DPP v Woods [2018] VCC 2131

4 During 1981 AB travelled overseas with his parents to visit family in the United Kingdom and he missed about six weeks of school. AB's parents were concerned that he would get behind with his schoolwork, so it was arranged that you would attend his home and tutor him so he could to catch up on missed classes. You tutored him on three or four occasions. This led to you developing a very strong friendship with AB which continued after he completed grade five. You also coached a football team in which AB played when he was in year 6.[6]

5 You maintained contact with AB after he began secondary school in 1983. While you were no longer his teacher, a friendship was established with AB's family and AB became very fond of you. You attended AB's home about once per week or once per fortnight.[7]

6 In the same year you moved from your parents' home into a flat in Greensborough. Students from your school, including AB, would visit you at your flat. Towards the end of 1983 AB's parents asked if the he could stay at your flat for a couple of weeks while his family home was being renovated. AB moved in with you and slept in your bedroom while you slept in a spare bedroom.

7 On 16 January 1984, when AB was aged 13 and about to start year 8 at school, you took up a position as a governess on a sheep station called 'Lilianfels' near Longreach, Queensland. You remained there until 3 December 1984. During this period, between 23 June and 8 July, AB travelled to Queensland with your parents and holidayed with you in Townsville and Cairns.

8 While you were in working Queensland you and AB corresponded on a regular basis. AB kept most, if not all, of the letters and cards you sent to him. Twenty-six letters and cards, or extracts thereof, were exhibited in the trial and formed part of the jury book.[8] They extend from 15 January 1984 to 23 November 1984, a period of a little over 10 months. In these letters you expressed your love for AB in terms which it would be open to the jury to find indicated a strong romantic attachment to him. You accepted they were 'love letters' and that on rereading them in preparation for the trial you felt 'shocked' and 'ashamed'.[9]

9 AB also wrote numerous letters to you while you were at Lilianfels. Indeed, you described him as the person who wrote to you the most while you were there.[10] You described his letters to you as 'love letters'.[11] You apparently did not keep AB's letters to you and they were not in evidence in the trial.

10 So far as the nature of your relationship with AB is concerned a number of significant matters emerge from the letters you wrote to him while you were at Lilianfels and from the evidence you gave in the trial.

11 In a letter dated 15 January 1984, immediately before leaving for Longreach, you wrote to AB that you loved him 'dearly'.[12] You described your relationship with him at that time as being one of 'close friends'[13] a 'very close friendship [with] a very strong bond between us'.[14]

12 About this time you thought that AB was not in love with you but he was 'infatuated' with you[15] and you accepted that as the adult you were in control of the relationship.[16]

13 However, close friendship grew into love for him; you and he developed a strong bond[17] and this evolved over time while you were away,[18] particularly after holidaying together in Queensland in late June early July 1984.

14 You agreed in cross-examination that you loved AB and you were 'in love with him' at the time you wrote a letter dated 23 May 1984[19] and at all relevant times thereafter.[20] You said in May 1984 he was 'probably' the most important person in your life. [21]You wrote to AB on 18 July 1984 and said that you loved him 'more than [you] have loved anyone in [your] whole life'.[22] And by 29 August 1984 you realised that AB was 'in love with [you]'.[23]

15 You told AB in a letter of 13 August 1984 that you loved him long before he loved you.[24] In your evidence you explained your feelings for AB at this time as follows: 'I really did love him. I'd formed a strong bond with him, I guess it evolved over time. At the beginning when he was in my class it was a teacher student relationship and then we became good friends and that included his family, particularly his parents ... I believed that [my feelings were] maternal, because I did see his mother as a dysfunctional woman and I protected him from that.'[25]

16 Later in your evidence you said you considered his mother was 'very abusive' towards AB.[26] You considered yourself to be a mother figure to AB. His father had asked you to take him 'under your wing' and you told the jury 'I did that'.[27] Another significant consideration in your mind was that AB's father was aged 60 when he was 13.[28]

17 You told Mr Reed who assessed your suitability for a community corrections order that AB's mother could sometimes be oppressive, and verbally abusive towards AB's father at times and this created what you described as a tense atmosphere in AB's home. Because of this you felt obliged to accede to AB's father's request for you to take AB 'under your wing'.

18 When asked by your counsel what your belief was regarding the nature of your relationship with AB at the time you were writing letters to him from Lilianfels, you answered that you loved him and continued: 'I know I loved him like it was a mother and son at first and I know that that evolved and it felt like he was a boyfriend.'[29]

19 It appears from your evidence that the shared holiday in Townsville and Cairns in late June early July 1984 was pivotal in this change in the nature of your relationship with AB. In answer to a question in cross-examination you said:

I agree with you that when July came the letters developed, I said that yesterday, that the letters evolved, and when you read them out and when I've read them back I can see that the letters evolved, um, because we'd come back from the holiday with my parents and then I was back in Longreach.[30]

20 In a letter dated 18 July 1984, written by you to AB soon after his return to Melbourne after visiting you in Queensland, you wrote: 'I do love you more than I have ever loved anyone else in my whole life'.[31] Your evidence regarding this letter, was that your relationship had 'moved up a step' after this holiday; you were lonely, missing him and your feelings for him had developed.[32] You said you felt in control of the relationship and where it was heading.[33]

21 You told the jury you treated AB as an equal despite the age difference of 11 years,[34] and that the gap in your ages 'just didn't make any difference' to you.[35] You told the jury: 'I still think that even though we were different ages you can still love a person of a different age.'[36] In light of your evidence generally, in my view the jury would have understood this to be a reference to romantic love. You also told the jury you felt responsible for making AB 'grow up too quick (sic)'.[37] You also gave evidence that you had discussed previous boyfriends you had had with him.[38]

22 By 13 August 1984 you were not only 'in love with' AB but you were aware he was 'in love with' you.[39] You admitted to the jury that you 'led him on'.[40] I accept this may have been said with the benefit of hindsight.

23 On 13 September 1984 you sent AB a letter you wrote to him on 29 August in which you wrote as follows:

I think to myself a lot about how I could love a fourteen-year-old boy so much. In reality, we both know it's not normal ... but let's face it, it is real and there's no changing that. You won't believe me when I say it, but I know in my heart that this love is far stronger than just the love of friends. We've proved that on more than one occasion.[41]

24 On your return from Queensland on about 3 December 1984 you saw AB and you gave evidence that you and he spoke about what you had said to each other in your letters. You said you 'reiterated that there was an age difference between us and that we could not step over that line'.[42] You gave evidence that you had set 'very clear boundaries' in your relationship with AB[43] and you had previously spoken to him to the effect that 'we can never cross that line'[44] and you told the jury you made it 'very clear that there'd be no stepping over the line'.[45] In context, the line you are referring to must be some form of sexual interaction.

25 You denied having a 'sexual relationship' with AB.[46] You denied being sexually attracted to him[47] and you denied ever having 'any desire to have sexual relations with [him]'.[48] Clearly, the jury did not accept this evidence.

26 You gave evidence that AB was trying to make the relationship 'physical'. He was 'persuasive' and he was trying to 'woo' you. He was 'trying to suggest that that could happen'. The 'that' presumably meant some form of sexual interaction. You told AB 'No'. You gave evidence that you made it clear to him that the two of you could not 'cross the line' and you said he 'respected that'. It is likely this occurred during the holiday to Townsville in June 1984.[49]

27 In my view, you setting boundaries to your relationship with AB and you discerning the need to tell him on a number of occasions that you and he could not 'step over the line' indicates that you were aware that there was at least a risk AB, who at this time was aged 14 years, wanted to have sexual relations with you.

28 In summary, in August 1984 you were in love with AB. You knew he was in love with you. He was aged 14 years and you were 11 years older. You were the adult in the relationship and had control over it. You knew there was a risk that he might step over 'the line'. In these circumstances you allowed a situation to arise whereby you were alone with AB in his home in loco parentis for over five weeks, while his parents travelled overseas from 26 December 1984 until 30 January 1985. During this period, as the jury have found, you and he exceeded the boundaries and 'stepped over the line' when you engaged in mutual masturbation on one occasion.

29 The earliest reference to AB's parents' plans to travel overseas during this period occurs in a letter dated 29 August 1984 and sent by you to AB on 13 September. In the letter you asked in a postscript what AB would be doing when his parents were overseas as you wanted him to stay with you.[50]

30 You unexpectedly returned to Melbourne and visited AB during the period 3 October to 18 October 1984. This came as a complete surprise to AB when you visited him at his home.

31 After you returned to Lilianfels, you wrote to AB on 29 October 1984 and indicted your desire for AB to stay with you or for you to stay at his home during the five weeks AB's parents would be overseas. You were concerned about how to ask AB's parents if you could stay with him at his house while they were overseas, because 'It may sound suspicious'.[51]

32 In a letter dated 31 October 1984 you asked AB whether he had told his parents about you 'taking [him] away and [him] staying with [you]' while they were overseas and what they said about the idea.[52]

33 In a cassette recording commenced on 12 November 1984, about three weeks before your return to Melbourne, you told AB that you are looking forward to having him stay with you 'if that's the way it works out'.[53] You make it clear that it was you who suggested AB stay with you while his parents were overseas.[54]

34 In early December 1984 you returned to Melbourne from Lilianfels. AB was 14 and a half years old at this time. On 26 December AB's parents went on holiday to the United Kingdom. As envisaged in your letters you moved into AB's home to look after him until 30 January 1985 when his parents returned.

35 AB gave evidence that during this period the two of you were sitting in a hallway of his house and 'we were mutually masturbating each other again'.[55] In your evidence you denied any such incident occurred.[56] In finding you guilty of these offences the jury clearly must have accepted AB's version of what occurred on this occasion. The Crown case, which must have been accepted by the jury, was that your act in masturbating AB by placing your hand on his penis and rubbing it up and down constitutes the charge of indecent assault (charge 6) and the act of you allowing AB to masturbate you constitutes an act of gross indecency with a person under the age of 16 years, which the jury found occurred while AB was under your care, supervision or authority (charge 7).

36 Did an act of sexual penetration occur at this time? Taking AB's brief description of the incident giving rise to charge 7 in isolation this is unclear. The particular pleaded on the indictment alleges that AB 'placed his finger in Kathryn Wood's vagina'. However, an act of penetration is not an element of the offence charged and the jury did not have to find penetration occurred in order to find you guilty. It falls to me to make a finding consistent with the jury's verdict beyond reasonable doubt based upon all the evidence. I am not required to impose a sentence on this charge according to a view of the evidence most favourable to you.[57]

37 There is some context to AB's evidence regarding the act giving rise to charge 7. While you were found not guilty on the other charges involving masturbation, in his description of this incident AB said 'again', thereby referring to other alleged acts of he masturbating you. In my view, it is open to me to consider AB's evidence regarding charge 7 in the context of his whole evidence regarding what he described as 'mutual masturbation'. The jury's verdicts of not guilty on the other charges do not necessarily mean they rejected AB's evidence regarding those other incidents.

38 In his evidence AB refers to his 'masturbation' of you six times.[58] The first occasion does not assist me.[59] In describing the second alleged occasion of 'mutual masturbation' AB says he was touching your vagina, inside your pants, 'flesh to flesh'.[60] The third ocassion of mutual masturbation is the incident giving rise to charge 7.

39 The fourth alleged occasion of mutual masturbation was said to have occurred in the Fairhaven/Lorne area. In answer to a leading question from Mr Hevey, AB agreed that mutual masturbation involved AB putting his hand 'on and in [your] vagina'?[61] The leading nature of this question reduces the weight I can give to the answer.

40 The fifth alleged occasion of mutual masturbation was said to have occurred at the Silvan Reservoir. In answer to the question from Mr Hevey, 'And whenever you are referring to mutual masturbation, it is, as I earlier described it, her hand on your penis, your hand on and in her vagina. Do I have that right?' AB answered 'Yes'.[62] Once again, the leading nature of this question reduces the weight I can give to the answer.

41 The sixth and final alleged occasion of mutual masturbation was said to have occurred alongside the Yarra River in the Hawthorn area.[63] This evidence does not assist me. Nothing emerged in the cross-examination of AB which assists me in determining this issue.

42 I am also entitled to take judicial notice of facts and matters which are in the common knowledge of 'every well-informed person in Australia'.[64] In my opinion the concept of mutual masturbation is well understood in the Australian adult community. The Oxford English Dictionary defines 'mutual masturbation' as being the 'stimulation of the genitals of one person by another in order to produce an orgasm without sexual intercourse'.[65] The Macquarie Dictionary provides a similar definition.[66] In a woman, this usually involves manual stimulation of the clitoris, which, in turn, would at least require penetration of the external genitalia and therefore the 'vagina' as defined.[67] Of course, it is sufficient for there to be penetration where the act involved is 'only slight or fleeting'.[68]

43 Accordingly, I am satisfied beyond reasonable doubt that the act involved in your committing the offence constituted by charge 7 was AB penetrating your vagina with his finger. You were thereby involved in an act of sexual penetration with AB. This is an aggravating circumstance which affects my assessment of the gravity of the offending conduct involved in this offence.

44 I note for completeness that there was some evidence given by AB of another or other acts of sexual penetration during the period you minded him while his parents were overseas. You have not been charged with any offences arising out of these allegations and this evidence is irrelevant in sentencing you for the present offences. Moreover, I am not satisfied beyond reasonable doubt that any other sexual contact occurred between you and AB beyond the incident encompassed by the present charges.

45 The Crown tendered four photographs of AB taken at his home sometime in 1984.[69] AB gave evidence that the photographs were taken by you during the period his parents were overseas.[70] In your evidence, while you denied taking the photographs and claimed never to have seen them, you agreed that photograph 86 showed the calendar, parts of which were tendered in the trial, on the wall. The effect of your evidence was that photographs 84, 85, and 86 were taken in AB's bedroom and photograph 83 showed the couch situated in the living room of AB's parents' home.[71]

46 The jury asked for and were provided with the original photographs.[72] In photograph 86 a calendar appears on the wall of the room in which AB is standing to the left of his right hand. Simultaneously, the jury asked for 'every page copy of the calander (sic) not just the month's provided?' The copies of the calendar in the jury book only covered the months of January, July, September and October 1984.[73]

47 Following submissions from counsel I declined to provide the missing pages of the calendar to the jury on the basis that they were not relevant.[74] The jury then asked the question: 'Can we have the calander (sic) that is in the photo on 79?'[75] Following submissions from counsel I again declined to give the jury the December 1984 calendar page and directed the jury as to the state of the evidence regarding the calendar on the wall in photograph 86.[76]

48 In my opinion it was reasonably open to the jury to infer that the photographs at Tab 4 page 79 of the Jury Book were sexually suggestive photographs taken by you of AB around the time of the offending. In my view, in an oath against oath case, this is the very type of supporting evidence a jury might turn to in order to be satisfied to the required standard of your guilt on charges 6 and 7.

49 Returning to the chronology, in 1986 you told AB that you were in a relationship with another man. AB took this news very badly. He consumed so much whiskey at a school fete that he was almost transported to hospital. However, his sister and brother-in-law took him home and cared for him. AB refused to speak with you after this event. The last time AB saw you prior to these proceedings was at his mother's funeral in 1997.

50 It was not until twenty-nine years after the offending conduct that AB made his first complaint to police in January 2014. The circumstances were that AB was drunk and angry about a lot of things. He effectively had a breakdown in his father's presence, and he told his father about your offending conduct and the other allegations for which you have been acquitted by the jury. Police were called to attend at his father's house and the allegations were reported to police for the first time. You were arrested on 26 January 2017, upon arriving in Brisbane from Hong Kong where you were working in education. You were not interviewed by police.

51 Two victim impact statements were tendered, one made by AB[77] and the other made by one of his sisters.[78] In assessing the impact of the present crimes on AB and his immediate family, I must be careful to give full weight to the jury's verdicts of not guilty on most of the charges you faced, including the most serious charge.

52 Nonetheless, it is clear your offending has had a significant impact on AB and it has adversely affected his relationship with his parent's, and in later years his father in particular. AB has had difficulty trusting people and this has adversely affected his ability to form lasting relationships.

53 The reasons for AB's abuse of alcohol and its consequences for his career and his physical, mental and financial well-being are no doubt complex. I received no expert evidence regarding these matters and I do not take them into account in sentencing you.

54 The courts have emphasised, on numerous occasions, the harm that sexual offending against children causes to the innocent victims and the community at large.

55 In Adamson v R, the Victorian Court of Appeal[79] quoted, with approval from the judgment of Baroness Hale in R v G,[80] where Her Ladyship said:

More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do.

56 As the Court of Appeal opined in Clarkson v The Queen[81] there is a presumption of harm in cases involving child sex abuse. The court said:

The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.[82]

57 Accordingly, I take the relevant matters regarding the impact of your crimes on AB and his family into account in sentencing you.

58 Sexual offending by adults against vulnerable children is a scourge on our society. Offending of this nature is regarded by the courts as extremely serious and usually calls for the imposition of condign punishment. As Hedigan AJA, adopting an earlier statement of Marks J in R v Sposito,[83] put it in R v MJ: 'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.'[84]

59 General deterrence, denunciation and just punishment must be given significant weight.[85] However, in many ways this is a somewhat exceptional case.

60 In light of the jury's verdicts of not guilty on the other charges, I accept that this was an isolated occasion on which you crossed over the line which you had drawn for yourself in your relationship with AB. Nonetheless, it involved a grave breach of the trust you owed to AB and his parents, who trusted you to care for their son as a mother figure would. By reason of his obvious affection and infatuation for you he was a young adolescent male who was, to some extent vulnerable, and deserving of your protection and not your sexual abuse.

61 So far as charge 6 is concerned, this grave breach of trust is a serious aggravating feature of your offending conduct. So far as charge 7 is concerned, I must be careful not to doubly punish you on account of this breach of trust because by reason of the fact AB was under your care, supervision or authority at the time of the commission of this offence the maximum penalty applicable in your case is increased by a factor of 50 percent.

62 I do not find beyond reasonable doubt that your letters and the voice recording referred to above disclose a planned crime or that you were grooming AB. Rather, I sentence you on the basis this offending was situational and occurred as a spontaneous incident. It lasted for an indeterminate period of time, probably only minutes.

63 But for the provisions of s 5AA of the Sentencing Act 1991 I would have found this incident was an aberration of otherwise good character.[86] However, I am satisfied to the required standard that your pervious good character was of assistance to you in the commission of the offences. The fact you were a school teacher at the time, well known to AB's parents, was doubtless a significant factor in them deciding to leave AB in your care while they travelled overseas for five weeks.

64 At the plea hearing your counsel tendered a brief psychological report[87] and a discharge summary from a recent hospital admission[88] which both give some detail of your personal background and circumstances. I have also had the benefit of an Extended Pre-Sentence Assessment - Outcome Report prepared by Community Correctional Services dated 17 October 2018, which I ordered, and which also provides further personal details.[89]

65 At the time of the offending you were 24½ years old and you are now aged 59 years.

66 You were born and raised in Melbourne's northern suburbs by your parents and are the youngest of five girls. Your mother gave birth to you when she was 39 years old and so there are some years between you and your sisters. You currently have minimal to no contact with three of your sisters but one of your sisters remains supportive of you. Your father passed away approximately 20 years ago due to a heart attack and your mother passed away approximately 9 years ago.

67 You enjoyed your schooling and you worked hard, eventually completing your secondary education at Santa Maria College in Northcote. You later attended Mercy Teachers' College and attained tertiary qualifications in teaching, including a Diploma of Teaching, Bachelor of Education and a Master of Education, Clinical Pastoral Education and Grief Counselling.

68 You have maintained an excellent employment record having worked in retail before spending almost 40 years in the education sector. You began teaching in 1981, being your graduate year. You have worked in both primary and secondary schools and have spent time as a principal and in Catholic Church education system. In addition to working in Australia, you have lived and worked overseas. You were an education advisor in the United Arab Emirates and, most recently, you have spent the last decade in Hong Kong as an educational consultant at a secondary school.

69 Upon returning to Australia in January 2017, you have been unable to continue teaching given the nature of the present charges. This has caused you great financial strain because you have not been able to work for the last 22 months. During that time you have continued to pay rent for your apartment in Hong Kong, together with legal expenses referable to the present proceedings. You were the sole earner as your husband was in receipt of a disability support pension. Whilst in Hong Kong, your apartment caught fire and you lost almost all of your belongings which led to a limited insurance payout which has compounded your financial predicament.

70 You have been in a relationship with your husband for over 13 years, and have been married to him for 10 years. You do not have any children from this relationship, though your husband has three daughters and a number of grandchildren from his first marriage. Your husband has also been of great support to you, having been present throughout the trial and plea hearings and I note he is present in court today. You have a strained relationship with his children, but you have a niece who is also supportive of you.

71 It is clear from your evidence in the trial that in the past you have had a number of unsatisfactory relationships with men. I know nothing of any relationships you have had with men since you broke up with Michael Egan in about 1988 until you met your husband in about 2005.

72 You are a social drinker and you have no reported history of illicit substance abuse. However, as a result of anxiety you have developed as a consequence of being charged with the present offences you have attempted to commit suicide by overdosing on prescribed medication.

73 You were referred to Ms Janice Riley, a clinical and counselling psychologist, in August 2017 following a 'poly-pharmacy overdose of prescribed medication'.[90] You attended a total of 12 sessions between August 2017 and July 2018, including three sessions with you and your husband.

74 You initially presented as anxious, depressed, unmotivated and afraid, with an overwhelming sense of hopelessness. You were diagnosed as suffering from a moderate to severe chronic adjustment disorder with mixed anxiety and depression. Ms Riley opines that your symptoms were a direct psychological response to you arrest and subsequently being charged in January 2017. You had no previous hospital admissions and no pre-existing mental disorder.

75 Ms Riley noted 'the enormous emotional and financial stress that the allegations and that the subsequent processes, had on [you and your husband's] daily lives and [your] future plans'.[91] She also noted your husband's commitment to you and his strong support of you.

76 You have progressed well with treatment. Ms Riley opined that incarceration 'might' cause your condition to worsen. Ms Riley expressed the opinion that you required on-going monitoring and therapeutic treatment to 're-establish [your] personal and professional life'.[92]

77 Your counsel submitted that Verdins principles 5 and 6 are engaged in your case. I find that Ms Riley's opinions do not provide a sufficient basis for me to conclude either that imprisonment would weigh more heavily on you than it would on a person or 'normal' mental health or that there is a 'serious risk' of imprisonment having a 'significant adverse effect' on your mental health.

78 You suffer from severe endometriosis which was eventually diagnosed in 1985 after seeing doctors for many years. This condition has required multiple surgical interventions and you are unable to have children as a result. It was not suggested that this condition would cause you custodial hardship.

79 You were a youthful offender at the time of committing these offence. You have no prior or subsequent convictions and you have no outstanding matters. There is no pre-sentence detention to be declared in this case.

80 You have been assessed by a court advice and prosecutions officer with Community Corrections Victoria as a medium risk of reoffending according the Level of Service Risk Needs Responsivity model.[93] However, I accept your senior counsel's submissions, made on the further plea hearing on 4 December 2018, that there are good reasons to doubt the accuracy of this assessment in your case given the unusual circumstances in which you currently find yourself. Accordingly, I accept that you are a low risk of reoffending and will sentence you on that basis.

81 There has been considerable delay, however, as your counsel fairly observed the weight to be given to this factor is attenuated by the nature of the offending and its effect on AB.[94] You have led a blameless life since committing these offences. As the courts have observed on numerous occasions neither the lapse in time since the commission of the offence nor the fact the offender has led a blameless life in the meantime are unusual circumstances in cases of this type.[95] Nonetheless, you have had these charges hanging over your head for nearly two years since your arrest in January 2017 and you have not been able to return to Hong Kong and pursue your successful career in education in the meantime.

82 I am not permitted to take into account your good character previous to the commission of the offences.[96] I do take into account your otherwise good character since the offences were committed and your excellent employment history and other positive contributions to society. This means I need not give any weight to specific deterrence or protection of the community in your case. Moreover, I consider you have excellent prospects of rehabilitation.

83 There has been a measure of extra curial punishment by reason of you losing your teaching career as a result of being found guilty of these offences. You have not worked since your arrest and have suffered mentally and financially in the meantime.

84 I have had regard to current sentencing practices in relation to the charges before me in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[97] Current sentencing practices for this purpose means those practices current at the time of sentence.[98] But I must give full weight to the maximum penalties which pertained at the relevant time. They are an important yardstick in fixing the present sentences.[99] I will also take into account sentencing practices at the time the offences were committed as one of the factors in my sentencing synthesis.[100] Neither the Crown nor defence put material before me concerning sentencing practices in the late 1980s for these offences. Defence counsel commented that it is difficult to find any comparable cases, either current or historic.[101]

85 It is difficult to gauge more than a very general yardstick from so called 'comparable cases' given the wide range of offending conduct which can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. To the extent that I have been able to gain any assistance from comparable cases, both now and at the time of the offences, I have sought to do so in your case.

86 Moreover, I have had regard to the very recent observations of Kyrou and Niall JJA in Bromley v The Queen as follows:

It is possible to discern from current sentencing practices for child sex offences that there is now a much greater understanding of the impact that offending of this kind has on child victims. In approaching the sentencing task, the court may bring to bear its present understanding of the devastating impact that offending of this kind has even though such an understanding may not have been a feature of sentences imposed at the time the relevant offending occurred.[102]

87 You have pleaded not guilty to these charges, which is your right, but it means you can receive no discount on sentence for pleading guilty. You demonstrate no remorse and you lack insight into the reasons for your offending behaviour.

88 The basic purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, the effect on your victim and your personal circumstances.

89 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.

90 Given the serious nature of these offences, general deterrence, denunciation and just punishment must be accorded significant weight in sentencing you. In your case I consider, in light of the circumstances I have previously referred to, no weight needs to be given to specific deterrence and protection of the community. I sentence you on the basis you have excellent prospects of rehabilitation.

91 I reject the Crown's submission that sentences which involve some period of immediate imprisonment are the only appropriate sentences which will achieve the purposes for which these sentences are imposed.[103] I also consider that a sentence of imprisonment which is wholly suspended is inappropriate in your case because a sentence of imprisonment, if unsuspended, would not be appropriate in all the circumstances having regard to the provisions of the Sentencing Act 1991 (as in force on and after 1 September 1997 and before 1 September 2013[104]) and other sentencing principles.[105]

92 Ultimately, I have concluded that the only appropriate sentence which will achieve the purposes for which these sentences are imposed is a community correction order. While I accept you have excellent prospects of rehabilitation, given particularly your current mental health state and other matters related to your financial, employment and accommodation situation, I also accept that your prospects of rehabilitation and integration into the community will be advanced by a program of treatment and other measures as discussed and recommended in the Extended Pre-Sentence Assessment Outcome Report dated 17 October 2018,[106] which I incorporate into these reasons for sentence as an attachment thereto.

93 Pursuant to s 40 of the Sentencing Act 1991 I will impose the same community correction order on both charges as they are founded on the same facts.

94 The terms and conditions of the community correction order will be as follows:

It will be with conviction for a period of two years with the usual core conditions and the following specified conditions:

You must perform 200 hours of unpaid community work over a period of 2 years as directed by the regional Manager. I will declare under s 48CA(2) of the Sentencing Act 1991 that all of the hours you satisfactorily spend undertaking treatment and rehabilitation may be counted as hours of unpaid community work.

You must be under the supervision of a Community Corrections Officer for a period of 2 Years.

You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.

You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager

95 Do you consent to me making a community correction order with those terms and conditions? [Prisoner consents]

On the charge of indecent assault (charge 6) and the charge of gross indecency (charge 7) you are convicted and sentenced to a community corrections order in the terms I have previously detailed and consented to by you.

Application of the Sex Offenders Registration Act 2004 ('SORA')

97 Neither of the two offences for which you have been sentenced is a Class 1 offence listed in Schedule 1 to the SORA. The offences are both listed as Class 2 offences in clause 26A of Schedule 2 to that Act - being offences referred to in clause 1(c) of Schedule 1 to the Sentencing Act 1991 ('SA Act'), which sits between paragraphs (ab) and (dar) of clause 1 of Schedule 1 of the SA Act.

98 However, the Crown submits that because the offending conduct giving rise to charge 7 (gross indecency) involved sexual penetration - as I have now found[107] - by you intentionally allowing AB to sexually penetrate you, if committed today, this offending conduct would constitute a Class 1 offence. That is, sexual penetration of a child under the age of 16 contrary to Crimes Act 1958 s 49B(1)(ii).

99 Accordingly, the Crown submits that charge 7 is properly characterised as a Class 1 offence under clause 13 of Schedule 1 to the SORA.

**'An offence that, at the time it was committed - **

(ii) in the case of an offence committed before 1 October 2004, was an offence of a kind listed in this Schedule.'

100 Section 49B(1)(ii) of the Crimes Act 1958 is an offence against a provision of Subdivision (8B) of Division 1 of Part 1 of the Crimes Act 1958 that 'involves sexual penetration where the person against who the offence is committed is a child'. Accordingly, the offence you committed in charge 7 was an offence 'of a kind' listed in Schedule 1 to the SORA.

101 It follows that you are a 'registrable offender' who is to be sentenced for a Class 1 offence and a Class 2 offence, both offences arising from the same incident, which is to be treated as a single Class 1 offence.[108] Accordingly, you must continue to comply with the reporting obligations imposed by Part 3 of the SORA for 15 years.[109]

102 Mrs Woods, you can stand down from the dock and take a seat in the body of the courtroom.

[1] Contrary to s 44(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980. Charge 6 on the indictment.

[2] Contrary to s 50(1)(a) & (2) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980. Charge 7 on the indictment.

[3] Pursuant to s 44(1) Crimes Act 1958.

[4] Pursuant to s 50 (1) and (2) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980.

[6] DPP v Kathryn Woods, Trial Transcript ('T'), pp 406.31-407.5.

[12] Exhibit P4 p 15, T450.2-9. See also T403.19-21.

[15] T453.11-15, T477.10-16, T479.7-15, T510.16-19.

[20] T508.26-28, T511.6-8, T521.23-24, T522.7-9, T535.20-536.2, T541.19-20, T562.7-9, T576.1-6, T578.14, T580.4-9.

[21] T509.8- 11. Cf 533.28-535.11.

[23] Ex P4 p 70. See also T546.9-11, T579.31-580.3.

[25] T348.10-27, T398.21-399.4, 405.9-12.

[29] T350.3-6. See also T398.17-399.18, T509.20-24.

[43] T580.25. See also T400.30- 31. Cf 537.3-9.

[49] T532.15-533.12. This evidence was given in response to two questions from the jury (Exhibit C10).

[55] DPP v Kathryn Woods, First Trial Transcript ('1st T'), 349.20-23, 410.20-22.

[57] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1.

[58] The allegations encompassed by charges 4, 7, 8, 10 and 12.

[64] Simpson v The Queen (1998) 194 CLR 228, 234 (Gaudron and McHugh JJ); Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460, 478-481 (McHugh J).

[65] The Oxford English Dictionary, 2nd ed, (Oxford: Clarendon Press, 1998), Volume IX, p 454.

[66] Macquarie Dictionary: Australia's National Dictionary, Revised 3rd ed., (Macquarie University, NSW: (2003), p 1179.

[67] Crimes Act 1958 s 35.

[68] Randall v The Queen [1991] SASC 2877; (1991) 55 SASR 447; Anderson v The Queen [2010] VSCA 108.

[72] Exhibit P8. The jury's question is exhibit C11. T565.2-566.6.

[79] [2015] VSCA 194; (2015) 47 VR 268, 280 [18] (Warren CJ, Redlich and Weinberg JJA).

[80] [2008] UKHL 37; [2009] 1 AC 92, 108-9 [48]-[49]. See also Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 370-1 [32].

[81] [2011] VSCA 157; (2011) 32 VR 361.

[82] Ibid 364 [3] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

[83] Unreported, Court of Criminal Appeal, 8 June 1993, p 4.

[84] [2000] VSCA 66 at [17]. See also DPP v Toomey [2006] VSCA 90 [18]-[19] (Vincent JA) ('Toomey').

1. [85] See eg Browne (a Pseudonym) v The Queen [2015] VSCA 274 [71] (Robson AJA); Toomey [10] (Buchanan JA, Vincent and Nettle JJA agreeing); Ryan v The Queen (2001) 206 C.L.R. 267, 283 (McHugh, J).

[86] By virtue of s 164 of the Sentencing Act 1991, s 5AA applies to sentencing an offender on or after 5 April 2018 irrespective of when the offence was committed.

[87] Psychological report of Ms Janice Riley dated 9 September 2018 (Exhibit D2).

[88] Discharge summary final report dated 3 August 2017 (Exhibit D3).

[89] Extended pre-sentence assessment by Mr Oliver Reed dated 17 October 2018 (Exhibit C1) ('Pre-sentence report').

[90] Psychological report of Ms Janice Riley dated 9 September 2018 ('Report') (Exhibit D2); Discharge summary final report dated 3 August 2017 (Exhibit D3).

[94] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 395 [138] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); R v Nikodjevic [2004] VSCA 222 [21]-[22] (Ormiston JA, Callaway and Vincent JJA agreeing).

[95] See eg Toomey [14] (Buchanan JA), [26] (Nettle JA).

[96] Sentencing Act 1991 s 5AA.

[97] [2017] HCA 41; (2017) 91 ALJR 1063.

[98] Stalio v The Queen [2012] VSCA 120; (2012) 46 VR 426.

[99] See Bromley v The Queen [2018] VSCA 329 [47]-[50] (Kyrou and Niall JJA).

[101] Written submissions on plea (Exhibit D1) [11].

[103] See Sentencing Act 1991 ss 5(3)&(4).

[104] The commencement date of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013, Part 2, Division 2.

[105] See Sentencing Act 1991 (as in force on 1 September 1997) s 27(3) and the current Act s 149C(3).

[108] Sex Offenders Registration Act 2004 ('SORA') ss 34(3).

[109] SORA s34(1)(b)(i).