Director of Public Prosecutions v Gabriel Walter (a pseudonym)
[2011] VCC 747
•19 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DPP |
| v |
| Gabriel Walter (a pseudonym) |
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JUDGE: | Her Honour Judge Hannan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 19 May 2011 | |
CASE MAY BE CITED AS: | DPP v. Gabriel Walter (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 747 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes | |
| For the Accused | Ms S. Lacy |
HER HONOUR:
1 Gabriel Walter[1] you have pleaded guilty to three charges of incest contrary to s.44 of the Crimes Act. The maximum penalty for each offence is 25 years imprisonment. Further you have pleaded guilty to three charges of committing an indecent act with a child under 16 contrary to s.47. The maximum penalty for each offence is ten years imprisonment.
[1] ‘Gabriel Walter’ is a pseudonym.
2 The facts which found the charges are set out in the prosecution opening which is Exhibit A. That document sets out the agreed factual basis upon which you have pleaded and I do not intend to recite that summary in full now, it having been read in open court this morning.
3 In essence, however, you are the father of five children to Karen Walter[2]. Three daughters and two sons, including the three victims in relation to this matter.
[2] ‘Karen Walter’ is a pseudonym.
4 As regards Charge 2, after you came back from overseas in 1994, you entered your daughter Alexis Walter’s[3] bedroom during the night and touched her body. You then rubbed her vagina and inserted your fingers into her vagina. This charge is representative of similar behaviour occurring on three other occasions as detailed in the prosecution opening which is Exhibit A.
[3] ‘Alexis Walter’ is a pseudonym.
5 Charge 1 relates to the same occasion as Charge 2, at which time you performed oral sex upon Alexis Walter by inserting your tongue into her vagina. This is also a representative charge and is representative of similar behaviour which occurred on another two occasions, as detailed in the Crown opening.
6 Charge 3 relates to an occasion when you took Alexis Walter to a house in Anderson Street. At that time you made her perform oral sex upon you by placing your penis in her mouth. This is also a representative charge and is representative of similar behaviour which occurred on one further occasion, as detailed in the prosecution opening.
7 Charge 6 is the last occasion when you offended against Alexis Walter and this occurred in 2001. On that day Alexis Walter returned home after a day out and went to bed. You entered her bedroom and touched her on the vaginal area and then placed your penis against her vagina.
8 Charge 4 relates to your daughter, Cynthia Walter[4], who was at the time known as Annie Walter[5]. Annie Walter changed her name to Cynthia Walter on 31 December 2005 aged 17. In 1997 when Annie Walter was nine years old and in Year 3 at school you entered her bedroom one night and pulled down her pyjama bottoms and underwear. You then pulled her on top of you and started rubbing her vagina vigorously causing her to wake. You stopped a number of times to lick your fingers and then continued to rub them around her vagina. This charge is also a representative charge and is representative of similar behaviour occurring on three further occasions as detailed in the prosecution opening.
[4] ‘Cynthia Walter’ is a pseudonym.
[5] ‘Annie Walter’ is a pseudonym.
9 Charge 5 relates to your daughter, Brenda Walter[6]. During 1997 when Brenda Walter was four years old she woke up from a nightmare in the early hours of the morning. She went into the family room where her mother was. Her mother told her to go and get into the parents' bed. As Brenda Walter got into bed, she realised that you were there beside her. You reached over and pulled her on top of you so that your stomachs were facing each other. You then pulled your shorts down and placed your penis on her vaginal area. When you stopped pulling her close to you she pretended to be asleep and eventually rolled off you and pulled her shorts back up.
[6] ‘Brenda Walter’ is a pseudonym.
10 The explanation you proffered to Ms Matthews whose report I shall turn to in due course as to the link between your traumatic three months work in Zaire and deteriorating relationship with your wife and the offending which brings you before this court must, in my view, be treated with some scepticism given the duration and range of your offending and the lack of any psychological condition which caused or contributed to that offending. Ms Matthews seems to have recognised that there was at least an element of self justification and minimisation as regards your offending and your explanations.
11 I note of course that you have never had any treatment in relation to the issues which arose out of your experiences in Zaire or this offending, and it is to be hoped that with treatment will come some insight, empathy and hopefully, true remorse.
12 I regard your offending as serious examples of offences of this type. You grossly breached the trust your children and their mother were entitled to have in you. What is disclosed is calculated offending and clear deviant interest. Your victims were of tender years and you took from them the happy childhoods to which they were entitled. The victims were powerless and vulnerable to your offending. You used them to satisfy your own disgraceful desires. You showed no regard for the welfare of your children, to whom you had both legal and moral responsibilities. This was calculated ongoing offending and is to be distinguished from offending which occurs at the spur of the moment and without thought or planning.
13
It is of course relevant to note that this offending occurred between ten and
17 years ago. Given that you were able to express and describe to Ms Matthews the likely effects of your offending upon your daughters, it does seem that you now have some appreciation of the serious nature of the offending and its consequences.
14 Exhibits B, C, D and E are victim impact statements from your three daughters and their mother. The statements are graphic accounts of the very real damage that this type of offending causes. Your conduct pervaded all aspects of your daughters' lives including emotionally, academically and financially. They understandably find it difficult to trust, which impacts their relationships.
15 Even after B complained, she was not believed and you painted her as a liar. You saw her leave the family at 15, all the while knowing that her allegations were true. She was a child forced into the adult world by your conduct. That was also the sad reality for her sisters, especially Alexis Walter, who was the victim of your most serious offending.
16 Your daughters are still dealing with the aftermath of your offending and it is to be hoped that time, and the conclusion of these proceedings, will help them to heal from what they should never have been forced to endure. The consequences are hardly surprising and should have been appreciated by you at the time of your offending.
17 You have no prior convictions or appearances and nothing subsequent. You fall to be sentenced on the basis that you are, apart from this matter, a man of good character.
18 I now turn to matters personal to you. You are now aged 53, having been born on 12 March 1958. Your parents divorced when you were six, after which time you spent substantial periods with your grandparents. You were sent to boarding school in Ballarat for Grades 1 and 2, and only saw your family on weekends. You did not enjoy boarding school and you report being bullied and beaten. In Grade 3 you returned to live with your mother in the Flemington Commission flats but after a short time you, of your own accord, went to live with your grandparents in St Kilda, where you attended Sacred Heart Primary School. Subsequently your mother and sister moved nearby and over a period of about 18 months you eventually returned home.
19 You completed your secondary schooling at Assumption College, Kilmore where you were again a boarder. You report being unhappy and isolated. Despite problems at the school you were never the subject of sexual abuse at that location. You were academically bright and you were awarded scholarships in Years 8, 10 and 12. It was not until you left school that your mother was able to secure any child support from your father. In the years prior to that you sought to assist your mother financially through part time and holiday employment.
20 After successfully completing HSC as it then was, you enrolled at Melbourne University but that course was not what you expected. You subsequently enrolled at RMIT in applied physics but you did not complete that qualification. In 1979 you sat the Public Service exam and obtained employment at a Government Aircraft facility where you worked for eight years before taking a redundancy package. After commencing employment you obtained a Master's Degree in business and logistics at RMIT and a Master's of Education at Melbourne. Your next substantial employment was with the Wesley Mission and then St Vincent de Paul as a personnel manager and in strategic management. Three years later you started teaching at the Kangan Batman TAFE in logistics and transport.
21 In 1994 you got a three month position with CARE Australia in Zaire where you worked for three months witnessing many atrocities which I accept continue to traumatise you today. After returning from Zaire you continued at the Kangan Batman TAFE for a number of years. In the years that followed your return from Zaire, your wife suffered two miscarriages and your relationship, you report, deteriorated. This was part of the context in which some of your offending occurred and I do accept that you were perhaps not, as your counsel put it, "operating at your best", but that in no way explains, much less excuses your offending behaviour.
22 Most recently you have been working part time at RMIT and Queensland University in teaching roles. You were suspended from RMIT in September last year and you have only had very limited employment with Queensland University since that time.
23 You were married for 25 years as I have said. Your children range now in age from 18 to 25. You understandably have no contact with your daughters and only minimal contact with your sons. Your grandparents who provided much of the limited stability you had growing up both died in 1998. You have never been close to your sister. You have effectively through your own actions lost your family.
24 I have been told that you have transferred your interest in the family home to your wife. That may need to be examined in other proceedings.
25 Exhibit 1 is a report from Pamela Matthews, a forensic psychologist, who saw you for the purposes of assessment and report on 10 May this year. Ms Matthews says that your history of disrupted primary attachments is likely to have been a significant factor in your offending. Ms Matthews found that you currently qualify for a diagnosis of paedophilia. On the Static-99 she assessed your risk of re-offending as low, but assessed on the RSVP you fell into the moderate range. Ms Matthews says that this level of risk could be significantly ameliorated by treatment, especially as regards your minimising behaviours and awareness.
26 In relation to your prospects of rehabilitation I think they are probably best assessed as good given your lack of prior or subsequent matters, your plea of guilty, your developing remorse and empathy and importantly the treatment you will undergo in custody, assuming that you actively engage in that process.
27 Your counsel points to a number of matters you are entitled to have taken into account in mitigation. Firstly your plea of guilty which you entered in an early stage in the proceeding. The matter proceeded by way of straight hand-up brief. You have by your plea spared the witnesses the ordeal of giving evidence. You have saved the community the time and expense for trial. You are entitled to the full benefit of that plea. As I have said you have no prior or subsequent matters and nothing outstanding.
28 The contents of the report of Ms Matthews give context to your offending and context is always relevant. Your prospects of rehabilitation and what is necessary to achieve that rehabilitation must be given weight. This will be your first time in custody. You will serve your sentence as a protection prisoner which will increase the burden of imprisonment. Given this is your first time in custody it is likely to have significant deterrent effect, whatever the duration.
29 General and specific deterrence are very relevant sentencing principles which should be given weight in the sentence I will impose this day. I must seek to deter not only you but others who would engage in like conduct. The court and the community simply cannot, and will not, tolerate offending which so seriously damages the lives of our children. Your sentence must manifest the community's denunciation of your conduct and impose just punishment. I must seek to deter you from future offending which remains relevant despite your lack of prior matters, given the duration of your offending.
30 The Crown submit that the appropriate range as a head sentence of between eight and ten years with a non parole period of between six and eight years. Your counsel did not make submissions as to range.
31 I am satisfied and it was not disputed by your counsel that with respect to Charges 3, 4, 5, and 6 you fall to be sentenced as a serious sexual offender. I am required to regard the protection of the community as the principal purpose for which sentence is imposed. I may, in order to achieve that purpose, impose a longer sentence than that which is proportionate to the gravity of each relevant offence considered in light of its objective circumstances. Any sentence imposed on these counts must be served cumulatively unless otherwise ordered.
32 I have determined in this case it is not necessary nor appropriate to achieve the protection of the community to impose a sentence which is longer than that which is proportionate to the gravity of each relevant offence in light of its objective circumstances.
33 The Crown did not seek to make any submissions in this regard and I have based my conclusions upon your plea, your lack of prior history and the opinion of Ms Matthews as to the likely reduced risk following the treatment you will receive in custody. In addition I have noted the attitude of the prosecution. I direct it be noted in the records of the court that I have sentenced you as a serious sexual offender with respect to Charges 3, 4, 5 and 6.
34 I have been mindful in sentencing you that Charges 1, 2, 3 and 4 are representative charges. In each case I am required to sentence you upon the basis of the conduct which founds the charge itself, but I may have regard to other occasions which you have admitted in coming to a view as to the gravity of the instant offence. That is I may view the offence in a wider context disclosed by your admission of other acts which are not the subject of the charge. This wider context is also relevant to any assessment of your prospects of rehabilitation which are of course affected by duration and frequency of prior conduct. I emphasise however that I have sentenced you on the basis of the acts which found the charges to which you have pleaded.
35 These are without doubt serious offences. In the circumstances I have no option but to impose terms of imprisonment. I have considered how the sentences should relate to each other and have had regard to and applied principals of totality and proportionality in coming to a view as to the appropriate orders in relation to concurrency and cumulation. I have determined that there should be both moderation and cumulation so the total effect of sentence reflects the totality of your criminality. You are convicted and sentenced as follows.
36 Charge 1, incest, five years. Charge 2, incest, five years. Charge 3, incest, five years. Charge 4, indecent act, child under 16, 20 months. Charge 5, indecent act, child under 16, 16 months. Charge 6, indecent act, child under 16, 16 months.
37 I direct that 14 months of the sentence upon Charge 2, 14 months of the sentence upon Charge 3, four months of the sentence upon Charge 4, three months of the sentence upon Charge 5, three months of the sentence upon Charge 6 be served cumulatively with the sentence upon Charge 1 and upon each other. That makes a total effective sentence of eight years and two months.
38 I direct that you serve five years and ten months before becoming eligible for parole. For the sake of clarity and because you are being sentenced in relation to Counts 3, 4, 5 and 6 as a serious sexual offender I make clear that I am directing that apart from the accumulations I have just announced all sentences are to be served concurrently.
39 I direct it be noted in the records of the court that were it not for your plea of guilty I would have sentenced you to a total effective sentence of 11 years with a non parole period of eight years. By operation of s.34(3) of the Sex Offenders Registration Act you are now deemed to be registrable on the basis you have been found guilty of three Class 1 and three Class 2 offences. Pursuant to s.34 of the Act the length of the reporting period is life. That is a matter conceded by your counsel.
40 In a moment my associate will provide you with relevant documentation setting out your obligations in that regard and ask you to sign an acknowledgement that you have received that documentation.
41 Finally the Crown make application pursuant to s.464ZF of the Crimes Act for an intimate forensic example to be taken from you. You have consented to this. I am satisfied it is in the interests of justice having regard to the seriousness of your offending to make such order. I order that an intimate forensic example namely saliva be taken from you. It may be taken by a doctor, nurse or other authorised person. It is taken by wiping a swab on the inside of your mouth. I must inform you police may use reasonable force to enable that procedure to be conducted.
42 Mr Associate have the acknowledgement signed please. You may approach with my associate, Ms Lacy. Please check the cumulations Madam Prosecutor.
43 MS LACY: I have Your Honour. They're correct.
44 HER HONOUR: Thank you. Ms Holmes, as regards the victim in this matter once the sentence has been transcribed I'm happy for them to be provided with a copy so if they leave their details. I know it's a lot to take in all at once. So I'll organise for copies for you. All right?
45 MS HOLMES: As Your Honour pleases.
46 HER HONOUR: Counsel, there's nothing further?
47 MS LACY: No Your Honour.
48 HER HONOUR: Remove the prisoner. Thank you, ten o'clock tomorrow.
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