DPP v Thomas [2025] VCC 1821

20th of December 2006. The first of the charges of which Ms Thomas was convicted was Charge 1 on the indictment, being an indecent assault contrary to s39(1) of the then Crimes Act. 3. The victim in the matter had been present at Ms Thomas' house. As a result of the consumption of alcohol, she had gone to bed and woke with Ms Thomas kissing her neck, face and stroking her stomach. The act relied upon in regard to this particular crime was in fact the stroking of the vagina, which occurred while the victim was either just waking up or coming out of a sleep state. The penalty prescribed for this offence is 10 years imprisonment. 4. I point out that the victim in this matter is now remotely connected to this hearing. 5. The second charge is one of rape contrary to s38(2) of the Crimes Act. This involved the digital penetration, on the same occasion that Charge 1 occurred, of the victim's vagina. This occurred subsequent to the first charge and while it was happening, the victim turned away, so that she could make it very clear to Ms Thomas that she was awake. She said she was distressed. As a result of that manoeuvre, if I call it that, Ms Thomas asked the victim was she feeling tired, to which the victim replied 'Yes'. Importantly, Ms Thomas voluntarily then withdrew her finger from the victim's vagina. The seriousness of the second charge of rape is demonstrated by Parliament having determined a maximum penalty of 25 years imprisonment for the offence and defined it at the time as a serious offence pursuant to s3 of the then Sentencing Act. That definition was for the purpose of considering the applicability of either a partial or fully suspended sentence. 6. To the time of that offending, Ms Thomas had no prior criminal offences and certainly has had none since. She has served, as a result of these crimes, no pre-sentence detention.

1. The first matter is the age difference, Ms Thomas was aged 28 at the time, she's now 47, the victim was aged 17 and is now aged 36. As I said, the victim was in bed asleep due to her state of intoxication, due to the amount of alcohol she consumed at the school graduation functions. After that initial function, the parties went to a hotel and thereafter, to Ms Thomas's home. The victim was there playing tapes with another former student. As a result, of her state of intoxication, she said she needed to go to bed which she did and she was therefore in a vulnerable position.
2. The Court is unsure precisely of what the circumstances were, certainly they were unusual. However, it seems that it was not a deliberate plan or manoeuvre to have the victim end up in Ms Thomas' bed. The evidence would appear to be that the victim simply asked to go to bed and was not directed to go to a particular bed. Ms Thomas when she ultimately went to bed herself that night, as best I can understand it, took the opportunity and gave in either sexual temptation or excitement.
3. As I have said, Ms Thomas stopped voluntarily when the victim indicated she wished to proceed no further and the rape itself was of a brief duration. Clearly, it was a very dangerous practice at the time for a recent class teacher, of two ex-pupils, to have them at her home when they had been drinking, especially in circumstances where Ms Thomas' sexuality was such that she was a lesbian. The victim believed at all times that their relationship was platonic and indeed saw Ms Thomas as an adult friend.
4. Appropriately, Mr Cordy in paragraph 6 (Ex A) of his submissions referred to the many aggravating factors which we often see associated with rape, which were not part of this particular rape charge. I also accept, when one looks at Ms Thomas' life in total, that this criminality can be seen as an aberration, see the submission thereon from Ms Drago at [33] of Exhibit 1.
5. I come then to assess the objective gravity of the offending. I accept, as referred to in The Queen v Mason [2001] VSCA 62, [8], that rape is an intensely personal crime, involving the physical invasion of a person and an intangible loss of their rights. I also take into account the comments of the Court of Appeal as to digital rape in R v Sheriff, unreported, by the Court of Appeal in May of 1998.
6. The prosecution did not seek to clarify the level of objective seriousness or gravity. The defence in submission at [11] of Exhibit 1 accepted clearly that rape was a serious offence, that as a result the principles of general deterrence and denunciation were particularly important in this sentence. However, the defence, accepting those principles, submitted that I should categorise the offending, in particular the rape, at the lower end of seriousness.
7. Insofar as the reference to breach of trust, the actions of Ms Thomas this night were not technically a breach of trust. She was no longer a teacher of the victim, certainly the victim held, as I have said, Ms Thomas in very esteem. The fact of their previous relationship as teacher and student was clearly the genesis of the victim's trust in Ms Thomas.
8. I then come to the victim impact statement tendered by the prosecution as Exhibit B, dated 2 October 2025. Courts have since the time of this offending, become far more aware of the impact of rape upon young persons.
9. The victim impact statement here is a dramatic example of the impact of a sexual assault and rape. The pain of being abused by a trusted friend is marked, as is the period of such impact. I was very taken by the thought given by the victim in her description of how much the impact of this offending against her pervaded, and continues to pervade her life. I accept the prosecutor's description of the victim impact statement as a powerful statement.
10. In final submission, the prosecution provided a number of cases for the Court to consider and submitted that an immediate head sentence and parole was appropriate for this offending. As to the period, given that a full and/or partial suspended sentence was available at the time, the prosecution submitted that a full suspended sentence was not appropriate, as there were no exceptional circumstances and further that in the circumstances, a partial suspended sentence and/or by way of alternative, a community corrections order were not appropriate.
11. I should indicate that subsequent to the plea, and as a result of the submission made, by Ms Drago, a community corrections order report was called for which was received by the Court. That report is dated 28 October 2025 and will be exhibited to the plea exhibits as Exhibit C. The report received was positive insofar as the Community Correction office was concerned for Ms Thomas.
12. I come then to the plea of the defence. Ms Drago tendered a written submission, Exhibit 1, and spoke to it. She relied on both Exhibit 2 and Exhibit 3 being the strong character references, firstly in Exhibit 2 of Ms Thomas' mother, and secondly in Exhibit 3, the equally strong reference from her brother.
13. Given the trial Ms Thomas of course does not get the benefit of remorse or any utilitarian benefit associated with a guilty plea. As I have said, in regard to this indictment, Ms Thomas pleaded not guilty and gave evidence in that regard. Indeed, she is still denying such crimes as pointed out in the Community Correction report at p1. That of course is Ms Thomas' right. One does not suffer in any way by invoking one's right to trial in our system of law. To the extent that there is a suggestion at [8] of the prosecution submission, that the fact of cross-examining the victim at committal and trial is a factor in sentencing, I would reject such submission. As I say, one is always entitled to put the State to its trial when allegations are made and the exercise of such a right in no way can be detrimental to a person.
14. Ms Drago also relied in particular upon Ms Thomas's good character, both before and since this offending. Ms Thomas is clearly a high achiever. She attained the qualifications of an Arts Degree and an Education Diploma. She was a teacher at the local secondary school, from 2004 -2024. She was stood down in 2023, and ultimately in May of 2024, when she was charged, was sacked as a teacher.
15. In addition, Ms Thomas has conducted, with her sister, a dance school in Bendigo known as the Thomas Dance School since 2003. Again, her contact and involvement with that school ceased when she was charged. The defence also relied upon the evidence as to character given in the trial by Brooke Lawrence, who was particularly supportive of Ms Thomas, given her contact with Ms Thomas in the dance school and the fact that she had two of her own daughters participate in such. As I have said, the defence rely very much on Exhibit 2 and 3 being the character references of both her mother and brother.
16. Ms Drago also spoke of the extra curial effect of being charged. As I have already said, she was ultimately sacked and lost her professional occupation, lost the ability of conducting the dance studio, was subject to local publicity and had her reputation effected. While those are correctly described as extra curial punishments, they are unfortunately associated with people who commit such crimes. The proposition must be put in perspective because in fact she was not charged till April of 2024. She has however been fortunate to have a job since that time, in office administration, made available to her through her brother at which, given her brother's statement, she has performed to her usual professional standard.
17. The other matter relied upon was the issue of delay. The delay here was not dramatic because the victim did not report these crimes till March of 2023 and, Ms Thomas was not charged till 2024. It is correct to say that from that date of being charged, Ms Thomas would have had this matter hanging over her, however, it is not a dramatic period of delay in the circumstances, especially when one is tried in the country.
18. The primary submission put by Ms Drago was to seek a fully suspended sentence. At the time, a charge of rape pursuant to s3 of the then Sentencing Act, was a serious offence. Pursuant to s27(2B) of such Act which became operative on 10 October 2006, this offending having occurred on 19 or 20 December of that year, that amendment was such as to prescribe that a fully suspended sentence cannot be granted in a rape charge, unless both sub-s(a) and (b) of s27(1A) are satisfied.
19. Ms Drago advanced factors to satisfy this test as detailed in [33] of her written submission, and spoke to such in the plea. Unfortunately for

Ms Thomas, having considered that submission, I find that such does not amount to exceptional circumstances. In that regard, I refer to the consideration of the meaning of exceptional circumstances of Hedigan J in Kent v Wilson [2000] VSCA 98, [22] and [38]. 20. An examination of the factors advanced on behalf of Ms Thomas, in totality, meets the definition of normal human behaviour, not of exceptional circumstances. There was reference in Kent v Wilson, at [30] to Beech J. in Hanna Elrahi, unreported of 18 January 1996. Similar to what was found in that case, in regard to the submissions made on behalf of Ms Thomas, I have concluded on the facts that it was not an exceptional circumstance to have a person before the Court, of a previous good character, a character which up till the date of sentencing involves no criminal offending, but for the matters found and against her in this trial, with an excellent work record and the support of her family. I do not, on the basis of authority, find such amounts to an exceptional circumstance. By way of alternative, Ms Drago sought a partial suspended sentence and/or a combined sentence by way of imprisonment and a community corrections order under s44 of the Sentencing Act. 21. The three cases submitted by the prosecution for consideration have been important in the determination, by the Court, of objective criminality and seriousness. The first of those was Nous, a determination in 2008 by Judge Pullen of this Court. This was a case that also went to trial. The rape took place in September of 2005 and was committed upon a friend of a housemate of the accused. The victim, the housemate and the accused had all been drinking together. They had returned. The victim went off to bed and awoke to the accused orally penetrating her vagina. The accused, when the victim screamed, left the premises. The matter was obviously an opportunistic crime. In Nous, full suspension was sought, however, such was rejected and a sentence of four years with a minimum of two years passed. 22. The second case I was referred to is Coulson [2011] VCC 742, a retrial. The circumstances were similar to the circumstances that confront this Court. It involved a rape which occurred in 2006. The victim was described by the Judge as a young vulnerable girl who had been digitally penetrated while she slept. The victim impact statement was similar in that case to the one that I have referred to here, the impact being of lasting effect upon her, upon her sense of sexuality and her confidence. 23. In that case, Judge Tinney imposed the same penalty that had originally been imposed by the first trial judge, being imprisonment of three years and six months, with a minimum period to serve before parole of fifteen months. Similarly to Ms Thomas, the accused had no priors and had good prospects of rehabilitation. I should note that His Honour passed such sentence with some trepidation given his views as to the crime, however, he did maintain the original sentence. 24. The third case put to me was a determination of the Court of Appeal of this State in The Queen v Simon [2010] VSCA 66. It was an appeal from a determination in this Court following a trial when the accused was sentenced to four years imprisonment, with a minimum of two years. The period of four years being imposed for each of the two rape charges. 25. Again, all of the charges occurred in the one incident or occasion. The rapes were both digital and the third charge was one of indecent assault. The offences occurred in 2007, the victim was the girlfriend of the accused best friend. Again, they had all been drinking. The accused was 22 at the time, the victim was 18. The defence run in the trial was similar to the defence run by Ms Thomas, that is the accused said, he was not there at the time of the alleged offences and indeed had gone home from the premises. 26. Ms Thomas said that the victim was not at her home that night after the graduation celebrations and that another witness was also not there either, evidence obviously rejected by the jury. 27. In Simon, the Court determined, at [35], at the time, and I stress that this offending happened in 2007, the digital rape could be assessed by way of seriousness at the lower end. 28. Again, the circumstances were somewhat unusual, there was no response initially to the first penetration, a considerable amount of alcohol consumed and I have already noted the defence that was put. The Court, in particular

Ashley JA analysed the sentencing statistics at the time. The relevant statistic was number 83 of the Sentencing Snapshots, an analysis of rape sentences over a period of five years, from 2003 to 2008. 29. When one compares those with the latest statistics which is number 279, and involves 2017 to 2022, the medium sentence for rape has increased from five years to six years. The average sentence increased from five years to six to seven years. It is to be noted in the later figures that a standard sentence for rape has applied since 2018. What stands out however as noted by Ashley JA [57], is that the percentage of rape sentences passed of less than four years has reduced from the June 2009 figure of 23.8 per cent to the more recent figure of 4.4 per cent. 30. Such a change in sentencing, as evidenced from those two sentencing snapshots, confirms my view, based upon having been a Judge throughout those periods, and the view as accepted by the Prosecutor, that rape sentences at the time of the offending by Ms Thomas was certainly lower than they are now. To the degree that I can in this sentence, I take this into account. The determination in Simon by the Court of Appeal was to reduce the sentence in regard to both rapes from four years to three years, and it imposed a total effective sentence of three years, with a non-parole period of eighteen months, with a finding that the original sentence in each instance for rape of four years, was manifestly excessive [58]. 31. After close consideration of all factors, especially the determination of the Court of Appeal in The Queen v Simon, and in regard to the other cases which are all post in Sheriff, which I said was a determination which was unreported by the Court in 1999, I find the rape here must be classified at the lower end of seriousness. In regard to such finding, I refer to what the High Court said in Ibbs v The Queen [1987] HCA 46; [1987] 163 CLR 447, at [452]:

'When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence, but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie, in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration'.

1. Given the serious offending, evidenced by the maximum penalty imposed by Parliament, albeit my finding that the culpability of such is at the lower level, taking into account the vulnerability and the age of the victim, the agreed need for a sentence which renders general deterrence and denunciation, I find that an immediate period of imprisonment must be imposed. The issue of course is not what period, but what is the structure of such a sentence. I say to Ms Thomas and the victim, this sentence has not been easy and has required considerable drilling down of the relevant facts and sentencing principles that I have referred to.
2. I am fully aware of the obligation of the Court to abide by s5 of the Sentencing Act and in particular, as to rape, the need for a sentence which reflects general deterrence, denunciation and protection of the community. I take into account all of the moderating matters put to me by Ms Drago, and the applicable sections, s27(1A)(a) and (d) and s27(3), as to suspended sentences.
3. I have also taken into account the obligation of the Court to render social rehabilitation to the victim. This concept was discussed in The Queen v Toomey [2006] VSCA 90. That case concerns sexual offending, not as serious as rape, the sentiments expressed are appropriate, albeit that the victims in that case were younger children. If I go firstly to the statement made by Buchanan JA at [14]:

'The lapse of time since the commission of these offences is not unusual. Nor is the otherwise blameless life of the offender. The crimes themselves and their consequences demanded a significant sentence. General deterrence and denunciation of the respondent's conduct are of the first importance'.

1. I then go to the comments made by the then Vincent JA, at [21]:

'The second comment that I wish to make addresses a different aspect. On occasions, when imposing sentence I have made mention of the notion of social rehabilitation. In DPP v DJK, for example, which is reported at 2003, VSCA 109 at paragraph 18, I remarked:

'This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the responses of the Courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted'.

'It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed'.

1. And then at the end of that same paragraph he said as follows:

'The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly'.

1. As to the victim's rehabilitation in this matter, the victim ultimately reported these crimes in 2022, for the reason as detailed in her statement at [22] to [24]. Such decision led to the charges being laid against Ms Thomas in April 2024 and ultimately to the guilty verdicts of the jury. I hope, as Vincent JA has remarked, that these verdicts are a ritual recognition by society of the wrongs done to you and will assist you in your social and personal recovery.
2. Ms Thomas you are of course entitled to individualised justice on each of these charges, as detailed by the High Court in DPP v Dalgliesh [2017] VSCA 360 and in the High Court, [2017] ALJR 91 at 1063 and 1072.
3. Would you stand please?
4. Ms Thomas you have been convicted by jury verdict of both charges in this indictment. In regard to Charge 1, that of indecent assault, you will be sentenced to imprisonment for six months.
5. In regard to Charge 2, the rape charge, you will be sentenced to imprisonment for three years. Pursuant to what was at the time of offending, s27(1) of the Sentencing Act, in regard to the serious offence of rape, as defined by s3, I will suspend eighteen months of the sentence, having been satisfied of the factors set out in 1A thereof.
6. Hence, such period of suspension will operate for the last eighteen months of your three year sentence, meaning that you must serve an immediate prison sentence of eighteen months before the suspended period of the sentence will operate. The effect of that is, the service of eighteen months immediate imprisonment with the balance of the sentence being suspended for the next eighteen months. There is no PSD involved, that is pre-sentence detention. There is no section, 6AAA to be referred to in the circumstances.
7. Insofar as the service of the immediate period of imprisonment as part of the material for the Correction Department, I will forward to the Correction Department a letter and given to the Court by the prosecution, dated 1 October 2025 from the Bendigo Senior Secondary College. Either party have any questions as to that determination?
8. MS PAGANIS: No, Your Honour.
9. MR ROSS: No, Your Honour.
10. HIS HONOUR: Yes thank you. Ms Thomas you can be taken away.
11. MS PAGANIS: Sorry Your Honour, I'm just wanting to raise one thing, before my learned friend addresses you. Initially I was advised that the victim

was not going to be on the link, but they have since joined the link. 12. HIS HONOUR: I see, yes I didn't ‑ ‑ ‑ 13. MS PAGANIS: So I just wanted to note that ‑ ‑ ‑ 14. HIS HONOUR: I wasn't aware of that. 15. MS PAGANIS: No either was I, my instructor made me aware. See we can't see the various screen, so my instructor is able to see them, so they are on the link now, Your Honour, I just thought I'd make a note of that. 16. HIS HONOUR: All right, well hopefully those - Ms Leary was - well I've used victim mostly for the obvious reason. 17. MS PAGANIS: Yes. 18. HIS HONOUR: To make it clear that there's an obligation on the (indistinct) estate that the name of the victim is not published. 19. MS PAGANIS: Yes, Your Honour. 20. HIS HONOUR: Which no doubt they're well aware. 21. MS PAGANIS: Yes. 22. HIS HONOUR: If the victim hopefully was here for my words in regard to her, otherwise of course no doubt the prosecution will ensure that a copy of this sentence is provided to her. 23. MS PAGANIS: Yes I will do so, Your Honour, thank you. 24. MR ROSS: Your Honour, just one brief matter, I'm not sure if it was raised on the last occasion, the custody management issues. I think that they were raised, so ‑ ‑ ‑ 25. HIS HONOUR: That's the custody management matter that I referred to ‑ ‑ ‑ 26. MR ROSS: Yes. 27. HIS HONOUR: ‑ ‑ ‑ being the letter from the ‑ ‑ ‑ 28. MR ROSS: Well also the medications that ‑ ‑ ‑ 29. HIS HONOUR: Did we get a list of medications? 30. ASSOCIATE: (Indistinct words). 31. HIS HONOUR: I've only got - the only thing I had given to me was ‑ ‑ ‑ 32. MR ROSS: I can provide that to your associate, Your Honour. 33. HIS HONOUR: Well if you can provide that to my associate, I'll make sure that the letter received from school plus the medications goes with the material that we send to Corrections. 34. MR ROSS: I'm grateful, Your Honour. 35. HIS HONOUR: Thank you, Mr Ross. No doubt Mr Ross, you'll, if it's necessary, explain to your client what all that means that I had to go through. 36. MR ROSS: Yes Your Honour, I'll go down and see her shortly. 37. HIS HONOUR: Thank you. 38. MR ROSS: Thank you, Your Honour. 39. HIS HONOUR: Yes.