Director of Public Prosecutions v Dale William Watton
[2019] VSCA 10
•7 February 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0123
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| DALE WILLIAM WATTON | Respondent |
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| JUDGES: | WHELAN, BEACH and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 February 2019 |
| DATE OF JUDGMENT: | 7 February 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 10 |
| JUDGMENT APPEALED FROM: | [2018] VCC 778 |
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CRIMINAL LAW – Sentence – Crown appeal – Ground of manifest inadequacy – Offences of sexual penetration of child, committing indecent act with child and producing child pornography – Sentenced to total effective sentence of 5 years with non-parole period of 2 years 6 months – Whether component sentences or orders for cumulation manifestly inadequate – Manifest inadequacy established – Appeal allowed – Respondent resentenced to total effective sentence of 7 years with non-parole period of 4 years 6 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B F Kissane QC with Mr J C McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr P S Tiwana with Mr G Nikolovski | Dribbin & Brown |
WHELAN JA
BEACH JA
HARGRAVE JA:
On 17 May 2018, the applicant pleaded guilty in the County Court to two charges of sexual penetration of a child under the age of 16, two charges of committing an indecent act with a child under the age of 16 and one charge of producing child pornography.
On 31 May 2018, following a plea hearing, the applicant was sentenced as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1. | Sexual penetration of a child under the age of 16 Crimes Act 1958, s 45(1) | 10 years | 33 months | 6 months |
| 2. | Indecent act with a child under the age of 16 Crimes Act 1958, s 47(1) | 10 years | 2 years | 6 months |
| 3. | Indecent act with a child under the age of 16 Crimes Act 1958, s 47(1) | 10 years | 2 years | 6 months |
| 4. | Production of child pornography Crimes Act 1958, s 68(1) | 10 years | 2 years | 6 months |
| 5. | Sexual penetration of a child under the age of 16 Crimes Act 1958, s 45(1) | 10 years | 3 years | Base |
| Total effective sentence: | 5 years | |||
| Non-parole period: | 2 years 6 months | |||
| Section 6AAA statement: | 7 years with a non-parole period of 4 years. | |||
Charge 5 was a representative charge. Pursuant to s 6F of the Sentencing Act 1991, the respondent was sentenced as a serious sexual offender in respect of charges 3, 4 and 5.[1]
[1]Upon his conviction, and the imposition of sentences of imprisonment, on charges 1 and 2, the respondent became a serious sexual offender within the meaning of s 6B(2) of the Sentencing Act 1991.
The Director of Public Prosecutions now appeals from the sentence imposed, contending that the sentences imposed on charges 3, 4 and 5, the orders for cumulation on charges 1, 2, 3 and 4, the total effective sentence and the non-parole period are all manifestly inadequate.
Circumstances of the offending
Charges 1 and 2 relate to a complainant who the judge referred to as ‘A’.
A was 10 years old when he met the respondent through family. Sometime between 1 January 1996 and 13 December 1997, when A was about 13 years old, the respondent visited his home when A’s mother was at work and his brother was out (A’s father lived interstate). The respondent, who was then about 17 years old, dared A to do a ‘nudie run’ out the front of his house and back again. A did this, but the respondent refused to return A’s clothes to him.
When A went into his room to get some other clothes, the respondent followed him and began to grope his penis (at which point A was shocked and did not know what to do). The respondent then performed oral sex on A. A told the respondent to stop, which the respondent did. He then told A not to tell anyone because people would think he was gay. This was A’s first sexual experience and he did not tell anyone until years later.
Charge 2 relates to an incident that occurred in the period 1 January 1998 to 8 December 1999. A was about 15, the respondent was about 19. At that time the respondent was in charge of the local swimming pool. He and A decided to go for a swim in the pool, after hours, when no one else was at the pool. While A was climbing out of the pool, the respondent came up behind him, bear hugged him around the waist, and then tried to pull him back into the water, and grabbed his penis through his bathers. A pushed the respondent off, told him to stop doing it and said he would tell the police if it happened again. The respondent apologised and promised not to do it again.
Charge 3 relates to a complainant who the judge referred to as ‘B’. It involved an incident that occurred in the period 1 January 2001 to 19 October 2003, when B was between 14 and 16 years of age. The respondent was now about 23. B attended the respondent’s house. While at the respondent’s house, the respondent asked B to take off his clothes so that the applicant could do a drawing of him. He told B it would help him get into art school. When B took off his clothes, the respondent masturbated B’s penis.
Charge 5 relates to a complainant who the judge referred to as ‘C’. It involved offending that occurred during the period 1 June 2006 to 30 September 2008, when the respondent was between 27 and 29 years of age. The respondent was introduced to C through a mutual friend. They met many times. The respondent provided alcohol to C and let him drive the respondent’s car.
When C was 14, he was at the respondent’s house one night with a friend. All three were drinking alcohol supplied by the respondent. C sent the respondent a text asking if he could drive the respondent’s car. The respondent initially replied that C could drive his car ‘when your mate blows you’. The respondent subsequently sent C a message saying ‘you can drive but come and see me in the spare room’.
When C went into the spare room, the respondent was lying on the bed. He asked C to lie next to him. The respondent then locked the door and turned the light off. The respondent put his hand down C’s pants and touched his penis, performed oral sex on him and then exposed his own penis and ejaculated. He then told C he could drive his car.
Charge 5 was a representative charge, representing one or two acts performed per month during the first six months of 2006, with a further incident performed in 2008. After the initial event, the respondent would wait until C had been drinking and then initiate sex with him. Driving the respondent’s car was offered as a reward. When C stayed at the respondent’s house, the respondent would often wake up C by touching his penis. The respondent would ask to kiss C on the lips or have anal sex, but C would always refuse. The respondent also bribed C to obtain sexual favours including retracting promises of help.
Charge 4 relates to the respondent making child pornography on various dates between January 2003 and December 2009. The respondent was aged between 23 and 30 during this period.
There were 215 video files of child pornography on 25 VHS tapes. The video footage showed boys getting changed into their bathers, masturbating and ejaculating to pornography in the respondent’s home, showering naked in his bathroom, and being involved in sexually penetrative behaviour with the respondent. Multiple tapes show the respondent engaging in sexual penetration with C.
All children except C were filmed without their knowledge. In some recordings the respondent was playing pornography to his victims and encouraging them to masturbate. One film showed three naked boys in a changing room. One child is said to appear to be aged 8 years, the second to be between 6 and 8, and the third child’s age cannot be determined. The video files show two occasions where the respondent removed the underwear of boys aged about 14 to 15 years so as to expose their genitals. He then spread their legs and touched their genitals. Both of those boys appear to be severely affected by alcohol to the point of being incoherent.
In total, the respondent produced pornographic video footage of 15 victims: two boys aged between 6 and 8, one boy aged between 8 and 10 and 12 boys aged between 12 and 17. While the respondent did not transmit the films to anyone, he kept the 25 VHS tapes for about five years beyond the end of his offending. In September 2014, the respondent left a sports bag in a shed at the home of one of his sisters. The bag was locked. Sometime thereafter, the respondent’s two sisters cut open the bag and found the VHS tapes.
Plea hearing
On the plea, the prosecutor tendered victim impact statements from A and B. The victim impact statements disclosed the emotional effects of the respondent’s offending on A and B. In his victim impact statement, A said that he was most affected by the offending when he was a child. He said that the offending ‘[did not] really affect [him] now’. In his victim impact statement, however, B said that he had tried to block out the offending but that he was still ‘really conscious [of] who [he hung] out with’.
Counsel for the respondent commenced his plea submissions by tendering a report from a psychologist, Dr Matthew Barth, and references from the respondent’s parents, a former partner, and two people who had known him for 22 and 2 and a half years respectively.
Dr Barth’s report contained a detailed personal history of the respondent, including a history of the respondent having been sexually abused when he was approximately eight years’ old, and then being the victim of another instance of sexual abuse when he was approximately 12 years of age. When the respondent was 12, a male friend of his sister made sexual advances towards him. The respondent resisted and his assailant became very aggressive, forcefully inserting his finger into the respondent’s anus.
Dr Barth took a history from the respondent that, as a young person, he had considerable difficulty coming to terms with his sexuality. Homosexuality was ‘strongly disavowed’ in the country community in which the applicant lived as a young man. The respondent ultimately disclosed his sexuality to family and friends in his late 20s. He told Dr Barth that this was ultimately a key turning point in his life. From then, he was able to develop healthy sexual relationships with adult males.
Dr Barth conducted a risk assessment of recidivism for sexual offending. Testing undertaken by Dr Barth disclosed the respondent as a moderate to high risk of recidivism in this respect. On a more positive note, however, Dr Barth said that the respondent appeared to have been involved in more ‘prosocial and appropriate sexual behaviour’ during the past 10 years.
In his plea submissions, counsel for the respondent emphasised what he described as the many significant issues that the respondent had had to grapple with in his formative years, including being beaten by his mother and being verbally abused and ‘mentally tortured’ by his mother’s partner. It was submitted that it was not surprising that the respondent had ‘faced many issues as a result of his disadvantaged development’. Reference was made to Dr Barth’s diagnosis of an adjustment disorder with mixed anxiety and depressed mood, and the fact that the respondent continued to present as a ‘very psychologically vulnerable person’. None of this was disputed by the prosecutor on the plea, or in this Court.
The respondent had a criminal history for offending between 2002 and 2009. This offending included two charges of theft and driving related offences. This offending also included a conviction in 2004, and the imposition of a 12 month community based order, for an offence of committing an indecent act with a child under 16. As the respondent’s counsel told the judge, this was ‘clearly one relevant matter on [the respondent’s] record’. The respondent’s counsel submitted to the judge that it was ‘regrettable’ that the offending constituting charge 5 occurred after the imposition of this community based order.
Ultimately, counsel for the respondent told the judge that he accepted that a sentence of imprisonment would be imposed. He submitted, however, that totality remained an important consideration. Emphasis was then placed on the fact that the respondent had been living ‘a decent life, offence free, in employment’, during the nine years leading up to hearing before the judge. Counsel concluded his submissions to the judge by saying:
So in his 30s and now coming close to 40, he’s demonstrated that he can lead a law-abiding life. He’s also shown to Dr Barth a willingness to do all he can to lead a fruitful life in the future. There are of course issues that he needs addressing [sic], and it seems that at least he’s aware that there are those issues that need addressing.
In passing sentence, I invite your Honour to bear in mind that this is going to be his first experience of custody, so that fact alone will have a more significant impact on him. As I have already raised, his fragile psychological state, his inability to deal with emotional stress will mean that the burden of imprisonment will have a more significant impact on him than any other prisoner, and I refer your Honour to … Dr Barth’s report in relation to that aspect.
At the conclusion of the respondent’s counsel’s plea submissions, the prosecutor made brief submissions in reply. The prosecutor accepted that the respondent’s plea of guilty was made at an early point in time, at committal and before any witness was cross-examined. The prosecutor noted that there was a presumption of concurrency in respect of charges 1 and 2, but of cumulation (unless the Court otherwise ordered) in relation to charges 3 to 5. The prosecutor submitted that the specific sentencing factors that were most relevant were general and specific deterrence, punishment, denunciation and protection of the community.
The prosecutor submitted that even though charges 1 and 2 related to a single complainant, ‘a degree’ of cumulation was called for in respect of those charges and also to reflect the individual criminality of the remaining offences. The prosecutor conceded, however, that totality and proportionality were relevant considerations.
The offending constituting charge 4 was described as ‘significant offending of that kind’, although the prosecutor noted the relevance of the fact that the respondent had not distributed or made the pornographic images he created available commercially.
Reasons for sentence
The judge commenced her reasons for sentence by saying:
Before setting out the circumstances of the offending, I will traverse the background to it, as it should become clear that the context is particularly important in explaining why the offences occurred.[2]
Her Honour then described the applicant’s background in a manner consistent with the submissions made by the respondent’s counsel, and not disputed by the prosecutor, on the plea hearing.[3] The judge then set out the circumstances of the respondent’s offending.[4]
[2]DPP v Watton [2018] VCC 778 [2] (‘Reasons’).
[3]Ibid [3]–[14].
[4]Ibid [15]–[31].
Next, the judge said that the respondent was entitled ‘to a discount’ on his sentence for having pleaded guilty before any witnesses were called to give evidence at a committal. The judge also accepted that the respondent’s plea was an indication of remorse.[5]
[5]Ibid [32].
The judge then referred in some detail to Dr Barth’s report and the opinions in it, the victim impact statements and the references that had been tendered.[6]
[6]Ibid [33]–[43].
The judge observed that a custodial sentence would be difficult for the respondent,[7] but also said that general deterrence was ‘of great importance in cases like this’.[8] The judge concluded her reasons for sentence by saying:
The community regards this type of offending with abhorrence and the court must denounce firmly the abuse of children in this way. Just punishment and the need to deter you yourself are also important sentencing considerations, tempered by the mitigating factors to which I have referred.
Although there has been no delay in the progress of this case since you were charged, it has been many years since the last of the offending and your life has taken a very different path since that time. Despite some hesitation emerging from the psychological report as to the level of confidence in your rehabilitation relating to insight and matters such as self-esteem and a tendency to resort to alcohol, it is clear that you are a very different person than the young man who offended years ago.
Although you committed very serious offences, your rehabilitation to date is a significant mitigating factor as it helps to ensure the protection of the community which is the primary purpose of sentencing in cases like this. A further aspect of delay is that if you had been dealt with as a young person, the need for general deterrence would have played a lesser role in sentencing and I take that into account.
Balancing all these factors which must inform my decision as to sentence, I must also apply the principle of totality and ensure that the sentence I impose is not crushing upon you.[9]
[7]Ibid [44].
[8]Ibid [45].
[9]Ibid [45]–[48].
Parties’ contentions
In particularising her complaints of manifest inadequacy, the Director submitted that, in sentencing the respondent, the judge failed to have sufficient regard to:
(a) the objective gravity and the lengthy period of the offending;
(b)that the respondent was sentenced as a serious sexual offender on charges 3, 4 and 5;
(c) the number of complainants and their age;
(d) the gross breach of trust;
(e)the need for general deterrence and denunciation in respect of sexual offences committed against children;
(f) the need for just punishment;
(g)the separate and distinct forms of criminality or the different complainants involved therein;
(h) the impact of the offending on the complainants;
(i) the fact that the respondent was not a first-time offender;
(j)the fact that charge 5 is a representative charge — representing about nine occasions of sexual penetration; and
(k) the fact that the respondent has a relevant criminal history.
Additionally, the Director submitted that the judge placed too much weight on matters in mitigation, including:
(l) the respondent’s plea of guilty and evidence of remorse;
(m) the delay between offending and sentencing;
(n) the significance of the respondent’s mental health issues;
(o) the respondent’s upbringing and deprivation;
(p) the respondent’s family support; and
(q) that the respondent has no subsequent offending.
In oral argument, counsel for the Director focused on the sentence imposed on charge 4. The sentence of two years on this charge was said to be manifestly inadequate for serious offending that spanned a period where the respondent was aged between 23 and 30 years of age. The fact that the respondent produced, rather than merely possessed, the pornography was emphasised. The covert filming of the respondent’s victims was emphasised, as was the fact that part of this offending occurred while the respondent was on the community based order imposed in 2004 for committing an indecent act with a child under 16.
Counsel for the Director also noted that, while the offending constituting charge 4 ended in 2009, the respondent retained possession of the pornographic videos he produced for some years thereafter. As we have already noted, the respondent’s sisters found the tapes in a locked bag that was put in a shed by the applicant in September 2014. It was submitted that the fact that the respondent kept the pornography he produced for years following the commission of the offences with which he was charged told against the proposition that he had completely turned his life around for some nine or so years prior to the plea hearing.
Counsel for the Director submitted that the sentences imposed on charges 3 and 5 were also manifestly inadequate, as were the periods of cumulation ordered by the judge. In relation to charge 5, it was submitted that this sentence was inadequate for offending that was not isolated, and which occurred after the imposition of the 2004 community based order. Additionally, it was contended that the judge was wrong to order identical periods of cumulation in respect of charges 1 to 4. Longer periods of cumulation should have been ordered on charges 3 and 4 because there was a presumption of cumulation in respect of those charges, whereas there was a presumption of concurrency in respect of charges 1 and 2.
Counsel for the respondent commenced his submissions by noting that this Court has said many times that the test for manifest inadequacy is a stringent one that is not easy to make good. He contended that there was no basis upon which this Court should interfere with any of the sentences or orders imposed by the judge. The judge took into account all relevant matters and imposed sentences that were not wholly outside the permissible range of sentencing options open to her. Moreover, the judge’s reasons demonstrated that she understood and correctly applied relevant principles, arriving at an ultimate sentence that was within range.
In support of these contentions, counsel for the respondent referred to the applicant’s unhappy upbringing, the offending that occurred against the respondent when he was eight and 12 years of age, the lack of support the respondent experienced during his formative years and in early adulthood and the substantial ‘turning around’ of the respondent’s life once he disclosed his sexuality to family and friends in his late 20s. Emphasis was placed upon the fact that by the time of sentencing the respondent had lived a productive and offence free life for some nine years.
Counsel for the respondent submitted that, notwithstanding the fact that the respondent fell to be sentenced as a serious sexual offender on charges 3, 4 and 5, totality and proportionality remained important sentencing considerations. Moreover, the judge’s orders for cumulation were significant as they added two years to the overall sentence. Additionally, it was submitted that there was ‘clear evidence’ of rehabilitation over the nine years since the end of the respondent’s offending, and that this justified the sentences and non-parole period imposed by the judge.
Finally, if this Court concluded that the sentence was manifestly inadequate, the respondent contended that the Court should exercise the residual discretion to dismiss the appeal. In support of this contention, it was submitted that the prosecutor did not refer the judge to any appropriate sentencing decisions or other material, and thus received no real assistance from the prosecutor on the plea.
Was the sentence manifestly inadequate?
The Director’s submission that the sentence on charge 4 was manifestly inadequate must be accepted. The sentence imposed on charge 4 was wholly outside the permissible range of sentencing options open to the judge, as was the cumulation of a mere 6 months of that sentence on the sentence of 3 years imposed on charge 5.
The length of time over which the offending constituting charge 4 occurred (seven years), the nature of the films made, the number of victims, the covert circumstances in which most of the filming occurred, the fact that the offending was persisted in throughout the respondent’s late 20s, and the fact that the respondent continued to engage in the offending after being placed on a community based order for 12 months (later varied to 18 months), required a sentence significantly longer than two years’ imprisonment. This is so, notwithstanding the significant matters in mitigation relied upon on the plea and in this Court.
While the sentence imposed on charge 3 was low, we are not persuaded that it was manifestly inadequate. The sentence on charge 5, however, stands in a different position — that offending occurring after the imposition of the community based order, and charge 5 being representative of other occasions on which the respondent offended against C. Ultimately, it is not necessary to resolve whether the sentence on charge 5 was itself manifestly inadequate. A conclusion of manifest inadequacy in relation to charge 4 reopens the sentencing discretion on all of the respondent’s charges.
Having regard to the conclusions just expressed, it is not necessary for us to analyse in any further detail each of the matters particularised in the Director’s ground of appeal. It is sufficient to say that it would appear from her Honour’s reasons that the judge gave less weight to general deterrence than ought to have been given because of what she perceived as a delay in circumstances where, without delay, ‘general deterrence would have played a lesser role in [the respondent’s] sentencing’.[10]
[10]Ibid [47].
We would respectfully disagree with this approach. First, the issue of delay was of less relevance once the respondent continued to engage in his offending throughout his late 20s. Secondly, even if it could be said that general deterrence had a lesser role to play in respect of charges 1 to 3, the same could not be said for charges 4 and 5.
The cumulation orders made by the judge were very modest. Together with the sentence imposed on charge 4 they have resulted in a total effective sentence that is manifestly inadequate. Additionally, there is force in the Director’s submission that the orders for cumulation on charges 3 and 4 (where the presumption was for cumulation) cannot stand with the orders for cumulation on charges 1 and 2 (where the presumption was for concurrency). A proper exercise of the sentencing discretion required longer periods of cumulation for those offences on which the respondent was sentenced as a serious sexual offender.
Should the residual discretion be exercised?
The Director has persuaded us that there is no basis for the exercise of the residual discretion in this case. While the prosecutor’s submissions on the plea appear to contain some elements of understatement, we do not accept the submission that the prosecutor did not give the judge the assistance she was entitled to expect.
Conclusion
The appeal will be allowed. The sentences on charges 4 and 5, the orders for cumulation on charges 3 and 4, the total effective sentence and the non-parole period will be set aside. While the sentences on charges 1 and 2 and the orders for cumulation made in respect of them will be set aside, we will re-impose the sentences and orders imposed by the judge in respect of them.
Accordingly, the respondent will be resentenced as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1. | Sexual penetration of a child under the age of 16 Crimes Act 1958, s 45(1) | 10 years | 33 months | 6 months |
| 2. | Indecent act with a child under the age of 16 Crimes Act 1958, s 47(1) | 10 years | 2 years | 6 months |
| 3. | Indecent act with a child under the age of 16 Crimes Act 1958, s 47(1) | 10 years | 2 years | 12 months |
| 4. | Production of child pornography Crimes Act 1958, s 68(1) | 10 years | 4 years | Base |
| 5. | Sexual penetration of a child under the age of 16 Crimes Act 1958, s 45(1) | 10 years | 4 years | 12 months |
| Total effective sentence: | 7 years | |||
| Non-parole period: | 4 years 6 months | |||
| Section 6AAA statement: | 9 years with a non-parole period of 6 years 6 months. | |||
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