R v Johnson

COUNT 1 24Between 29 January 2009 and 8 April 2009, the offender was speaking to a pupil, JP, in the dormitory in the boarding house. The offender said, "Would you like to feel my breasts?". JP, as he is referred to in these facts - and I will use those initials - replies, "Yes". The offender told JP, "If you feel my breasts we've got to go and do it some place secret or some place like safe". The offender led him to a bathroom in the boarding house and lifted her shirt and bra to expose her breasts. He reached out and touched her exposed breasts.

COUNT 2 25About 7pm on 20 March 2009, five boys had camped for the night at a camping area within the school grounds. The boys included AC, TH, HB and EC and were all year six boarders. The children set up two tents, one belonged to JP and the other to the school. Between ten and eleven o'clock that evening the offender went to the campsite and entered JP's tent. At this time JP and the witnesses were all inside talking. The offender told the boys that she had experienced trouble walking to the campsite in the dark and she had turned off her torch because she did not want anyone to see her. The offender had a conversation in relation to sexual positions, history and sexual positions she favoured. 26During the conversation, the offender had her hand between JP's shirt and his bare back and was scratching his back. In the hearing of other boys she told JP repeatedly, "Just let me give you a blow job, please". She said words like, "Come on, just let me do it". The offender was forcing JP to kiss her and was biting and touching him. JP repeatedly refused, saying words to the effect, "No, I don't want to, I'm tired". At times he moved away from the offender and he said, "No, just go away, do it to someone else". JP said to the offender, "Why don't you do it to HB or TH instead of me", and the offender replied, "Because I only like you". The offender said, "Come on, just a minute" and JP replied, "Okay, I'll give you sixty seconds, fine, hurry up". The offender told the other boys to leave the tent. As HB was leaving the tent, the offender started to pull down JP's shorts and placed her hand on his penis. After the other boys left the tent the offender performed fellatio on JP for thirty to sixty seconds, then the other boys were called back into the tent where JP told the other boys, "She just gave me a blow job".

COUNT 3 27On 21 March the offender and FD were attending a school swimming carnival in the school grounds. Near the swimming pool, outside the sewing room, FD approached the offender and said, "Is it true you showed some of the boys your tits?" FD had heard reports about the incident that had occurred the previous night. The offender laughed and said, "How do you know about that?" and he said, "Can I see them?", she said, "Yes". The offender then led FD into a rear room of the sewing area, locked the door, and lifted her top and bra to reveal her bare breasts. She asked FD whether he wanted to feel her breasts and then allowed him to touch her breasts with both hands for about forty seconds.

COUNT 4 28On Saturday 4 April 2009 OL, EC, TS, JM and JP were camping in the school grounds. The camping was not supervised by teachers, however, they did approach the campsite from time-to-time. It was not part of the duties of the offender to supervise any aspect of camping. About 10pm the offender entered the campsite and entered the tent. All five children were inside. The offender asked, "Does anyone want a blow job". The offender was scratching JP on the back and flirting with him. She asked if it was okay with everyone for her to give him a blow job. JP agreed and said he did not mind. The offender then took all her clothes off. She was naked in front of the five children. After taking off her clothes the offender covered her head with JP's sleeping bag and performed fellatio on JP for about five minutes. This occurred in the presence of the other boys.

COUNT 5 29The offender then used the sleeping bag to cover her head and half of TS's body. The offender pulled down the child's pants and performed fellatio on him for about a minute. This occurred in the presence of the other boys.

COUNT 6 30OL moved under the sleeping bag and the offender performed fellatio on the child for less than five minutes. This occurred in the presence of the other boys. In the interview OL recalled that she had taken off the pants of the boys and was pressuring them with words like, "Come on, let's go, don't be a puss". OL said this made him feel like a wimp until he did it.

COUNT 7 31OL moved out from underneath the sleeping bag with JM moving under it. The offender performed fellatio on the child for two to three minutes. This occurred in the presence of the other boys.

COUNT 8 32The offender continued to perform fellatio on JM whilst JP had penile/vaginal intercourse with her for twenty seconds.

COUNT 9 33On the evening of 17 May 2009, AC and FD feigned illness and were sent to the school hospital, the sick bay. The offender was responsible for the care of sick students and she walked with the two children to the hospital. FD asked her repeatedly for a blow job and the offender agreed. The offender had a shower whilst the children watched television. The offender returned with her dressing gown on and told the boys that they could come into the residential unit which adjoined the school hospital. The unit was occupied by the offender when she was working on weekends at the school. FD and AC walked into the unit with the offender. She pulled the curtains closed and shut the door. AC lay on the bed and the offender kneeled on the bed and performed fellatio on the child for about five minutes. FD was present.

COUNT 10 34AC and FD swapped positions. FD lay on the bed and the offender performed oral sex on FD while AC was present. AC and FD and the offender walked out of the flat and back into the hospital.

COUNT 11 35A short time later FD asked the offender to have sex with him. After initially refusing, the offender said "Okay you can come in and then AC can come in when FD comes out". The offender and FD walked back into the unit and removed all their clothes. The offender gave FD a pink vibrator and FD inserted the vibrator into her vagina.

COUNT 12 36During this period AC lay on his back on the bed. He was wearing only his singlet. The offender was naked. She lay on top of the child and had penile/vaginal sexual intercourse with him while moving herself up and down. The offender then watched some television with FD and AC.

COUNT 13 37Between 1 February 2009 and 2 July 2009, JP, OL and TS attended the school hospital. JP wanted to have sex with the offender. A fourth boy, MC, came along as well, but the offender did not want him there, so OL told MC to leave. The offender and the three boys sat in the sick bay. She then took the boys into the unit she occupied in the rear of the hospital. While the other two boys watched, the offender took her shirt off to expose her bra and said, "So who's going to go first?" JP told OL to go first. The offender then took OL into the back room, removed all her clothes and had penile/vaginal sexual intercourse with OL on the bed.

COUNT 14 38JP went to the back room. The offender removed her pants and underwear and had penile/vaginal sexual intercourse with the child, who lay on top of her. JP stopped because he was going to ejaculate. At some point JS walked in while they were engaged in intercourse.

COUNT 15 39TS walked out into the rear room. The offender was lying on the bed. The offender took off her pants and had penile/vaginal sexual intercourse with the child.

COUNT 16 40On Friday, 29 May 2009 OL attended the hospital. About half an hour later the offender started kissing the child. She then took OL into her adjacent flat and took off her clothes. OL took off his clothes. The offender lay down on her back on the bed and had penile/vaginal intercourse with the child.

COUNT 17 41On 31 May 2009, OL was again sick with a headache. He went to the hospital. The offender kissed him. They then went into the adjacent flat where she lay down and had penile/vaginal intercourse with the child. The child recalls that this continued for an hour, and during this time she said things like, "I love you", to the child.

COUNT 18 42On 28 June AC was sick and went to the sick bay. The offender entered the sick bay in her dressing gown and AC asked if he could feel her breasts. She agreed, took off her dressing gown, lifted up her top and allowed AC to feel her breasts with both his hands for some minutes while he was watching television.

COUNT 19 43Between 1 February 2009 and 2 July 2009, FD and AC were in the dormitory of the boarding house. AC asked the offender whether they could have a blow job. The offender said she did not know if she should because she was aware that FD had told the headmaster's daughter about a previous offence. FD was persistent. FD assured her he was not going to tell anyone. The offender took FD and AC to an area of the school grounds and said, "Who's going first?" FD said, "I will" and the offender said, "Oh, well, you can look out AC", so AC kept a lookout.

COUNT 20 44FD then came to AC, tapped him on the shoulder and said, "It's your go". AC then went to the tree, took off his pants and sat against a tree while the offender performed fellatio on him for two to three minutes.

COUNT 21 45On a Friday afternoon between 2 January and 2 July, FD, AC and JM were in a classroom. The offender came into the room and sat on the desk. FD was asking her for sex, nudging her and getting up close to her. The offender asked the three boys to carry some laundry to the hospital. The offender then told the boys that this time she wanted to have sex with JM. She took JM inside her flat and removed her clothes. The offender then had penile/vaginal sexual intercourse with the child. 46Investigations about other matters at the school were carried out. During the course of these investigations JP disclosed that the offender had been involved in inappropriate sexual behaviour with him on a number of occasions. The headmaster then became involved and the offender was immediately stood down. Those were the facts which were agreed and the facts upon which I sentence the offender. 47I also have had tendered to me two victim impact statements which I will simply summarise. One from the mother of FD who said she is a single mother. Her son is now 13. She set out in considerable detail what had happened in their life and how it had affected him. She said, "My son has been seeing a counsellor weekly since the abuse and I have been seeing a counsellor each second week. We talk about sex abuse often with each other and I rely on the experts we see to help us make sense of this situation and the strategies to make it better and to help with the long term consequences". 48She said that this "wicked, terrible woman put paid" to what they were doing in their life. "She even took our thanks and our presents for being so caring to the boys. She was abusing them and us and the trust we placed in her. I'll never be able to forgive her for what she has done to me. More importantly what she has done to the mind of my beautiful little boy and the impact she has had on his future." 49The other statement is from the legal guardian of JP who says the emotional impact on JP has been felt by him and those close to him and will continue to be felt most likely for the rest of his life and she believed that the crime was very serious and the effect on JP cannot be underestimated. 50I need to record the history of the trial. There was an election to have a judge alone trial. There was only one issue. That was, did the then accused have a defence of mental illness available? I found she did not. The trial, I believe, was heard over about three days. I am told if it had not been resolved in the way it was, that is, by judge alone, it would have to be fully contested before a jury. It was estimated to have taken about eight weeks and would have involved each of the boys giving evidence as well as many other witnesses. 51I had tendered before me the agreed facts and I had medical evidence and, in my view, the offender has to be given considerable credit for the way this trial was run as, of course, do her legal advisers and the Crown. I have to, I believe, take into account on this sentence the basis upon which the offender elected to spare the victims from giving evidence, to agree upon the facts and to just have that one issue left for decision. It was a psychiatric problem, it was the psychiatric evidence that I had to deal with and, in my view, the offender was quite correct in leaving that to a court to determine. It was a matter for a court to determine. And therefore, she should have credit for allowing the trial to be run the way it was. 52The offender is forty-two years of age. She has, in effect, no criminal record. There is one minor matter which is stale and I do not take it into account. I find that the offender was probably suffering from bipolar disorder type I at the time of these offences and, indeed, whilst I was a little unsure about that during the trial, and it was not a matter I had to make a finding on, I will accept that as being the basis upon which I sentence her. Dr Nielssen and Dr Richardson were both of the opinion that she suffered from that and that she had an elevated mood and she felt quite different. 53Dr Richardson, who has treated her, gave some evidence at the trial which I have to take into account on sentence. He is a highly respected psychiatrist. He obtained this history: "When Cassie was elevated she felt quite different. I asked her to explain how on earth she could account for the allegations against her and she replied that it was very difficult for her to understand what did happen during those episodes. She was striving officiously to try and make sense of them. She knew how doctors could account for it in terms of mania, by chemical changes, hormonal changes and psychological vulnerability, but ultimately it did not make sense to her. She remembered that during the periods that she was elevated and having inappropriate sexual relationships, she saw herself alternatively as a child, as a rock star, as a goddess. She knew that what she was doing was wrong. She wanted to be able to stop it. She is a Christian at heart, but she was unable to control her impulses while in this state." He went on to say "I think that the accused", as she was then, "is difficult to assess. She is not psychologically-minded. She does not explain herself well. She is pretty illiterate in these matters. However, she does describe relentless episodes, day in and day out, experiences both depression when she is robbed of her energy and her reactivity and validation, and her thoughts are accelerated. She is over-talkative, over-energetic, requires less sleep." 54He was asked various questions then, which I recorded in my judgment, and said: "She wasn't able, however, to see how hopelessly wrong, and very wrong, how awful her behaviour was. She was trivialising it. It's like a silly childish game to her, posting twelveyearold boys as lookouts, trying to evade the headmaster. In particular, her reference to going to gaol must be evidence that she understood how abhorrent her criminal actions were." He said that "she had an irresistible impulse, or something like that, that was, in truth, an irresistible impulse. I mean that if the headmaster had been a policeman who was at her elbow, she still was prepared to commit these terrible crimes." 55Dr Richardson was called to give evidence on sentence. He has continued to treat her. He said she is "hopelessly immature. Her level was of a teenager about fourteen or fifteen; she felt like a teenager". She had failed to take medication at times and this had caused considerable trouble and, indeed, I referred to this in my judgment where I recorded this matter, that is in February 2010. She reported to the police that, in effect, she had been sexually assaulted. It was a totally bizarre incident. I summed it up this way: "Apparently she agreed to go with a man she met on a train, whom she knew was a sexual offender, to a warehouse and to have various forms of sexual intercourse with him. He abused her, he bashed her and treated her extremely badly and she wanted nothing further to do with him. However, the next day after he sent her a text message she returned again to be abused by him." 56As I said, and I think from memory it happened at least one other time if not two other times, that was an example of what could happen to her when she was not medicated. 57He said if she took her medication, which she was doing, then there would be no real problems providing she kept away from young boys and was not in contact with them the way she was on this occasion. However, if she did not, she could be a danger. At the present time she had the support of her mother and her grandmother and her church group and she was receiving treatment and all was well but if she moved away from that it could be a totally different situation. 58I am satisfied that, as a result of the bipolar disease, the offender had those problems which I have just set out in some detail and which were referred to by Dr Richardson in his evidence. Whilst she knew what she was doing was wrong, she did not have the same control or ability to cope that perhaps other people would have. 59I have been referred by the Crown to a decision of R v Heatley [2006] NSWSC 1199 where Whealy J said: "There are three ways in which mental illness may be relevant in sentencing so as to moderate the sentence otherwise to be imposed. First, where mental illness contributes to the commission of the offence in a material way the offender's moral culpability may be reduced. Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration which would otherwise be of significance. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person." 60The Crown pointed out that in Veen No 2 the Court pointed out that the mental abnormality which makes an offender a danger to society when she is at large, but which would diminish moral culpability for a particular crime, is a factor that has two countervailing effects. It seems to me that Whealy J summed the situation up perfectly in the way I should deal with this and I intend to follow that guidance. 61I have to assess the seriousness of the offences and at the same time keep in mind that the age of the boys was an ingredient of each offence and it was also an ingredient of the offence that they were under her authority. However, they are still matters which, whilst I do not find them to be aggravating factors, form part of the history. 62The extent of the breach of trust must be looked at. I do not find that the offence is aggravated by those facts, that is, the age or the fact that she was in charge of the boys. However, I take them into account when I am looking at the various issues. One of those issues, of course, is the harm which would have no doubt been done to these boys. I have seen two victim impact statements but I am also entitled, as the Crown pointed out in their submissions, to take note of the effect this would have had on the victims and that indeed it would be obvious to any judge or any person that these boys must, to some extent, have been affected by what happened. 63In favour of the offender is her previous good character. There appeared to be little planning. I think it was more opportunistic. There are prospects of rehabilitation. It would be very hard for me to find that she was not going to reoffend. As I understand the evidence, if she does not take her medication and goes back into a situation where she is in charge of young boys, she may very well re-offend. 64I do not regard the fact that the offender will be a registrable person under the Child Protection (Offenders Registration) Act 2000 as extra-curial punishment. This is a case where she should be on such a register and not work with children or be allowed to get into any situation in a school environment or anywhere where, if she does not take her medication, further children may suffer abuse. Her doctor gave evidence as to the danger of that occurring and she is a person who should be on that register. 65The offender, as I said, is forty-two years of age. Her parents separated when she was thirteen. However, she had a good general upbringing and childhood. After her parents' divorce she became rebellious. She has had a number of jobs. She has two children, a twenty-threeyear old daughter and a seventeenyearold son. She was married at the time of these offences and married at the age of thirty-one. The children do not live with her. She was living with her husband, however, they are now separated and she lives with her mother and her grandmother and her mother, of course, keeps an eye on her. 66These are very serious offences. It was argued that they could be dealt with by a suspended sentence. I rejected that argument straight away. It would not be an appropriate sentence and I certainly would not be sentencing her to a period of imprisonment of two years for these offences. In my opinion, the only available sentence is one of full-time imprisonment. The offender must be sentenced in such a way that she understands she cannot offend in this way, but also that other members of the public understand that if they offend in this way then they will be sentenced to full-time terms of imprisonment. I accept that she does have some mental problems and that I have to be careful that I do not oversentence her because of that, but what I do is take it into account; they are important issues. 67The Crown in submissions referred to the general principles relating to child sexual assaults, including what is set out in R v Evans an unreported decision NSWCCA 24 March 1988, where it was said that sexual abuse of young children is a matter of grave concern to the community. Also in R v Rapley [1999] NSWCCA 302, that the age of the offender, the absence of a criminal record and the fact that the offences occurred spontaneously are common features in many cases where children are subject to sexual abuse. A sentencing decision which does not involve a period of fulltime custody where these factors are present, either individually or collectively, will stand for nothing; a suspended sentence would in the circumstances be for nothing. 68These offences involve six young boys and there are a number of charges. They occurred over a five month period. The boys were aged eleven and twelve years of age and were in year six. She committed various types of sexual acts with the boys. On the facts before me she initiated the sexual conduct. The acts included fellatio, penile/vaginal intercourse, penetration with a vibrator which she supplied to one of the boys, and various other sexual acts. A number of these sexual acts occurred in front of other boys, including penile/vaginal intercourse. 69These are young boys in year six, not mature young men, who were sexually taken advantage of. They are immature, they are nave, and not in the position to deal with the predatory behaviour of the offender. She is the person of authority; she is looking after the boys. They obviously respect her. The boys are away from home; she is looking after them. She carried out these various acts with the boys; she did it obviously for her own sexual gratification. She did not use any violence, she made no threats and I am not aware of any physical harm to the boys. While consent is not a defence, and for very good reasons not a defence, the facts show that after she initiated such contact the boys then took part in these various sexual activities. They sometimes asked for her to perform sexual acts on them, to see her breasts or other such things, but they were young boys. They were put in a very difficult position by the offender. 70The behaviour did not come to light because they complained, it came to light when another matter was raised. This, however, is a matter I must take into account in assessing the seriousness of the offence. We see far more serious offences than this but this is still an extremely serious matter. 71I was also referred to several other cases. There was an attempt to assist me in finding any similar matters in which a female offender had been sentenced for this type of behaviour. I was referred to a case of R v Leigh [1996] QCA 058. There were seven counts of indecent treatment of a child under sixteen and I think the children involved there were also about twelve years of age. The Court there concluded that an appropriate sentence fell in the range of three to four years' imprisonment. However, it should be noted that the maximum penalty was ten years, not twenty years as it is in this. I was also referred to R v Howell [2007] VSCA 119 and I have noted that, however, I think that just applied to one male student of fifteen years of age. However, there were a number of offences. 72I have been given some sentencing statistics which I have looked at. They are extremely wide. They refer to sentences of between twelve months to twelve years, but there are over sixteen cases. There are many decisions of the Court of Criminal Appeal involving males who commit serious sexual offences, offences against more than one person and offences against boys and girls and I have looked at them, but each case has to be looked at on its merits. In each matter you have to look at the subjective and the objective facts in order to be able to sentence someone. I did not get a lot of assistance from the authorities. 73There are clearly special circumstances. This is her first time in gaol. She will probably have restrictions placed on her in gaol because of the type of offences. She has prospects of rehabilitation, and I will find special circumstances accordingly and alter the ratio between the nonparole period and the head sentence. 74I have to accumulate some of these offences. This was a most difficult sentencing task. There were twenty-one offences. There was no way I could accumulate them all. What I have done is to take the offences group by group. By that I mean there is a group of offences that took place in the camp, there is a group of offences that took place at the hospital and there are similar other groups. So I have put them together in those groups and made the sentences in each of those groups concurrent and then accumulated others. However, as happens with these cases, when you get towards the end of twentyone offences, particularly the last sentence, the nonparole period is always going to be disproportionately in favour of the offender so that one obtains a proper ratio to the head sentence and, accordingly, so that the sentences can fit in with the Crimes (Sentencing Procedure) Act 1999. 75I have looked at all the matters which have been submitted to me. I accept that I have to take into account the objective and subjective factors and also that I should not take gender into account. I have concluded that the offender should be sentenced, taking into account all those matters I have set out and particularly her mental condition, in the same way as I would have sentenced a male offender. 76I have also looked at the overall totality of the sentence, that is, attempting to obtain a balance which includes effective punishment and fairness to the offender. I have taken into account all that has been put to me on the offender's behalf. 77On charge 1, I convict you and sentence you to a term of imprisonment which consists of a non-parole period of one year and two months and a total term of two years both to date from 21 March 2011. 78On charges 2, 4, 5, 6, 7 and 8 concurrently, I convict you and sentence you to a term of imprisonment which consists of a non-parole period of three years and eight months and a total term of six years, both to date from 21 March 2011. 79On charge number 3, I convict you and sentence you to a term of imprisonment which consists of a non-parole period of one year and two months and a total term of two years, both to date from 21 March 2011. 80On charges 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 concurrently, I convict you and sentence you to a term of imprisonment which consists of a non-parole period of three years and eight months and a total term of six years, both to date from 21 March 2012. 81On charges 19 and 20 concurrently, I convict you and sentence you to a term of imprisonment which consists of a non-parole period of two years, a total term of four years both to date from 21 March 2014. 82On charge 21, I convict you and sentence you to a term of imprisonment which consists of a non-parole period of one year and a total term of four years, both to date from 21 March 2015. 83You will be eligible to be considered for release to parole on 20 March 2016. I find special circumstances as I have set out.

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