Director of Public Prosecutions v Wade (a pseudonym)
[2018] VCC 691
•15 May 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES WADE (a pseudonym) |
---
JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial; before jury 26 April 2018; Verdict 4 May 2018 | |
DATE OF SENTENCE: | 15 May 2018 | |
CASE MAY BE CITED AS: | DPP v Wade (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 691 | |
REASONS FOR SENTENCE
---
Catchwords: Indecent assault x 2, gross indecency. Possession of child pornography.
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P. D'Arcy | OPP |
For the Accused | Mr J. Taaffe (Trial and Plea) and Ms S. Stafford (Sentence) | Doogue + George Defence Lawyers |
HIS HONOUR:
1 James Wade[1], following a short trial, on 4 May of this year, a jury found you guilty of two charges of indecent assault and one charge of gross indecency with a child under the age of 16.
[1] A pseudonym
2 These verdicts were unanimous. I had withdrawn two charges of sexual penetration (Charges 3 and 4) from the jury, following a "no case" submission. The age of the complainant was an essential aspect in relation to the sexual penetration allegation as pleaded in those two charges. Those charges were laid in the alternative. It was impossible to determine if the complainant was under ten or over ten and I concluded therefore that the "no case" submission was made out. The prosecution had correctly conceded the difficulties with those two charges. Accordingly, as the trial judge, I was required to withdraw those charges from the jury's consideration, which is what I did. You have been in custody since the date of verdict. You had earlier pleaded guilty to a single charge of possession of child pornography laid on the plea indictment.
3 You have no prior criminal history for the trial indictment matters, but a 2006 Magistrates’ Court appearance for aiding and abetting cultivation of cannabis, which is a prior appearance for the plea indictment charge. It does not matter, as that prior appearance is entirely irrelevant to my task.
4 The maximum penalties are correctly stated in the opening. The gross indecency was aggravated by the child being in your care, supervision or authority. That was never in dispute.
Facts
5 The jury verdicts followed the evidence given at the trial and I am not going to slavishly restate it all now. You were the uncle and godfather of the victim. You had married his aunt. That is to say, you had married his father’s sister. You were trusted by his family. You were in a position of trust at the time of the offending. That is conceded. The young boy was, it would seem, a difficult child to manage and you provided some welcome respite for his parents. However it is plain that you used those occasions for your own sexual gratification.
6 The summary of prosecution accurately sets out the allegations that were proven at trial. An instance of handcuffing and tying the boy up in your factory with the boy in his underpants and your taking of a photograph, an instance of masturbating yourself in his presence at your house in Glen Iris and one of actually masturbating the boy at those same premises. The factory incident was the first occasion. There was no precision as to his age. That was hardly surprising. He thought he was six or seven at the time of the factory event, but he conceded that he may have been older, possibly even ten. In a way his precise age is just not that important. He was a young child on any view of it. The conduct had stopped by the time the boy was 13.
7 It is equally plain from the evidence led at trial and I am satisfied of this beyond reasonable doubt, as indeed I am confident the jury were, that you sought to discuss sexual matters with him, to make these events seem somehow normal, to get him to trust you and to discuss things that you really had no business discussing with any child. You were encouraging him to feel at ease discussing masturbation and sex, to feel no shame or embarrassment. Charge 2 occurred with you masturbating yourself in his presence telling him, "This is how you do it" and "It's perfectly natural". On the occasion of Charge 5, you had shown him pornography, some gay pornography, some heterosexual. Well he was dumbfounded and frightened. You reassured him and upon later seeing the boy masturbating, you told him that it was different and special or "better" when someone else did it. You then touched him and masturbated him in that setting.
8 You had told him you loved him and that his parents did not, that you had a special relationship which the boy’s parents would not understand and that therefore he best keep it all a secret. It was, of course, a massive breach of trust with dire consequences. This was serious offending, as your counsel correctly concedes. As to the child pornography charge, the summary of prosecution opening elaborates upon the scale and the nature of the images. Again it is unmistakably serious conduct and in a very different timeframe indeed.
9 There had been some disclosure by your victim when he was around the age of 16. It coincided with his receiving inpatient mental health treatment. You had been barred from seeing him and had been prior to that point. Well, he came forward as a mature adult in 2015 and made a formal police statement. You made some partial admissions as to the tying up episode, though you denied that there was any removal of clothing or indecent circumstances or any sexual connotation. You denied the other two acts. In the second interview that was conducted, you admitted possession of the child pornography. You chose not to go into evidence at trial, which of course was your right. Well, the jury was clearly satisfied beyond reasonable doubt that these acts did occur and they found you guilty of them. They were satisfied of the victim’s account as to his being undressed at the time of the factory tying up episode. Indeed, I specifically directed them as to the need to be so satisfied of that beyond reasonable doubt and they were.
Mitigation
10 Your counsel, Mr Taafe, who conducted the trial, very responsibly if I might say so, conducted a very realistic and sensible plea on your behalf. He had filed some excellent, sensible and realistic written submissions marked as Exhibit 1 on the plea. As is often enough the case with a verdict after trial, there was not that much that really could be said on your behalf as to the disputed acts. They had been disputed. Well they have been proven. He made some submissions about the nature of the proven conduct and which instance should be judged to be most serious, as well as the level of seriousness of the admitted charge of possession of child pornography. Mr Taafe relied chiefly upon:
· Your guilty plea, cooperation and remorse in relation to the possession of child pornography charge on the plea indictment;
· Delay in relation to the trial offences, not the delay between offence and being charged, but rather from the point of the first police interview in October 2015 to being charged over a year later. That delay was unexplained, or at least unjustified, he argued;
· He relied upon a report of a psychologist, Dr Rachel MacKenzie, as setting out your background in some detail and as being indicative of your willingness to engage in counselling and to receive treatment. That was marked as Exhibit 2;
· He conceded that it was hard to point to a process of rehabilitation, given that the arrest in 2015 found you in possession of a collection of child pornography and given that the expert report of the psychologist spoke of a current sexual interest or attraction to teenage boys;
· Mr Taafe argued that when regard was had to all of the material before me, that at best, you had reasonable prospects of rehabilitation and that that was very much dependent on your continued treatment in the future;
·
He conceded the seriousness of your offending and the inevitability of
terms of imprisonment and a level of cumulation, with a total effective sentence of a dimension that would require the fixing of a non-parole period.
Prosecution
11 The prosecution had no need really to make general sentencing submissions in this case and that was owing to the sensible and realistic plea conducted on your behalf. They did, however, endeavour to explain the delay, in that at the time of the first interview, your computer had been seized that day. You had, in that first interview, made some admissions to an event at the factory where the boy was handcuffed and tied up and photographed. You denied any undressing of the boy or any sexual connotation at all. You suggested that the photograph, which may still exist, either on the computer or elsewhere, would bear out your innocent explanation. Unsurprisingly, your computer was seized and submitted for expert analysis and that took some time. That photograph was not found, though of course, child pornography was. You were then interviewed a second time in June 2016 and charged in late-December with the contact offences. Thereafter the delay was entirely consistent with the conduct of a committal and a trial.
Victim impact
12 There are three victim impact statements, one from the direct victim, one from his mother and one from his aunt, your ex-wife. Your direct victim’s impact statement was read aloud to me by the prosecutor. The mother read her own impact statement aloud and I was left to read the aunt’s impact statement. Indeed I make plain, I have read all of this material again since, including of course all the material placed before me on your behalf.
13 Returning to the impact statements placed before me. There is nothing at all surprising about any of the sentiments in any of those documents. You have betrayed their trust. You have caused immeasurable damage to your direct victim and to his mother in particular. You have changed the course of their lives. You have damaged relationships and you have produced lasting feelings of guilt. Of course the only person who should feel any guilt at all is you, but that is not the way the world operates. The mother looks back and judges herself very harshly, if I might say so. Her only failing and it is not really much of a failing, is that she trusted you. Well why would she not have? Once she did not as a result of your admitted involvement in the boy wagging school on one occasion and that coming to light, well it was too late. The damage had been done.
14 She has conflicting feelings that have swamped her over the years. Guilt for failing to protect her own son, even feelings of self-loathing. Well you committed the crimes, not her. She is not responsible, you are entirely, but she has still felt responsible. Her son, your direct victim, describes many varying emotions. It is almost futile me trying to summarise them, but I take into account his statement. You were a very important and significant part of his life in his formative years. He looked forward to spending time with you. Well you took away his sense of innocence. All the positives were lost.
15 Your conduct impacted on virtually every aspect of his life then and since. There was isolation, anxiety, fear and confusion. The impacts could not be corralled or isolated, they intruded into every stage of his development, impacting upon school, employment, relationships and persisting into his adult life. It is hardly surprising. Our experiences shape us. Bad experiences cannot be so easily shrugged off. Your crimes have significantly damaged him, there can be no doubt about that at all. The conduct can take but moments, the impact can last a lifetime and so it has proved to be the case here.
16 Now I have no reason to doubt any of his aunt’s sentiments in her impact statement, but it seems to me though, the line has to be drawn somewhere. Her statement in no way influences my ultimate sentence. The true impact of these crimes is set out in the mother’s and the direct victim’s impact statements. I do take into account the impact of your crimes. It has been enormous.
Background
17 I will deal only briefly with your background, as it is set out in the report of the psychologist, Dr MacKenzie and also briefly in Mr Taaffe’s written outline. In addition, Mr Taafe took me to your background in quite some detail in his oral submissions on the plea. I have no reason to doubt the personal background that has been placed before me and I do in fact accept it. I see no need to restate it all. Very broadly, you are 60 years of age. You were an only child and you completed high school at Melbourne High. Though accepted into university, you deferred the course and then never attended university. It was a shame that you did not. It was obviously a missed opportunity for you.
18 I was taken to your employment history in some detail, but I do not see any need to set that out now in my reasons. I conclude that you have worked for most of your life and for the last 15 years, you have worked at a call centre. You married once when you were about 25 years of age. You separated about ten years later. Your mother and father died in 1983 and 2002 respectively and you continued to live in the family home. You clearly have had a confused sexuality and there is mention made in the report of Dr MacKenzie as to your earliest sexual experiences. Though the jury did not know this, as I excluded the material in your interview, you identify as bisexual and you have had an obviously long-standing interest in bondage.
19 You report to Dr MacKenzie that you have had and continue to have an attraction to teenage boys. Dr MacKenzie says you acknowledge sexual arousal to teenage boys. The most likely diagnosis is ephebophilia (a sexual interest in mid to late adolescent boys) and possibly hebephilia, (sexual interest in early adolescents). The treatment episodes engaged in with that expert, only relate to the child pornography allegations and though there have been some gains and progress in that respect, your counsel correctly conceded that considerable further treatment will be required in the years ahead. There has been no risk assessment, but it is obvious enough that your sexual urges and attractions are problematic. Dr MacKenzie was only dealing with the issue of pornography and attraction, not your now proven contact sexual offences committed upon, with or in the presence of your nephew.
20 You lived an isolated sort of life in the old family home, prior to my remand of you into custody the other day. You have few close friends and no intimate relationships.
21 You have no true prior convictions for the trial indictment matters and only the aid and abet cultivation of cannabis as a prior matter for the plea indictment. As I said in the course of the plea and earlier in these reasons, that past appearance is totally irrelevant to my task and I put it aside altogether.
Guilty plea, co-operation and remorse: Plea Indictment
22 As to the possession of child pornography charge, you have pleaded guilty to that offence and at what I will treat as an early occasion. You have, in that way, facilitated the course of justice. You have admitted responsibility earlier still and have, by your early guilty plea, saved the cost and effort of a trial in relation to that matter. You made detailed admissions to the police and you have admitted the attraction in discussions with the psychologist. You are entitled to a sizeable discount in relation to the plea indictment matter. I am also prepared to find that in relation to that matter, you have a level of remorse. So I take those things into account in mitigation.
Delay
23 I turn now then to the issue of delay. You were interviewed by police in October 2015 and then a second interview occurred in June 2016. You were charged with the contact offending in late-December 2016. So the matter was over your head from October 2015. Your counsel relies upon that delay from October 2015, in the sense of it being, if you will, an additional punishment, as well as being deserving of some judicial disapproval. Well the delay has not been particularly sizeable and this was certainly not some instance of police or prosecution authorities taking a relaxed or unduly leisurely approach to the investigation or prosecution. That is not what happened.
24 Mr Taaffe says, ‘well you could have been charged following the first interview’, but again it was plain that you had provided an innocent explanation of the factory event and you had referred to the potential existence of evidence which would exonerate you. I am not sure how responsible it would have been for the police just to have charged you there and then on that first occasion. It is easy enough to envisage the sort of criticism that would flow from such a stance, had it been taken.
25 It certainly was essential though that your computer be searched. Well that took time and though Mr Taaffe says the delay may be the product of a police resourcing issue, the fact is that there dwells a pretty ready explanation for the delay, such as it is. It is not unexplained at all in my judgment and nor is it of the sort of length seen in some of the leading cases in this area. Mr Taaffe does not rely upon rehabilitation in the period of delay, but rather the uncertainty of having the matter hanging over your head. Well I do accept that from October 2015, there was that state of uncertainty in your life and of course it is not easy to live in such a state. So I take it into account in that way, but really it is a relatively modest matter in the scheme of things in this case.
26 The delay from the point of offending to interview was not relied upon in a mitigatory fashion at all, given the most recent offence as at the date of arrest. There was, of course, no evidence of any contact offences in that sizeable period since the offences were committed upon your nephew and I act on that basis. The fact is, the child pornography offending and the admissions made to the expert, impeded your counsel from pointing to a successful process of rehabilitation.
27 It is very common for people not to disclose this sort of event. Of course you hoped that your victim never would, that he never would disclose the acts and indeed you discouraged him from so disclosing much earlier in time. You hoped never to be found out. Well, the boy was subjected to these events. He has lived all those years without vindication. He has it at long last now as a mature adult.
28 Your counsel correctly conceded the sizeable breach of trust in this case. He does not quibble with the impact of the crimes. Though the offence of gross indecency is aggravated by care, supervision or authority, that is not the end of the issue of that involving a breach of trust, as the recent authorities in this are in Jowett v The Queen [2017] VSCA 358 make plain enough. Nor does your counsel quibble with the impact of these crimes.
29 You were obviously sexually attracted to your victim and that was no doubt a product of your distorted sexual attractions, as commented upon in the recent report from the psychologist. You told your nephew that you loved him. You told him that his parents did not. You told him that you could adopt him and he could come and live with you and you did these things, the subject of these charges. It is hardly surprising that your conduct and your behaviour has had a warping effect upon him. It was confusing and damaging conduct for a child.
Rehabilitation
30 I turn now then to your prospects of rehabilitation. You have a good work history. You have no relevant past criminal offending. Many offenders committing this style of offence have no criminal history. Many have decent hardworking backgrounds. Your counsel conceded that an assessment of your prospects is, to a degree, clouded or complicated by the far more recent child pornography charge. It was not a confined period of contact offending occurring many years ago with nothing since. There was the more recent offence, indicating the continued disturbed or distorted sexual ideation, one you admit in discussions with the expert. Your counsel suggested that the court could only be guarded and that, at best, those prospects might be seen as reasonable, if you continued to engage with treatment into the future.
31 You no doubt offended as a result of your warped or distorted sexual interest all those years ago. That distorted motivation is still present, though at least it has not played out in any more recent contact offences. In that sense, I accept the submission that there has been a "de-escalation" was the word employed. You at least have been amenable to meaningful treatment in relation to the issue of the child pornography and you have made some gains in that area.
32 You have made some frank admissions to this aspect of sexual attraction. It may not seem much, but many in your position do not ever make such an admission as to inappropriate sexual attraction. Well you have. So these are signs suggesting that you may very well be, in the future, a decent candidate for useful treatment of your condition in the years ahead. It is likely that you will be required to undertake and complete a sexual offender's program in custody, prior to your ultimate release, whenever that may be. Well that may lead to some reduction in your risk. It is very difficult for me to speculate as to what lies ahead, but the present signs at least are not at all discouraging.
33 The sentence I will impose also will have some deterrent impact upon you. Additionally, you will be required to comply with your obligations under the Sex Offenders Registration Act 2004 for the remainder of your life. That may also lead to a reduction in your future risk. As against all of that, of course, it seems on the materials, that you harboured these misaligned or distorted sexual attractions for well over two decades. You cannot just click your fingers and rid yourself of these disturbed ideas. They make up your personality. It is, at this stage, impossible for me to assess your true level of risk, but plainly enough, you have a risk of re-offence.
34 I am prepared to find that you do have reasonable prospects of rehabilitation, conditional upon treatment in the future, but as your counsel conceded, it is hard not to be guarded for the reasons that he advanced.
Serious Sexual Offender Provisions
35 Your counsel conceded that you would fall to be sentenced as a serious sexual offender by the time of the third sentence being imposed by this court. There is, from that point, a presumption of cumulation, rather than concurrency and community protection is the principal purpose of sentencing for the two charges for which you are to be sentenced as a serious sexual offender.
36 The common law principles unaffected by those serious offender provisions would not dictate total concurrency in a case such as this in any event. As to the sexual offences on the trial indictment, each individual act here was a serious criminal offence, committed upon or with or in the presence of a young child. Each individual act would undoubtedly therefore have had a role to play in the overall impact upon him, as spoken of in his victim impact statement. I must not ignore the clear legislative provisions set out in the Sentencing Act that direct cumulation, unless otherwise directed in relation to the third sentence and beyond. See s.6E of the Sentencing Act. Totality of sentence, of course, still applies, but with this statutory modification.
37 I make clear that for the two sentences where you will fall to be sentenced as a serious sexual offender, I will pass a proportionate sentence. Mr D'Arcy, the prosecutor, did not suggest that there was any need or basis to consider passing a disproportionate sentence under the provisions of s.6D(b) and of course I will not.
Current Sentencing Practices
38 I must take into account current sentencing practice, though it is only one of a large number of matters that I must consider. It is not a controlling factor, but that is, current sentencing practices as of today’s date. I must exercise significant caution here. That consideration must take place with a keen awareness of the maximum penalty which applied at the time. That is the maximum that I am applying here. I am dealing with offences which carried a much lower maximum penalty than similar offences existing in this day and age, or even ten years ago for that matter. I am dealing with a five year maximum for the indecent assault offences and three years for the gross indecency, when more recently acts such as those would be punishable by a ten year maximum term.
39 Well I have to be very careful to apply the correct lesser maximum and not lose sight of that maximum penalty when looking at current sentencing practice. Nor is it irrelevant for me to consider sentencing practices which existed at the time of the offending, insofar as they can be established. Equal justice requires me to consider those where they disclose a materially lesser sentencing practice. Well, it is notoriously difficult to determine that past sentencing practice and I have found it extremely different to determine them. I am not required to sentence in accordance with past practices and as I say, they are terribly hard to determine here. Much of the available data on the Judicial College Victoria site pertains to offending with higher maximums. So again, caution is required on this analysis.
40 None of these considerations compel me to pass an inadequate sentence. Nor am I bound by any past or current inadequate practice.
41 I must have regard to the maximum penalty though as it existed and that is important.
42 No case is ever identical. There is always a limitation in looking at other cases.
43 There is always a real limitation and difficulty in looking at pure statistical data. Three of your convictions follow a trial and you have no remorse at all for that offending. It is very different on the plea indictment.
44 What I have to do, is exercise my sentencing discretion in relation to these four crimes. I must take into account a large range of factors and a large range of matters, including the maximum penalty and the impact of the crimes.
45 As to the contact offences, they were serious sexual offences. They were committed upon a young boy. I accept that one can probably almost always envisage more serious examples of offending, for instance, where weapons or physical violence or threats or force are used, or more serious sexual acts are committed, including acts causing physical damage for instance. But these are still unmistakably serious criminal offences.
46 Here the first indecent assault was quite extraordinary and bizarre conduct, at least for the young boy. Handcuffed, trussed up to the beams in a factory with you and photographed in his underpants. He and you alone in the factory that you had chosen to take him to. You photographed him and we know of your interest in bondage and attraction sexually to boys. It follows, as night follows day, that there was obviously a level of preparation for that act.
47 The other sexual offences were still serious and that is despite the fact that you did desist in the conduct after a while. The boy was in your care. He looked up to you. He and his family trusted you. You had engaged in discussions to normalise the approaches that you were making, including telling him it was normal to masturbate, giving him instructions to how to do it, not to feel ashamed of his body and the playing of the entirely inappropriate pornographic material. It was almost dressed up as sexual education, but of course it was not that at all. That was your pretext. Undoubtedly it was serious offending and with the sizeable impacts spoken of in the impact material placed before me. There are a great many cases in our Court of Appeal, speaking as to the inherent seriousness of these sorts of crimes. The Court of Appeal has spoken loudly, frequently and recently as to the seriousness of sexual crimes committed upon children. So too, for that matter, the seriousness of child pornography offences.
48 In a case dealing with allegations of sexual penetration of a child and an instance of indecent assault, the Court of Appeal in the case of Sadrani [2015] VSCA 202 said that the fact of that type of offending taking place at all underlines the importance of sentences being imposed which demonstrate to the community and to any person who might contemplate sexual offending against a child, that such offending is and should be unthinkable and not pursued. The President of the Court of Appeal in that same case observed that, "If it were better understood that offending of this kind would ordinarily attract significant terms of imprisonment, that perhaps then the County Court would not be dealing as often as it has to with child sexual offences." That is one case. I could cite 20, 30 or even 40 other cases from that same Court, echoing those same sentiments.
49 The possession of child pornography was, at least relatively speaking, of a reasonably small collection of images. The fact is I have dealt with people for as few as 20 images, right up to collections involving tens of thousands, if not hundreds of thousands of images. You had over 600 images and 10 movies, so it was hardly a miniscule collection. The images were spread across a range of categories, including the worst categories. The second interview descends to some of the detail of the images. It is true that there is no suggestion of dissemination of the images, or any profit, or commerciality, or involvement in the production of those images. Nor of obsessive cataloguing of the images. It is what it is and though it is dwarfed by the scale of possession in some other cases that I have seen and some that are referred to in the authorities, your counsel is still correct to concede that it is still serious offending. It is. Nor can I lose sight of the fact that for that offence as well, there is a lower maximum penalty that applies, not the increased maximum.
50 Well the internet has changed our world probably forever, I suppose, both for good and for bad. This sort of crime demonstrates the massive capacity for harm presented by this medium. The world has literally been opened up by the internet. There is a vast market out there inhabited by people such as you, who for whatever reason, wish to access this warped sort of material. Whether you know it or not and you seemed not to, at the time at least, you and people like you actually drive the production of this material. Those real children portrayed in the images (not the animated ones obviously), real children in images, be they the still images or videos, they are not actors. They are victims. They are children. Real children. They are innocent, they are helpless and they are children being sexually abused and debauched to provide this imagery. It is not some victimless crime. In very image there is a victim staring into the lens of the camera, much as there was staring into the lens of your camera in the factory.
51 It is clear from the various authorities that the problem of child pornography is a significant and an international problem. The prevalence and the ready availability of this sort of material, pornographic material involving children, particularly on the internet, requires that general deterrence be the paramount consideration. As I have said, child pornography is not a victimless crime. Those inclined to exploit children by involving them in child pornography, they are encouraged to do so by the market that exists for such material and you were one of those who made up that market. You seem to have some inkling of that now from remarks made to the treating psychologist. It is clear that, given the prevalence of the offending and the importance of general deterrence, that past good conduct is to be afforded lesser weight than is often the case.
52 Harper JA in the case of DPP v D'Alessandro [2010] 26 VR 477, said the following:
"For reasons which to the ordinary lay mind are very hard to comprehend, there are those who have such lack of empathy that they cannot assimilate a simple truth; that what they see is not merely a titillating picture, but the degradation of human beings too young to avoid the exploitation they are being subjected to."
Well that is the position that you evidently found yourself in, a person who for whatever reason, seemingly did not draw the connection between the child portrayed in the still image, or in the video and the concept of that person being a victim. That mindset has been challenged by counselling and your views have seemingly altered and shifted and for the positive. Of course that is a start. It is still early days and there is much work ahead for you in the years to come.
53 You must be punished for your conduct, though of course my obligation is to do that justly and proportionately.
54 I am also required to denounce this serious offending. That is a significant purpose of sentencing in this sort of case and I do denounce your conduct. You really should be very much ashamed of yourself. Of course in relation to the acts upon or in the presence of your nephew, you are not.
55 I need to deter you from offending in the future. You must be deterred. You must be dissuaded from ever contemplating committing these sorts of crimes in the years that lie ahead. You obviously have continued perverse or distorted sexual thoughts or attractions. You admit as much. You present a risk, there can be no doubt about that. It is one that is impossible for me to quantify.
56 I have to take into account your prospects of rehabilitation. I can only be guarded at this stage. I believe that you do have reasonable prospects, subject to future treatment. I am at least encouraged by your efforts in counselling to date and the seeming frankness displayed in that process in your engagement with Dr MacKenzie.
57 I must also pay regard to the need to protect the community from you. That is not an insignificant purpose here. Indeed that purpose is elevated as the primary purpose for the third and fourth sentences imposed by the court. However, the extent of the risk of re-offence informs the extent to which that factor has significance. See the case of Beyer v R, VSCA 15. On that score I have conveyed, I believe, that your risk of re-offence is nigh on impossible for me to gauge presently, owing to the nature of your offending, the fact of your denials and the absence of any risk assessment and your undoubted longstanding sexual attraction to teenage boys.
58 I must pay very strong regard to the principle of general deterrence in this case. That is the dominant or principle purpose of sentencing in this case and by general deterrence, I am referring to this court’s obligation to send a message, a loud and clear message to other people in the community that offending such as yours will simply not be tolerated. As I have said repeatedly, our highest court in this State, the Court of Appeal, has spoken of the seriousness of sexual crimes committed upon children and of child pornography.
59 On the trial indictment, you have none of the sentencing benefits that often would apply to many of those covered by any of the statistical data. For instance, a person who demonstrates remorse and one who pleads guilty and at an early stage. Those benefits are very sizeable indeed in this sort of case, a sexual case, as they should be, but of course they have no application here at all, as you have chosen to run a trial. It was your right to do that and you are not to be punished for exercising that right, but it simply follows that there are a number of mitigatory matters that often enough apply in other cases, that simply have no application at all in your case, at least in relation to the trial indictment. It is, of course, very different in relation to the plea indictment.
60 Your offending was very serious. It demands a substantial term of imprisonment. I have no choice at all but to pass terms of imprisonment upon you. That is conceded to be the position by your counsel.
Disposal and 464 ZF
61 Application is made for both a disposal order and a s.464ZF order. I have signed each order.
62 First as to the disposal order, that order is sought, pursuant to the provisions of s.78(1) of the Confiscation Act and pertains to the USB stick, the PC tower and also the various child pornography material retrieved from the examination of those devices. There is no issue, in terms of that order being made. It is not opposed, indeed, I think it is consented to, and I make that order in the terms in which it is sought and that property is to be maintained and dealt with in the manner contemplated by the signed order.
63 The second of those orders is an application sought, pursuant to s.464ZF of the Crimes Act for an intimate sample, that is, for a forensic procedure to be taken from you. Again there is no opposition to that order being made. I am satisfied that it is appropriate to make that order. Pursuant to the relevant provision of the Crimes Act, 464ZF(2), I order that you undergo a forensic procedure for the taking of a scraping from your mouth, until a sample of sufficient standard is obtained for placement on the database.
64 I am authorising a scraping from the mouth and not a blood sample, as it is the lease invasive of the procedures open to me. I believe it is justified making that order, owing to the seriousness of the offending before me, the fact that the order is not opposed and that I judge it, in the circumstances, to be in the public interest.
65 Notwithstanding your present consent to the procedure, I have to advise you that the authorities may use reasonable force to enable the forensic procedure to be conducted. This will be a pretty straightforward matter in custody. They will be using a swab to run around the inside of your mouth, Mr Wade. It is not particularly invasive and it should not pose any difficulties. As I say, I am authorising the mouth swab. If there are difficulties engaged there, no doubt the authorities would be back before me, seeking a blood sample, which to this point I have not authorised, but I have signed that order as well.
Sentence
66 I move then to now pass sentence. Just bear with me.
67 I will have just a summary handed out to Counsel, so you can follow it, because I am moving between orders for cumulation and concurrency. It is not that easy to follow sitting down there.
68 If you could stand up then please, Mr Wade.
69 I move now to pass sentence. On Charge 5, that is the matter I am passing sentence on first, that is the indecent assault, constituted by your masturbation of your victim’s penis. I convict and sentence you to 24 months or two years' imprisonment.
70 I have sentenced in that matter first, as I judge it to be the most serious offence. That two year term will therefore be the base sentence in this case.
71
I believe there are practical difficulties, in terms of the Serious Offender provisions and cumulation, in the event that I sentence on that matter as either the third or fourth sentence imposed by the court, which is what I would do if simply sentencing in order of the charges as they exist on the two indictments. I would then have to otherwise direct in relation to that matter, whilst at the same time, cumulating other parts of the sentences upon that base sentence. That is
a confusing and clumsy approach.
72 So I have sentenced first in relation to that charge, Charge 5.
73 On Charge 1, that is the indecent assault in the factory, I convict and sentence you to 20 months' imprisonment.
74 Thereafter, you fall to be sentenced as a serious sexual offender on the remaining offence on the trial indictment and then the single charge on the plea indictment
75 On Charge 2, the gross indecency charge, with a lesser maximum penalty that I have referred to, I convict and sentence you to 15 months' imprisonment.
Cumulation
76 I direct that eight months of the sentence imposed on Charge 1, the factory event, will be served cumulatively with the base and other part cumulative sentences. (plus 8 months)
‘Otherwise direct concurrency; section 6E; last sentence on trial indictment’
77 I direct that nine months of the sentence imposed on Charge 2 is to be served concurrently upon the base and part cumulative terms. (plus 6 months).
78 It is hard to follow this, I understand that.
TES trial indictment
79 This produces a total effective sentence of 38 months, or three years' and two months' imprisonment on the trial indictment.
Plea indictment
80 On Charge 1 on the plea indictment, I convict and sentence you to 21 months' imprisonment.
Otherwise direct concurrency; section 6E; charge 1 plea indictment
81 I direct that 11 months of that sentence is to be served concurrently with the base and other part cumulative terms. (plus 10 months)
TES as between both indictments
82 This produces as between the two indictments a total effective sentence of 48 months or four years' imprisonment.
Totality
83 As I have said, I have sentenced you as a serious sexual offender in relation to the final sentence (Charge 2) on the trial indictment and the single charge on the plea indictment. Under the Serious Offender regime, unless I otherwise directed, the sentences passed upon you on those two charges would be served cumulatively or consecutively upon the other sentences and upon each other. That is, by virtue of s.6E of the Sentencing Act 1991.
84 I must give some weight to that provision and to the nature of your offending obviously, but it is equally clear that this prima facie cumulation provision does not permit me to ignore the principles of totality of sentence. I must still pay regard to the principle of totality. I have. It is just that in this area, there is some legislative modification of that principle and one I am not free to just ignore.
85
I have given consideration to the overall effect of the sentences imposed by me and the extent of my cumulation and concurrency orders. I have engaged in a last look at the overall effect, in an endeavour to avoid the imposition of
a sentence that might be described as crushing upon you and to ensure that the outcome is in line with your overall criminality.
Non-parole period
86 Those various orders produce, as I have said, a total effective sentence across both indictments of four years' imprisonment.
87 I fix a period of 30 months or two and a half years during which you will not be eligible for release on parole.
88 I think I will let you have a seat. Have a seat please.
Section 18
89 You have been in custody since verdict on 4 May, a period of 11 days. That period of pre-sentence detention which has been served already is to be noted in the records of the court.
Serious offender status
90 I have sentenced you as a serious sexual offender in relation to the sentences imposed on Charge 2 on the trial indictment and Charge 1 on the plea indictment. That fact is also to be noted in the records of the court
Sex Offenders Registration Act 2004
91 You have been sentenced by me in relation to four Class 2 or Schedule 2 offences. It is accepted that you must comply with your reporting and other obligations under the provisions of the Sex Offenders Registration Act 2004 for the remainder of your life, upon your release from prison.
92 I will shortly have handed to you a document and that document will explain your many obligations under that Act. It is a lengthy document. You will need to acquaint yourself with it in due course. I am not suggesting you are going to digest it all when you receive it down there today. I am providing it down to you and I will be having you sign a document to acknowledge that you have received the explanations as to your responsibilities under that Act.
93 What you will learn when you have the chance of reading this material in greater detail, as you must, is that the Sex Offenders Registration Act 2004 imposes a number of conditions upon you, including impediments to any future employment in a variety of areas. There are meaningful impediments to your future contact with children. You would need to report any such contact. There are obligations to report to police upon your release and thereafter. These are strict requirements. What you must do, not now, but in the fullness of time, is to familiarise yourself with these various matters, with your obligations under that Act, as any breach of the Act, any breach of your reporting obligations under this Act, is itself, a very serious criminal offence and one punishable by a significant term of imprisonment.
94 Now, Ms Stafford, I am dealing with the notification of his reporting obligations. They are very lengthy documents. Have you seen these before at all, or not?
95 MS STAFFORD: No, Your Honour.
96 HIS HONOUR: All right, well look, as I have said, I am not expecting he is going to be sitting down there now reading this document and following it or understanding it, that is not the purpose of the document. He will need to sign the acknowledgement, that is what he is being asked to sign at this stage, that he has received the required notice under the Act. Thereafter he will have the material. He will need to familiarise himself with it.
97 Let me just - I think I have to sign this myself, do I not?
98 Look, I will have that go down with my associate. If you could accompany my associate down to the back of the court now and have your client sign the acknowledgement please.
99 Well your client signed that acknowledgement, Ms Stafford, so yes, I will hand that to my associate.
6AAA
100 I told you in relation to the plea indictment, so the charge of possession of child pornography that I have taken into account your guilty plea, because, of course, you pleaded guilty to that matter and I have taken that into account. Had you been found guilty of that offence following a trial, you obviously would have done worse on sentence. I would have sentenced you to two years' and nine months' imprisonment in relation to that particular charge and that declaration made under s.6AAA of the Sentencing Act is to be also entered in the records of the court.
101 All right, Mr D'arcy and Ms Stafford, do those sums all add up? I have given you the document because - I have danced between measures of cumulation and measures of concurrency and it is a bit confusing, but you have followed the individual charges, the order for cumulation, the orders for concurrency and the maths add up, at least in terms of the head sentence and I fixed the non-parole period? Is there anything else I need to do at this stage then, or not?
102 COUNSEL: No, Your Honour.
103 HIS HONOUR: No, all right. You will go down and see your client downstairs, Ms Stafford, will you?
104 MS STAFFORD: Yes, Your Honour.
105 HIS HONOUR: All right. Well that completes the matter then, so
Mr Wade can be removed please. Thank you.
- - -
0
2
0