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DPP v Lumsden [2023] VCC 212

The offender was sentenced following a plea of guilty to 1 count of sexual activity with a young person outside Australia contrary to s 272.13(1) of the Commonwealth Criminal Code. Offender also sentenced for a state child exploitation offence.

Nature and Circumstances: Offender was the tennis coach of the victim. Offender and the victim attended Fiji for the Oceania Closed Junior Tennis Championships. On one day of the tournament, offender told the victim to come into their hotel room for a massage. Offender began to massage the victim, including their back, buttocks, and breasts underneath the victim’s bathers top. There was a significant disparity in age between offender and the victim. The sexual offending profoundly breached the obligation of trust implicit in offender’s role as victim’s tennis coach. Offender’s obligation to the victim was all the greater in circumstances where they were travelling, alone with the offender, outside of Australia. The acts constituting the assault could not be characterised at the upper range of seriousness for offending of this kind as they were not accompanies by force, threats of violence, or other demeaning conduct. Rather, it is the breach of trust that founds the gravity of the offending. Offender’s moral culpability is significant.

Guilty Plea: Whilst it was not an early plea, there is significant utility in offender’s plea. In cases such as this, the plea saved the victim from the ordeal of giving evidence at trial. The prosecution emphasised the relief expressed by the victim that the plea brought this matter to a conclusion.

Delay: It is now over 3 ½ years since offender was interviewed and 5 years since the alleged offending. Having these serious matters hanging over offender’s head, uncertain as to the outcome, has been a source of stress and anxiety for them.

Rehabilitation: Up until their mid-50s, offender had been a law-abiding, hard-working member of the community. This offending, whilst serious, appears to have been out of character. Since the offending in 2018, offender has not offended in any way. They retain the support of their wife and family. Having regard to their previous good character, absence of any relevant prior criminal history, ongoing family support and lack of any subsequent offending over the last five years, offender has very good prospects of rehabilitation.

Hardship: Once these allegations came to light, offender’s accreditation was revoked by Tennis Australia. The loss of accreditation is to be expected as a natural consequence of the offending. However, the ramifications have been far broader. Offender lost the business they had built up over many years, with a corresponding loss of income. Offender lost the reputation and standing they had established in the tennis community over a lifetime. They have lost colleagues and friends as a result. This, itself, has been a punishment which was taken into account in sentencing.

Offender sentenced to a community correction order of two years, six months’ duration for the Commonwealth offence.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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