CRIMINAL LAW - Sentence appeal - Appellant pleaded guilty to three counts of sexual assault involving minors - Appellant sentenced to a total effective sentence of four years and three months' imprisonment with a non-parole period of two years and 10 months - Whether the orders for cumulation made by the sentencing judge resulted in a total effective sentence which offended against the principle of totality - Appeal allowed - Appellant re-sentenced to a total effective sentence of three years' imprisonment with a non-parole period of 18 months - Adjustment preserved the individual sentences imposed by the sentencing judge but applied the principle of totality in the way advised by Ormiston JA in DPP v Grabovac [1998] 1 VR 664.

1 I invite Bongiorno JA to deliver the first judgment.

2 On 19 October 2009 in the County Court at Ballarat before her Honour Judge Cohen, the appellant, Michelle Lyn Dennis, pleaded guilty to three counts of sexual assault involving minors. Two of these counts related to acts of sexual penetration with a child under her care, supervision or authority, and one count related to an act of sexual penetration with a child under the age of 16. Having regard to the different circumstances of these offences, each carried a penalty of ten years' imprisonment by virtue of ss 48(1) and 45(2)(c) of the Crimes Act 1958.

3 The circumstances of these offences are fully set out in the sentencing remarks of Judge Cohen and need not be repeated here. A copy of those sentencing remarks is appended to these reasons.

4 On 20 November 2009, Judge Cohen sentenced the appellant to two years' imprisonment on each count. Her Honour cumulated nine months of the sentence on count 2 upon the sentence on count 1, and 18 months of the sentence on count 3 upon the sentences on counts 1 and 2, thereby imposing a total effective sentence of four years and three months' imprisonment. She fixed a non-parole period of two years and ten months.

5 Her Honour made ancillary orders declaring the appellant to be a serious sexual offender in respect of the sentence on count 3 pursuant to s 6(f) of the Sentencing Act 1991, registered her pursuant to the Sex Offenders Registration Act and made orders with respect to the taking of a forensic sample from the appellant.

6 On 10 September 2010, Ashley JA granted the appellant leave to appeal her sentences, not because any of them were excessive, but because the orders for cumulation made by the sentencing judge arguably resulted in a total effective

sentence which offended against the principle of totality.

7 An analysis of the sentencing judge's methodology in fixing the orders for cumulation which she made shows that the total cumulation exceeded the quantum of the base sentence imposed for count 1 by three months. Counsel for the appellant argued that this resulted in an excessive total effective sentence. He drew the Court's attention to the fact that the sentence imposed by the sentencing judge was considerably higher than that imposed on any other offender in the recent past who pleaded guilty to like offences. He submitted that the principle of totality would be accommodated more appropriately by reducing the cumulation in respect of count 2 to four months and that in respect of count 3 to eight months. I agree.

8 This adjustment would result in a total effective sentence of three years. It would take into account the common features of counts 1 and 2 involving, as they did, the same victim, and the special position of count 3 upon which the appellant fell to be sentenced as a serious sexual offender and in relation to which the appellant accordingly was liable to presumptive total cumulation by virtue of s 6(e) of the Sentencing Act 1991. Such an adjustment would preserve the individual sentences imposed by Judge Cohen thus reflecting the seriousness of each of them and yet apply the principle of totality in the way advised by Ormiston JA in DPP v Grabovac.[1] There should be a non-parole period of 18 months.

9 As this is a re-sentencing exercise it is appropriate to add that had the appellant not pleaded guilty as she did it would have been appropriate to sentence her as Judge Cohen suggested in her s 6AAA declaration, namely to two years and three months' imprisonment on each count but with cumulation totalling three years and nine months, that is to say cumulation of six months and 12 months respectively for counts 2 and 3, and a non-parole period of two years and three months.

10 I agree. The formal orders of the Court will be these. The appeal is allowed in part. The sentences of imprisonment imposed on counts 1, 2 and 3 are confirmed. The directions with respect to cumulation and the non-parole period are quashed. In lieu thereof the Court directs that four months of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1 and that 16 months of the sentence imposed on count 3 be served concurrently with the sentences on counts 1 and 2. The intended total effective sentence is three years' imprisonment. There will be a non-parole period of 18 months' imprisonment.

11 It is declared that the period of 447 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that it be noted in the records of the Court the fact that declaration was made and its details.

NOTE: Publication of any information likely to identify either of the two complainants in

these offences is prohibited by Section 4 of the Judicial Proceedings Reports Act

Catchwords: Sentencing; plea of guilty; 2 counts of sexual penetration of child under care supervision or authority and one count of sexual penetration of child under 16; school teacher; little remorse; no prior offending; only imprisonment appropriate.

1 Michelle Dennis, you have pleaded guilty to two counts of sexual penetration with a child of 17 under your care, supervision or authority, and one count of sexual penetration with a child under the age of 16. The maximum penalty for each of these offences is 10 years' imprisonment.

2 You are going to be sentenced to a term of immediate imprisonment but one not nearly as long as the maximum for any one count.

3 These offences all occurred in 2007 when you were aged 31 and a music teacher at Ballarat High School where you had worked full-time since 2004.

4 Counts 1 and 2 were committed against a student at the school who was then aged 17 and in Year 11 (and who will be referred to as "C")[2]. You had been his class music teacher from Year 7 to 10. In 2005 you had commenced sending text messages to each other of a sexual nature.

5 Count 1 arises out of an occasion in mid 2007 on a date between 15 May and 31 August. You sent him a message on MSN asking what he was up to that night and he replied that his mother was out. You arranged to pick him up around the corner from his house and then drove him to Victoria Park, Ballarat. When he first got into your car there was tongue kissing or what he called "a wet tonguey". Kissing resumed after you had parked at Victoria Park and then various acts of sexual intimacy between you, and because it was too crowded in the car you both got on to the bonnet of the car where sexual intercourse occurred. After returning to the car you continued kissing before you drove him home. The act of sexual intercourse (insertion of his penis into your vagina) constitutes Count 1.

6 You subsequently sent him a text to say how good it was. A couple of weeks later he told two of his friends about what had happened.

7 C was in the school band which was to perform at the school's awards night on 19 December 2007. A rehearsal was conducted during that day after which you offered him a lift to the train station, but on the way you stopped at your house saying you had to get something quickly, and you invited him inside. Inside, he sat on the couch and you started kissing. He started intimate touching, then you led him into the bedroom where sexual intercourse occurred which was said to be over quickly. This was the incident giving rise to Count 2.

8 Following the second incident he again told one of his friends.

9 You continued to text him including texts containing photographs that went to his email address, and a video, including naked and suggestive photographs of you. There were apparently also some texts from you to one of C's friends, suggesting that he and you and C engage in a threesome, but the friend did not accept. None of these matters are the subject of charges, but they are relevant to place in context the culpability of the offending that is the subject of the counts on which I am to sentence you.

10 Count 3 arises from your behaviour with a different boy who was aged 14 at the time (and who will be referred to as "M")[3]. You had taught his music class for the 3 years that he was at that school.

11 A few weeks before the end of final term in 2007, approaching the end of his Year 9, he told you that it was his last day as he was leaving to obtain employment, and you asked for his mobile phone number. About a week or two later you sent him a text message asking how he was.

12 The texting between the two of you continued until one night in late November or December you sent him a text asking what he was doing. He replied that he was at a friend's place in Sebastapol, and was drinking there, and you arranged to pick him up in your car nearby. You did so and drove him back to your house where the two of you had some drinks, sat around talking and watching television, then started kissing, and you initiated intimate touching leading to oral sex. You both then went into the bedroom where on the bed there were further acts of oral sex and masturbation. The act relied upon as constituting Count 3 is the insertion of his penis into your mouth.

13 You then drove him back to his friend's house where he told his friend that he had been at his teacher's house and that "stuff happened". You also sent him text messages after that.

14 These offences came to light when C reported them, at first disclosing them to another teacher and then making a statement to police in October 2008.

15 When you were interviewed by police in relation to C you admitted meeting him out of school, and kissing and some intimate touching, but denied that you had had sexual intercourse with him. Whether a sign of your lack of reality in relation to these events or a deliberately misleading answer, when asked by police how many text messages you had sent him you said, "about 15 to 20". Subsequently phone records showed there to have been more than 1000 text messages from you to him over a 14 month period, with more than 400 from him to you.

16 M gave a tape-recorded interview to police on 29 October 2008. Phone records show that you sent him more than 300 text messages. You made a "no comment" record of interview in relation to him, as was your legal right.

17 Victim impact statements from C and his mother indicate that the impact of these events has been considerable on him and his family, including the consequences of publicity following them coming to light.

18 Unfortunately the timing of these events becoming public in October 2008 was shortly before his VCE exams. He says, and I accept, that as a result of the emotional stress and his inability to concentrate he obtained lower scores than expected. In particular, and most unfortunately, he had earlier auditioned and been accepted at the Victorian College of the Arts and been awarded a substantial scholarship, but as a result of his low score in English he lost both his place and the scholarship. I accept that he was a keen musician and that to lose his place, and indeed a scholarship to study music at VCA, would have been devastating.

19 He also describes negative impact on the course he has been doing this year, when his recital exam coincided with the committal hearing. Both he and his mother state that he is uncomfortable in Ballarat through embarrassment and feeling betrayed and isolated amongst his former friends. There is no medical evidence of the psychological consequences to him, but I accept that these events and other peoples' reactions to their disclosure have caused him embarrassment and confusion in dealing with friends and family. It is to be hoped that counselling through CASA is able to assist him and his mother to address these issues and their consequences.

20 A victim impact statement from M's mother also reflects that he has suffered emotional consequences, feelings of confusion, and a sense of betrayal of trust. She says that he admired you as his teacher, was impressed by your musical skills, looked up to you and trusted you. She is justifiably upset that you provided alcohol to a 14-year old, and betrayed his admiration and trust for your own sexual gratification. She also described him as having become withdrawn and depressed and having lost some of his friends through the disclosure of these events.

21 Sexual relations with children, including adolescents, are serious offences, as is reflected in the various reforms to the legislation and in the penalties imposed by Parliament. These offences recognise that young persons often need protection from themselves in times of burgeoning sexual development and interest, and all adults have a clear duty to take responsibility not to lead children into such behaviour.

22 As a teacher you had a particular duty to each of these boys because of the trust that students, their parents, the school and the community bestowed on you. Teachers have an especially high ability to influence students, and that gives them special responsibility not to misuse their positions.

23 Even though you were no longer C's classroom teacher at the time of these offences, he was still a student at the school and that placed him under your care, supervision and authority, whether at school or not. Indeed, he was in the school band for whose rehearsals for the awards night you were a relevant teacher. As he was over the age of 16, the fact of you being in a position of care, supervision and authority in respect of him is a necessary element of the offence, and I do not take it as an aggravating factor in the sentencing context.

24 Although M had in fact left the school by the time you engaged in sexual behaviour with him, you not only knew that he was under the age of 16 (in fact not quite 15), your acquaintance with him was based on his having been your student for the immediately preceding 3 years. I regard that as an aggravating factor in relation to your offence against him as it was your position as his teacher that enabled you to gain his trust and admiration.

25 There is no suggestion of force or coercion by you of either of your victims but you were the initiator of each of the occasions when the offences occurred. These were not spontaneous, situational offences. Each occasion was a meeting instigated by you in which you offered to drive the boy and took him somewhere private and completely inappropriate. Although neither of them resisted or objected you had control of the situation in each instance.

26 That you were apparently abusing alcohol at the time and generally emotionally vulnerable in your life may explain lack of judgment on your part in general terms. However, in my view, it does not explain, and certainly does not excuse, that on three different occasions you initiated totally inappropriate meetings with a student or former student with apparently no regret in between these occasions.

27 I am told that during 2007 you had reached a point in your life of turmoil and vulnerability and that that is the background to your offending behaviour which it is submitted was otherwise totally out of character for you. I turn now to your personal circumstances.

28 You are now aged 33. You grew up in Smythes Creek and completed Year 12 at Clarendon College successfully, even earning a music scholarship. In the background, though, there were various tensions. Your parents separated during your Year 11, I am told due to physical and emotional abuse of both you and your mother by your father. You have told psychologists that during that year you were raped although you did not report it at the time, being ashamed to tell anyone. Your sister was suffering psychological issues during that same period.

29 When you left school you did not continue with studies immediately, but left home to study for a certificate in hospitality and worked in a café and cooked pizzas at night. You then worked as a farmhand and, as you have a keen interest in horses, enjoyed that work.

30 You remained in contact with your mother and at times assisted her cleaning houses but for a number of years you had little, if any, contact with your father whom you described as a primary example of bad parenting, of being physically and emotionally abusive of your mother and you, although showing favouritism towards your younger sister. Apparently after your offences were disclosed you have re-established some meaningful contact with your father but you have no contact with your step-mother and your father meets you in secret.

31 In contrast your mother has remarried and you have a good relationship with your step-father and his extended family. They were in court to support you. I am told that you are still estranged from your younger sister although a reference from your brother-in-law indicates that you have had ongoing contact with your nieces.

32 I am told that from the age of 16 you have had a series of abusive relationships with different men up until the current year. The first lasted more than 10 years, during which you were subjected to violence, including being punched and suffering broken teeth. You formed a new relationship about a month after the end of the earlier one, this time with a man whom I am told was a drug addict and who I gather through a reference of a friend of yours who knew him independently was very problematic. I am told that he would not publicly acknowledge your relationship, subjected you to emotional and physical abuse, and also lived off your income. This relationship is reported as ceasing either in mid or late 2007, corresponding with the period leading to your offending.

33 By the time these offences came to light you were in yet another emotionally abusive relationship with a man who is said to have taunted you with the prospects of prison. That relationship broke up earlier this year but apparently not without some aggression and an intervention order being taken out on him.

34 I am told that during the course of this year you have entered another relationship which is much more positive. Your current partner was in court to support you and was clearly distressed by your current situation. You have been friends for a long time and the relationship has only developed this year. I am told that he is supportive, certainly not abusive, and very positive for you, and that you have been working with him in his business. You also share an interest in horses.

35 I am told that you used cannabis during your teens and early 20s, then stopped of your own accord but replaced it with alcohol. By the time of these offences you were drinking very heavily, I am told, keeping red wine in a water bottle in your car.

36 I have read a report from forensic psychologist, Mr Ian Joblin, who has seen you on three occasions over the last 12 months. He notes the family difficulties in your youth, the instance of sexual abuse and ongoing problems with your father, leading to you becoming depressed by 2007 and turning more heavily to alcohol. Then the end of an abusive relationship coincided with you suffering pneumonia in October, and pressure of work commitments, led you to turn to the friendship of C.

37 Mr Joblin considers that as a result of all of the background factors you were in a distressed emotional state that dominated over awareness of the inappropriateness of your behaviour. He does not consider you to be a paedophile nor that the offences represent hypersexuality.

38 I have also read a report from Ms Janne Ferguson, a psychologist, whom you have been attending for counselling. Her opinion is that you had a history of rescuing people and placed no boundaries in relationships. She says that meant professionally putting yourself at risk by being available to students who were unhappy or at risk even out of hours. I note that there is no suggestion by you or in any of the materials in this case that either of the students with whom you committed these offences were particularly unhappy or at risk. Ms Ferguson says that the process of exploring your life problems has taken a huge toll on you, but you have found great strength in yourself and have the potential to recreate your future directions.

39 On the basis of these reports, and the accounts of your circumstances contained in a number of references, I am urged on your behalf to apply principles discussed in the case of Verdins to the effect that your psychological state and emotional vulnerability contributed to your offending by causing impairment of your judgment, and that that diminishes your culpability in all of the circumstances.

40 There is certainly evidence that you were drinking heavily over the period of these offences, and I accept that you were in a state of emotional vulnerability that may have influenced your behaviour and to an extent affected your judgment and you were apparently wholly focused on your own needs. However, in my view, the material does not establish a condition of a nature or severity that so undermined your ability to make appropriate decisions that it significantly diminished your culpability in this offending. Overall, I allow some but only modest moderation of sentencing factors of denunciation of your conduct and general deterrence, attributable to your emotional state at the time.

41 This was not one isolated incident immediately regretted. That it occurred twice with one boy, the occasions some months apart but both suggested and instigated by you, and then with a second boy, was not in my view a reflection of your emotional vulnerability, nor that alcohol used to ease emotional turmoil undermined your better judgment.

42 I have read a substantial number of references about you including from your mother, grandfather, brother-in-law and long-standing friends, as well as from a former student and her mother who was also in court to support you, and from others who have known you personally and in your role as a teacher. I accept that they all consider that this offending is uncharacteristic of what they have known of you. Although several confirm that during 2007 you were grossly overusing alcohol and acting in particularly self-destructive ways, and also suffering ill health from pneumonia in about October, much of that those who know you blamed on the successive abusive relationships in which you had engaged. I accept that that is their impression and that they see in you many good qualities as a person overall.

43 You come before the court with no prior convictions and that is certainly in your favour and is also some confirmation for the tenor of the references that you have been of good character and offending behaviour was not the norm for you.

44 The nature of these offences and the seriousness of the betrayal of trust that they involve, however, mean that your previous good character does not carry as much weight in sentencing considerations as do other factors, particularly those of denunciation of this offending and deterring you and others from repeating it.

45 You have pleaded guilty to these offences and that entitles you to some leniency. Those pleas were entered on the day a trial was to commence by which time there had been cross-examination of witnesses, including of C at the committal. The pleas were entered at a time which did avoid the need for a special hearing in respect of the under-age victim, and it certainly avoided the need for either of the boys or their families to have to come to court to hear in detail the circumstances of this offending and of course to be cross-examined about it. That entitles you to some leniency in your sentence.

46 However, in my opinion there is little remorse evidenced by this plea of guilty insofar as sympathy for your victims is concerned. I accept that you feel some contrition as described by Mr Joblin, but that seems focused on the situation in which you have placed yourself and family and close friends. Overall, I do not see any empathy expressed by you for the consequences of your offending on the two young people who had been students of yours. There has been no response by you through psychologists or during the court process to those adverse consequences to either of the boys, either their emotional states or to C's studies.

47 The consequences to you and also to those close to you I do recognise have been considerable. First and very significantly, you have lost your career. I accept that you had obtained your qualifications as a music teacher through perhaps greater than average application, having left study for some years after school and returned to it, and studying whilst living in a difficult and unsupportive relationship and also having to work to earn income. You apparently very much enjoyed teaching school students, and some of the many references that were tendered indicate that you were a gifted and enthusiastic teacher who gave a lot of commitment to teaching and to your students.

48 I must not have regard to the effect of registration under the Sex Offenders Registration Act or the Working with Children Act (see sub-s.5(2)BC of the Sentencing Act), but I can and do take into account in sentencing you that you have lost a career for which you had worked hard and which you enjoyed.

49 You have also lost the potential for a business of private music teaching, at least of children.

50 Further, other aspects of using your musical skills have been severely curtailed. You have been shunned by two significant musical organisations in the Ballarat area with which you had previously been employed, that is, I am told, the Ballarat Symphony Orchestra and the opera company. Whether their attitude will be maintained in the long-term is unknown, but I accept that at least in the short-term your ability to use your musical talent has been severely curtailed for employment but also for the enjoyment and professional satisfaction such performances would have given.

51 I also accept that these offences have given rise to a degree of notoriety in your local area which many other offences would not have attracted, and that you and your family have felt the consequences in embarrassment, and you have even lost a job in a local area being recognised even when you were recognized working waitressing.

52 I was referred to some other cases that have bearing on your sentence, in particular Court of Appeal decisions in DPP v. Ellis[4] which also involved a female teacher who had pleaded guilty to several counts of taking part in an act of sexual penetration with a boy aged 15, and R v. Howell[5] which involved a female integration aide teacher who pleaded guilty to a single count of engaging in a sexual relationship with a 15 year old boy under her supervision.

53 Ellis' case confirmed that laws relating to sexual offences are now such that maximum penalties reflect their seriousness, and they are to be regarded as seriously when committed by females as by males, and when committed against male victims as against female victims.

54 Howell's case confirmed that, as a general rule, alcohol or drug-induced conditions will not be treated as mitigating. However, it also confirmed that that principle is subject to considerations reached in Verdins' case, that where the offender's mental capacity at the time of the offence is shown to have influenced the offender's capacity to make a rational decision as to whether or not to offend, then it may reduce the offender's moral culpability in a number of ways and if so, if significantly reducing the moral culpability, may be viewed as moderating the factors of denunciation and general deterrence.

55 Your counsel Mr Hutton submitted, by pointing to similarities and differences with the apparent facts in Ellis' case, that you should be treated more leniently than was the accused person in that case. He submitted that even allowing for the ultimate resentencing in that case brought about by the principle against double jeopardy on appeal being applied, your case still warranted a total effective sentence of no more than three years. That would enable it to be wholly or partly suspended, and he urged that I should suspend all or at least a significant part of any such term. Recognising that Count 3 is defined as a "serious offence" for the purpose of whether exceptional circumstances are required before a sentence could be wholly suspended, he urged me to find that exceptional circumstances existed in light of your personal circumstances. As I have decided that your total sentence should be more than three years, the question of whether exceptional circumstances warrant its total suspension does not arise.

56 I was also referred to two County Court decisions[6] which bear some similarity, although, in my view, more significant differences, and I have read a sentence imposed just this week by His Honour Judge Mason on a female offender, not a teacher, who pleaded guilty to sexual penetration with a boy of 14[7]. That case involved what the judge found, and what the prosecution did not dispute, were exceptional circumstances.

57 Each case must be decided on its own particular circumstances and that is my obligation in sentencing you, although the principles enunciated by the Court of Appeal are binding. I have considered carefully aspects of similarity and dissimilarity between this case and others, especially those of Ellis and Howell. In contrast to each of those cases, your offences were committed against two different young people, which I regard as being more serious than had there been one child involved, even though there were more instances of acts of sexual penetration in the other cases.

58 In Ellis' case there was an admission to police and a plea of guilty at the earliest available opportunity. Those actions by that offender were accepted by the court as given due to that offender's genuine concern for the welfare of, and to spare the need to give evidence by, the child against whom she had offended. You have not shown anything like that degree of remorse or consideration for your victims, although you ultimately spared them the need for a trial.

59 In the case of Howell there were several apposite similarities. That offender was in an emotionally fragile state at the time of the offending with a long-term problem of alcohol abuse. There was a forensic psychiatrist's opinion that she was a vulnerable person and that that coalesced with other circumstances to provide fertile soil for the occurrence of her aberrant behaviour. Emphasis in that case was placed on her acknowledging wrongdoing and expressing horror at the consequences for herself, her family, her children and the complainant. She had spontaneously recognised the adverse effects on the complainant and his family, again in contrast to your apparent lack of concern for either complainant.

60 I accept that since these offences were revealed your life has considerably changed and that, to your credit, you have taken steps to address your problem with alcohol, attending Alcoholics Anonymous and also Uniting Care Ballarat's alcohol counselling program and engaging in an individual treatment plan under that organisation's auspices. You have also been prescribed medication for depression by your doctor and have seen psychologist Ms Ferguson for counselling, addressing and looking realistically at the issues in your life. You have seen Mr Joblin on three occasions. These matters together with the depth of support of friends, your mother and step-father, and of your new partner, indicate that there are good prospects for you to re-establish your life in the community in the future.

61 However, despite the inevitable interruption of these rehabilitative steps, I am of the view that the seriousness of these offences means that no term other than one of immediate imprisonment on each count is appropriate. That means that pursuant to s.6B of the Sentencing Act on Count 3 you fall to be sentenced as a serious sexual offender, and pursuant to s.6D, as I consider that a term of imprisonment is justified on Count 3, in determining the length of that sentence I must regard protection of the community from you as the principal purpose for which the sentence is imposed. The Crown does not urge that that requires a sentence longer than that which is proportionate to the gravity of the offence and I agree.

62 Even though it took a long while for you to recognise that what you did was wrong, I do not consider that you pose a significant risk of reoffending in this manner in the future. The sentence is required to be served cumulatively on other sentences imposed unless I direct otherwise, but that prima facie rule of cumulation is to be applied only to the extent that it is consistent with the overall requirement of justice and in particular with the principle of totality.[8]

63 I allow for some moderate cumulation of the term on Count 2 on Count 1, taking into account that these were committed with the same victim and part of a continuum of contact with him but some months apart during which time you should have reflected on the inappropriateness of repeating your offending behaviour. In respect of Count 3 I am going to direct other than total cumulation because the nature and timing of the offending was similar to that in Counts 1 and 2, but taking into account that it involved a different victim, one whose age put him totally out of bounds for sexual activity with you, and that under s.6E it is prima facie to be served cumulatively.

65 Michelle Dennis, on each of Counts 1, 2 and 3 you are convicted and sentenced to two years' imprisonment. I direct that nine months of the sentence on Count 2 be served cumulatively on Count 1, and that six months of the sentence on Count 3 be served concurrently with the sentences on Counts 1 and 2. That leads to a total effective sentence of four years, three months' imprisonment, and I fix a minimum of two years and ten months before you will be eligible to apply for parole.

66 I declare three days of pre-sentence detention as reckoned served towards this sentence.

67 Under s.6AAA of the Sentencing Act I state that but for your plea of guilty your sentence would have been two years, three months on each count, a total effective sentence of four years and nine months, with three years and two months minimum before parole.

68 Pursuant to s.6F of the Sentencing Act it will be recorded in court records that you were sentenced on Count 3 as a serious offender.

69 By operation of the Sex Offenders Registration Act you will be registered, and required to report for life. Now, forms acknowledging that have been prepared and when your counsel has had a chance to check them my Associate will bring them to you and ask you to acknowledge receipt by signing them.

70 I also propose to make an order for a forensic sample to be taken from you limited to a scraping from the inside of the mouth. I make that order for the reason of the seriousness of the circumstances of the offending and I warn you, as I must, that authorised officers can use reasonable force to take that sample if you resist but as it is confined to a scraping from the inside of the mouth it should not be too intrusive if you do not resist.

71 You can take a seat now Ms Dennis while those orders are checked.

72 Ms Dennis, the notice of reporting obligation pursuant to the Sex Offenders Registration Act have been checked by your counsel. I have signed the notice and this will be brought to you to acknowledge receipt.

73 MR HUTTON: Might I leave the Bench, Your Honour?

74 HER HONOUR: Yes. I have signed the forensic sample orders. One of those will be provided to Mr Hutton, for Ms Dennis and one to the Crown. One for the record.

75 I'm sure this is understood, but I remind everyone present that disclosure of any information that would reveal the identity of either of the two victims of these offences is prohibited under the Judicial Proceedings Reports Act.

76 I will leave the Bench before the next matter. Sorry, can I just check, is the three days the appropriate calculation?

79 HER HONOUR: All right. I'll leave the Bench before the next matter.

[1] [1998] 1 VR 664.

[2] Although the name of this victim was used during the Court hearings it will not be in published Reasons for Sentence.

[3] Although the name of this victim was used during the Court hearings it will not be in published Reasons for Sentence.