Director of Public Prosecutions v Gee

[2016] VCC 1675

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR -16-01548

DIRECTOR OF PUBLIC PROSECUTIONS

v

WAYDE GEE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	11 November 2016
CASE MAY BE CITED AS:	DPP v Gee
MEDIUM NEUTRAL CITATION:	[2016] VCC 1675

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Hassan	Office of Public Prosecutions
For the Accused	Mr J. Lavery	HBH Legal

Pages 1 - 10

 

 

HIS HONOUR: 

1Wayde Liam Gee, you have pleaded guilty to three charges of sexual penetration of a child under the age of 16 and one charge of production of child pornography.  Charges 1 and 2 are representative and I am aware that that simply means that they are not to be dealt with in isolation, which in this scenario, bearing in mind the material before me, I would not have done in any event. 

2The three charges of sexual penetration of a child under 16 are all in circumstances where the victim was under your care and supervision.  Accordingly, the penalty for that crime is a maximum of 15 years and for the produce child pornography is a maximum of ten years.  It was not debated during the course of the plea, but I regard the child pornography in this case as being at the very low end.

3You are now 24 years of age.  You pleaded guilty in the ultimate, and I accept that that plea of guilty is accompanied by appropriate remorse.  You must also get the utilitarian benefit of that plea of guilty.  You made admissions to police when interviewed and most importantly, you have no prior convictions.  So you fall to be sentenced as a 24 year old with no prior convictions.  In the event of a custodial sentence, you fall to be a sentenced as a serious sexual offender on Charges 3 and 4.  I am aware that the Act provides that the sentences should be cumulative unless otherwise ordered and I will be otherwise ordering.  The Crown do not seek a disproportionate sentence and I would not have done it in any event.  I am aware that community protection is the principal sentencing purpose.  I am also aware in that situation, I will sentence on that basis as I indicated to your counsel that Mr Joblin regards you as being a lower risk than if you had some sort of sexual dysfunction and the Office of Corrections test says that you are a low risk of reoffending.

4In those circumstances specific deterrence, because of the sentence that will be imposed will not need to be of great significance and I will deal with all of that in a moment.

5Firstly, because of the offending, you will be placed on the Sex Offenders Register and I advise you that the reporting conditions will be for life.

6A summary of the offending is that you were brought up essentially in this area and had become a teacher running your own, as I understand it though financed elsewhere apparently, dancing school.  The victim in the matter was a student at that school.  You had known at least of her for some years and had been at a dance school together when you were 16 to 17 and she was about seven to eight.  There is no suggestion here that you were not fully aware of her age.

7In any event, she was attending that school.  You were initially taking her for about two of her ten classes per week.  By November 2015, you were taking all her classes and she was also having private lessons on a Wednesday afternoon with you.

8Between 1 November 2015 and 10 December 2015, you started contacting the victim via text message and asked, "What would you say if I wanted to hug you?"  The following day, you and the victim were exchanging text messages and you started using love heart emojis and kissing faces in the messages.  That night, she had a private lesson with you and you hugged her.  The day after that, you went walking with her and again hugged her while you were walking.

9In further text message exchanges with her, you asked her, "What would you say if I said that I wanted to kiss you?"  A few days later, you did.  She described in her VARE the kisses were short kisses on the lips and cheeks.  You then, between you, decided that you would pick her up from school at 11 am on a Friday, you had a private dance lesson with another person at 11.45 am.  She left school and waited for you.  You then drove her back to the studio so that no one would see you.  Went back into the studio and you hugged and kissed her.  She described the hugging and kissing as intimate.  You then returned her to school.

10It is clear from this that, whether it be the appropriate word but there is certainly no charge for it, that you were very aware of her age and over a period of days, and in my view, groomed her of what was to follow. You knew what you were doing.

11On an unknown date between 1 November 2015 and 10 December 2015, you again picked her up from school and went back to the dance studio.  You performed oral sex on her.  That is part of Charge 2 as a representative matter.  You and her then together decided to meet up early at 4 am and go the dance studio.  These meetings were known as, "4 o'clockers."  They were pre-arranged the night before where you would text her saying, "4 am tomorrow," and she would agree.  It was in the report of Mr Joblin that this offending was opportunistic.  In my view, that is just simply not the situation.  Whether Mr Joblin ever saw the text messages or not, I do not know, but it is clear to me that you had determined to go on this course and opportunism played no part in it.

12On 10 December, she set her alarm for 3.45 am, got up, got dressed and you texted her and asked if she was ready and she replied that she was.  She walked up to the top of the court, you picked her up in your car and drove her to the dance studio.  You and her were on the couch in the waiting area and started off kissing and hugging.  She describes it as intimate.  You then both undressed, unfolded the couch and you inserted your finger into her vagina, digitally penetrating her and that gives rise to Charge 3, which is not a representative charge.

13You were both lying on the couch.  After that digital penetration, you performed oral sex on her by leading your tongue around her vagina and inserting your tongue into her vagina, that is also representative of Charge 2.  You then laid on top of her with your penis on her stomach, you moved your penis down to her thigh and hip area, asked her if she was okay, she replied, "Yeah," and you inserted your penis into her vagina.  That is Charge 1, again representative.  You lay on the couch together, got dressed and you dropped her a short way from her house and she walked home.

14On 27 February 2016, she had dance classes with you and had told her mother that practice finished 45 minutes after practice actually did.  After everyone else had left, you both went into the office, engaged in foreplay, including kissing, and you inserted your penis into her vagina.  That is also representative of Charge 1.

15On 31 January 2016, you and she were at the dance studio and you wanted to take some photographs of her.  She was naked and laying on a couch.  Three images show her naked, the fourth shows you and her kissing.  You took the photographs with her phone and asked her to send them to you and she kept a copy of that.

16You were arrested and interviewed in relation to the offending.  You confirmed that you knew how old she was and basically agreed to the offending.  You also conceded that she performed oral sex on you and of course there is no charge for that.

17Yours was clearly a breach of trust.  It is clear that you knew her age, it is clear that you knew what you were doing was wrong and it is clear from all the material that you knew that gaol was a potential consequence of it.  It is hard to escape the view that having read the texts and looked at all the material, that you were apparently still in a relationship with another person, that you were simply using this girl.  It is the situation on the material that the relationship finally ended when she realised that you were continuing to have sex with your then girlfriend or partner.  I am sure that there is a background to all this that I am simply not being told about and it may be in your favour, it may not be in your favour.  I simply take that no further.  But the fact of the matter is that you knew what you were doing, you kept doing it.  The photographs of the child show that she is not an “attractive young lady” as described in your interview with Mr Joblin but basically a kid, I cannot put it any stronger than that.

18The crimes are serious.  As I said, in your situation, specific deterrence are not of real importance, but general deterrence certainly are, as is denunciation and there must be an appropriate punishment.  The Crown say that the only appropriate punishment involves active custody and I think that that is correct.  I had discussions with your counsel about parole or a community corrections order and in the end, having had a report from Corrections which says you are suitable, decided that that is the appropriate way to go.

19In determining the length of that custodial sentence, tendered were two victim impact statements, one from the victim herself and one from her father.  Her father says that the consequences of all this may well be immeasurable.  He, as so many parents do in this situation, describes himself as having been a failure insofar as his daughter is concerned.  She, in her victim impact statement, said, "I've had difficulty sleeping and formed a loss of innocence and lack of self-esteem."  "Before the crime occurred, I was a happy, friendly and outgoing type of person.  I have now developed into a sad, angry person, sometimes even aggressive."

20Clearly, the offending took place in the latter part of her 16th year, but the fact remains that you knew and it has had a very significant effect upon her.  I take those matters into account.

21I then looked to matters personal to you in terms of determining a length of a custodial sentence prior to the commencement of a community corrections order, if you agree to a community corrections order.

22Firstly, I take into account the matters I have already mentioned, your age, the plea of guilty, your very good prior history and the like.  It is clear from material in front of me and I have before me medical reports, psychological reports, references and a letter from your parents, all of which I have taken into account.  It is clear that you have always had a good work ethic, that you were born and as a young child and as you grew up had real difficulties in terms of physical health.  I have read those medical reports, but it is not suggested that there is anything in those which could not be adequately dealt with in a custodial environment.

23I can accept fully the dreadful consequences of this for your parents, but the fact of the matter is it is not put that there are exceptional circumstances and I would not be able to find that there were.  The consequences of this to you have been financial, and not just for you but for your family.  You have lost a business, you have lost your reputation and you, in all probability, have lost the opportunity of teaching children to dance.

24Your history has been one of enjoying dance and from a young age, you have been involved in it.  You became a dance teacher, you became involved in Portland in the dance school.  It is just extremely unfortunate that all this has occurred.  There is a report from Mr Joblin, a respected forensic psychologist and as indicated to your counsel there are aspects of that that I confess I have to struggle with.  He describes your history and I do not have to go through the background of that.  He describes that you have the support of your family and you have the support of a partner and I take all that into account.

25In his report, there are some matters which concern me.  He said that you reported that the victim was a, "Very attractive young lady."  He concedes, as you did, with her in a text message that the relationship would not have progressed further and you would not have left your girlfriend to develop a relationship with her.  As I see in the text, you propose that it be friends with benefits.

26Again, concerningly, and I am careful as I have indicated to your counsel not to be taking these as direct quotes from you, but Mr Joblin says you described the victim as being, in his words, compliant and co-operative at all times.  He said that he noted in the material the location of the offences, he said it is quite apparent they occurred mainly at the dance studio in the morning when he would walk with her.  Accordingly, one would consider the offences were therefore opportunistic, certainly not predatory.  Well that paragraph is quite clearly wrong.  It was not a situation of just going for a walk with her, you would actually text her and organise to meet at 4 o'clock in the morning so that the offending could take place.

27He describes you of good intellect and intelligence.  He said that a lack of intelligence played no role in this offending.  I interpolate, none of the principals in Verdins apply to this situation.  He seemed to be taking the view that you persisted with this offending knowing the criminality of it because you found the complainant attractive.  I find that a difficult concept to accept despite my usual respect for Mr Joblin's opinions.

28In any event, he then goes on to talk about the consequences of the offending for you and the consequences of the offending to your family and your partner and I accept all those.  There is a further report from a Karen Sandstrom, who is a clinical psychologist and I accept all that as well.  I do not know what has gone on in the town over all this offending.  There seems to be a backlash all over the place, but you are the one who committed the offending and you are the one who gets sentenced.

29I have read the letter sent by your parents and as a parent myself, I realise the grief and terrible anxiety this must have caused them.  However, I have, as a sentencing judge, have to apply the law and point out that the community has to protect children, whatever the circumstances of it.  What other deterrence may be, you simply cannot do what you did and a very strong message must be sent to young people that you cannot do it.  Sometimes in these circumstances, as again I discussed during the course of the plea, the sentencing court finds that the chronological age may be significantly different but that there is a similarity in terms of mental age that can be mitigatory, that is not the situation in this circumstance.

30In the ultimate, the prospects of your rehabilitation should be good and I am prepared to sentence on the basis on the risk of you reoffending should be low.  I take into account very much your age, I take into account that you will undoubtedly have to undergo the sentence in protection and I take into account that you, not in a Verdins sense, but just in a general sentencing sense, will find gaol a very frightening experience.  I also accept, and I am sure the authorities will recognise that as well, that you would be vulnerable and those factors have all played a part in determining the length of the sentence that is to be imposed.

31I have also, in this situation, decided not to in any arbitrary way distinguish between the offending.  You are really being sentenced for a course of conduct and what I propose to do is give an appropriate sentence for each and because it is a course of conduct in that sense, simply make them concurrent.  The CCO can then follow on from that and the community corrections order will be on all the charges.  So a breach of that would result in resentencing on all of the charges.

32I do not think I need to go in detail into the medical history.  I do not need to go into the character references.  You have clearly, over the years, been a valuable member of the community and you have contributed to your community.  You can call those matters into account.

33This is not a situation where 6AAA is applicable because it is a combination sentence but I can simply say that by for your plea of guilty and but for the background and the family support that you obviously have, had you fought this out, the sentence would have been significantly and I mean significantly higher than the one I am going to impose upon you.

34On Charge 1, your are sentenced to be imprisoned for a period of nine months.  On Charge 2, nine months.  On Charge 3, nine months and on Charge 4, one month.  I direct that the sentences imposed on Charges 2, 3 and 4 be served concurrently with the sentence imposed upon Charge 1, which gives a total effective sentence of nine months.  There is no PSD.

35Upon your release from prison, if you agree, you are to be placed on a two year community corrections order with conviction.  The conditions of that will be supervision, 200 hours of community work and I direct that that community work can be carried out within programs and there will be a condition that you undergo programs to reduce the risk of reoffending, which as I understand will in all probability involve a sex offenders program.  I regard that as punitive within the meaning of Boulton.

36Are there any other orders I have to make?

37MS HASSAN:  We did apply for the 464, Your Honour.  You said you would not make it if defence opposed.

38HIS HONOUR:  You were going to - yes, what is your situation.

39MS HASSAN:  You were going to get some instructions.

40MR LAVERY:  Can I have a moment, Your Honour?

41HIS HONOUR:  Yes.  Can I say this to you, he has got no priors.

42MR LAVERY:  He's got no priors.

43HIS HONOUR:  The risk of reoffending is low.  In those circumstances, I would not do it.  If you can get him to sign them.  If you would go down with him if you would not mind.

44All right, that community corrections order is made.  There is no other orders I have to make?

45MR LAVERY:  No, Your Honour.

46HIS HONOUR:  No, all right.  Take him down, thank you.

47(Prisoner removed.)

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