25. I also had two references from friends. They describe her as dependable and honest and as someone who was especially caring of others. One described the very generous support she provided in times of the referee's need. Both described the offences as completely out of character. One of them expressly stated that she would have no hesitation in leaving her children in Ms Thomson's care. Both referees confirmed the complete change in her that these proceedings have caused. She has withdrawn from much contact with them. On the rare occasion that she meets them, she is withdrawn and the occasions are not very happy.

19. Both referees confirmed the complete change in her that these proceedings have caused. She has withdrawn from much contact with them. On the rare occasion that she meets them, she is withdrawn and the occasions are not very happy.

20. The mother and father of the complainant provided Victim Impact Statements at the original sentencing proceedings on 30 April 2014. At the re-sentencing, I had no additional material. This was significant because, in her victim impact statement, the complainant's mother expressed the view that there was hope for the complainant to move forward and that they could all start healing their lives. In my view, it would have been helpful and, indeed, important to know whether that had happened, but I was not favoured with that information. An improvement in the problems experienced by the victim would not be mitigating but it would be relevant, it may ameliorate the aggravating feature that causing such harm requires to be taken into account. There is nothing I can do about that.

21. The Victim Impact Statements I did have described serious consequences. That is unsurprising. Courts know of the harm that inappropriate sexual activity with young children can and does cause and that it can be lasting. The complainant was unable to write her own Statement at the time because of the trauma of re-living the experience. Indeed, she had experienced suicidal thoughts and had engaged in selfharm. Such conduct naturally caused her parents great anxiety, stress and pain.

22. As so often happens, the complainant was said to blame herself, regarding herself as a "bad girl". That, of course, is completely untrue and she bears no responsibility for the offences nor for the pain and difficulties she is experiencing. I certainly hope that she is being told that. She had been engaged in counselling, as I noted, but, again, I do not know whether that was continuing and what success, if any, it had.

23. The Crown submitted that the offences were extremely serious. Indeed, the Crown submitted that they were at "the high end of the range of such offending". I accept that they are serious offences but a careful objective assessment needs to be made of them, the facts that constitute the offences and the circumstances in which they were committed.

24. It seems to me that touching of a young child on his her genitals or causing such a child to touch the genitals of an adult, short of sexual intercourse, is generally, and rightly, regarded as more serious.

25. The Crown submitted that the offences were opportunistic, and I agree. There appeared to be no pre-meditation or planning involved in them and it was clear that Ms Thomson took similar photographs herself. The photographs the subject of the third count must have, on the decision of the Court of Appeal, been taken by Ms Thomson herself.

26. There is no doubt that the child was young, being eight or nine, at the time of the offending. Nevertheless, this is at the upper end of the range of age for the offence.

27. The taking of the photographs, however, made the complainant something of a participant in the exercise and it is clear that the child was at relatively close proximity to Ms Thomson when at least some of the photographs were being taken. The evidence was not entirely clear on this point, for some of the closer photographs appeared to have been taken by use of the focus mechanism on the camera rather than by the complainant coming closer to Ms Thomson.

28. It may be argued that the second count was somewhat more serious because it was a repetition of the exposure of the complainant to the sexual sights. Although, on this occasion, there was no penetration with the carrot and the sexual activity was likely to be regarded as less serious than that which was part of the first offence. Certainly, it was less graphic.

29. The Crown also submitted that there was an abuse of trust in the commission of the offences. The evidence was not entirely clear but I am prepared to find that Ms Thomson did take some guardian responsibility for the complainant when she came over to her house to play with Ms Thomson's son.

30. To take advantage of the complainant in these circumstances, as Ms Thomson did, is an aggravating factor by whatever label it is given.

31. There is no doubt that the offences were serious and should be treated as such by the court. I will do so.

32. Mr S Gill, who appeared for Ms Thomson, submitted that the course of the proceedings had infringed Ms Thomson's rights under the Human Rights Act 2004 (ACT), to a speedy trial.

33. He pointed out and relied on the fact that the appeal to the Court of Appeal included a challenge by the Crown to the sentence imposed. The Court of Appeal, no doubt because of the heavy workload of the Court, was unable to deliver judgment until less than a month less than one year after the hearing. This meant that I am now re-sentencing Ms Thomson for offences committed in 2008.

34. This delay, especially that in the Court of Appeal, meant, Mr Gill's submissions, went that Ms Thomson's rights under s 22 of the Human Rights Act to a speedy trial had been infringed.

35. That infringement, he submitted, should be accorded a proper response and that should be reflected in the sentence to be imposed.

36. This is not the occasion to undertake a detailed analysis of the cases or the jurisprudence in this territory, in Victoria and overseas in those other jurisdictions such as New Zealand, Canada and Europe where valuable jurisprudence on human rights and responses to the infringement or impairment of such rights have been developed.

37. Both parties agreed that both at common law and under the Human Rights Act, Ms Thomson was entitled to have any delay taken into account in sentencing, though how and the effect was not agreed.

38. In R v Ferguson [2008] VSCA 257 at [29], the Victorian Court of Appeal explored the common law position and stated:

In R v Merrett, Piggott & Ferrari, President Maxwell reviewed the authorities concerning the relevance of delay as a mitigating factor in sentencing, especially in circumstances where the offender has been on bail during the period of delay and in that time has engaged in the effective process of rehabilitation by participating in the community without further offending. The unfairness of serious criminal charges hanging over the head of the offender for a long period is also a relevant consideration. With reference to R v Liang and Li, Maxwell P stated that delay constitutes 'A powerful mitigating factor'.

39. Nevertheless, as also pointed out in the Victorian Court of Appeal in R v Nikodjevic [2004] VSCA 222, every case is different and the effect will vary according to the circumstances. There is no automatic right to a discount in every case of delay.

40. It is also common to note the effect on an offender of having the uncertainty of an outcome hanging over his or head as a relevant factor that must be considered and is usually mitigating.

41. As to the position under human rights jurisprudence, there are similar statements. Thus, in R v Mills [2011] ACTSC 107 at [19], Higgins CJ pointed out that the response to a finding of unreasonable delay may be a reduced penalty when guilt is found.

42. This approach was also taken in R v Klobucar (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC 186 of 2010, 19 September 2013) where Penfold J considered:

In my view, s 30 of the Human Rights Act requires me, in determining under the Crimes (Sentencing) Act what punishment is 'just and appropriate', to take account of the breach of Mr Klobucar's human rights to be tried without unreasonable delay that has been caused by the various delays in finalising this matter, very few of which can be even indirectly attributed to his own actions.

I note that the international jurisprudence in relation to the right to be tried without unreasonable delay does recognise that a person's choices as to how a matter is conducted may be taken into account in determining whether there has been unreasonable delay to the extent that they affect the steps necessary to deal with the matter and therefore the reasonable time that will be required. But I've not come across any suggestions that a plea of not guilty, as such, deprives a person of any claim to trial within a reasonable time. The international authorities recognise that a sentence reduction may be an acceptable remedy for a breach of that right but they do also suggest that such sentence reductions will generally be modest.

43. The relevant circumstances here are that Ms Thomson was summonsed to appear in the Magistrates Court on 30 November 2011 after the offences, occurring in 2008, were discovered and reported by the complainant. On 1 March 2012, she was committed for trial to this Court. The trial commenced on 24 March 2014, over two years later, due to the backlog in this Court and the institutional challenges it was facing.

44. She was sentenced on 6 May 2014 and has been subject to a Good Behaviour Order ever since that time. The Good Behaviour Order included a probation condition.

45. On 14 April 2014, she commenced her appeal against conviction and, on 23 May 2014, the Crown commenced its appeal against sentence. The appeal was heard on 3 November 2014. Judgment was delivered on 14 October 2015.

46. I heard sentencing submissions on 5 November 2015 and I am now imposing sentence today.

47. The purposes of sentencing are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence is important. The courts must make clear that sexual activity with children is forbidden.

48. It seems to me that it is important to acknowledge the harm done to the victim in the sentence imposed.

49. I do not consider that specific deterrence will play much part in this sentence as there is no doubt, in my mind, that Ms Thomson will not re-offend, certainly not in this similar way again.

50. I have described the nature and circumstances of the offending above (at [10]-[15]), and I take that into account.

51. I take into account, as I am required to do, the factors referred to in s 33 of the Crimes (Sentencing) Act as I know them. So far as I know them, they have been set out above.

52. It is relevant that Ms Thomson has no prior convictions. It is also relevant that she had what must be described fairly as a sheltered upbringing which did not allow her to develop the knowledge of boundaries that a more open childhood may have engendered.

53. It is also relevant that she was the subject of severe domestic violence, which is another cancer in our community and whose effects can be devastating on victims. In my view, it clearly led Ms Thomson to develop a distorted picture of acceptable behaviour when she escaped that situation and found a loving and caring relationship.

54. Neither counsel assisted me with any sentencing practice. Conscious of the caution with which I need to approach them, as explained in Ashdown v The Queen (2011) 219 A Crim R 454 at 511 I had access to the ACT sentencing database. It showed that prison is not inevitable for such an offence even after a plea of not guilty, though that ordinarily is the result of a conviction. No prison sentence of more than thirty months was recorded.

55. In my view, a sentence of imprisonment must be imposed, though how it is to be served must be informed by all the factors I have outlined and used to come to the instinctive synthesis which is the sentence I must impose.

56. As Mr Gill pointed out, insofar as the Court of Appeal considered the issue of sentence, it did not express or criticise my reference to the well known comments of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-3, where his Honour said:

There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has been extended even to offenders with bad records when the judge forms the view almost intuitively, in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.

57. That is not an approach that obviously can apply in every case and must be appropriate to the circumstances. These include prior record, response to supervision and likely prospects of reform.

58. I also note the decision of the Federal Court of Australia in Valentini and Garvie [1980] FCA 133; (1980) 2 A Crim R 170, where a suspended prison sentence was imposed for one of the most serious offences punishable by a maximum penalty much longer than that applicable to these offences.

On the question of general deterrence and retribution, the sentences imposed were sentences of imprisonment, although they were suspended. Such a sentence carries the usual consequences for the respondent's record and future. ... If a respondent commits a breach of his recognisance at any time during its currency, he may be brought back and sentenced ... to a term not exceeding the head sentences imposed upon him. The fact that the nature of such a sentence is sometimes publically misunderstood and at times underrated, does not seem to be a proper ground for increasing it.

60. I note that without a Pre-Sentence Report, ss 77 and 89 of the Crimes (Sentencing) Act prevent me from making a community service work condition to a Good Behaviour Order or to direct that a term of imprisonment be served by periodic detention.

61. As there are two offences for which Ms Thomson must be sentenced, it is necessary for me to consider the issue of totality.

62. I have carefully considered the length of each of the sentences to ensure that when there are overlapping common elements between any of the offences, Ms Thomson is not punished twice.

63. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. While not temporarily connected directly, these offences had some relevant relationship between them in the circumstances under which they were committed.

64. I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not too severe. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.

1. I confirm the convictions of committing an act of indecency in the presence of a person under the age of ten years on two occasions between 1 January and 30 September 2008.

2. For the first of those convictions, I sentence you to two years and six months imprisonment to commence today.

3. For the second of those convictions, I sentence you to two years and nine months imprisonment to commence on 12 May 2016 to be cumulative as to nine months on the first sentence.

4. That is a total sentence of three years and three months imprisonment.

5. I suspend the sentence today for three years and three months.

6. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of four years from today and with a probation condition that you be under the supervision of the Director General or her delegate for three years or such lesser period as the person supervising you considers appropriate and that you obey all reasonable directions of the person supervising you.

I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.