1 This is an appeal from a sentence of five years' imprisonment, with a non-parole period of two years and six months, imposed on the appellant on pleading guilty to one count of maintaining a sexual relationship with a child under the age of 16 years.[1]
2 Most of the facts appear from the judge's sentencing remarks. At the time of the offending, the appellant was a 36-year-old mother of four who was living apart from her husband and working as an integration aide-teacher at a secondary school. The complainant was a 15-year-old male student at the school. He was to some extent disadvantaged in that he was a slow reader, and he was under the direct supervision of the appellant in her capacity as an integration aide-teacher. Early in 2004 he started to date the appellant's 13-year-old daughter, and one evening he was invited to stay overnight at the appellant's home. In the early hours of the morning, the appellant went into the room where the complainant was sleeping and lay down next to him, and, after seeking and obtaining his consent, she fellated him to ejaculation. The following weekend she arranged to collect the complainant from nearby shops and then drove him to the beach, where they engaged in sexual intercourse. After the complainant arrived home he told a friend that he had got laid. The next weekend the appellant made a similar arrangement to meet the complainant, and, after purchasing condoms, she drove him again to the beach, where they engaged in sexual intercourse.
3 Some two weeks later, when the complainant was staying overnight at the appellant's home, the appellant entered the room where the complainant was sleeping, fellated him and, after placing a condom on his penis, engaged in sexual intercourse until he ejaculated. The same thing happened again the next weekend, when the complainant was once more staying overnight at the complainant's home.
4 In mid-2004, the appellant became friendly with the complainant's mother and went to stay in her house. She continued to engage in furtive sexual activity with the complainant while staying at the house. On other occasions the appellant collected the complainant in her car and had sexual intercourse with him in the car, and there were further occasions when he was at her house when she initiated sexual intercourse with him. There were, as well, some occasions when the appellant touched the complainant on the penis at school while she was sitting next to him in the classroom.
5 On one occasion, after the appellant had driven her daughter to a baby-sitting engagement, she drove the complainant to her father's home, which was unattended, and had sexual intercourse with him there. On another occasion, when the appellant was staying at the complainant's mother's house, the appellant had sexual intercourse with the complainant while he was sleeping on the floor in a spare room.
6 By about September 2004, the complainant had started to tire of the relationship, but the appellant persisted. She sent him many text messages and wrote him letters and bought him a number of gifts, including a mobile telephone with pre-paid credit, a bracelet, a ring, a double bed, a stereo and a Play Station. But things got worse. In October 2004, the appellant pressed the complainant as to what he had told other people of the relationship, at which point he broke down and cried, and then left after once more engaging in sexual intercourse with her.
7 The denouement came on 27 November 2004, when the complainant asked the appellant why she had sent him a particular text message, and she replied that she had been drunk and had no recollection of it. At that, the complainant became angry and complained to the school principal, who called in the police, and, when interviewed by police on 29 November 2004, the appellant made full admissions.
The appellant's mental state
8 As part of the appellant's plea in mitigation of penalty, Dr Paul Grech, a consulting clinical psychologist, gave evidence before the sentencing judge that the appellant suffered from clinical depression which appeared to pre-date her offending, and also to meet several criteria for borderline personality disorder. He said it was questionable whether she met the diagnostic criteria for paedophilia, in that her victim was not aged 13 or younger, and there were no other known victims in the context of someone who had had continuous contact with children over the last two decades, as a mother of four children. There was also no record of other types of offending which often accompany the histories of paedophiles, and the appellant had presented as deeply troubled by the effect of her actions on others, including the complainant, and displayed a high degree of shame, contrition and genuine remorse, which is typically absent among sex offenders. Dr Grech was of the opinion, too, that the appellant's depressive illness and risk of suicide needed to be closely monitored, and that she would require segregation from other inmates during the early stages of incarceration, both for her own safety and because it was anticipated that her mood state would deteriorate precipitously.
9 As well as Dr Grech's evidence, the judge sought and had before her at the time of sentencing a psychiatric court report prepared by Dr Danny Sullivan, consultant psychiatrist with the Victorian Institute of Forensic Mental Health, in which Dr Sullivan opined that the appellant had a history of depressive symptoms which would best be characterised as major depressive episode, mild to moderate in severity, as described in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision DSM-IV-TR, and that her symptoms were apparently exacerbated with the breakdown of her marriage and were pertinent to the offences because they placed her in an emotionally fragile state; that she had been raped at the age of 14, and she craved understanding and affection, which she did not perceive herself receiving. She had a clear predisposition to substance abuse and in periods of unhappiness would probably qualify for a diagnosis of alcohol dependence. By the time of forming a relationship with the complainant, her adult relationships had been disrupted with the breakdown of her marriage, and her roles as a mother and caregiver were threatened. She was at that time also abusing and possibly dependent on alcohol, which may well have served to reduce her inhibitions, and the offences had occurred when she had naively perceived that her significant needs for intimacy and love were, for the first time in some years, being met. Consequently, in Dr Sullivan's opinion, the appellant's relationship with the complainant was properly to be seen as one involving a vulnerable woman whose personality structure, adolescent experience, relationship history and life at the time of the offences had coalesced to provide fertile soil for the occurrence of such aberrant behaviour. Moreover, in his view, there was no indication of paedophilia. Youth had not been a salient factor or one specifically sought by the appellant. It was simply that the offences were opportunistic, in the sense that the complainant was available. In terms of insight, the appellant acknowledged wrongdoing and expressed horror at the consequences for herself, her family, her children and the complainant, and she spontaneously recognised the adverse effects on the complainant and his family. Dr Sullivan further reported that the appellant had clearly suffered from a worsening of mood since incarceration and would now be described as having moderate to severe depression. She had a long history of self-harm, and Dr Sullivan considered that her risk of further deliberate self-harm was significant and that she warranted ongoing psychiatric input due to her depression, both in the form of medication and support. In Dr Sullivan's opinion the appellant did not pose any specific risk to minors, but she was in need of supervision and support, particularly if she became depressed and alcohol-dependant in the future.
Grounds 2 and 5
10 Under grounds 2 and 5 of the appeal, counsel for the appellant argues that the judge erred in failing to have regard to the sentencing principles assayed in R v Tsiaras.[2] In counsel's submissions, those principles required her Honour to moderate the sentence to be imposed in order to reflect a reduction in moral culpability, the result of the appellant's psychological state at the time of offending, a corresponding reduction in the need for denunciation of the appellant's conduct, and a reduction in the need for general and specific deterrence, the result of the appellant's psychological state at the time of offending and at the time of sentencing. In counsel's submission, there is no mention of those principles in her Honour's sentencing remarks, notwithstanding that counsel for the appellant on the plea specifically drew them to the judge's attention. It follows, counsel contends, that the judge committed a specific sentencing error which vitiated the sentencing process and re-opens the sentencing discretion.
11 Counsel also prays in aid of his submissions a supplementary report of Dr Sullivan, of 14 January 2007, as evidence of matters that have occurred since the date of passing of sentence[3] and better demonstrate the true significance of facts in existence at the time of sentence.[4] In that report, Dr Sullivan records that he interviewed the appellant by video conference from prison on 19 October 2006, and found her to be reasonably cheerful and animated and without perceptual abnormalities. She had, however, struggled since incarceration. She remained in protection and had been the victim of a significant assault. She had experienced low mood related to isolation, being served with divorce papers, and distressed at missing her children. Consequently, she required intensive support from psychiatric staff and counsellors. Dr Sullivan had examined her for signs of bipolar disorder, but considered that she was not suffering from that affliction. He remained of the view, however, that she suffers from borderline personality disorder and that it was relevant to her offending, as he had described in his earlier report. Dr Sullivan noted that the appellant's incarceration is marked by exceptional isolation and little possibility of the freedoms experienced by prisoners who are not in protection and which enable people to adapt to the exigencies of prison life and cope with incarceration. There is, moreover, no opportunity for her to engage in offence-specific treatment while she remains in custody.
12 As counsel says, there is no reference in the judge's sentencing remarks to the principles in Tsiaras. Apart from referring to the substance of Dr Grech's and Dr Sullivan's reports, the only thing which the judge said about the significance of the appellant's mental state was as follows: