The ACT's former acting top prosecutor described historical child sexual abuse legislation as "poorly drafted and always apt to create confusion" in a letter to the Attorney-General.
Then-acting director of public prosecutions Anthony Williamson SC sent the letter to Attorney-General Shane Rattenbury last month following the successful appeal of paedophile coach Stephen Mitchell.
Mitchell, a man who sexually abused six girls between 1994 and 2008, will likely see his 13-year-and-five-month jail term reduced after he was sentenced on the wrong maximum penalty.
Legislation pertaining to persistent sexual abuse of a child, a charge intended to capture crimes carried out over a protracted time period, has come under fire.
As have practitioners and the courts, with questions raised about their understanding of the law. But one of Mitchell's victims has described the conversational focus on the legislation as a "cop out".
Mr Williamson said the ACT's approach to the law "departs significantly from the model proposed by the royal commission insofar as maximum penalties are concerned".
Some of Mitchell's victims have publicly expressed their anger with prosecutors over the sentencing error, described on Wednesday by Mr Rattenbury as a "serious mistake".
"Regrettably, the distress of the victims is compounded by poor advice provided by this office at the time of the plea negotiations with the offender's legal representatives," Mr Williamson wrote.
"They were incorrectly told that the offender would be sentenced against a maximum penalty of 25 years imprisonment.
"They advise that had they known the maximum sentence available was in fact only seven years imprisonment, they would have firmly expressed their opposition to a negotiated plea outcome being reached."
Odette Visser, one of Mitchell's victims, told ABC Radio on Thursday the error was "catastrophic".
Mitchell will now be resentenced for three counts of the charge based on significantly lower maximum penalties current at the time he committed the crimes.
'Mistake will never happen again'
Mr Williamson's letter was released to the victims on Wednesday at their request, newly appointed Director of Public Prosecutions Victoria Engel SC said in a statement.
Ms Engel said she was limited in speaking about the case but wished to comment "given the recent statements by the Attorney-General and the need to preserve public confidence in the justice system".
"I recognise the pain and trauma that is felt by the victim-survivors in the Mitchell matter," the top prosecutor said.
"In my meetings with the victim-survivors on 6 May, I frankly acknowledged that a significant error had occurred in the information provided to them in 2022 and expressed to them my genuine apology for that.
"I gave them my assurance that a mistake of that nature would not happen again."
Ms Engel said she commenced an internal review on that same day.
"Changes have already been implemented. Any further improvements identified by the review will also be introduced," she said.
It is not known what those changes are.
The director also noted being exceptionally impressed with her office's prosecutors, who she said had her "confidence and respect".
"I do not say that to take away from the error made in this matter, or to diminish the pain that the Mitchell victim-survivors are feeling," she said.
"I also do not intend to convey that improvements cannot be made, nor that lessons will not be taken from the error made in this matter."
'Cop out'
On Thursday, victim Sophie Vivian said suggestions that problems with the case and the prosecuting office lie only with the flawed legislation is a "cop out".
Unlike two other victims, Ms Vivian initially fought to keep more serious abuse against her in the charge Mitchell would plead guilty to and her case went to a disputed facts hearing in the ACT Supreme Court.
As well as the maximum penalty issue, the victim said dealing with three different lawyers with carriage of her case and unfulfilled promises left her not trusting the prosecuting office.
Ms Vivian said defence attempts to subpoena her counselling records and put forward an expert witness to argue about false memory were unopposed by the prosecution, despite assurances they would be.
She also said she understood that withdrawing from those disputed facts proceedings out of distress still meant she could re-commence them down the track. She said she was later told that was, in fact, difficult.
"It's not a single problem," Ms Vivian said.
"The point is you can't give victims false or misleading information because they're trying to navigate a very complicated and distressing criminal justice system."
The victim said it wasn't just about prosecutors understanding the legislation relating to the historical child abuse charge in question.
"This is a problem with underfunded staff, staff that are leaving in droves, information not being passed between staff and police correctly," she said.
Future abuse prosecutions
In his April letter, Mr Williamson addressed the maximum penalty prosecutors were bound by for persistent child abuses committed between 1991 and 2018 under current legislation.
"A maximum penalty of seven years imprisonment will often be grossly disproportionate to, and substantially fail to reflect, the objective seriousness of this kind of offending," he wrote.
"Against this very low maximum penalty, it will be inappropriate for the prosecution to prefer a charge of persistent sexual abuse of a child in a great many cases."
Instead, the former acting-director said, prosecutors would likely be forced to lay charges against individual acts, usually rolled up into the charge in question, to access more appropriate maximum penalties.
"However, the difficulty with this course is that the prosecution will carry a greater burden in proving the particulars of the individual charges which are laid," he said.
"This is precisely the legal mischief that the royal commission sought to avoid in recommending the enactment of more robust sexual abuse of a child offence provisions."
Mitchell's victims have asked the government to review the legislation.
Mr Rattenbury has made it clear offenders being retrospectively sentenced is a breach of the Human Rights Act. Is it unclear what, if anything, will change.
- Support is available for those who may be distressed. Phone Lifeline 13 11 14; Bravehearts 1800 272 831; Blue Knot Foundation 1300 657 380.
