DPP v Ellis [2005] VSCA 105

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

Introduction

1 Over the last 30 years the Victorian Parliament has, in a series of reforms, modernized much of the criminal law. Those reforms have included the law relating to theft and offences of dishonesty, criminal damage and inchoate offences. One major area of reform has been the law relating to sexual offences, beginning with the Crimes (Sexual Offences) Act 1980.[1] The preamble to that Act recited, among other things, that it was desirable for the law to protect all persons from sexual assaults and other acts of sexual coercion and to protect persons from sexual exploitation, especially exploitation by persons in positions of care, supervision and authority, and that it was desirable for the law to protect and otherwise treat men and women so far as possible in the same manner. The provisions of the Crimes Act 1958 relating to sexual offences, which almost exclusively contemplated offences committed by men[2], were replaced by gender-neutral provisions in which, in accordance with the preamble, men and women were treated so far as possible in the same manner. The provisions have been amended from time to time but that principle has continued to be observed. It is well illustrated by s.45 of the Crimes Act, the section with which this case is concerned.

2 Section 45(1) and (2) provide:

"(1) A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.

(2) A person who is guilty of an offence against sub-section (1) is liable-

(a) if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, under the age of 10, to level 2 imprisonment (25 years maximum); or

(b) if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, aged between 10 and 16 and under the care, supervision or authority of the accused, to level 4 imprisonment (15 years maximum); or

(c) in any other case, to level 5 imprisonment (10 years maximum)."

Later sub-sections provide, among other things, that, except in circumstances that do not apply here, consent is not a defence to a charge under sub-s.(1) and that a circumstance of aggravation described in sub-s.(2) is not an element of the offence but must be stated in the presentment and, where the accused pleads guilty, determined by the trial judge.

3 The respondent pleaded guilty in the County Court to six counts of taking part in an act of sexual penetration with a child under the age of 16 contrary to the provisions of s.45(1). The presentment stated, and the respondent admitted and the judge found, that, in relation to each count, the victim was under her care, supervision or authority. In the case of count 4, the act of sexual penetration was that he introduced his penis into her mouth. In the case of the other counts, the act of sexual penetration was that he introduced his penis into her vagina. In accordance with s.45(2)(b) the maximum custodial penalty was 15 years' imprisonment. The respondent stood to be sentenced on each of counts 3, 4, 5 and 6 as a serious sexual offender for the purposes of Part 2A of the Sentencing Act 1991.

4 The judge heard a plea for leniency on her behalf. No previous convictions or findings of guilt were alleged. On the contrary, both written testimonials and oral evidence established that she was a hard-working schoolteacher of otherwise blameless life who had made contributions to the community on committees and through work with sporting associations. On 10th November 2004 his Honour sentenced the respondent to 12 months' imprisonment on each count and directed that two months of each of the sentences imposed on counts 2, 3, 4, 5 and 6 be served

cumulatively upon each other and upon the sentence imposed on count 1.[3] That resulted in a total effective sentence of 22 months' imprisonment, which was wholly suspended for an operational period of three years.

The Appeal

5 The Director of Public Prosecutions appeals pursuant to s.567A(1) of the Crimes Act. The ground of appeal is that the individual sentences imposed, the total effective sentence and the order for suspension of the whole of the sentence are each manifestly inadequate. The following particulars are given:

In imposing the individual terms of imprisonment and in making the orders in respect to cumulation and in ordering that the total effective sentence be wholly suspended for a period of 3 years, the learned sentencing judge:

(a) failed to adequately reflect the gravity of this offence generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c) failed to take into account or sufficiently to take into account the aspect of specific deterrence;

(d) gave insufficient weight to the nature of the offending in so far as

(i) it related to the relationship between teacher and pupil;

(ii) the statutory regime is designed to protect persons in the position of the victim;

(e) gave insufficient weight to the maximum penalty for this offence, being 15 years;

(f) gave insufficient weight to the fact that the respondent fell to be sentenced as a serious sexual offender on counts 3 to 6;

(g) gave insufficient weight to the views of the victim in the face of the objective evidence;

(h) gave undue weight to the question of 'public ridicule'; and

(i) gave undue weight to the legal consequences which flow from the conviction."

The word "insufficient" in particular (g) is self-evidently a typographical error, the intended word being "undue".

6 The basic facts of the offending were summarized by the judge at the beginning of his sentencing remarks. Addressing the respondent, his Honour said:

"3. The circumstances of the offending were that at the time of the offences you were a 36-year-old married woman residing with your family in Eltham North. You lived with your husband and three children aged 12, 9, and 7 years respectively. You were a teacher at [the secondary school the victim attended] and worked as a physical education/health teacher. Your employment commenced in January of 2000. You resigned that position in December of 2003. The victim in the matter was at the time of the offending a 15-year-old year 10 student. He knew you as his teacher. In the latter part of 2003 you began to meet him in various areas of the school where you would be alone. The relationship developed to a point where you began kissing each other in the confines of the school.

4. On Friday 10 October 2003 you and Benjamin - the 15-year-old - had arranged to meet at approximately 3 p.m. You collected him in your car and drove to your house. He knew he was going to have intercourse with you as it had been discussed in the preceding days. You gave him something to eat and told him you would meet him upstairs. After that Benjamin went upstairs and went into your bedroom where you each removed your clothes and sexual intercourse took place. Subsequently you showered and eventually drove Benjamin to the Watsonia Railway Station where you dropped him off.

5. Count 2 relates to an incident on Saturday 15 November 2003, some one month or so later. You collected Benjamin in your car from the Watsonia station at approximately 7 p.m. Again this had been prearranged. You drove him to your house where again sexual intercourse took place in your bed. He remained with you until about 2.30 a.m. the next morning when you dropped him off near his home.

6. Count 3 relates to events on 17 November 2003. You collected Benjamin from the Diamond Creek Railway Station at approximately 9.30 a.m. Again you drove him back to your address where again intercourse took place in similar circumstances. On that day at approximately 12.30 p.m. after having lunch with him, you took him back near the school and dropped him off.

7. Count 4 relates to events on Saturday 22 November 2003. You collected Benjamin from the Watsonia Railway Station at approximately 7 p.m. and drove to your address where you performed oral sex on him. Count 5 relates to events which occurred the next morning. You and Benjamin had sexual intercourse in your bed. Subsequently you drove him to the Warringal Shopping Centre and again dropped him off at about 9 a.m.

8. Count 6 relates to events which occurred on 24 November 2003. You collected him from school after an examination at approximately 11 a.m. It was your day off work and you drove him to your house where you again had sexual intercourse in your bed. You dropped Benjamin off at the Watsonia Railway Station again at approximately 2.30 p.m. On that day, Benjamin was seen by his mother getting into your car. She became suspicious as she says she had noticed a change in her son's behaviour. She reported her concerns to the school and eventually reported the matter to police.

9. On each occasion that [vaginal] intercourse occurred between Benjamin and yourself, Benjamin ejaculated and no contraceptive measures were taken. The offending occurred when your husband was at work or interstate with work. In so far as no contraceptive measures had been taken, in your record of interview you state that he was at no risk of receiving any infection or disease. On the material before me there is no way in which I could find otherwise.

10. Benjamin failed to complete all of his year 10 examinations and failed the year. The summary says that he has now become estranged from his mother and family and to date has not returned home. I will refer to those matters again when I deal with the statement tendered by Benjamin.[4]

11. Contact between you clearly occurred for some time after your apprehension. Telephone records indicate that that contact continued at least until 7 January 2004. There is no material before me as to whether that contact has continued afterwards and I should draw no conclusions on that. You were interviewed by police on 26 November 2003. In that process you initially denied all the allegations. However, after the interview was suspended for the purposes of obtaining another police officer to conduct a forensic procedure, you indicated that you were concerned about the welfare of Benjamin and indicated that you had in fact been involved in a sexual relationship with him. From that moment on you made full admissions in a frank way to the police and I accept - as indeed I understand the Crown do - that those admissions were made once you realised that Benjamin had in fact made a statement. Your initial denials I accept were done in an endeavour by you to protect him."

His Honour went on to say that, during the course of the interview, the respondent agreed that the relationship had been inappropriate and accepted responsibility for what had happened.

7 Mr McArdle put at the forefront of his submissions that "[t]he fact that in this case the offences involved heterosexual intercourse between a mature female and a young male does not make the offending less serious than that between a mature male and a young female". In R. v. Jobling-Mann[5], which was concerned with an earlier version of s.45, Winneke, P., with whom the other members of the Court agreed, said:[6]

"Whilst each breach of the section must be treated on its own merits, its underlying purpose precludes me from accepting the submission made to this Court on behalf of the applicant that the section does, or is intended to, operate differentially depending upon whether the person accused is male or female."

Later his Honour said of the offender in that case[7]:

"In the eyes of the law her conduct is, in my view, no more acceptable than would be the conduct of a 34-year-old male who, in similar circumstances, took advantage of two 14-year-old infatuated girls."

Mr Tehan began his submissions, after reference to the principles governing Crown appeals, with a denial that this appeal raises the question of equality. He submitted that the judge was well aware of that principle and had applied it.

8 The judge referred to R. v. Jobling-Mann in his sentencing remarks but, in my opinion, his Honour failed to apply the principle for which it stands. I say that with respect because he clearly gave careful consideration to the difficult task with which he was confronted, but a sentence of 22 months' imprisonment, wholly suspended, for six counts of sexual penetration in the circumstances of this case is so lenient that it can be explained only by unconscious sympathy with a female offender or a belief that no real harm had been done to the victim. Particular (d) is made out, to say nothing of other particulars.[8] The sentence unintentionally violated the rule of equality before the law, including equality of concern for male and female victims and equality in the sentencing of male and female offenders.

9 I would uphold Mr McArdle's contention that the sentences imposed on each count and the total effective sentence were manifestly inadequate and also his contention that the judge erred in not imposing an immediate custodial sentence. That does not mean that a wholly suspended sentence for an offence like this would never be appropriate. It would have been open in the present case if the offending had been confined to that on count 1, which might then have been regarded as a foolish lapse that was not repeated.

10 The need to treat male and female offenders equally is not limited to sexual offences. In R. v. Harkness and Ors[9] two young women, Densley and Rye, assisted their male co-offenders to traffic in heroin. They were given very lenient sentences. The principle of parity almost required appellate intervention in favour of the co-offenders.[10] I said, with the concurrence of Winneke, A.C.J.[11]:

"The approach of the courts to sentencing female offenders has changed over the years in reflection of the community's views. The principle at stake is equality. The law cannot, and should not, be blind to human nature or to the vulnerability of persons in the position of Densley and Rye and there are other differences between male and female offenders that can legitimately affect the sentencing discretion,

but it is no longer acceptable that an offender be given a different sentence solely because of his or her sex." (Emphasis in original.) [12]

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.

29 I fully agree in the reasons for judgment of Callaway, J.A., which I have had the considerable benefit of reading in draft.

30 On only one aspect do I desire to add a comment of my own. Whilst the fact that an offender has been at liberty since being sentenced will always be a relevant consideration, and not infrequently a significant one, in the re-sentencing of the offender where a Director's appeal succeeds, it should be understood by all concerned that a manifestly inadequate wholly suspended sentence of imprisonment cannot render the offender immune from a sentence of actual imprisonment on appeal.

31 In my opinion, the appeal by the Director should be allowed for the reasons stated by Callaway, J.A., and the respondent re-sentenced as his Honour proposes.

- - -

[1] See R. v. Coffey [2003] VSCA 155; (2003) 6 V.R. 543 at 547 [11]- [12].

[2] An exception was incest (s.53). In the text accompanying this footnote, I am referring to the actual perpetrator of an offence. It was possible for a woman to be guilty of a sexual offence by aiding and abetting or counselling and procuring. See also R. v. Hewitt [1997] 1 V.R. 301 at 319.

[3] His Honour made it clear that he intended by that direction to exclude pro tanto the provisions of s.6E of the Sentencing Act, which establish a prima facie rule of cumulation in relation to the sentences imposed on counts 3, 4, 5 and 6. As to the effect of that prima facie rule, see [13] below**.**

[4] This statement is referred to at [21] below.

[5] [2000] VSCA 3.

[6] At [2].

[7] At [5].

[8] See [5] above.

[9] [2001] VSCA 87.

[10] For an example of a case where undue leniency to a female co-offender did re-open the sentencing discretion, see R. v. Izzard [2003] VSCA 152; (2003) 7 V.R. 480 at 483 [12].

[11] At [58].

[12] I have omitted the footnotes. One said that it was instructive to compare the first edition of Fox and Freiberg, Sentencing (1985) at SS11.409-11.410 with the second edition (1999) at SS3.712-3.715. In another I emphasized the word "solely" and said, by way of example, that I expressed no opinion on the argument that, at least in relation to some crimes, general deterrence is less important for female offenders.

[13] See R. v. Skura [2004] VSCA 53 and R. v. Tafa Sa [2004] VSCA 182.

[14] Sentencing Act 1991, s.6D(a).

[15] Sentencing Act, s.6D(b).

[16] Sentencing Act, s.6E.

[17] R. v. Mantini [1998] 3 V.R. 340 at 343-348.

[18] Compare item 1 in Schedule 3, which refers to an offence against the Crimes Act that involves sexual penetration. Notwithstanding the definition of "Class 3 offence" in s.3, Class 3 offences appear to be restricted by s.8(1) to offences committed against a person other than a child.

[19] See and contrast s.11 of the Act.

[20] Part 3.

[21] Part 5.

[22] Like Brooking, J.A. in R. v. Stevens [1999] VSCA 173 at [10], a case concerned with s.31(5A) of the Sentencing Act, I would be reluctant to see "a jurisprudence of exceptional circumstances" develop for this purpose.

[23] The figure of 12 years is taken from the record of interview. The respondent graduated in 1989 and, apart from periods of time when she was having her children, had worked as a teacher ever since.

[24] Compare Ryan v. R. (2001) 206 C.L.R. 267 at 285 [54] per McHugh, J.

[25] Notwithstanding his findings at [6] above, based on the prosecution opening, the judge accepted, later in the sentencing remarks, that Benjamin "initiated the conduct" and that the respondent "initially resisted but ultimately became involved".

[26] See R. v. Cleary [2004] VSCA 14 at [2]. Sentences are not precedents to be distinguished but it may be observed that, even in that case, where the maximum penalty was only ten years' imprisonment, sentences of two years' imprisonment were imposed on each count and the total effective sentence was 32, not 22, months. See also R. v. Nguyen [2001] VSCA 139; (2001) 124 A.Crim.R. 477. R. v. Jobling-Mann is important for the principle it establishes, set out at [7] above, which was part of the ratio decidendi. The sentences in that case are of less assistance. The maximum penalty was ten years' imprisonment and the Court of Appeal was concerned only with the question whether the sentences were manifestly excessive.

[27] Compare R. v. SP [2004] ACTCA 16 at [6].

[28] See fn.23 above.

[29] Submissions were directed to the media attention and public ridicule to which the respondent has been subjected. This is not an appropriate case to consider in detail the issues discussed in Ryan v. R. and R. v. Liddy [No. 2] [2002] SASC 306; (2002) 135 A.Crim.R. 468. I have taken those matters into account, with due caution, as part of the general surrounding circumstances, together with the psychological report by Miss Elizabeth Warren.

[30] R. v. Jobling-Mann at [2].

[31] Sections 45 and 48 contain an exception for persons who are married.

[32] Where there are multiple counts on a presentment, it is unnecessary to discount the individual sentences for double jeopardy, so long as an appropriate allowance is made in the ultimate disposition. The advantages of that course include that it avoids distorting the appellate court's instinctive synthesis on each count, that it provides better guidance to sentencing judges and that it ensures that the respondent is compensated, in the total effective sentence, for standing for sentence twice at the instance of the Crown. It also avoids appearing to underestimate the seriousness of the individual offences. For other cases where the same course has been adopted, see Director of Public Prosecutions v. Glazner [2001] VSCA 204 at [11], Director of Public Prosecutions v. VH [2004] VSCA 180 at [14] and Director of Public Prosecutions v. Papworth [2005] VSCA 88 at [19].

[33] The sentence should be "somewhat less" severe, but the discount should not be excessive. See Director of Public Prosecutions v. VH at [14] and [26] and Director of Public Prosecutions v. Cook [2004] VSCA 11; (2004) 141 A.Crim.R. 579 at 589 [29] and the cases there cited.

[34] See, among other cases, R. v. Kostikidis and Mpehelevanas (unreported, Court of Appeal, 12th September 1996), Director of Public Prosecutions v. Reynolds [1999] VSCA 224, Director of Public Prosecutions v. Whiteside and Dieber [2000] VSCA 142; (2000) 1 V.R. 331, Director of Public Prosecutions v. Milne [2001] VSCA 93 and Director of Public Prosecutions v. Johnston [2004] VSCA 150.