Director of Public Prosecutions v James Wade (a pseudonym)
[2020] VCC 465
•21 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES WADE (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE LYON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 and 16 April 2020 |
| DATE OF SENTENCE: | 21 April 2020 |
| CJackE MAY BE CITED Jack: | DPP v Wade (A Pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 465 |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:RHMcL v R (2000) 203 CLR 452; DPP (Vic) v Ty (No.2) (2009) 24 VR 705; Tong (2003) 138 A Crim R 82
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Office of Public Prosecutions |
| For the Offender | Mr J. Taaffe | Doogue & George |
HIS HONOUR:
1.James Wade,[1] after a jury trial of five days you were convicted on two charges of indecent assault and one charge of gross indecency.
[1] A Pseudonym.
2.The first charge of indecent assault occurred between 14 June 1987 to 13 June 1989. That offence carries a maximum penalty of five years' imprisonment.
3.The second charge of indecent assault occurred between 14 June 1990 to 13 June 1993. That offence also carries a maximum penalty of five years' imprisonment.
4.The charge of gross indecency occurred between 14 June 1990 to 13 June 1993. That offence carries a maximum penalty of three years' imprisonment.
5.The facts upon which the jury verdicts are based may be briefly stated.
6.You were born in 1957. In about 1982, you married Susan Wade.[2] Jack Revell[3] was her nephew and became your nephew by marriage. There were no children born of your marriage.
[2] A Pseudonym.
[3] A Pseudonym.
7.Jack was born in 1981.
8.From a young age, Jack suffered from behavioural difficulties. In her evidence, his mother Mary Revell[4] described those difficulties in her relationship with him. You had a good relationship with Jack and he used to spend time with you at your home. In the course of spending time with you, you took him on trips and to a factory where you operated a computer business.
[4] A Pseudonym.
9.Charge 1 occurred when Jack was between six and eight years old. On an occasion where you took him with you to your computer business, you caused him to strip to his underwear. You placed handcuffs on him and tied his hands up above his head with a rope slung over a ceiling beam. You took photographs of him or a photograph of him.
10.Charge 3 occurred when Jack was between nine and 11 years old and he was at your home. He was sitting in a chair in the lounge room. Jack looked and saw that your pants were down and you were masturbating. You said words to the effect of 'This is how it’s done, it’ll make you feel good and you should give it a go.'
11.At a time different to the commission of Charge 3, Jack was again at your home. You commenced watching gay pornography with Jack. You then put heterosexual pornography on to play. You left the room and Jack commenced to masturbate. When you returned, you saw Jack and you told him not to be embarrassed and stated, 'It’s different when someone else does it when you’re doing it. Do you trust me?' You then briefly masturbated Jack before he cringed and you stopped. This constitutes Charge 2.
12.Context evidence was led of an occasion where you came into the room where Jack was sleeping. You lay next to Jack and stroked his hair.
13. On other occasions, you told him that his parents did not love him.
14.Further evidence was led that at a time when Jack was about 13 he had wagged school and spent the day with you. You told Jack that you loved him, that you did not think he loved you as much as you loved him and that you were in love with him. Jack did not spend time with you again after this.
15.Jack’s mother contacted you after she learned that Jack spend the day with you when he wagged school. She told you not to contact him further. Nevertheless, you continued to turn up to his football training and matches
16.When Jack was about 16, he commenced suffering mental health issues which lasted about 10 years. Upon his admission to a mental health facility, he told doctors of your offending. He repeated those accusations to his mother. Jack was too ill at that time to take the matter to the police.
17.You were interviewed by police on 21 October 2015. Although you admitted taking a photograph of Jack wearing handcuffs, you told police that he was fully clothed and that the photograph was a joke. You otherwise denied any of the offending.
Objective gravity and moral culpability
18.I turn now to the objective gravity and moral culpability of your offending. The criminal law prohibits sexual offending, and specifically sexual offending against children, with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity. There is and can be no question or issue about consent. The prohibition and the maximum penalty for its contravention is intended to deter others who may consider engaging in sexual activity with a child.
19.Your offending constitutes a gross breach of trust. You breached the trust of the young boy who was placed in your care. You designed your conduct to make him feel loved, cared for and befriended. No matter how you rationalise it however, your conduct and motives always had a sinister and lascivious aspect to them. You used your relationship with Jack to try and normalise the activity. This is demonstrated by the words you used to him at the time of the commission of both Charges 2 and 3.
20.Moreover, your conduct breached the trust of Jack’s parents. It was apparent from evidence given during the trial that they struggled with their son's behaviour from a young age. Your offer of help and to have Jack stay over would have come to them as a welcome relief. Instead, you used the opportunity to repeatedly commit sexual crimes against their son.
21.The prohibition on sexual activity with a child under the age of 16 years presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm, which is long-lasting and serious and manifests itself in both physical and psychological forms. Therefore, the harm to your victim is presumed.
22.In this case, the victim impact statements of Jack, that of his wife and of his mother make it abundantly clear the very great harm that your activity has caused; both for the gross breach of trust reposed in you, and the offending itself.
23.I recognise the courage and tenacity of Jack and his family members in coming forward and making these searingly raw statements. It is apparent that the effects of your actions were widespread and will be long lasting. I wish Jack and his family well in the healing process.
24.Your conduct is serious. The offending on Charge 1 is all the more serious for the fact that it cannot be said that it was ‘out of the blue’. The charge of possession of child pornography in 2015 to which you pleaded guilty involved your possession of more explicit images. I do not raise this to increase the sentences for this offending but rather to put your offending in context – that is you maintained a sexual interest in bondage and in boys over the years.
25.Overall, your offending is serious and your moral culpability is high because of the relationship you held with this young boy, the differences in your ages, your attempts to normalise the activity and to in effect act as if you were educating him.
26.You have displayed no remorse.
27.Your actions deserve the condemnation and abhorrence of the community. The conduct must be met by principles of deterrence, denunciation and a measure of protection of the community.
Sentence on a retrial
28.I turn now to the principles of sentence on a re-trial. The trial before me was conducted on pre-recorded evidence. You first stood trial before His Honour Judge Tinney in April / May 2018. After your conviction on these three charges (and I interpose to note that you pleaded guilty to a charge of possession of child pornography, which, as I shall explain later, has a bearing on the current sentencing consideration) you successfully appealed your convictions on these three charges on the basis of the failure of the learned trial judge to provide the jury with an unreliability warning in respect to the evidence of Jack. The sentence imposed by Judge Tinney was as follows:
· indecent assault (which was Charge 2 on this indictment): 24 months imprisonment;
indecent assault (Charge 1 on this indictment): 20 months' imprisonment; 8 months to be served cumulatively;·
gross indecency (Charge 3 on this indictment): 15 months' imprisonment; 6 months to be served cumulatively; and·
possession of child pornography (separate indictment): 21 months' imprisonment; 10 months to be served cumulatively.·
The total effective sentence imposed was one of 4 years' imprisonment and a non-parole period of 30 months was fixed.29.
30.On 31 July 2019, the Court of Appeal set a non-parole period on the remaining charge of possession of child pornography (to which, as I have said, you pleaded guilty) of 15 months.
31.Mr Taaffe informs me that you served 21 months before you were released from custody on 4 February 2020.
32.You were remanded in custody again following the jury verdicts in this trial on 3 March 2020. You have now spent an extra 49 days excluding today on remand by way of pre-sentence detention.
33.I have read the decisions of RHMcL v R, DPP (Vic) v Ty (No.2) and Tong and others. I accept that the sentence (and the sentences) imposed by Judge Tinney are relevant factors in deciding how to sentence you at this second trial. I accept that there is no presumption that the same sentence should be imposed in this case. Finally, I also accept the principle that, ordinarily, you should not receive a longer sentence after conviction on a re‑trial than you received at the original trial.
34.I have carefully considered the sentences imposed on each of the three charges by Judge Tinney and the orders for accumulation made by him. I have also considered the trial evidence, the victim impact statements and the submissions of both your counsel and the Crown.
Pre-Sentence Detention / Previous Sentence / Totality
35.As I have noted, from the date of your remand after the first trial on 4 May 2018 to the delivery of the judgement of the Court of Appeal on 31 July 2019, you spent 454 days in custody.
36.Thereafter, although eligible for parole consideration almost immediately upon delivery of the Court of Appeal judgement, you were not released until 4 February 2020. The Parole Board advised you on 31 October 2019 that you were to serve the balance of your parole because by the time of the Board’s consideration, there was insufficient time for parole to be effective. Moreover, the Parole Board stated that your entitlement to be considered for parole arose only after the Court of Appeal judgment on 31 July 2019 which altered the structure of your current sentence.
37.The effect of the Parole Board’s decision was that you served the full sentence of 21 months in relation to the possession of child pornography before your release on 4 February 2020. As I note, you were again remanded on 3 March 2020.
38.Mr Taaffe referred me to the Court of Appeal case of Ty, in particular paragraphs [21] to [23] where it is stated 'Time served under the sentence up to the date of the quashing retained its character as such'. That is, it retains its character as time served on the sentence imposed following conviction.
39.Mr Devlin considered the Crown’s position overnight, and ultimately, the Crown agrees that you should be given credit for the 454 days served to the date where the convictions were quashed.
40.It is clear to me that you should be given credit for the 454 days served to date in respect to the three charges, and I shall do so.
41.You shall also receive recognition for the time spent on remand since 3 March 2020.
42.I also recognise that Mr Taaffe no longer submits that you have lost the opportunity to receive the measure of concurrency between the two indictments.
43.Both the Crown and Defence submit that I must have regard to the principle of totality in this sentencing process. I agree, and I shall do so.
Delay
44.I turn to the question of delay. Mr Taaffe submitted your sentence should be mitigated by the fact that you were subjected to the uncertainty caused by delay. Essentially, Mr Taaffe submits that there was still a police investigation of your matter between the date of the first interview on 21 October 2015, to the date of the second interview on 13 June 2016 and then, ultimately, you were charged on 23 December 2016.
45.Mr Devlin replied and stated that the delay was at least in part explicable by the fact that you told the police in your first interview that the photograph you took of Jack did not in effect constitute an indecent assault, but was an innocent photograph taken when Jack was fully clothed. Mr Devlin submitted the police needed the opportunity to examine your electronic devices to determine the truth of your assertion. In the course of those examinations, it appears that child exploitation material was discovered. Ultimately, the photograph of Jack was not found, but the jury accepted Jack’s evidence on this point.
46.Furthermore, delay was not relied upon to suggest that you had rehabilitated or suffered a change in your circumstances such as to mitigate your sentence in the ways outlined by Callaway JA in the case of MWH.
47.Ultimately, I consider that any delay, such as there was, may well have caused you anxiety and uncertainty as to your fate, but no more than that. I consider that the mitigating effect of the delay is, at best, slight.
48.I turn now to your personal circumstances.
Personal Circumstances
49.You are 62 years of age. You were an only child and lived with your parents in the house described in the evidence for all of your life. You continued to live there after both your parents died.
50.Your childhood was described as unremarkable. You describe yourself as an average student but you did get the marks to attend university. You enrolled in electrical engineering but deferred and ultimately never attended university.
51.You have had a reasonably continuous working history; predominantly in sales. You have had some periods of unemployment. At the time of this offending, you were working in your own computer sales business with others. For the last 15 years before your trial in 2018, you worked as a phone consultant.
52.You began a relationship with and then married Jack's aunt Susan Wade when you were 25. You separated from her when you were 36. You have not been in another relationship since. During that relationship, you lived in the family home. Your mother died in 1982 and your father died in 2002. It is apparent that you were close to both of your parents and you were affected by their deaths.
53.You admitted a matter of allowing another person to cultivate a small amount of marijuana at your beach house. It is entirely irrelevant to this sentencing consideration.
54.Mr Taaffe also made a brief submission in relation to the effect of the current COVID-19 pandemic. The difficulties manifest in two broad ways. First, you had been receiving visits from two friends, and there has now been a suspension of personal visits and as the opportunity for telephone calls has also become more restricted. Secondly, your opportunity to work and to occupy yourself meaningfully in prison with education courses has been reduced as prisoner work has been limited to essential tasks only.
55.I appreciate that these factors will add to the stress of your time in custody.
56.I can say that I have taken these factors into consideration and that they will have some effect in mitigating the sentences that I will impose upon you.
57.I have very little information on which to assess your prospects for rehabilitation. On the one hand, Mr Taaffe submits that you have a good work history and a limited criminal history. Mr Taaffe fully recognises however that your prospects for rehabilitation are complicated by the possession of child pornography at the time of your arrest. In these circumstances, he submitted that your prospects for rehabilitation can only be described as reasonable at best.
58.I understand that you undertook some counselling between the time of arrest and the first trial. I was not provided with any information about that. It is also apparent that you have not undergone any offender rehabilitation programs whilst in custody which is natural because you were appealing the first time round your conviction on these charges.
59.It is to be hoped that if you are afforded the opportunity for parole, you will thereby be provided with some structure for your reintegration back into the community. Moreover, the fact that you will be registered as a sex offender for life will provide a number of restrictions designed to provide protection for the greater community. It appears that your housing remains guaranteed. In all those circumstances, I can only conclude as Mr Taaffe submits that your prospects for rehabilitation are reasonable at best.
Serious Offender and SORA
60.I turn to the serious offender and the sex offenders registration provisions. After you are sentenced on the first charge, you fall to be sentenced on the remaining charges as a serious sex offender. The consequences of this are that the sentences on the remaining charges ought (ordinarily) be served cumulatively. Protection of the community becomes the dominant sentencing factor; although I note that the Crown does not seek a disproportionate sentence in this case.
As I have just noted a moment ago, you must be registered under the Sex Offenders Registration Act for life. There are a number of onerous restrictions and obligations with which you will have to comply. The paperwork for this will be sent both to the prison and to Mr Taaffe. But, Mr Wade, I will not be asking you to sign the acknowledgment at this time because it would delay the hearing. 61.
I am going to move now to the sentences. 62.
On Charge 1, you are convicted and sentenced to 19 months' imprisonment. You are thereby declared to a serious sexual offender. I order that fact be noted on the records of the court. 63.
On Charge 2, you are convicted and sentenced to 24 months' imprisonment. 64.
On Charge 3, you are convicted and sentenced to 14 months' imprisonment. 65.
I order that 7 months of the sentence on Charge 1 and 5 months of the sentence on Charge 3 be served cumulatively on the sentence imposed on Charge 2 and upon each other. That produces a total effective sentence of 36 months' imprisonment. I order that you serve a non-parole period of 23 months. 66.
I declare that a period of 454 days previously served until the date of your conviction was quashed on 31 July 2019 be reckoned as already served under this sentence. I further declare that a period of 49 days' pre-sentence detention excluding today, being the period served since your remand on 3 March 2020, be reckoned as already served.67.
In total therefore, it is my intention that the period of 503 days being the combination of the previously served sentence and the pre-sentence detention excluding today be reckoned as already served. 68.
Pursuant to the Sex Offenders Registration Act, you are to be registered for life. 69.
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