Director of Public Prosecutions v Wade

[2018] VCC 2178

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01164

DIRECTOR OF PUBLIC PROSECUTIONS

v

RYAN WADE

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 December 2018
CASE MAY BE CITED AS:	DPP v Wade
MEDIUM NEUTRAL CITATION:	[2018] VCC 2178

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	Mr D. Brown
For the Accused	Mr G. Thomas

HER HONOUR: 

1Ryan Wade, you have pleaded guilty before me to one charge of persistent sexual abuse of a child under 16, one charge of persistent contravention of family violence order and two charges of resisting an emergency worker. 

2The facts underlying your offending are as follows.  At the time of the offending, you were 20 and the complainant who is the subject of Charges 1 and 2 was aged 15. 

3MR THOMAS:  If I can clarify that, Your Honour, he was 19 at the time of the persistent sexual abuse charges.

4HER HONOUR:  Sorry, you were 19 at the time of the offending and as I have said, the complainant in this matter, BL, was aged 15.  You were also at the time living by yourself in rented premises. 

5You and the complainant met in about April 2016.  BL went into the care of the Department of Human Services in early September 2016 and was classified as being a high risk of sexual exploitation.  What this meant, as I understand it, is that she like you at the time were both engaged in drug use and she was acting out sexually in a way which was dangerous to her given her age.

6A Child Protection worker, Tara Fisher, who was BL's case worker became concerned about her involvement with you and as a result a harbouring notice was served upon you by police on 1 September 2016.  BL was removed from your home and returned to reside at a residential unit in Melton.  Child Protection also applied for a family violence intervention order preventing you from having contact with BL, the order being made on 21 September 2016 and expiring on 12 September 2017.  The conditions of the order included that you were not to contact or communicate with BL in any way, not to approach or remain within five metres of her and to remain at least 200 metres away from any place where BL was living, working, or attending school.  That order being served on you on 23 September 2016.

7The complainant in this matter has never provided a statement and the evidence relating to Charge 1 is all based on admissions you made to police in your record of interview.  You were interviewed by police on 21 December 2016 and admitted that you had been in a relationship with BL for nine months and that at first BL had told you she was 16 and then a month later told you she was 15.  You told police she had gone into a residential unit a couple of months before but could not remember exactly why she was placed in that unit. 

8You said that you and BL had sex a couple of months after you started seeing each other and that the last time you had had sex with her was five months before.  That is in about July of 2016.  You described the sort of sex that you had with BL and said you had sex with her about 30 times.  You said that you were aware when you had sex with her that she was 15, that it was always at your house and that you saw had contact with her every day which was either physical contact, phone contact or playing online games together.  All those admissions amount to the offence of persistent sexual abuse of a child under 16 which is Charge 1 on the indictment.

9Charge 2 related to actions by you between 17 October 2016 and 9 January 2017.  On 17 October 2016, a house supervisor at the residential unit where BL was living was asked by BL if she could use the house phone to contact her mother, but after the phone call, Ms Dwyer pressed the redial and noted that the number was in fact yours.  A short time later, BL told Ms Dwyer she was going to see friends but Ms Dwyer followed her outside and saw her get into a car driven by you.  When you spoke to police, you admitted to picking BL up and going back to your brother's girlfriend's house for lunch and then remaining there for the rest of the day.

10On 2 November, BL was reported missing from the residential unit but she went to the Melton police station where she was cleared from being a missing person only to abscond again which resulted in DHHS applying for a safe custody warrant.  On 6 November 2016 BL was found.  The warrant was executed, she was placed in secure welfare and whilst there she was seen by both the Child Protection worker and the residential workers where they noted certain bruising on BL and that she seemed tired, unkempt and in dirty clothing and she said that you had inflicted the injuries.  In your record of interview when asked if you knew anything about the bruises you said that you did not and that in fact that was a lie.  However you did admit to seeing her at that time.

11Incident 3 underlying Charge 2 occurred on 1 December when BL told Ms Dwyer she was going down the street to buy tobacco but was then seen by Ms Dwyer getting into your car.  Incident 4 happened on 14 December 2016 when you were driving a car and BL was a passenger in the car and a witness heard you yelling at BL to get out and she saw BL sitting in the front car.  You were seen banging on the roof and trying to pull her out of the car and she was trying to shut the door so you could not drag her out, and the witness called police who attended.  By this time police arrived, both of you were out of the car and were seen to be arguing, and then when police approached, you rode off on your skateboard and BL told police she had been arguing with you saying that you were her boyfriend.  She was taken to the Ballarat police station.  Arrangements were made for her to return home and then you attended voluntarily at the police station and drove Ms BL back to Melton.

12In your record of interview, you admitted to police that you had been in Ballarat and had an argument with BL saying that you did not like it and you tried to pull her out of the car and that you were late for an interview but BL would not get out of the car because the two of you were arguing, and that she would not leave so you parked the car and walked to your interview and you admitted to picking up BL from the Ballarat police station.

13You remained in custody between 21 December and 23 December 2016, and then at about 7 pm on 9 January 2017, your father saw you and BL in the backyard of a house in Melton and that is incident 5 relating to Charge 2.  On 10 January, your father went to the Melton police station and made a statement and the police arrested you again for breaching the family violence order.  You became upset and tried to run out the back sliding door.  Your father grabbed you to prevent you from leaving and Senior Constable Grist at the police station grabbed you by the arm and shoulder at which you began to violently struggle and you were eventually handcuffed.  Those actions underlie Charges 3 and 4. 

14Is there also a summary charge of using cannabis?

15MR BROWN:  There is, Your Honour, yes.

16HER HONOUR:  You also admitted to police that you had been using cannabis and were under the influence and you were found to be unfit for interview, but the fact that you had been using cannabis resulted in you being charged with a summary offence of using cannabis which was uplifted and heard on the plea.  Again you were remanded in custody but subsequently granted bail.

17The maximum penalties for persistent sexual abuse of a child is 25 years' imprisonment.  The maximum penalty for contravention of a family violence order is five years' imprisonment.  The maximum penalty for resisting a police officer is five years' imprisonment and the maximum penalty for using a drug of dependence is five penalty units.

18I now turn to your personal circumstances.  You are now 22 years of age.  You were born in Sunshine and your father works for the council as a street sweeper.  Your parents separated when you were ten and you basically remained living with your father in Melton.  You have got a number of half-brothers and sisters.  You told psychologist Gina Cidoni whose report dated 16 May 2017 was tendered on the plea that you met Brooke through your cousin and that you used marijuana and methamphetamine together. 

19You completed primary school and then went to secondary college at Kurunjang Secondary College until Year 8 when you were expelled for non-attendance, and then you went to and completed the Community and Learning Melton school program for disadvantaged children.  You have only had one job which was when you were at a nursery when you were 18 when you were fired for taking too long in your lunch hours.  Your father had arranged for you to work with him as a labourer or street sweeper for three weeks in 2017 which was a short-term position but you are currently unemployed. 

20You used to have seizures when you were 13, that was every couple of months and you still have them but less often.  You were diagnosed with Asperger's syndrome when you were younger and you are currently on a disability pension.  You were also prescribed Ritalin in childhood before you were diagnosed with Asperger's.  Now it can be a bit of a problem for people who have got Asperger's because you were given Ritalin and Ritalin has got an amphetamine base in it.  Very often, people who have got ADHD which you are also found to have and which Ritalin is used for, you find amphetamine helpful because it sharpens your mind and makes you feel as if you are less scattered and as if you are able to think better.  So that can often be a problem if you are a person who is introduced to methamphetamine as you have been.

21You have told Ms Cidoni that you began using marijuana when you were 15 and that you were introduced to it through friends and that you were smoking a gram almost every day and you continue to use cannabis to this day.  When you were 18, you started using methamphetamines, using a lot on a weekly basis with friends but you had been - and your use has gone down but it appears you still are using it from time to time.  Indeed, in court during the plea hearing, you very honestly admitted to the court that you occasionally used methamphetamines and indeed one of the strengths with you is that you are always extremely honest.  For example the Charge 1 is based on what you told police.

22Ms Cidoni conducted intellectual testing.  You had a full scale of 75 which is low, and it was noted that you were also drug dependent at the time that Ms Cidoni conducted this testing. 

23This matter first came before me on 27 September 2017.  At that time, you had just started being overseen or were being overseen by Youth Justice.  You had just started seeing psychologist Michael Bilyk and you were also starting some drug counselling with YSAS.  You have got no prior convictions.  It was decided at that stage to see how you managed with all the supports that were being built in and so a deferred sentence was imposed and the matter was adjourned to 26 March 2018.  That matter had to be adjourned to 3 May because 26 March was a non-sitting day at this court.

24On that day, counsel asked that the matter be adjourned for a further three months because there was some indication that there should be a psychiatric assessment made.  That has been explored and nothing of particular note came from it.  Then the matter on 1 August 2018 was again adjourned because it was indicated not only that a psychiatric report was appropriate - I am sorry, it was on that date that the need for a psychiatric report was first raised and there was also a concern that YSAS and Youth Justice would drop out because you were about to turn 22 and that meant that you were too old to have those services looking after you.  However, arrangements had been made for Jesuit Social Services to be involved so the matter was adjourned to 15 November.

25On that date, I was not available because I was in Ballarat and so the matter came on on 19 November 2018 but you were having a difficult day and the psychiatric report had not been prepared so it was further adjourned to 11 December 2018 which was a day where you felt unable to attend and so the matter was finally adjourned to ‑ ‑ ‑

26MR THOMAS:  No, he did attend last week, Your Honour.  Pardon me, that was when the other psychologist gave evidence.

27HER HONOUR:  I am sorry, the matter was adjourned to 11 December on which date primarily the attention was on whether or not you should be placed on the sex offence register and evidence was heard from a psychologist, Ms Lopez, and then it was further adjourned to today, 18 December so that Ms Cidoni who had tested you further for risk of sexual offending to give evidence on that matter.

28The reports from Youth Justice, from Steven Reardon of Youth Justice and from Sophia Hearn of YSAS were fairly good.  Both of them said it took a long time to get you to feel comfortable with them and that particularly Mr Reardon said that you missed a lot of sessions.  However overall it was felt that you had progressed pretty well.  Indeed Ms Hearn was impressed with the strides that you have made.  You have always been extremely honest with everyone, from police to social workers to counsellors, to psychologists about what you were doing and you have been very frank and that included talking to the Corrections officer who assessed you for suitability for the community corrections order about your drug use, and it appears you have booked yourself into detoxification on three occasions but when you come out, even though you seem to be using less and less all the time, you cannot quite stop using cannabis and ice.

29At the moment you are living at home with your father, and your mother is also nearby and both parents are very involved in your life.  Indeed Ms Cidoni in giving evidence to the court today talked about the very strong family structure that you have about you.  You told the community corrections officer that you could not identify any positive supports in the community and you described all your friends as drug users, but at the same time it appears you said in court that when you used drugs you did not like to do it with other people and it appears that your parents are very involved in your life even though you might find that a bit difficult at times.

30You are still not employed but you would like to work in gardening or in a nursery or something along those lines.  You have been referred to Jesuit Social Services to their connections program and I received your report from that service saying you had attended three times and were engaging well.  Overall, apart from the continuing drug use which I accept has lessened a great deal, there has been no further offending nor was there offending before.  I do not think there is any argument that a community corrections order is an appropriate response to your offending given your prior and subsequent history and given the facts that you have certain difficulties in your life.  You have been found suitable for that order.

31The recommendation was that you undergo treatment and rehabilitation both for mental health difficulties and for drug use.  I was informed by your counsel Mr Thomas that you ceased seeing Mr Bilyk a while ago but you got on well with him and it is my comment that it would be appropriate for Corrections to refer you back to Mr Bilyk whom you like and who already has established a good relationship with you.  It is also my comment that it would be appropriate and sensible for Corrections to be guided by Mr Bilyk as to who would be the best person to conduct the drug rehabilitation with you.  All right? 

32Now pursuant to s.11 of the Sex Offenders Registration Act, the question of whether I place you upon the sex offenders register is a discretionary one. That is because the victim in the offending, BL, was over 14 (see s.11B(1)(a)(i)) and it is conceded by the prosecution that I do not have to place you on the register.

33The evidence of Ms Lopez was that she had never met you but she had made an assessment as to your risk of reoffending using an actuarial test which is based on certain criteria in your life such as offending, the type of offending, your age, the fact that you had resisted arrest, other features which are what are called static features - they never change.  Ms Cidoni on the other hand assessed you using tests both reliant on static material and what are called dynamic factors - that is, things in your life that have changed such as the fact that you are now living in a very stable situation with your father, that it is a long time since you have offended, that you appear to have developed some insight into the danger of becoming engaged in sexual offending or sexual activity with a girl under 16 and that you seem to show some insight into the effect that drugs can have upon you.  She found you as being of a low to moderate risk.  Can you remind me again what Ms Lopez was - medium?

34MR BROWN:  Medium, yes.

35MR THOMAS:  Medium, yes.

36HER HONOUR:  A medium risk.  The prosecution have conceded that your risk is essentially situational - that is, confined to the sorts of circumstances that existed in the case that led to this offending.  In other words, that because of the difficulties you have with Asperger's and intellect, that where you come into contact with someone like BL who was vulnerable because of her age but was behaving in a way that was dangerous to her - that is, in a very sexually mature way when she was not old enough to do that - that it might be hard for you to make the right decision about whether or not to be involved with such a person even if you knew they were underage.

37In my view, I can find as I am required to do pursuant to s.11B(1)(b) that having regard to the seriousness of the specified offence to the ages of the victim, that is BL at the time, which are the two primary matters I must have regard to although I am allowed to have regard to any other matter that is considered relevant, I am prepared to find that in terms of the danger you present to the community that there is a low risk of reoffending, and that is because (1) you had no prior convictions; (2) this was offending that took place in a very specific situation where you were 19 and she was 15, she was living a life which was far more sexually liberal than was appropriate for her, that because of your own difficulties you were more likely to be attracted to her, and because at the time you were living on your own and you were using drugs far more heavily than you are now. 

38You are now 22 years of age, you are living with your father, you have got good support from both parents, a pretty reasonable period of time has gone by since this offending and you have gained some insight.  For example, you told the community corrections officer who was assessing you that, "Mr Wade took accountability and displayed some insight into the offending behaviour, understanding the severity of committing a sexual offence." 

39It was also Ms Cidoni's view that you had gained insight and overall as I hope I have made clear, I find that the testing imposed by Ms Cidoni covering as it does both dynamic and static factors in your life and taking into account Ms Cidoni's comment that there is no specific testing mechanism available for persons who have got Asperger's.  In all those circumstances, it is my view that her assessment is preferable to that conducted by Ms Lopez.

40I am satisfied that given the lapse of time and the greater insight you have shown that the danger of you reoffending in this very specific way and in these very specific circumstances is quite low.  I am concerned about your continuing methamphetamine use but I am satisfied that it is less than it was and that even though you like to use it from time to time, you are not using drugs in the uncontrolled way it seems you were previously.  I note that you did tell the assessor that you had methamphetamines the night before but it seems there had been a few weeks before that in which you had not used methamphetamines so it appears you are only occasionally using methamphetamine.  Nevertheless, this does remain a concern.

41Overall on the balance of probabilities, I am satisfied that the risk of reoffending is low and I do not propose placing you on the sex offenders register.  However if you offend in this way again, you would be placed on the sex offenders register, Mr Wade, and probably for a very long time.

42In all the circumstances, I have decided that you should be placed on a community corrections order which I am going to impose on an aggregate basis apart from the summary charge of using cannabis.  I will fine you $50 for that and you have got three months to pay it. 

43Now I can only place you on this order if you agree to it, Mr Wade, so I need you to stand up and I need to explain the conditions of the order.  Firstly, you have to report to the community corrections office by Thursday of this week.  While you are on the other - and the order will last for two years - you must not commit any other offence punishable by imprisonment.  That does not mean you have to go to gaol but if in the next two years you commit an offence which you could go to gaol for, that means you will have breached or disobeyed the order and you will be brought back before me and I will sentence you for this all over again.  That makes sense?

44You have to tell the office of Corrections about any change of address or employment within 48 hours of making that change.  You must report to and receive visits from the community corrections office.  You must obey all lawful directions of the community corrections office.  You are not allowed to leave Victoria without the permission of the community corrections office and you are not allowed to go to the community corrections office whilst you are under the influence of drugs or alcohol, all right?

45I am going to order that there be supervision.  That means I will be wanting to see you a bit more than would normally be the case.  I am going to get you to undertake treatment and rehabilitation for drug use and I am going to get you to take treatment and rehabilitation for mental health difficulties and again, I make the comment that in my view it would be appropriate for you to go back to Mr Bilyk and Mr Bilyk should recommend someone who would be good for you to see about drug treatment, all right?

46I am not going to order any unpaid community work.  I think he is going to have enough to do under this order.  I am also ordering judicial monitoring and I am going to want to see you in late February.  What that means is every couple of months, I am going to get a report from Corrections about how you are going, all right?  Now apparently Corrections will help you with appointments and things like that, is that right, Mr Thomas?

47MR THOMAS:  Yes, Your Honour.

48HER HONOUR:  So make sure you use them for that, all right?  The community corrections office will be in Melton, I think there is one in Melton, is there not?  Yes.  So you really need to do what they say, Mr Wade, and I suspect that you are probably going to find it a bit annoying sometimes but it is really important that you do obey what they say.  I do not want to have you here brought back with the workers saying that you are not obeying the conditions on the order because if that is the case, they can breach you, they can say he is disobeying the order and if that happens, I will have to resentence you all over again so do your best on this, all right?

49Good.  That's all.  You're happy to be placed on the order?  Thank you, Mr Wade.  Good, you have a seat. 

50So it will be on 28 February for judicial monitoring and I am going to order that what you - you do not have to come to court, you just go to the Corrections office and they will beam you in here through video link, and make sure you go - you need to come for judicial monitoring, that is one of your conditions, all right?  Good.  It's going for two years, all right?  Have you got any questions, Mr Wade?  Did I explain that properly to you so you understood?

51OFFENDER:  Yeah.

52HER HONOUR:  Make sense to you?  All right, good.  Mr Thomas will explain it all to you again I'm sure.  You can have a seat, we've just got to print out a form that you have to sign.  I don't have to do a s.6AAA declaration?

53MR BROWN:  No.  But there was the issue, Your Honour, of the forensic sample.

54HER HONOUR:  I don't know that a forensic sample would have done much at the moment in this.  I should also add that in sentencing you, I take into account your plea of guilty which is made at an early stage.  I also take into account that much of the offending alleged against you, much of the evidence relating to it came from you directly given BL made no statement and you are entitled to a further discount. 

55I also take into account your young age, your lack of prior convictions and the particular difficulties that you have in your life and the particular situation that existed and that underlay this offending.

56All right, I am just going to stand down while that's sorted out.  We have a bit of trouble with our programs so I'll just stand down while that's done, all right?  Thank you very much.

57(Short adjournment.)

58HER HONOUR:  Yes, thank you.  Yes, we'll get you to sign this please, Mr Wade.  Thank you.

59(Community corrections order signed and acknowledged.)

60Thank you.  I am not disposed to grant a s.464ZF.  You don't need one with him.

61MR BROWN:  If Your Honour pleases.  Yes, all right.

62HER HONOUR:  You just do an interview and off you go.  All right, thank you very much.  Yes, thank you, we will adjourn to 9.30 tomorrow morning.  Good luck with it, Mr Wade.  I'll see you in February, I hope it all goes well, all right?  Have a happy Christmas. 

63I thank counsel for their assistance in this matter.  I wish them happy Christmas as well, thank you.

64MR THOMAS:  Thank you, Your Honour.

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