Sex case teacher loses bid to appeal

September 9, 2005
By Melissa Jenkins

FORMER Melbourne physical education teacher Karen Louise Ellis today lost her bid to reduce her jail sentence for having sex with a teenage schoolboy.

The 37-year-old pleaded guilty at her trial to six charges of sexual penetration with a child under 16, after having a six-and-a-half week affair with the Year 10 student in 2003. In November last year, County Court Judge John Smallwood sentenced her to 22 months imprisonment, wholly suspended for three years.

After an appeal by the State Director of Public Prosecutions (DPP) six months later, Court of Appeal Justice Frank Callaway resentenced Ellis to two years and eight months' jail, with six months to be served immediately and the remainder suspended.

"The sentence unintentionally violated the rule of equality before the law, including equality of concern for male and female victims and equality in the sentencing of male and female offenders," Justice Callaway said at the time.

In the High Court in Melbourne today, Ellis' barrister Robert Richter QC argued Justice Callaway wrongly assumed Ellis received favourable treatment because she was a woman and he had failed to take into account the exceptional circumstances surrounding the case.

He said the victim was just four months shy of his 16th birthday when the offences occurred and did not feel victimised. The victim did not testify during the trial but gave a written statement in which he said he initiated the relationship, not Ellis.

"The victim wants to give evidence. He wants to give evidence saying `I am not the victim, she is'," Mr Richter said.

"The conviction is absolutely devastating for this woman. She has lost her career, she has lost her future."

Crown prosecutor John McArdle QC said the law was designed to treat male and female offenders equally.

"The legislation is not gender specific either as an offender or a victim." he said.

"The whole purpose of this law is to protect male or female children."

Mr McArdle said the affair had devastated the victim's family and would have long-lasting consequences.

"Sexual relationships of this abusive nature have effects much later on in life," he said.

High Court justices Michael Kirby, Ken Hayne and Ian Callinan rejected Ellis' application to appeal against the Court of Appeal sentence.

"It does seem to be an offensive principle that a female teacher in these circumstances is treated more leniently than a male teacher would be," Justice Kirby said.

"It is unlikely that the Court of Appeal gave no consideration of the discretions available to the sentencing judge.

"We are not convinced that a miscarriage of justice occurred in this case.",10117,16543542-2,00.html


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