Director of Public Prosecutions v Vawdrey, David
[2012] VCC 1911
•26 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
CR-12-01510
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID VAWDREY |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 26 November 2012 | |
DATE OF SENTENCE: | 26 November 2012 | |
CASE MAY BE CITED AS: | DPP v Vawdrey, David | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1911 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G. Schubert | |
| For the Accused | Mr D.Cordy |
HIS HONOUR:
1 David Vawdrey, you have pleaded guilty to an indictment containing nine separate charges of using a carriage service to procure a person under 16 years for sexual activity. The maximum sentence of imprisonment for that offence is 15 years. You have also admitted one prior court appearance, although it should be said that that was a matter in the Children's Court in 2009 and did not involve offences of this kind.
2 The prosecution has tendered as Exhibit A, a folder of materials which contains, amongst other things, the Summary of Crown Opening which was read out earlier today. I do not propose to repeat that save to say that it shows that over a period of approximately 18 months you engaged in the conduct that is reflected in the charges on the indictment with a number of different persons, all of whom were, to your knowledge, under the age of 16 years of age. In some cases you displayed yourself obscenely on video-cam, in others you endeavoured to persuade the person you were talking to, to meet with you for the purposes of sexual activity. It seemed rather than avoid conduct of this kind with persons under the age of 16 years of age, you, at that stage at any rate, of your life, relished the prospect.
3 The offences are serious offences, as reflected in the maximum term of imprisonment. They are designed to protect young persons from themselves. It is recognised that persons under the age of 16 are particularly vulnerable to approaches made to them by older males, in particular. Many of the cases that come before this court involve males who are much older than you were at the time. You started this conduct when you were a child and continued it for a period after you became an adult. As I say, many of the offences of this kind that are committed and come before this court involve older males who represent themselves over the internet as being much younger.
4 It seems that you did not meet up with any of those persons that you spoke to who were under the age of 16 years, although I have already noted that you apparently were seeking to persuade one or more of your victims to meet with you.
5 Your counsel presented a comprehensive plea on your behalf and drew my attention to the fact that you have pleaded guilty to these matters at an early stage, that you did make admissions to the police, albeit that your conduct when first confronted could not be described as full co-operation, and that since these matters you have turned your life around. I accept that the plea of guilty is an indication of remorse on your part, you are entitled to credit for that, and also credit for saving the State the time and expense of a trial, and the witnesses the inconvenience and indignity of having to come to this court and give evidence. You are entitled to a substantial discount in sentence for that early plea of guilty.
6 You come from a good background. You left school at an early age, which is unfortunate, but it is very much to your credit that you got a job and you have stuck to it. I think it would be a great pity if as a result of these proceedings you lost your job. It may be that that will occur, there is nothing that this court can do about that, but I am encouraged, having heard your father and your counsel, that you will have work available to you and that you can continue to contribute.
7 It seems that the offences were first detected in 2009 when you were still a child, and had the police had the resources to and the inclination to nip the matter in the bud at that stage, it may well be that you would not have been before this court. As it was, you did commit these offences over a significant period of time and you must have realised that what you were doing was not just irresponsible but illegal.
8 However, it is noteworthy that having met your partner, with whom you now have a young daughter, you ceased this activity well before the police actually intervened. I accept the submission made on your behalf that that is a very significant factor and suggests that your prospects of staying out of trouble of this kind in the future are to be regarded as good. I accept also that you would have learnt a very stern lesson with the police turning up at your doorstep and the embarrassment that you must have experienced once this conduct was revealed to your parents. I accept that because of the matter hanging over your head over what is now quite a significant period of time that you will have suffered significant anxiety, if not significant fear at the prospects of having to serve a term of imprisonment, that is a term involving immediate imprisonment.
9 I think now, in all the circumstances, that there is every indication that you have a good future. It seems that your relationship with your partner is a strong one and you have new responsibilities which I am sure that your emerging maturity will be capable of handling. It is clear that you have the support of your parents and it is clear that you have the ongoing support of your partner. I think in those circumstances your prospects of rehabilitation and your prospects of staying out of trouble in the future are good and the need for individual deterrence in this sentencing process is significantly reduced.
10 I noted during the course of the plea hearing that whilst things go well one can be more confident that you will stay out of trouble. What is still an open question is how you might deal with adversity if something went wrong. I am prepared to accept that the signs at the moment indicate that the likelihood of that occurring is slim and therefore that you have a good chance of staying out of trouble in the future.
11 I think the delay, and nobody has suggested that anybody is at fault, but the delay between when your conduct was first detected by the police and your coming to this court, is significant, and a significant factor in the sentencing process. It has had the effect of enabling you to demonstrate two things of great importance; one is that you have been capable of stopping this behaviour without the intervention of police, and secondly, have been capable of a sustained relationship with a young lady and an acceptance of responsibility which suggests that you are indeed maturing and that you have a bright future.
12 The court, of course, is required to express its denunciation for conduct of this kind. It is also required to punish you appropriately, as required by s.16A(1) of the Commonwealth Crimes Act for this offending. I am also required to take into account a number of matters that are set out in s.16A(2) of the Commonwealth Crimes Act, and I do that as well as taking into account the matters that I have already referred to specifically.
13 I was helpfully provided with an Outline of Submissions by the prosecution and they have, quite rightly, drawn my attention to the need to consider general deterrence as being a significant sentencing consideration in cases of this nature - that is a necessity for the courts to impose sentences which deter others from committing offences of this kind.
14 Along with all of that I am required to facilitate your rehabilitation, to the extent that I can do that consistent with proper regard for the other sentencing considerations.
15 I am also required to consider whether any form of punishment othe than imprisonment is open to me, having regard to all the circumstances of the case and the serious nature of the offending conduct. I do regard your offending conduct as serious. It is somewhat less so, I think, because of your youth and because you commenced engaging in this conduct when you were still a child. As I have already indicated, I think that it is significant that you stopped when you did.
16 Your youth is a significant factor and ordinarily a court should, I think for a person of your age, give particular consideration to facilitating your rehabilitation, rather than putting you in prison where your rehabilitation may be seriously adversely affected and where it may lead to ongoing difficulties for you in finding work, maintaining work, and of course in meeting your responsibilities as a parent. But for those factors, not only would I have been driven to the conclusion that no punishment other than a term of imprisonment was open to me, but that a quite significant portion of that term of imprisonment would have had to have been actually served by you.
17 The prosecution, in the presentation of their material to me, supplied me with summaries of cases of a similar nature that had come before this court. Indeed some have come before me. It is clear that the courts generally will impose a term of immediate imprisonment for cases of this kind, particularly where there are a number of victims, where there are a number of actual victims, where there has been material of an explicit nature transmitted over webcam and where there have been attempts to arrange an actual meeting with victims. All of those factors persuade me that no sentence other than a term of imprisonment is appropriate, but I do not propose to require you to serve any of the term that I shall impose in just a moment.
18 Would you please stand.
19 On Charge 1 on the indictment, I sentence you to a term of 18 months' imprisonment and convict you. On Charge 2, I sentence you to a term of 22 months' imprisonment and convict you. On Charge 3, I sentence you to a term of 20 months' imprisonment and convict you. On Charge 4, I sentence you to a term of 18 months' imprisonment. On Charge 5, I sentence you to a term of 15 months' imprisonment. On Charge 6, I sentence you to a term of 15 months' imprisonment. I convict you in relation to each of these offences, I think I just failed to mention that in relation to Charge 5. In relation to Charge 7, I sentence you to 18 months' imprisonment and convict you. In relation to Charge 8, I sentence you to 12 months' imprisonment and convict you. In relation to Charge 9, I sentence you to 18 months' imprisonment and convict you.
20 I order that all of those sentences commence today, save for the sentence of 20 months in relation to Charge 3. I order that that sentence commence on 26 May of 2013, which makes a total effective sentence of 26 months' imprisonment. But for your plea of guilty I would have sentenced you to a term of imprisonment of 33 months. I order that in relation to the total effective sentence of 26 months' imprisonment that I have imposed that you be released immediately upon your recognisance in the sum of $2,000, to be of good behaviour during the next two years. That will require you not to commit any other offence punishable by imprisonment during that period of two years. If you do commit an offence punishable by imprisonment during that period then, in addition to any sentence that might be imposed upon you in relation to that matter, you will almost certainly be required to serve the 26 months' imprisonment that I have imposed. Do you understand?
21 So you will not have to serve any of the sentence that I have imposed, if during the next two years you are of good behaviour, that is you do not commit any other offence punishable by imprisonment. Do you understand that?
22 OFFENDER: Yes.
23 HIS HONOUR: No doubt your counsel has explained that all to you. Do you consent therefore to be placed on a recognisance in the sum of $2,000 on those terms?
24 OFFENDER: Yes.
25 HIS HONOUR: Now there were orders for forfeiture, I think, were there not?
26 MR SCHUBERT: No, Your Honour, that's to be done by consent.
27 HIS HONOUR: It's being done by consent so I don't need to concern myself with that.
28 MR SCHUBERT: It's not a formal order, Your Honour, it's just a consent to the informant to dispose of the goods.
29 HIS HONOUR: All right. I think I need to also declare that you will be placed on the Sex Offenders Register for life as a result of your conviction for these offences and that will impose certain reporting conditions which will be set out in a form that will be provided to you. No doubt that has also been explained to you. I have no discretion in that matter, that is a matter that you will have to comply with for a period until such time as you are able to apply to be removed from the register.
30 I hope and expect that with the family support that you have behind you that you will not appear before court again and will be in a position in due course to apply for the removal of your name. Unfortunately it will take you 15 years to qualify.
31 Is there anything else that I need to deal with, gentlemen?
32 COUNSEL: No, Your Honour.
33 HIS HONOUR: Thank you very much, I will - - -
34 MR SCHUBERT: In relation to the actual recognisance forms, I have some proformas which can be filled out, if Your Honour's minded to sign those.
35 HIS HONOUR: Yes, yes, would you do that, thank you. I think I also need to sign a form in relation to the conditions of the Sex Offenders Registration Act.
36 MR CORDY: As I understand it, Your Honour needs to have an acknowledgement signed by the defendant that he's received the material from Your Honour's Associate.
37 HIS HONOUR: Yes, all right. Do I need to sign that?
38 MR CORDY: No, I don't believe Your Honour does, it just needs to be signed by the accused.
39 HIS HONOUR: I will need to sign the recognisance form after the offender has signed it, I think.
40 MR SCHUBERT: Yes, Your Honour. It will take just a moment to complete, so I don't know if Your Honour wants to stand down for the moment.
41 HIS HONOUR: I might do that and your client can leave the Dock in the meantime.
42 MR CORDY: Thank you, Your Honour.
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