11 As that passage shows, differences between offenders that are not solely because of their sex may, and where they are relevant should, be taken into account. The law does not require an artificial transposition, treating men as if they were women or women as if they were men. It is not fallacious to detect error in the present sentence because it is completely different from the sentence that would have been imposed on a male offender. It would be an error simply to substitute, after allowance for double jeopardy, the sentence that would have been imposed on a male schoolteacher who had taken part in six acts of sexual penetration with a female student. We must not replace one set of unjust stereotypes by another that is no less unjust.
Re-sentencing
12 My conclusion that the sentence was manifestly inadequate makes it unnecessary to consider counsel's other submissions except to the extent that they bear on the task of re-sentencing. It is unnecessary, for example, to consider whether the judge correctly applied the cases dealing with forgiveness by the victim.[13] I shall deal first with the fact that the respondent is to be sentenced on each of counts 3, 4, 5 and 6 as a serious sexual offender and then with the significance of the Sex Offenders Registration Act 2004.
13 The respondent's status as a serious sexual offender has three consequences. First, in determining the length of the sentences imposed on counts 3, 4, 5 and 6, we are obliged to regard the protection of the community from the respondent as the principal purpose for which those sentences are imposed.[14] Secondly, we have a discretion, in order to achieve that purpose, to impose a sentence or sentences longer than would be proportionate to the gravity of the offences considered in the light of their objective circumstances.[15] Thirdly, each of the terms of imprisonment imposed on those counts will be served cumulatively unless otherwise directed by the Court.[16] In the present case it is very unlikely that the respondent will re-offend. The protection of the community from her is of much less importance than general deterrence, just punishment and the denunciation of her conduct. The prima facie rule of cumulation is to be applied only to the extent that that is consistent with the overall requirements of justice and, in particular, with the principle of totality.[17]
14 It was assumed below, and at the hearing of the appeal, that these offences were Class 1 offences within the meaning of the Sex Offenders Registration Act, but that may not be so. Item 1 in Schedule 1 to that Act is "[a]n offence against the Crimes Act 1958 that involves sexual penetration (within the meaning given by section 35(1) of the Crimes Act 1958) of a child".[18] The return of prisoners includes a notation reading "Order pursuant to Sex Offenders Registration Act 2004 - Class 1 offences", but in the case of Class 1 offences the Act operates automatically.[19] The notation adds nothing. I propose that, in the order allowing the appeal, we set aside the notation to avoid confusion and leave it to the parties to determine the respondent's status under the Act.
15 It is undesirable that the meaning of the Sex Offenders Registration Act be decided without full argument. It would be unjust to delay our judgments in this case to enable that to be done, especially if the other members of the Court agree with me that an immediate custodial sentence should now be imposed. I shall assume that the respondent is, or will become, subject to reporting obligations under the Act[20] and to a prohibition from taking part in child-related employment, which is widely defined and includes voluntary work.[21] The question then arises, and was argued on the appeal, whether those consequences are to be taken into account in sentencing her.
16 As a general rule, in my opinion, an offender's reporting obligations under the Sex Offenders Registration Act are irrelevant. Parliament has decided that persons sentenced for particular offences constitute a class in relation to whom such obligations are appropriate. They are an incident of the sentence. It would unduly burden the sentencing process if judges were required to take them into account, any more than if they were required to take into account other ordinary incidents of the criminal justice system. An exception should be recognized only where the reporting obligations operate with unusual severity on a particular offender. In other words, they are relevant to sentencing only in exceptional circumstances.[22]
17 The prohibition on taking part in child-related employment will usually be irrelevant too, but there will be occasions where it should be taken into account. The present case is an example. The respondent was a qualified school teacher with some 12 years' experience[23] who had been actively involved in voluntary activities. The loss of her career and her exclusion from those activities should be taken into account.[24] I have done so not only in conformity with the assumption in [15] above but also because, quite apart from the Sex Offenders Registration Act, the respondent has lost her career and is likely to be excluded from many of the voluntary activities in which she formerly engaged.
18 The effect on the victim, and the extent to which he took the initiative, were important topics on the plea and are significant in re-sentencing. We have a victim impact statement made by Benjamin's mother, his own statement to the police on 25th November 2003, the day after the offence the subject of count 6, and a further statement provided by him, through solicitors whom he had consulted, on 20th August 2004. That statement is not, and does not purport to be, a victim impact statement pursuant to s.95A of the Sentencing Act, but it was considered below and it should not be excluded on technical grounds now. Mr McArdle did not ask us to do so.
19 In his statement to the police Benjamin said that, in about September, after she had stopped teaching him directly, he met the respondent after school. It was not by pre-arrangement. As he walked past the stadium on his way home, she walked out and asked him to come into the stadium. He walked around to see if anyone else was there and, when he found that there was not, he went to the office area. Benjamin and the respondent talked for about 15 minutes and then they kissed on the lips. That established a pattern that continued for some weeks except that the kissing became more passionate.
20 The day before the offence the subject of count 1 Benjamin and the respondent arranged to meet after school. As recounted by the judge in the extract from the sentencing remarks that I have set out, she picked him up in her car and drove him to her house. Benjamin said in his statement to the police, "I knew what I was going back there for as we had spoken about it over the past couple of days. We were going to have sex." In the rest of the statement he described the incidents the subject of the six counts.
21 In the statement provided through his solicitors the victim endeavoured to paint a different picture. He said that the relationship started innocently at basketball practice and that thereafter he took the initiative on every occasion. In his own words, he knew that her husband was away and he pursued her. He said that he had been in a sexual relationship before and denied any adverse effects on his life. On the contrary, he said, from not knowing where he was heading in school, he had begun a pre-apprenticeship course to become an electrician and was working part time as a tiler on his free days. His father had left six years before and he had had to grow up and mature faster than the average 15 to 16 year old. At all times he knew what he was doing and wanted to do it.
22 I shall not refer in detail to Benjamin's mother's statement. It is a distressing account of her perception of the events and the effect that they have had on her and other people and on her relationship with her son.
23 I accept that Benjamin was not sexually inexperienced and that, in important respects, he took the initiative.[25] There was certainly no lack of consent.[26] None the less the respondent was the person in a position of authority and should have taken steps, and had strategies in place, to prevent the development of the kind of relationship she described in her record of interview.[27] Each of the offences was premeditated in the sense described in the extract from the sentencing remarks set out in [6] above. The respondent violated the victim's mother's trust and the trust that the community reposes in the teaching profession. Benjamin's more recent statement shows a commendable loyalty, but also an insouciance about the moral issues involved that would be disturbing but for the fact that he was still only 16 at the time he made it. Young men and women are unlikely to develop a responsible attitude to sex, and to relations between the sexes, if such conduct is encouraged by those to whose care, supervision or authority they and their well-being are entrusted.
24 As Mr Tehan pointed out, there are mitigating factors to weigh in the balance. I have already referred to the respondent's previous good character and to the fact that she pleaded guilty. That plea was entered at the earliest opportunity. It saved the State the expense of a trial and Benjamin and his mother the ordeal of giving evidence. The judge accepted that it evinced remorse. The respondent is therefore entitled to a real and not illusory discount from the sentence that would otherwise have been imposed. She has lost her career after several years of training and some 12 years in the profession[28] and her capacity to engage in voluntary activities will be restricted. Her voluntary activities have contributed to the community. The hardship to her family is not exceptional and cannot be taken into account, but account may be taken of the hardship to her of being separated from her children and especially from a 13 year old daughter who has medical difficulties and requires close monitoring.[29]
25 The primary purpose of s.45 is the protection of young children from the predatory actions of adults,[30] but the operation of that section and related provisions of the Crimes Act is not restricted to young children or predatory conduct. Section 45 is concerned with children up to the age of 16 and s.48 provides that a person must not take part in an act of sexual penetration even with a 16 or 17 year old child who is under that person's care, supervision or authority. The maximum custodial penalty for an offence against s.48 is ten years' imprisonment. The respondent is not a predator in the ordinary sense of that word, but an adult who is not a predator may still do great harm to a child with whom he or she has inappropriate sexual relations.[31]
Conclusion
26 I consider that the respondent should have been sentenced to two years' imprisonment on each count. In my opinion, those sentences should now be imposed.[32] The respondent cannot, however, be sentenced to the total effective sentence that would have been appropriate below. When the Crown successfully appeals against a sentence, the offender is entitled to a discount for double jeopardy because, through no fault of the offender's, he or she must stand for sentence all over again.[33] Accordingly, I would direct that only four months of the sentence imposed on count 4 and four months of the sentence imposed on count 6 be served cumulatively upon each other and upon the sentence imposed on count 1, but that otherwise all the sentences be served concurrently, making a total effective sentence of two years and eight months' imprisonment.
27 The question then arises whether the whole or only part of that sentence should be suspended. As I said earlier, an immediate custodial sentence should have been imposed below, but the clock cannot be turned back. The judge gave the respondent a wholly suspended sentence, she retained her freedom and she has been at liberty for the last six months. She has also had the Director's appeal hanging over her head for most of that period. Although double jeopardy does not prevent our requiring her to serve part of the sentence,[34] it is a factor to take into account in deciding what is fair and just in all the circumstances. Nevertheless I have
concluded that, even now, the respondent must be required to serve part of her sentence in prison. Unless that is done, the principle of equality will not be observed, nor would the Court sufficiently condemn the respondent's conduct. As I said earlier, this was not a foolish lapse on one occasion that was not repeated. There were six counts and two distinct periods of offending. I propose that the Court require the respondent to serve six months' imprisonment and that the balance of the sentence be suspended for an operational period of three years.
28 It should be clear from what I have said about double jeopardy that a like offender in the future could not expect the same leniency and, in particular, that men and women are to be treated on their merits and not according to their sex and that the law is concerned to protect all children from abuse, especially from those in a position of power, authority or trust.