Director of Public Prosecutions v Smith
[2024] VCC 1690
•21 October 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTION
CR-24-00594
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYNE SMITH |
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JUDGE: | KARAPANAGIOTIDIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 August 2024 |
DATE OF SENTENCE: | 21 October 2024 |
CASE MAY BE CITED AS: | DPP v Smith |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1690 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: Sexual assault of a child under 16, rolled up charge of possess imitation firearm.
Legislation Cited: s5B(2)(b), s6AAA, s6E, s6F s18 Sentencing Act 1991 (Vic)
Cases Cited:
Sentence: Total effective sentence of 3 years and 2 months imprisonment with a non-parole period of 2 years and 2 months and fine of $600.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. McKenry | Office of Public Prosecutions |
For the Accused | Mr D. McGlone | Victoria Legal Aid |
HER HONOUR:
1Mr Smith, you have pleaded guilty to three charges of sexual assault of a child under 16. You have also agreed to this court hearing and have pleaded guilty to a summary rolled up charge of possess imitation firearm.
Circumstances of offending
2The full circumstances of your offending were outlined in the prosecution opening which was marked as Exhibit A.
3In summary you were 68 years of age at the time. There are three victims to your offending. The Marriott[1] sisters, Isla,[2] born November 2015, Alannah[3] born September 2018 and Evie Hills[4] born November 2018. Respectively they were aged seven, five and five years of age at the time.
[1]A pseudonym.
[2]A pseudonym.
[3]A pseudonym.
[4]A pseudonym.
4Now can I also indicate just for those present that names will be pseudonymised there is a prohibition of reporting names of children and family members that will not occur and they will be pseudonymised in the reasons. All right? Now just continuing, give me one moment.
5You have been a long-time friend of 20 years to the Marriott sisters' mother,
Angela Fuller,[5] whom you first met through your work as a computer technician. Over the years you would attend Ms Fuller's home to troubleshoot IT issues often free of charge. You owned a mini bus which you converted into a campervan and painted with distinctive ocean them murals. In around November of 2022 you told Ms Fuller you were coming to Victoria from Queensland where you were residing. She invited you to park your bus at her and her partner's home, William Marriott,[6] also the father Isla and Alannah. Their property was situated in Ballarat. You accepted this invitation.[5]A pseudonym.
[6]A pseudonym.
6Ms Fuller, Mr Marriott, their two daughters and their nine year old son resided at the property. Evie who attended the same primary school as Marriott sisters visited the property regularly. You parked your bus at the property and stayed with the Marriott family on the three separate occasions. The first occasion from the 3rd to 13 August 2023, the second from 26 August to 5 September 2023 and the third from 3rd to 12 November 2023. You offended against the victims during your second and third visits.
Visit one
7During your first visit Isla and Alannah spent time inside your bus on a daily basis. You kept ice cream, chocolate and lollies and would offer these treats to them. Once inside the bus the children would eat treats and watch movies on your laptop while sitting on your lap.
Visit two
8During your second visit to the property Isla and Alannah entered your bus. You were seated on a single chair in front of your laptop. Isla and Alannah sat on your lap one on each leg and watched a children's program on your laptop.
9While Isla and Alannah watched the program you touched Isla on the outside of her vagina outside of her clothing. She pushed your hand away. You moved you hand to Isla's anus and she moved it away. You put your hand back over her vagina. You and Isla went back and forward like this for some time. While Alannah was seated on the other knee you moved your other hand and placed it on the outside of her vagina, outside of her clothing. Alannah moved your hand away and you moved it back (Charge 2).
Visit three
10On 3 November 2023 during the third visit to the property the Marriott family hosted a barbecue for Melbourne Cup Day. The Hill family attended with their daughter Evie. During the afternoon you were in the swimming pool with all four children, Isla, Alannah, Caleb[7] and Evie. While at the shallow end Alannah and Evie sat on your lap. With Evie in that position you touched her anus on the inside of her clothing with your finger and that is the basis of Charge 3.
[7]A pseudonym.
11On 11 November 2023, Isla entered your bus, she sat on your lap watching children's programs on your laptop. While in that position you touched her on the outside of her vagina outside of her clothing. You said to her, 'I know it feels good' and that also comprises part of the rolled up
Charge 1.12On 12 November 2023, Ms Fuller spoke to Mr Marriott about her concerns regarding Isla and Alannah spending unsupervised time with you in your bus. She had become alarmed when you asked her whether Isla and Alannah has previously been sexually abused. Mr Marriott subsequently spoke to Isla on this topic but during the conversation Isla disclosed the offending. Ms Fuller and Mr Marriott notified Evie’s parents who subsequently confronted Evie about whether you had ever touched her, to which she responded yes and described the incident in the pool.
13That same day Mr Marriott and Ms Fuller drove to Ballarat SOCIT with their daughters to report the offending. On 13 November 2023, police attended the Marriott property and searched a container belonging to you which you had left behind. Inside the container police located four imitation Gel Blaster firearms and that is the basis of the rolled up summary Charge 5.
14On 14 November 2023, you were arrested at your Aunt and Uncle's property at Mount Eliza and interviewed that day. During the interview you made some admissions as outlined in the prosecution opening but denied all sexual offending. You have been on remand since your arrest and have accrued it is agreed, a total of 342 days in pre-sentence detention.
Victim Impact
15Now I have received several victim impact statements.
16William Marriott, father of Isla and Alannah speak of your history, their generosity to you and of your betrayal. He articulates how you have taken away the innocence of his daughters and impacted their lives. Alannah who is still only five has regressed in so many ways, constantly weeing the bed and waking up with nightmares. Alannah feels unsafe and anxious about your return and they were in the process at that time of moving house and she experiences confusion in relation to what you did. Isla is also struggling. She suffers separation anxiety. It takes her 20 minutes to stop hysterically crying over literally spilt milk, things that an eight year old does not normally struggle with. She also asks her parents why they did not protect her. 'This is something that hits you in the heart.' He states,
'We as a family unit have essentially regressed so much more than you realise. Our life is full of unfortunate issues and drama and this act is really one of the last blows that we can take. It's something that no one needs in their lives.'
17He also speaks of how your offending has impacted his work, heightened his stress levels and drained him of energy and emotion.
18Angela Fuller has also provided a victim impact statement. She refers to knowing you for 20 years and of the huge betrayal. When your offending was disclosed she was in a state of disbelief and did not know what to do. She says, 'I felt that sense of failure as a mum towards my girls' - an honest reflection but if I may note entirely undeserved and unfair as she is not in any way responsible for your offending.
19She describes the impact of your offending on her young daughters. Alannah does not feel safe and has gone from being fully toilet-trained to bedwetting and from being quite independent to being very needy. Isla's also been highly emotional and cries for ages and runs off and hides in the bushes. Your offending has also undermined her sense of safety, trust and judgment and has heightened everything including her stress levels and caused her to be on constant high alert. It has also significantly affected her ability to communicate and effectively parent her daughters.
20In their victim impact statements to the court, both Alannah and Isla say that they never want to see you again. I have also taken into account the victim impact statement of Evie's parent Timothy Hills.[8] In that statement he also indicates how your offending has impacted his family. He states that it has also caused disrupted sleeping patterns for them all, and the family have become more reserved and withdrawn and the whole incident has been distressing.
[8]A pseudonym.
21I take into account in sentencing you the impact of your offending.
Gravity of Offending
22Mr Smith your offending is inherently serious as reflected in the maximum sentence of 10 years' imprisonment. Also your offending on all charges attracts a standard sentence of four years' imprisonment. Further because of your prior convictions for possessing child pornography after being convicted on
Charge 1, it is agreed between the parties that you fall to be sentenced as a serious sexual offender.23Your three victims were very young and there was a significant disparity in age between you. You touched these children in intimate places for the purpose I infer of your own sexual gratification. Mr Candlish also considers that you meet the criteria for paedophilic disorder, female children non-exclusive. Your offending involved a breach of trust and has clearly had a profound impact.
24In respect of Charges 1 and 2, your counsel submits that as the children were already sitting on your lap or knee your offending was opportunistic rather than planned. While I accept that this is not a case where you have engaged in grooming or significant pre-planning, I do not accept that the offending on Charges 1 and 2 can properly be described as opportunistic. Your offending on Charge 1 is a rolled up count and occurred over the course of two distinct periods. Your offending on Charges 1 and 2 was predatory occurring while these children were alone with you in your van.
25In Charges 1 and 2 you persisted in what you were doing, despite attempts to push your hand away. The circumstances of Charge 3, I accept were opportunistic though I regard your conduct on this occasion is brazen and unrestrained, occurring at a time when you were in the swimming pool with all four children and adults around. On both Charges 1 and 2 you touched the vagina of your victims and relevant to the circumstances of Charge 1 you also moved your hand to Isla's anus before she move it away. In respect of both charges, I take into account that the touching was outside of the clothing. And Charge 3 on a single occasion you touched your victim's anus inside of her clothing with your finger.
26Overall in all the circumstances assessing your offending within the framework referred to by your counsel, while I consider there to be more serious examples of this offence, your offending is objectively grave and your moral culpability high.
27In terms of the summary rolled up charge of possess imitation firearm, this relates to your possession of four imitation Gel Blaster firearms. I take into account the maximum penalty of two years imprisonment and not that you have no history for firearm offences.
28Further it has not been alleged by the prosecution that the items were used in the commission of or in connection with or for the purposes of other criminal offending (see Berichon v The Queen [2013] VSCA 319).
Plea of Guilty
29The matter resolved following resolution discussions on 21 February of this year, at an early pre-committal stage. You are therefore entitled to a full discount on sentence available pursuant to s6AAA of the Sentencing Act.
30Your plea has important utilitarian value. It also indicates your willingness to facilitate the course of justice and accept responsibility notwithstanding your denial of the offending during your assessments with Mr Candlish. Importantly your early plea has spared your young victims and their families the further trauma of having to give evidence in court.
Personal circumstances
31Your counsel Mr McGlone outlined your personal circumstances and they are canvassed in the recent report of Mr Candlish also.
32In brief summary you were born in Melbourne and raised in Carrum. You did not have a close relationship with either parent, but you were close with your grandparents. You have an older brother Steven who lives in Queensland, married and works in real estate.
33He has provided a support letter on your behalf where he offers some further insights into your background of neglect and disadvantage. You maintain a good relationship with your brother and he also gave evidence at your plea hearing and further detailed your injuries from the motorcycle accident, your recovery and the challenges of your upbringing. Your mother died several years ago and you returned to live with her after she had been diagnosed with cancer and assisted in caring for her. You effectively had no contact with your father since he moved overseas some 20 years ago and you report recently that he has passed away.
34Your mother became pregnant with you at the young age of 15 and was effectively forced into marrying your father. They lived in housing commission homes in West Heidelberg and you grew up poor. Your brother described that as children you ended up living in a small tin shed for several years and he describes it as overcrowded and unhygienic. You were left to fend for yourself, find food in the near paddocks and started working from an early age. He states, 'There was no real supervision or guidelines to our life.' Your parents separated when you were in your early teens and both re-partnered. You did not have a positive relationship with your father's new partner and you describe your mother's partner as 'tolerating you only'.
35After living with your father for a short period in the caravan, you were kicked out of home. Your brother describes the continuing neglect of your father during this period of your life and how you both ended up on the streets with nowhere to live. With the help of your maternal grandparents you managed to rent a house in Bonbeach when you were 15 and he was 17. He refers to your fragmented and inconsistent schooling and your menial jobs where you struggled given your unfamiliarity with structure and discipline.
36You managed to complete Year 9 and secured work at McEwans Hardware and later started working as a labourer for a drainage contractor. At the age of 18 following a motorcycle accident while travelling to work you sustained a number of serious injuries including to your spine. Over the next two years you lived with your grandparents and underwent rehabilitative care at the Austin after which you were able to walk but no longer had any sensation in your legs from the knees down.
37You then managed to transition into a position at the Australia Post office and undertook further study. You completed a Bachelor of Business Administration, Computer Science and also obtained a job at Computer Science[sic] Corporation doing programming and you went on to complete some further studies. At the age of 21 you married and remained together for some 14 years and you have two children. You received a settlement from the car accident and bought a home. For a period of time you and your family lived in Queensland and your brother assisted you with working in real estate.
38The marriage ended you report in the context of your wife's infidelity. This fractured the family unit and you ended up leaving with your daughters blaming you. You have not spoken with them since that time and they would now be in their mid-40s. Subsequently you married again. You were together for several years leading up to 2006 and seven. You have a son from this relationship, he is in his mid-20s and you continue to have a close relationship with him and see him regularly. Your second marriage came to an end at around the time you were prosecuted for the child pornography prior matter. You instruct this did not cause he breakdown of the relationship but rather the two of you had drifted apart following a number of challenging serious health problems you had suffered including thyroid cancer.
39You have continued to experience complications referrable to the motor cycle accident. You also underwent surgery to remove various tumours. While surgery was successful it had some ongoing implications that continue to cause you pain and discomfort. Following the accident you started to experience significant depression and anxiety which has deteriorated over time. Eventually you were unable to work and applied for the disability support pension. You had not received psychological treatment in the past but have taken anti-depressant medication for many years. This set of circumstances provides the broad context to your criminal history. Your counsel submits, 'You found yourself at home socially isolated, emotionally bereft and spending too much time on the internet.' I do note though your minimisation and denials of your prior criminal history in your discussions with Mr Candlish.
40You have a broadly relevant prior history although I accept that they are not at the same level of seriousness as the offences currently before the court. Your first court appearance was for obscene exposure in 1975, two years after your motorcycle accident. Your next appearance was not for another 18 years when you were approximately 38 years of age. Your counsel submits that between this period you had been living a social and productive life in the community.
41On 22 April 1993 you were dealt with for a charge of indecent act with - in the presence of a child under 16 and received a monetary penalty. On
19 December 2005 you were sentenced on appeal to a
Community Corrections Order for charges of make - produce child pornography and knowingly possess child pornography. Your subsequent appearances in 2011, 16, 18 and 19 have largely been for failing to comply with your reporting obligations where you have received monetary penalties. With respect to the offence of cultivate narcotic plant, I noted it attracted a monetary penalty and also that you have previously been treated with prescription marijuana for pain management.42Mr Smith I take into account your personal circumstances including the hardship and deprivations experienced in your childhood. Mr Candlish in this regard notes, that you experienced poverty as a child and lacked, 'emotional attunement and nurturance from your parents.' You experienced anger and you have internalised the limited attachment to your parents as indicative of underlying defectiveness. He states,
'As a result he was vulnerable to low mood and feeling emotionally lonely and he learnt to detach as well as seek to present to others as being positive and resilient despite his underlying issues.'
Physical and mental health
43In terms of your physical health a range of material was tendered on your behalf. You have a complicated medical history it seems involving compromised mobility, thyroid replacement therapy, blood thinners and pain management. Depression is also noted in your medical records a number of times. You instruct that you are in constant pain, have no confidence and that you suffer regular fits of anxiety. You were on a range of medications in custody. A recent prisoner health information management form lists your medical chart and your conditions as including hypertension, sleep apnoea, spinal fractures, incomplete paraplegia, poor balance, chronic pain, your apathic pain issues and depression.
44A clinical note on 13 March 2024 records mobility, poor balance, due to partial numbness in bilateral legs and other requesting CPAP machine, feels tired and lethargic due to sleep apnoea. I take these matters into account as relevant to your circumstances in custody.
45Mr Candlish recently assessed you and confirmed that you meet the criteria for major depressive disorder, mild severity with anxious distress. You also meet the criteria for somatic symptom disorder severe and represent as highly preoccupied by and anxious about your physical health. Your total score on the PCL-SV tool which is designed to measure psychopathy fell into the non-psychopathic range. I take these conditions into account though in a consideration of your personal circumstances, though I note it is not suggestive that any Verdins principles are enlivened[9].
[9]R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
46As I have already noted, Mr Candlish also diagnosed you with meeting the criteria for paedophilic disorder. This is based in part on the presence of prior sexual offences involving children or possession of child abuse material. He opines that while you are sexually attracted to adult females at some stage you appear to have developed deviant arousal. Your most recent offending,
'again appears related to your paedophiliac disorder which you have not managed effectively. Your ability to do so has likely been compromised by your depressive symptoms and somatic symptom disorder.'
Prospects of rehabilitation
47In all the circumstances there is a need I accept for caution in assessing your rehabilitative prospects. I do accept that appropriate supervision and treatment will assist including in helping you to develop insight and to enhance your prospects. Turning to risk, Mr Candlish assessed you as falling into the moderatehigh risk category for sexual offending of the nature outlined in the well-known RSVP risk scenarios 1 and 2, and low risk category for risk scenario 3 in the absence of any engagement and interventions designed to address risk.
48Mr Candlish states (at [155]),
'It's recognised that there have been apparent extended periods of time between past sentencing dates for sexual offending, which could indicate a capacity for desistence and effective management of various issues at times. His risk assessment reflects his chronic long term risk. Mr Smith's older age has been taken into consideration due to his recent offending at an older age, there's not been an adjustment made on the basis of age at this time.'
49Mr Candlish considers that your risk will be perpetuated by any unsupervised contact with children, any unmanaged sexual deviance, any ongoing and unchallenged distorted views regarding sexual abuse of children,any denial of mental health issues and unmanaged mental health. Itcould also be perpetuated by instability and social isolation. Mr Candlish also notes that you have a home and a history of maintaining intimate relationships with women and have maintained employment in the past. You have also demonstrated extended periods of desistence from any sexual offending based on apparent long periods of time between past episodes of offending, which as I have already noted suggest a capacity to desist during periods of engaging in healthy behaviours.
50Mr Candlish opines further (at [164]),
'Given the potential for Mr Smith's risk level to reduce over time, particularly through the pursuit of pro-social goals, it would be useful for Mr Smith to continue to have opportunities to pursue such goals in the wider community, alongside the support of treatment and case management. Mr Candlish recommends specific interventions in his report at paragraphs 160-167, which may be of assistance to future treatment providers.'
51Your brother confirmed that you own a property in Maryborough which has been tenanted for a period but it is proposed that on your release you return to live there. He extends his full support to you and confirms he will help you move to your accommodation and also that your son will re-locate to the area to support you. Your brother also refers to other matters such as your aptitude and skills in the arts. I take these considerations into account.
Sentencing principles
52In cases involving sexual offences against children, it has often been said that the primary sentencing considerations are general and specific deterrence, denunciation of the serious nature of the crime and protection of the community. I am also required to take into account your rehabilitation. It is agreed that the serious offenders provisions have application in your case and consequently they mandate the community protection be the principal purpose of sentencing on counts 2 and 3 on the indictment. The prosecution do not submit that the court should impose a disproportionate sentence and I do not intend to do so. Also on these charges the principle of totality is to give way to some extent to the presumption of cumulation as specified in s6E of the Sentencing Act.
53I take into account the sentencing guidelines where relevant to our case, as provided for in s5 of the Sentencing Act. As I noted earlier the standard sentencing regime applies to your case. The standard sentence for an offence is a sentence that taking into account or any of the objective factors affecting the relative seriousness of that offence is in the middle range of seriousness. When sentencing for a standard sentence offence I must take into account the standard sentence as one of the factors relevant to sentencing. This requirement therefore is to be treated as a legislative guidepost having the same function as the maximum penalty in the same way that the maximum penalty is a factor in the application of the intuitive synthesis, so too is a standard sentence.
54Pursuant to s5B(2)(b) of the Sentencing Act in relation to a standard sentence offence, I can only pay regard to sentences previously imposed where under that legislative regime I can indicate that I have considered and had regard to other sentences including those provided by your counsel and also the case referred to by the prosecution.
55There is no dispute Mr Smith, that your offending calls for a term of imprisonment structured by way of a non-parole period. I take into account the principles of parsimony, proportionality and totality in your case. I accept that the only just and appropriate sentence is one of imprisonment. As already noted while s6E of the Sentencing Act moderates and limits totality it does remain relevant given in particular the proximity between Charges 1 and 2 and I do still need to arrive at a sentence that is overall just and appropriate.
56The sentence that I am about to impose in respect of the charges is lower than the standard sentence. I have considered all relevant factors including the standard sentence, the objective seriousness of your offending and all the other factors available to you in mitigation. And I have determined that the following sentence is appropriate.
Sentence
57On Charge 1, you are convicted and sentenced to two years imprisonment.
58On Charge 2, you are convicted and sentenced to 16 months' imprisonment.
59On Charge 3, you are convicted and sentenced to 18 months' imprisonment.
60Charge 1 is the base sentence. I cumulate six months on Charge 2. I cumulate eight months on Charge 3, which ought to arrive at a total effective period of three years and two months' imprisonment. If I could just have counsel first check that please?
61MR McKENRY: Three years, two months.
62HER HONOUR: Thank you. The non-parole period that I consider is required in this case is a term of two years and two months imprisonment.
63On the rolled up summary charge, taken into account all factors including your financial position, the sentence that you are serving and parsimony and your lack of history for firearm offences, along with the maximum penalty I consider that a fine is appropriate and I will convict and fine you a total of $600.
64As agreed sexual assault of a child under 16 is a schedule 2 class 2 offence under the SORA Act which attracts mandatory registration. The applicable reporting period is the remainder of your life. Counsel that is correct, it is life?
65MR McKENRY: Yes, Your Honour.
66HER HONOUR: Thank you. Given you have been found guilty of three class 2 offences, I note Mr Smith that you have previously been on the register for a period of eight years as of I think it is 2006. I declare pursuant to s18 that you have served a total period of 342 days in pre-sentence detention. Pursuant to s6AAA but for your plea of guilty I would have sentenced you to some four years and eight months imprisonment with a non-parole period of three years and five months.
67Pursuant to s6F I cause to be entered into the records of the court on
Charges 2 and 3, that you are to be sentenced as a serious offender. Counsel is there anything further? Were there ancillary orders?68MR McKENRY: Yes, a draft forfeiture order in regard to the four imitation firearms was provided to Your Honour.
69HER HONOUR: Yes, thank you. That was unopposed? Mr McGlone you're on mute. Thank you was that unopposed.
70MR McGLONE: Yes, Your Honour. Yes, that's unopposed.
71HER HONOUR: Thank you. I make that order in the terms sought.
72MR McKENRY: As Your Honour pleases.
73HER HONOUR: Counsel anything further?
74MR McKENRY: No, Your Honour those are the matters.
75HER HONOUR: All right. Mr McGlone, I might - I'll allow the link to continue just for a moment, give people a moment to leave the courtroom and you can speak to Mr Smith in the event that he has any questions for you in respect of the sentence imposed.
76MR McGLONE: Thank you Your Honour.
77HER HONOUR: All right. Mr Smith just remain where you are please. Counsel can I thank you for your assistance and can I also thank you all who are present in court for your contributions, thank you very much.
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