Director of Public Prosecutions (Cth) v Wardle
[2024] VCC 1987
•11 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01464
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RHYS WARDLE |
---
JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2024 | |
DATE OF SENTENCE: | 11 December 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Wardle | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1987 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Using a carriage service to harass; using a carriage service to transmit indecent communication to a person under 16 years of age – totality – Intervening interstate sentences for similar conduct
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Sex Offenders Registration Act 2004 (Vic).
Cases Cited:Mill v The Queen (1988) 166 CLR 59.
Sentence: Total sentence of 12 months, with release on RRO after serving 10 months
---
APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms N Simpson | Office of Public Prosecutions (Commonwealth) |
| For the Accused | Mr B Nibbs | Valos Black & Associates |
HER HONOUR:
Summary of Offending
1Rhys Wardle, you have pleaded guilty to 2 charges of using a carriage service to harass,[1] and one charge of using a carriage service to transmit indecent communication to a person under 16 years of age.[2] All the offending occurred in first part of 2018, when you were 27 years old.
[1]Contrary to subsection 474.17(1) of the Criminal Code (Cth).
[2]Contrary to subsection 474.27A(1) of the Criminal Code (Cth).
2I will commence by summarising the offending.
Charge 1
3The victim of this offence was TC. At the time of the offending she was 16 years old, living in a Victorian country town. The charge covers your offending conduct between 30 January to 30 June 2018.
4From 30 January 2018 you relentlessly messaged TC, continuing to do so even after she had told you to “fuck off”. The messages were often brief, and some, without context would have been harmless, but you sent her many messages with sexual content, including photographs of your penis.
5The sample of messages you sent, which were included in the Opening were: ‘sup’, ‘Pretty’, ‘Hello’, ‘Heya’, ‘Hard … U don’t wanna know … Take the bra off’, ‘Wanna see cock’, ‘just in a bra’, ‘Nice tits u got’, ‘Slut parading around in just a bra’, and ‘U just want a big dick in u.’[3]
[3]Summary of Prosecution Opening dated 25 November 2024, [11].
6After you told TC to block you, in what reads like a taunt, TC sent you an angry message insulting you and calling you out on the way you were speaking to her. In response you threatened her, telling her that your sister would drive to TC’s location and “jump all over [her] fucking head … I wouldn’t piss me off today I’m warning u … We both have knives on us … Hehehe”.[4]
[4]Summary of Prosecution Opening, [12], Annexure B, emphasis in original.
7On 31 March 2018 you sent TC an image of your penis, and then the next day sent her messages saying “big dick” and “in ya”. You sent two more images of your penis on 2 April 2018. The messages these images were interspersed with other messages of a sexual nature. You continued to send her sexual messages until June 2018. The messages included asking her to perform sexual acts on you, send you images of herself, you telling her you were masturbating, and describing sexual acts with her. More than once you told her that if she sent you a particular intimate image, you would desist.
8On multiple occasions TC asked you to stop messaging her. The messages set out in the opening indicate that you persisted with sending her messages and images even after she had told you she was going to report you to the police.[5]
[5]Summary of Prosecution Opening, Annexure B.
9You also called TC, during this period. Generally she did not answer. She did speak to you 3 or 4 times, and you abused her verbally. She again asked you, forcefully, to stop calling her.
10TC provided a Victim Impact Statement. She refers to the stress she has suffered due to the delay in finalisation of the matter, and the fear she felt of being stalked and threatened. Her ability to work and her personal relationships have suffered by reason of the sexual content of the messages you sent her. She had panic attacks, which had resolved, but they started again when she was advised that you had been extradited and the charges against you were proceeding.
11There are several factors which make this a moderately serious instance of this offence. You sent many messages to TC, over a period of around 5 months. You sent unsolicited images of your penis on multiple occasions, threatened her, asked her for intimate images, told her about sexual acts you were doing or wanted to do with her, and you persisted in the face of repeated requests and demands for you to stop.
Charge 2
12This charge relates to messages you sent to MS, who at the time was 14 years old, between 6 and 7 March 2018. As I have previously mentioned, you were 27 at the time.
13Prior to the charged acts, you had sent messages to MS in February 2018, such as “you’re cute” and “don’t want to talk?”. She had never met you or heard of you, and she did not respond. Then, on 26 February 2018 you sent her a message reading “CYA THEN”. She again did not respond, but told her older sister about your messages.
14It would appear that her sister then messaged you, telling you to back off. After an exchange of messages you called MS twice. She answered the second call. During that 3-minute call, MS asked you whether you thought it was ‘ok to be speaking to a 14 year old girl’, to which you answered with ‘Yes, there’s nothing wrong with it’. You raised your voice and swore at MS during the call.
15The charge relates to the messages you then sent MS over 6 to 7 March 2018, when you knew that she was under 16 years of age.
16You sent a Facebook message asking her why she did not have a boyfriend. She responded that a 14 year old did not need to be in a relationship. You responded “It doesn’t”. She asked you why you were messaging her when you had a girlfriend. You replied “I’m not really talking to u and [we’re] just friends not even together.”
17You then suggested she block you, if you were “such a hassle” and then messaged her saying ‘Wish u could give a head job’ and MS replied ‘I don’t.’ On 7 March 2018, you responded ‘Never would … Prob never have x’.
18MS replied ‘Well I am 14 so no I haven’t’. You sent a message saying ‘A really cute one … Bet you got a nice body too … That you’d never show’. MS did not respond.
19You then sent her two images, in which you were holding your penis. She did not reply to either message. You sent her further messages, reading ‘Small fucker ha … You’ve stopped talking I’m amazed’. About two hours later, you sent ‘Hehe’ followed by ‘Goodbye’.
20The maximum penalty for a charge pursuant to s474.27A(1) of the Cth Criminal Code is 7 years’ imprisonment. Whilst the period of time over which you messaged MS was not extended, you expressed a wish, to someone you knew to be 14 years old, that she perform oral sex on you, commented sexually on her appearance and then sent two images of your penis.
21Whilst no Victim Impact Statement was tendered from MS, the experience of the law is that child victims of sexual offending can be significantly harmed, even when the offending directed at them is “non-contact” offending. A child of 14 should not be exposed to sexual overtures or images, and generally speaking does not have the life skills to deal with such messages.
Charge 3
22Charge 3 relates to harassing messages you sent to HB between 1 and 6 April 2018. At the time she was 17.
23Prior to the offending you had had some innocuous contact with HB, over Facebook, but you had never met her in person. After that she blocked you on Facebook, but in June 2017 she had unblocked you. She responded to some of your messages but ignored others.
24On 1 April 2018, the start of the between dates charge, HB asked you to leave her alone. You called her ‘baby’ and sent a message reading ‘want to see my dick?’. HB told you she would report you to the police, and tell her parents about your messages, and she told you she was a child.
25HB’s mother, RB, became involved and told you to leave HB alone. You messaged ‘goodbye’. HB told you to never contact her again.
26The next day you sent a message saying ‘so’, to which HB replied ‘really?’. You then sent a message saying ‘horny’. RB became involved again, although the Opening does not say how. You and HB were arguing over the messages, and she asked you again to stop messaging her. You responded by asking her if she wanted to see your penis.
27You then sent messages to her about sexual activity, asking her if she had had intercourse and intimating that you were having sex, giving details of with whom and where. You asked HB to send an image of her breasts, and for her to describe and send images of what she was wearing. You also sent a message with an image of your penis and the words “It’s six inches and I’d fuck you with it.”
28Following that you began to call HB, over Facebook. She did not answer your calls. Her mother did answer one of these calls from you. She yelled at you, and directed you to leave her daughter, HB, alone. You then made a number of menacing statements to HB and RB. I do not have regard to your threats and conduct towards RB, save for the fact that you persisted in messaging and harassing HB after being told not to do so by her mother.
29Between 3 and 4 April you sent messages to HB asking to see her underwear, and then saying you wanted to digitally penetrate her. She told you she was at the police station, in an effort to make you stop. You responded by telling her to block you and to “deep throat” you. You sent another image of your penis to her.
30On 6 April you sent a further series of messages, initially saying hello, then asking her “do you love sex”. She did not respond.
31Your messages made HB feel uncomfortable, and she ultimately muted your messages. After she had reported you, she was not coping, and so she blocked you on Facebook.
32I note that you persisted in messaging HB even after she told you she was a child, her mother had intervened, and she had told you she was reporting you to the police. The messages were clearly harassing and the sexual content was explicit. This is far from a minor example of this offence.
Police Interview
33You were interviewed by police on 30 December 2019. It was not explained why there was a delay of 18 months before you being interviewed.
34You admitted you would contact teenage girls, whom you did not know, and that you accepted you had probably asked for sexual images or responses, and had sent sexual messages. You said you had not used Facebook from some time in 2018, as your account had been blocked due to some “dramas”. You could not initially remember MS, although when shown the messages you agreed you had sent them. You said you knew it was wrong, and explained your behaviour on the basis that you “must’ve been on something pretty heavy.”
35You could not recall TC, nor HB. You attributed your behaviour in messaging these girls to drug use, and that you had been diagnosed with depression and bi-polar but were not taking medication for those conditions. You accepted that your offending was “sickening.”
Subsequent Convictions
36By the time the charges were served on you, in June 2020, you were living in South Australia. You failed to appear at Court for a committal mention in November 2020.
37In March, August, September, November and December 2020 you committed the offence of “communicate to make a child amenable to sexual activity”, contrary to the Criminal Law Consolidation Act of South Australia. That offence carries a maximum penalty of 10 years’. There had been 18 charges, which resolved on your pleas to six charges:
(i)In March you sent a message to a girl who identified herself as being 16, asking her if she “needed her arse fucked” and asking her for intimate images;
(ii)In August you sent sexual messages to a girl who had told you she was 14;
(iii)There was a further offence on 30 Sept 2020, which was not described in the sentencing remarks;
(iv)the November offending involved messages sent to a girl who had told you she was 14, including a message asking her if she wanted to “see dick”;
(v)on 17 December you sent a message to a girl who had identified herself as 13 years old, asking for intimate images and if she wanted sex;
(vi)On 20 December you communicated with a police officer who pretended to be a 14 year old girl online. You told this person you wanted to have sexual intercourse with her, and when you got the response “well, I’m only 14, that makes you a pedo” you replied “IDC”, which stands for I don’t care.
38The learned sentencing judge in South Australia noted that the charged acts occurred in the context of uncharged acts, occurring from April to December 2020, involving messages sent by you to at least 10 other girls, aged between 13 and 16.
39The total sentence you received in South Australia was 3 years, 3 months and 16 days, with a non-parole period of 2 years 7 months and 19 days, which sentence commenced from 23 December 2020 the date of your arrest and remand.
40One you had finished that sentence, you were extradited in April 2024 to Victoria for the matters for which I will sentence you today.
41I have set out the above details of your South Australian offending as it is relevant to the application of the principle of totality and to your prospects for rehabilitation.
Personal Circumstances
Family
42You were born in July 1990, and are currently 34 years old. You say that you moved around a lot in your childhood. You were born in Melbourne where you lived until you were 5 years old, then your family moved to Mildura. Your parents separated when you were 10 years old. At age 12 you moved to Bendigo with your mother, where you stayed for 3 years. At 15 years old you moved to Manangatang. You moved to Bendigo on your own when you were 18, and at some point you moved in with your father in Swan Hill.[6]
[6] Ferrari 2019 [13].
43You had a difficult relationship with your father in your childhood. Your father was an alcoholic who verbally abused you, and would on occasion physically abuse you also. You previously reported that your father abandoned you following your sexual offending in 2020, but more recently you have ongoing contact with both your parents, you maternal and paternal grandparents and one uncle. [7]
[7] Kocic [23]; Balfour 2021 page 3.
44You described your mother as a ‘good mum’.[8] After your parents separated, your mother remarried. You previously reported that your relationship with you step father was amicable.[9]
[8] Balfour 2021 page 3.
[9] Ferrari 2019 [15].
45You have a sister who is one year younger than you. You were close when you were younger, but drifted apart due to your drug use. You have previously had a good relationship with her,[10] but you have not had any contact with her since 2021 due to the nature of your offending.[11]
[10] Ferrari 2019 [14].
[11] Kocic 2024 [22].
46In 2019 you told Ms Ferrari that your most recent relationship had been toxic, due to both of you having substance abuse issues, and that it had been and on-and-off again relationship for around 1 to 2 years.[12] That relationship ended in 2018.[13] Other relationships had lasted 3 to 4 months and had also been afflicted by substance abuse issues.
[12] Ferrari [20].
[13] Kocic [39].
Education and Occupation History
47You struggled to concentrate at school, and were mostly an average student, generally preferring sport over study. You experienced some bullying at Bendigo and Mildura, and would get into fights, which led to detentions and suspensions. You struggled somewhat socially, but had a group of friends.
48You left school after completing year 11. You have held a number of manual labour jobs, including at an abattoir, as a farmhand, and brick labouring. Prior to the 2018 offending you had had sporadic employment. For most of 2020 you worked at Redox, unpacking shipping containers, and you think you might be able to return to work in that job upon release. You have acknowledged that abusing drugs and alcohol affected your employment.
49You undertook a hospitality course in 2017, and a Certificate II in engineering at TAFE. Since your remand you have obtained a White Card, First Aid Certificate, Food Handling Certificate, and I am told you are in the process of completing a Certificate II in Power Tools and Hand Tools.
Mental Health
50You were assessed in 2021 for the proceedings in South Australia. Mr Balfour ruled out that you had a neurodevelopmental disorder, personality disorder, acquired brain injury, or intellectual disability.
51In a recent assessment, you reported to Ms Kocic you felt your mental health was improving, and that you felt ‘more stable’ in your mind. Ms Kocic’s final opinion was that you met the diagnostic criteria for generalised anxiety disorder, major depressive disorder (moderate and episodically recurrent), substance abuse disorders, and in the past, paraphilic disorder (paedophilic but not exclusive).[14]
[14]Kocic [131, [134] – [137].
Drug and alcohol abuse
52You have a significant history of drug and alcohol use..
53You began drinking at age 16, initially binge drinking on weekends. This progressed to daily use by the age of 18[15] or 23.[16] You were drinking daily during the period of this offending. You began using cannabis at 19. From 25 to 28 years of age you were smoking 3 grams of cannabis every day. You report that you enjoyed being high, and that it suppressed your emotions and reduced you anxiety.
[15]Ferrari [31].
[16]Kocic [56].
54You began using methylamphetamine at age 22. You reported using methylamphetamine in a binge cycle where you would smoke half a gram across a three day period, then would remain abstinent from that drug for between 1 to 3 months. You had experienced drug-induced psychotic episodes as a result of your methylamphetamine use.
55You are prescribed Buprenorphine while in prison. You have completed several programs in your current remand period, those being ‘Cannabis & Me’, ‘Alcohol & Me’, ‘Ice & Me’, and ‘Changing Gears’. You previously participated in 6 Alcohol and Other Drug counselling sessions in 2017. You acknowledge the risk of relapse upon your release from custody.[17]
[17]Kocic [63]; Balfour 2021 page 10.
Psycho-Sexual History and Rehabilitation
56In respect to your South Australian offending, two reports were obtained from a psychologist, Mr Balfour, one in 2021 and the other 2022. In 2021 you told him that you had developed a sexual interest in under age females 4 to 5 years before the assessment, and that you engaged in “this behaviour” weekly to monthly.[18] Mr Balfour considered you met the criteria for a paedophilic disorder.[19] The 2022 report was largely repetitive, but noted the further South Australian charges and the outstanding Victorian charges.
[18]Balfour 2021 page 14.
[19]Balfour 2021 page 18.
57Ms Kocic was also given the history of your consumption of online pornography from when you were 15. You told her that you quickly became “addicted” to porn online and would watch it for at least half an hour, daily. As you got older the content you watched became more extreme. When you commenced using methylamphetamine in your early 20’s, the time you spent watching porn increased, up to a few hours a day every day, combined with hours of masturbation, whilst drug affected.
58Ms Kocic considered your offending “appeared motivated by self-sexual gratification, and an inability to control [your] sexual urges”, with contribution from your drug use.[20]
[20]Kocic [141][142].
59You described the messages as a fantasy more than a desire to actually meet the victims. You told Ms Kocic that deep down you knew it was wrong, but you were caught up in the excitement of messaging these girls. [21] Ms Kocic noted that you told the police you were sorry for the harm you caused the victims, and that it would have been overwhelming for them.[22]
[21]Kocic [72]-[73].
[22]Kocic [74].
60At the time of Ms Kocic’s assessment, in September 2024, you denied attraction to children and adolescents, saying you were attracted to women between the ages of 25 to 35.[23] She thought you had reasonable insight into your sexual offending, and that you expressed “genuine remorse and empathy towards the victims.”[24]
[23]Kocic [37].
[24]Kocic [83][84].
61Whilst imprisoned in South Australia you attended the Sexual Behaviour Clinic, Rehabilitations Program Branch. The program included sessions in cognitive and behavioural interventions addressing the risk of reoffending. You reported to Ms Kocic that the program ‘unravelled things’ for you, and enabled you to understand more clearly why you engaged in sexually inappropriate behaviour.[25]
[25]Kocic [51].
62Ms Kocic recommended you engage in further offence specific programs, including a Sex Offender Treatment Program, psychological assistance, and other programs which might help you addressing causes of offending.[26]
[26]Kocic [148].
63Ms Kocic assessed your risk of sexual reoffending. She utilised the Static-99 tool, which placed you in the Moderate-High Risk Category relative to other male sexual offenders.[27] In addition, she used the Sexual Violence Risk-20 Version 2 assessment guideline, arriving at the conclusion:[28]
Mr Wardle is considered to be at moderate risk of future sexual reoffending, that is, without any intervention. This risk rating can also be interpreted as Mr Wardle requiring a moderate level of intervention to mitigate his recidivism risk.
[27]Kocic [104].
[28]Kocic [113].
64She noted the need to address risk factors including drug use, your mental health, lack of employment and housing.
65Her ultimate assessment over all of your risk of sexual reoffending was in the low-moderate risk category.[29]
[29]Kocic [120].
Prospects of Rehabilitation and Specific Deterrence
66Having regard to the matters above I consider that your prospects of rehabilitation are reasonable. As was acknowledged by counsel, your statements about no longer being interested in teenage girls will be shown to be truthful or not once you are released. At least you will have learnt that if you indulge yourself in the same type of conduct you will be caught and punished.
67Specific deterrence does carry real weight in sentencing you. Furthermore, you will need to engage with rehabilitative programs, if you are to stay out of trouble in the future.
Matters In Mitigation
68I have regard to the following factors raised in mitigation of sentence.
69First, you pleaded guilty to these charges at the first opportunity, after you were extradited to Victoria. Whilst you did fail to answer your summons in November 2019, during the intervening years you were in custody in South Australia. Your pleas of guilty have saved the need for the victims to give evidence, and have utilitarian value.
70Secondly, you have expressed an understanding of the impact of your offending on the victims, and remorse. Whilst it concerns me that you expressed similar sentiments in 2019, and then went on to commit the offences in 2020, in South Australia, nevertheless it is relevant that you have expressed appropriate sentiments about the offending and victims.
71Thirdly, I have regard to the principle of totality. After committing these offences you committed six more offences in South Australia, in 2020. You have finished serving the sentence of 3 years, 3 months and 16 days. There is thus no opportunity to order any concurrency between those sentences and the ones I must set. I am required to consider what sentences might have been imposed in total, if all the charges had been dealt with at the same time. In so doing, I must have regard to the nature and timing of the charges, whether there were different victims, and consider whether your rehabilitation has progressed. This may lead to sentences which would otherwise be unduly lenient.[30]
[30]Mill v The Queen (1988) 166 CLR 59, 64, 66.
Other Considerations
72I was referred, by the prosecutor, to four other cases which involved charges pursuant to the offences for which you are to be sentenced. There are clear differences between those cases and yours, but they have provided some assistance to me.
73General deterrence is significant factor in sentencing you. A clear message must be sent by sentences for such conduct, that targeting people online with harassing and sexual content will not be tolerated.
74I also note that s17A of the Crimes Act 1914 (Cth) provides that a sentence of imprisonment must not be imposed unless I am satisfied that other sentencing options would not be appropriate. In view of the nature of the offences, and your personal circumstances, I consider that a jail term is required for each of the charges.
Disposition
75Both the prosecutor and defence counsel submitted that it would be open to me to impose a sentence with little or no further time to serve, to be followed by a recognizance release order. I note that you have 251 days, which is 8 months and 1 week, of pre-sentence detention. The time from your arrest in South Australia on 23 December, to today is 3 years, 11 months and 17 days.
76One of the issues discussed on the plea was the length of any recognizance release period. On the one hand a lengthy time is needed if you are to undertake the SOP. On the other, the period of release, which has similar requirements to a CCO, cannot be more than is required to achieve the sentencing purposes. In your case I consider it necessary for the RRO period to be long enough for you to complete the sex offenders program, if you are assessed as requiring it.
77Having regard to all the matters I have set out, above, and noting in particular the depressive impact of totality upon the sentences I will impose, I sentence you as follows:
§Charge 1 – 8 months imprisonment
§Charge 2 – 6 months imprisonment
§Charge 3 – 3 months imprisonment
78The sentence on Charge 3 commences immediately. The sentence on Charge 2 commences 2 months after the commencement of the sentence on Charge 3. The sentence on Charge 1 commences 4 months after the commencement of the sentence on Charge 3.
79This leads to a total effective sentence of 12 months.
80I declare that you have already served 251 days of pre-sentence detention and I direct that that be entered into the records of the Court.
81I order that you be released on your own recognisance after serving 10 months of that prison term.
82The Recognisance Realease Order has the following conditions:
(a) That you be of good behaviour for a period of 18 months,
(b) that you be subject to the supervision of a probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee) for a period of 18 months;
(c) that you obey all reasonable directions of the probation officer (Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee);
83Pursuant to section 6AAA of the Sentencing Act if you had not pleaded guilty I would have sentenced you to 20 months imprisonment, and imposed a Recognisance Release Order after 14 months.
SORA
84Because of the offences for which you were sentenced in South Australia, and due to your conviction on Charge 2, before me, you are required to comply with the reporting conditions of the Sex Offenders Registration Act, for the rest of your life.
0
2
0