also relevant to be assessed as are the presence of any threats or coercion. However, the absence of any threats “may have much less, and perhaps little, weight” in the context of offences by persons in positions of authority over their victims than in the case of offenders not in such a position.

24. Pain and associated force during or following any sexual acts also calls for more serious penalties.

25. As noted, in respect of s 61M Crimes Act offences in particular, it is of considerable significance when assessing the objective seriousness of indecent assaults against children to consider the actual character of the assault, including the degree of physical contact involved and the parts of the body that have been touched.

26. Section 66C(3) Crimes Act, criminalises, as stated, any act of sexual intercourse within the more limited age range, between 14 and 16 years. In respect of s 66C offences generally, the age of the child is a critical factor as to what offence is charged and to any assessment of objective seriousness. As observed by Basten JA in Blackett v R [2012] NSWCCA 201 at [57], the fact a child is at the higher end of the age range does little to mitigate its seriousness when the relationship had commenced a year earlier. That observation has application in respect of the sentencing for the s 66C(3) Crimes Act offences in this exercise.

27. As to the issues concerning a victim’s apparent willingness to be involved in such conduct, Basten JA pointed out in Nelson v R, that to describe sexual activities involving children under 16 as consensual “can reveal an approach which is both erroneous as a matter of legal principle and fact.” Nonetheless, whether a complainant is a willing participant, notwithstanding his or her age, has been considered relevant to the assessment of objective seriousness of a s 66C offence: Wakeling v R [2016] NSWCCA 33 (“Wakeling”), at [47], [49]; Hogan v R [2008] NSWCCA 150 at [77]. Such relationships are not consensual even if they are not the subject of opposition. In these cases, the reference was not to the term “consent” but rather “willingness” to participate in the activity.

28. At the risk of repeating myself, precisely because it is pertinent to the case at hand, the law recognises that young people are impressionable and too young to make decisions about sexual matters, even in circumstances where they themselves believe they are mature and capable of such relationships. In this way, the law protects teenagers both from themselves, and from those people, particularly adults, who do not respect the legal boundaries.  

29. I have proceeded on the basis therefore that the victim’s apparent willingness to participate is relevant to the assessment of the objective seriousness. I will return to this issue when I consider the submission as to the vulnerability of the victim and how to approach the contents of the victim’s impact statement in the context of this asserted willingness at the relevant time.

OBJECTIVE SERIOUSNESS

30. In Muldrock v R [2011] HCA 39 (“Muldrock”) at [27], the Court stated that the objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending, although matters relevant to the offender’s mental health, where linked to the offending, may in some circumstance be relevant to the assessment of objective seriousness of an offence. As to the offender’s mental health and moral culpability of the offending, I will consider the subjective material before I return to these features of the sentencing process.

31. As to the six s 61M(2) Crimes Act offences, they all involve indecent assaults that were not against the will of the victim at the time, although each activity was a new experience for the victim and one that she wanted, but which I accept simultaneously caused her some anxiety. As stated, the victim was between 15 and 16 and the offender 11 years and seven months her senior. The age range of the victim covered by the offence is zero to 16 placing the victim’s age towards the top of that range. Other than the first count, the offender was not in a position of authority as the victim had by then only just left the school at which the offender taught. However, the fact that the relationship between them originated from that context is a relevant factor and speaks to the power imbalance between them and the trust placed in the offender which had its foundations based in that earlier relationship.

32. Similarly, there is little to distinguish factually the s 66C(3) offences, which refer to offences upon children between the age of 14 and 16 years. The sexual acts are clearly more intense than the s 61M offences involving acts of penetration, despite the fact they carry the same maximum penalty. I have already referred to the age differential. I make a similar finding in respect of AW’s apparent willingness to engage in the conduct and also the position of trust and authority deriving from the origin of the relationship as set out above. I do not find a characterisation of the particular types of sexual acts relevant to a determination of the objective seriousness in the circumstances of this case, other than when it was associated with pain.

30. To avoid being misunderstood, based upon the evidence, notably the communications written by both parties, I find that in the Wakelingv R sense, the victim was a willing participant, as stated, in the sexual acts at the relevant time. I cannot find that she did not know what was taking place, as she was clearly complicit to a degree. She was however too young at law for the physical relationship, and too young to handle the psychosocial ramifications of it.

31. As has been observed, in some cases, people who engage in sexual activity with 15-year old’s can be appropriately described as sexual predators. There are many cases where adult behaviour can be categorised in that way, where people deliberately use their position to construct situations that give them access to young people. I do not find that this case falls within that class.

32. I find that save as to count 1, which incorporates the breach of authority as an element, the remaining matters incorporate this aspect as part of the objective criminality of the offence at least in the sense of a breach of duty. As set out above, the relationship commenced from that position of trust and authority by virtue of the offender being known to the victim as a teacher in the same school and her interactions with her as a soccer coach. Even though all counts beyond count 1 took place after the victim had moved on to a new school, she nonetheless remained in a powerful position of influence over the victim. It was this very position that gave Ms Collins access and contact to the victim and resulted in her parents lowering their protective guard in respect of an adult’s interest in their teenage daughter. I accept however on balance, that the offender did not deliberately set out to cultivate the mentoring relationship with the victim for the purpose of developing a sexual relationship with her. I accept that the emotional and sexual interest developed over time, distinguishing these offences from offences where there is a deliberate and contrived intent to exploit the youth and innocence of a child for sexual gain, in the predator scenario that I referred to above.

33. The other factor relevant to the assessment of objective criminality, rather than statutory aggravation, is the issue as to the asserted vulnerability of the victim. The evidence indicated that the victim was quarrelling with her parents and had developed an eating disorder in her teenage years, which was of concern to the offender who, as stated, raised the issue with the victim’s parents and encouraged the victim to seek treatment and accompanied her on occasion to ensure that she attended those various appointments. She was therefore aware that the victim had this vulnerability with its associated physical and psychological sequelae but, as the Crown fairly conceded, Ms Collins had not targeted the victim because of this vulnerability. There was a deficiency of evidence as to the extent of the eating disorder, but I accept the diary entries, and apparent concern expressed by the offender as to that condition, indicated it was reasonably serious. In other respects, however, the victim was excelling at school and associated activities. At the time of the relationship, the victim’s school records reported her to be “mature, self-possessed and intelligent”, “a talented student engaged in school and sporting activities”, going on to fill positions of leadership within the school in the year following the relevant events.

34. As I hope I have made abundantly clear, the victim’s personal maturity and apparent precociousness, does not justify the offender’s illegal behaviour or mitigate the offending, but counters any suggestion that the offender removed her from her social supports or curtailed her ability at the time to engage in peer relationships or pursuits. Clearly however it stopped her from forming age-appropriate peer romantic relationships at that time.

35. The sentence imposed must reflect these various complexities and nuances.

36. The sexual acts lacked physical force, coercion, threats or physical harm. Some acts were perhaps more intimate than others. For example, a distinction of course needs to be drawn between those s 61M Crimes Act offences that involved kissing alone and those that involved touching of the genitalia.

37. I accept there was a mutual agreement between the victim and the offender that the relationship ought be kept secret which protected the offender’s career within the teaching profession, but also the victim’s ability to continue in the relationship without the interference of her parents. The weight of this apparently mutual decision however must clearly be borne by the offender, the adult in the relationship. The effect of the secrecy was that the victim was without the protection and guidance of her parents, or her school.

38. Separate to matters that informed the nature of the offending, there are other features relevant to the assessment of the offender’s moral culpability. These are matters I will refer to after I have considered the offender’s subjective case.

39. I turn now to my specific findings as to objective criminality in respect of each offence.

40. As to the first incident count 1, aggravated indecent assault, s 61M(1) Crimes Act. The offending involved a kiss, although it could not be described as a mere peck on the cheek. The circumstance of aggravation is that the offender was a teacher at the victim’s school and had been her soccer coach which is an element of the offence given the position of trust and authority and therefore should not be double counted. The victim was at the youngest 15 years of age and the offender, was 11 years and 7 months her senior. The victim’s age was close to the upper end of the impermissible range being 0 to 16 years (also an element of the offence). There is no evidence of threats, force or pain. The victim said she felt anxious after this incident. The offending is well below mid-range given the authority aspect forms an aggravating feature, but is not at the very lowest end of range.

41. The second incident, comprising counts 2 and 3 (s 61M(2) Crimes Act), took place again outside the victim’s home. It involved a kiss and the act of touching the victim’s breast over her blouse and on her thigh near her underwear. The victim was 15 years, 5 months old at this time. The offender was 11 years senior and in a position of trust, although no longer in authority as the victim had changed schools. I consider the offending to be below the mid-range but not at the lowest end of the range, the kiss being less serious than the other touching.

42. The third incident, comprising counts 4, 5 and 6, s 61M(2) Crimes Act; two of those offences and a single offence of s 66C(3) took place not long after incident two in the victim’s bedroom. It involved the acts of kissing, rubbing the victim’s breasts and the outside of her vagina on the outside of her underwear and involved the partial digital penetration of her vagina. I have already made reference to the age range and the breach of trust. I consider this offending to be below the mid-range, and in respect of the 66C offences, also below the mid-range given the more limited age range.

43. The fourth incident in time, concerning counts 9 to 13 concerning three counts of 66C(3) and two s 61M Crimes Act offences, took place at the offender’s home when the offender and victim were away together, and the two of them drank alcohol together. It involved, in the order in which they took place, acts that took place when the victim was almost 15 and 6 months including the offender: rubbing and squeezing the victim’s breasts (count 12); touching the victim’s vagina with her hand (count 13); stimulating the victim’s clitoris (count 9), and mutual insertion of a vibrator into the vagina (counts 10 and 11). The victim described some physical discomfort in respect of this latter offence. I consider all offences to fall under the mid-range but above the earlier s 66C offences above.

44. The fifth incident took place several months later when the victim was about 15 years and 7 months when the victim was at the offender’s home after they had attended an outing at an art gallery. On returning home, they drank alcohol, and the offender digitally penetrated the victim’s vagina. Based upon the similar matters set out above, the offending falls below the mid-range but not at the bottom of the range.

45. The sixth incident took place on a single occasion sometime within the seven days before the victim’s 16^th birthday. This involved the offender undertaking cunnilingus upon the victim (count 15), comprising a s 66C(3) Crimes Act; digitally penetrating the victim’s vagina (count 16) s 66C(3); having the victim undertake cunnilingus upon the offender (count 17) s 66C(3); and having the victim then insert her fingers into the offender’s vagina (count 18) s 66C(3).

46. The final incident took place the next morning when the offender engaged in cunnilingus upon the victim (count 19), s 66C(3) Crimes Act.

47. The offences for these last two incidents all fall below the middle of the range, but not at the very bottom of the range.

STATUTORY AGGRAVATING FEATURES

51. As to aggravating factors under s 21A(2) Crimes (Sentencing Procedure) Act 1999, I have incorporated these matters into the objective seriousness of the offences.

52. I note that some of the acts (counts 4 to 6), took place in the victim’s home. In all the circumstances of the offender being invited into the home by the victim in the context of knowledge and at that point, complicit in the sexual relationship, it is not a basis to aggravate the offence. It does not reflect the policy reasons as to why offences committed in people’s homes ordinarily call for aggravation, including that a person is entitled to feel safe and secure in one’s own home free from unwanted criminal conduct.

53. I have already made reference to the relationship of abuse of trust and authority in respect of my assessment of the objective seriousness of the offence.

54. Further, I must make reference to the victim impact statement at this point in relation to the issue as to whether substantial harm has been established, being a matter of which I must be convinced beyond a reasonable doubt. Clearly, the victim harbours deep resentment towards the offender, at least as was expressed during the reading of that statement. Whilst I acknowledge her reference to various mental health conditions and do not wish to diminish them in any way, in the absence of expert evidence, I am unable to accept the range of the conditions referred to as deriving from the 12 month period of offending, for the purposes of establishing substantial harm as an aggravating factor. Nonetheless, it is recognised, as I have made abundantly clear, that this offending implicitly carries with it harm, likely of a psychological kind, that may stay with the victim for life. This feature is reflected in the maximum penalties and the standard non-parole periods applying to the offences charged.

55. It must also be stated that the court, and likely even a psychological expert, would have great difficulty in teasing out any harm said to be derived from the unlawful relationship before the victim was 16 years from the relationship in the five or so years after the victim turned 16, when the relationship was otherwise lawful. The criminal law does not trespass into the realm of punishing people for bad or even inappropriate relationships, if they are not otherwise unlawful.

56. As was recognised In R v Palu [2002] NSWCCA 381, Howie J, with whom Levine and Hidden JJ agreed, said at [37]:

The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen (NSWCCA, unreported, 19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not as that case put it, to mollify the victim.

SUBJECTIVE CASE

57. As in the trial, Ms Collins elected not give evidence. She presented a quantity of letters in support from her friends, twin sister, ex-partner, together with a psychological report.

58. Ms Collins’ twin sister provided a letter stating that she had been close to her sister since a child. She said:

[S]ince we were 18 years of age, I always thought that Sarah might be gay, but she had a boyfriend…who she met at school, who then became her husband. I was not shocked at all when Sarah told me she was gay in her later twenties. Due to our upbringing, it was so hard for her to feel comfortable with being open about her sexuality.

59. The offender’s sister said that she was shocked by the allegations, noting that AW had been an active and welcome member in their family celebrations and holidays including travelling overseas as a group. She considered their relationship presented as a positive one. She otherwise referred to her sister as a gifted teacher including running programs for behaviourally challenged children. She said that the loss of her sister’s career as a teacher had a terrible impact upon the offender, as had the stress of the court proceedings which was damaging to the offender’s then current relationship. She said that the trial had resulted in her sister feeling ostracised from her local community where she had previously been well regarded and accepted. She said that she was concerned that her sister felt she no longer had anything to live for, but promised her ongoing support and emphasised that she was an integral part of her life and that of her children and family.

60. Her older sister said that Ms Collins was a family-oriented person and when she had been in the relationship with the victim, the family had come to accept the relationship and that the victim was loved by the family also referring to happy camping and other occasions together. She said that the offender had been a passionate teacher, and at the time the charges were brought, had moved to a remote school to help children with cognitive, emotional and social needs. She said her sister was grieving the loss of her career since the charges were brought and held concerns as to her sister’s mental and emotional wellbeing.

61. Her other friends and teaching colleagues spoke of the offender’s love, commitment and dedication to the profession, noting that she had left her school where she had been for 15 years, as previously referred to, moving to a disadvantaged community in the Riverina to help motivate children to attend school who otherwise may not attend. Many spoke of her kindness to others and the fact that she was a loved and valued member of her family. A teaching colleague spoke of her professionalism and dedication, despite being aware of the charges and spoke of her as an exceptional teacher. A prior partner who had been with the offender between 2014 and 2022 stated that she considered the offender to be a kind, honest, patient, and respectful person and that the charges were out of character.

62. A psychiatric report was relied upon from Dr Allnutt, forensic psychiatrist. He assessed Ms Collins on 11 May 2023. Ms Collins gave Dr Allnutt an account of her previously married status and a pattern of problematic alcohol consumption at the time of the offending. She said that the main stressor for her at the time was a deterioration of her relationship with her husband due to her own conflict as to her sexual orientation, as she came to believe she was homosexual. She said that when she realised at the end of high school that she was having sexual thoughts about women, she hid it from her family, friends, and boyfriend, who later became her husband. She said that her increasing awareness was heightened after her marriage and she started to feel trapped, maintaining the marriage in the attempt to supress her sexuality. She told Dr Allnutt that as a result, her mood deteriorated, she had poor sleep and was prone to obsessive compulsive behaviours in the context of her anxiety. She reported using alcohol to avoid interactions with others, most particularly her husband at the time. She said that she did not obtain psychological help until she separated from her husband in 2010. The offender continued to maintain to Dr Allnutt however, that the victim was 16 years of age at the time the sexual relationship commenced.

63. Following a full assessment, Dr Allnutt noted a family history of depression and alcoholism which would have predisposed her to developing such conditions in adulthood. He said that her confusion about her sexuality had developed into a depressive disorder which caused her to self-medicate at the time of the offending with alcohol. She believed that at that time, these various disorders persisted as did her panic attacks and obsessive compulsive disorder. He stated that “in the context of these conditions and her difficulty regarding her sexual orientation and coming out, she developed an age-inappropriate relationship with the victim who she went on to become sexually involved with.” Dr Allnutt stated her conditions were operative at the time and “increased her vulnerability to engage in the offending behaviour”. He suggested she receive ongoing psychological and psychiatric help and a drug and alcohol maintenance program.

STATUTORY MITIGATING FACTORS

64. As to factors under s 21A(3) Crimes (Sentencing Procedure) Act 1999, I cannot find that the offending was not planned as I accept, as stated, that the sexual relationship and decision to embark on one did not arrive overnight, but developed over time, indeed over years. However, this factor has largely been incorporated within my assessment of the objective seriousness of the offences.

65. I take into account Ms Collin’s otherwise good character in the sense that she has a blemish free record and has never been charged or accused of any criminal offence let alone a matter of this nature. There is no suggestion that she formed any other sexual relationships with children in or outside her school life either before or after her relationship with AW. The available evidence is that she was a well-respected, devoted teacher and coach. In some ways, of course, her lack of criminal record and her position as a teacher allowed her to form the mentoring relationship with AW in plain sight. Whilst her otherwise good character must not mitigate her sentence, per s 21A(5A) it does nonetheless differentiate her case from those where there is repetitive and pronounced sexual interest demonstrated towards children. The evidence does not support that Ms Collins is a paedophile. I have little doubt that had Ms Collins come to terms with her sexuality at an earlier time and not sought to suppress it, that she would not have engaged in such a secret, age-inappropriate and unlawful relationship. I note that she has gone on to have otherwise healthy adult homosexual relationships since this one ended in 2014. I am satisfied that the offender is unlikely to reoffend and has good prospects of rehabilitation.

66. It is an obvious consequence that she has lost her profession due to this criminal conduct. In R v Zerafa [2013] NSWCCA 222, the Court accepted the professional ramifications of the offending were a mitigating factor, but found them to be of limited effect because the respondent must have anticipated that an inevitable consequence, of his offending, (which in that case involved fraud) he would be struck off the role of charactered accountants. A similar approach was taken in FB v R [2011] NSWCCA 217, which concerned a high school teacher convicted of aggravated sexual assault of a student, in which the court noted at [156] that the “respondent must have known that his sexual pursuit of pupils in his care would sooner or later bring his professional career to an end”. I take a similar approach.

64. The offender has not expressed remorse. It is difficult to know what she thinks because she did not give evidence. I have little doubt she regrets the behaviour but for reasons perhaps to do with protecting her reputation, she has refused to acknowledge the offending conduct. Her plea of not guilty does not aggravate the offending. There is no doubt that she is supressing a great deal of complex emotions, but I have not been persuaded to the requisite degree that remorse is one of them.

MENTAL HEALTH AND MORAL CULPABILITY

68. Turning now to the mental health aspects set out in the report of Dr Allnutt and the issue of moral culpability. I accept that Ms Collins had a mental health condition at the time of the offending in the nature of a depressive disorder, a familial predisposition to alcohol use, and an anxiety disorder that manifested itself in compulsive behaviour. I accept that at the time of the offending, Ms Collins was in a state of personal crisis.

69. As her twin sister observed, she likely suppressed her feelings concerning her sexual orientation from a young age given the family and community environment that she was both raised in and lived in at the time. She hid that predisposition apparently from herself, her husband, friends and community. This contextualises in part how the emergence of her sexual identity took place in secret and with someone with whom she had developed a deep bond and trusted, regardless of the age disparity. The personal struggle of a person confronting and acknowledging to themselves, and others, their sexual orientation in a predominantly hetero-normative society, should not be underestimated. I accept that her crisis of sexuality and her related marriage problems, manifested itself in compulsive behaviour, alcohol abuse and depression at the relevant time. I accept that these matters played a considerable role in her decision to engage in the illicit relationship with the victim despite her full knowledge that what she was doing at the time was wrong, both legally and professionally.

70. These are matters that collectively go to her moral culpability which has a diminishing impact on the role to be played by general deterrence, but as I will later point out, cannot reduce it entirely due to other significant public policy considerations that call for the application of that same principle.

71. There is little doubt that the offender’s predisposition to depression and anxiety will require careful management in the custodial environment and her time there will likely as a result, be more onerous for her.

IS THE SECTION 5 THRESHOLD CROSSED?

72. The sentence imposed must be proportionate and reflect both the objective criminality, which for offences of this nature I have found to be largely below the mid-range, and the matters personal to the offender that I find mitigate the sentence, together with my findings of reduced moral culpability. Having reflected on all those matters, I have found that the s 5 threshold is nonetheless crossed. Significantly that is because, despite the reduced role of general deterrence, the community has no tolerance for relationships forged between children and adults in authority or trusted relationships. This relationship was derived from that source. Schools ought be a place where a parent can send their child knowing that they will be protected by teachers, not that they need to be protected from them. Children ought be able to develop safely within those walls, both literal and metaphoric, regardless of whether they exhibit sexual precociousness. Teachers hold a special role in our society in this regard.

73. General deterrence therefore in this case continues to have a role to play even if diminished to a degree by the offender’s reduced moral culpability. General deterrence is reflected in this instance in the imposition of a gaol term. A proper sentence reflects the court’s view of the seriousness of the crime and lets other wrongdoers know that retribution will fall upon them if they commit similar offences.

74. Given the nature of the offences there is no alternative way to serve a gaol term except by full time detention.

JIRS

75. I have had consideration to the JIRS statistics for these offences noting that statistics are a blunt tool saying nothing about the objective criminality of the offending or the individual: Wong (2001) 207 CLR 584 at [59]. Nonetheless they provide some assistance as a reference in respect of the sentencing pattern in this state.

76. I have not been provided with any comparable cases of note.

TOTALITY

77. I intend to impose an aggregate sentence. Where there is more than one offence, questions of accumulation and concurrence and the question of totality must be given effect.

78. The aggregate sentence imposed must nonetheless reflect the seriousness of the offending conduct as a whole and give proper regard to the fact that there were multiple incidents, noting that the offending was not isolated. If the sentence for one offence can comprehend and reflect the criminality for the other offence, the sentences ought be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the offences.

79. In the exercise of totality, I take into consideration the similarities, differences and degree of connection between the offending both in time and type, noting that many of the acts took place within seconds of, or simultaneously with, the other acts. Additionally, I must be cognisant of the need to ensure public confidence in the administration of justice by avoiding the perception that an offender will not be punished more severely by committing multiple offences: Pannowitz v R [2016] NSWCCA 13 at [40].

80. In order to avoid imposing a crushing sentence, I will allow for a very high degree of totality within each of the offences grouped within each incident and some small degree of accumulation between the incidents, noting that all matters took place over the period of a single year.

81. I take into account that some of the offences could have been dealt with summarily. Of course, had that been the case, then there would have been a jurisdictional limit in relation to the maximum penalty of any one count.

SPECIAL CIRCUMSTANCES

82. I take into account that the offender will require treatment both in custody and on her release in respect to her depressive condition. I note that she has only recently undergone a hysterectomy and may well require some degree of medical attention. I accept that this is her first period of custody and as stated above, that she will find it more onerous by virtue of her depressed condition and anxious disposition.

DETERMINATION

83. I take into account the maximum penalties and note that the standard non-parole has application to the s 61M(1) and s 61M(2) Crimes Act offences. I note what has been referred to as the “absurd relativity” between the standard non parole period to the head sentence. Whilst the standard non parole period is difficult to reconcile, it is nonetheless a legislative guidepost which I am required to take into account on sentence: Muldrock v The Queen at [27]. I note that despite the s 66C offences involving acts of sexual intercourse, the maximum penalty is the same as the indecent assault offences, which with the standard non parole period might appear to call for a more harsh penalty. I have intentionally however, given more significant sentences to the s 66C(3) offences, because of the age range, the nature of the sexual acts which were more potentially confronting to the victim.

84. I propose to depart from the standard non-parole period considerably in some cases by virtue of my findings as to objective criminality and the application of special circumstances.

85. I take into consideration the factors set out in s 3A of the Crimes Sentencing Procedure Act 1990 noting that this is a matter that calls in particular for the application of the principles of punishment, deterrence, denunciation, and recognition of the harm done to the victim in this matter and to the community at large.

Aggregate sentence

86. Ms Collins you are convicted of each offence to which you have pleaded guilty. I will first indicate the indicative sentence and where there is a standard non-parole period I will indicate an indicative non-parole period, unless the term is under 6 months, in which case I will not indicate a non-parole period as it will be a fixed term. You will hear the final sentence at the end when I have recorded the indicative sentences.

1. The indicative sentences I impose are as follows:

1. Count 1: 4 months imprisonment

2. Count 2: 4 months imprisonment

3. Count 3: 8 months, non parole 6 months

4. Count 4: 4 months imprisonment

5. Count 5: 8 months; non parole 6 months

6. Count 6: 12 months imprisonment

7. Count 9: 10 months imprisonment

8. Count 10: 18 months imprisonment

9. Count 11: 12 months imprisonment

10. Count 12: 6 months imprisonment

11. Count 13: 8 months, non parole 6 months

12. Count 14: 12 months imprisonment

13. Count 15: 12 months imprisonment

14. Count 16: 12 months imprisonment

15. Count 17: 12 months imprisonment

16. Count 18: 12 months imprisonment

17. Count 19: 12 months imprisonment

87. I impose an aggregate sentence of 30 months, with a non-parole period of 15 months. Taking into account a single day previously spent in custody, that sentence is to commence on 12 October 2023 and expires on 11 April 2026. The non-parole period expires on 11 January 2025. The first date you are eligible for release will be 11 January 2025.

REFERRAL OF DOCUMENTS AND RECOMMENDATION:

88. I refer the report of Dr Allnutt to Justice Health and Community Corrections. I recommend that Ms Collins receives immediate mental health treatment on her admission into Corrective Services.

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Decision last updated: 27 February 2024