Director of Public Prosecutions v Wadley

[2013] VCC 1802

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

AT LA TROBE VALLEY

CRIMINAL DIVISION

Case No. CR-13-01022

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW WADLEY

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	6 September 2013
DATE OF SENTENCE:	6 September 2013
CASE MAY BE CITED AS:	DPP v. Wadley
MEDIUM NEUTRAL CITATION:	[2013] VCC 1802

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T. Lynch	OPP
For the Prisoner	Mr Robertson	Littleton Hackford & D’Allesandro

HIS HONOUR:

1       Andrew Wadley, you have pleaded guilty to one charge of sexual penetration of a child under 16 years of age. 

2       The facts of the case are set out in the summary of the prosecution opening, Exhibit 1, on the plea.  The summary is not disputed by your counsel.  I will not refer to the facts in these reasons.  Anyone wishing to know what the facts are can refer to Exhibit 1 to place the sentence in its factual context. 

3       On behalf of the prosecution Mr Lynch submitted this is a serious matter.  He informed me that the offending occurred in the last month prior to the complainant turning 16.  She had been approached to provide a victim impact statement but declined. 

4       In the circumstances after considering all the matters including the report of David Bruce, forensic psychologist, tendered by the defence, the prosecution submission was that an appropriate sentencing outcome would be the imposition of a Community Corrections Order. 

5       On your behalf Mr Robertson submitted that you had entered an early plea of guilty, described the relationship you had with the complainant as a "unique one" and indeed informed me that her and her family had attended his instructor's office in support of you. 

6       He told me you were on a disability pension but supplemented that income by detailing cars with a family member. 

7       He tendered a report, as I said, from David Bruce, forensic psychologist, dated 16 June 2013. 

8       You are now aged 36.  That report sets out your background.  You indeed have a limited educational background.  You went to what are called special schools.  You presented as pleasant, compliant and good humoured, albeit rather naive.  To get to a special school you have to have an IQ of 72 or under.  Mr Bruce administered a test of intellectual ability and assessed you as having an IQ in the mid low 70s which is at the higher level of intellectual handicap. 

9       You have one prior conviction but it is not relevant for my sentencing purposes. 

10      He assessed that you are not a paedophile and put you at the lowest risk of reoffending.  He said that any incarceration would be unusually onerous because of the particular risk attending intellectual handicap in prison. 

11      He also submitted that I look at imposing a Community Corrections Order.  I then ordered a report from Community Corrections and have received one from Naomi Bremner.  In that you are assessed as being suitable for a Community Corrections order.  It is suggested that that be for a period of 18 months with a treatment and rehabilitation program to reduce reoffending element and also a supervision element. 

12      I have asked Community Corrections to address the issue of whether I should impose a work order element in that the writer of the report said that because of your physical medical condition that it was recommended that unpaid community work not be imposed or if imposed it be minimal.  In light of that I will not impose a work order. 

13      So on the charge that you have pleaded guilty to I impose a Community Corrections Order of 18 months.  For a condition under s.48D(3)(f) for treatment and rehabilitation, in respect of programs to reduce reoffending I impose a s.48E supervision order.  The order is to run for some 18 months. 

14 You are to be registered under the Sex Offenders Registration Act for a period of 15 years. That is a mandatory registration for offences of this type.

15      464ZF order, in the circumstances ‑ ‑ ‑

16      MR LYNCH:  They are the draft orders, Your Honour. 

17      HIS HONOUR:  In the circumstances of this case I am not satisfied that the seriousness of the offending warrants the making of the order so I decline to make one. 

18      I make a s.6AAA declaration that but for your plea of guilty in this case you would have been sentenced to a term of imprisonment of two years with a non‑parole period of one year. 

19      Those orders will have to be prepared. 

20      Any other orders I have to make? 

21      MR LYNCH:  No, Your Honour. 

22      HIS HONOUR:  You can sit down for a moment, Mr Wadley. 

23      I'll make Mr Bruce's report Exhibit W1. 

24       

25      #EXHIBIT W1 ‑ (Plea) Report of Mr Bruce.

26       

27      HIS HONOUR:  Have you got a clean copy of that there?  Have you got the sex offenders documents there because they have to be served on him.  

28      We have a slow computer system, so it will take a while. 

29      Mr Robertson, can you carefully explain to your client his obligations under the sex offenders program registration. 

30      MR ROBERTSON:  Certainly, Your Honour.

31      HIS HONOUR:  Because a lot of them are quite onerous and he can easily be breached without really thinking about it and for a person ‑ ‑ ‑

32      MR ROBERTSON:  In the circumstances, Your Honour, I might wait until we're excused from court.

33      HIS HONOUR:  Yes, that's what I mean.

34      MR ROBERTSON:  Certainly sit him down and have a discussion.

35      HIS HONOUR:  Because of his capacity to understand I place that onus on you. 

36      MR ROBERTSON:  Fair enough. 

37      HIS HONOUR:  You're going to have to take these up and see if he wants to accept service.  We had better do a copy of these. 

38      I'll make the Community Corrections Order reported Exhibit 2. 

39       

40      #EXHIBIT 2 ‑ Community Corrections Order report. 

41       

42      HIS HONOUR:  Mr Wadley, could you stand up again please, sir. 

43      As I said, you've been convicted of sexual penetration with a child under the age of ten.  You were put on a Community Corrections Order for 18 months.  You are to report at the Morwell Community Corrections service at 25 Ann Street, Morwell within two days of today.  Your barrister will go through with you the other conditions, but importantly you cannot reoffend.  If you break the law again, you come back before me and I have to think about something else to do with you.  Do you understand that? 

44      PRISONER:  Yes, I do. 

45      HIS HONOUR:  And you'll be under the supervision of a Community Corrections Officer for a period of 18 months and you must undergo programs consistent with the purpose of treatment and rehabilitation which may include but is not limited to employment, education, cultural and personal development programs as directed by the regional manager and also programs to reduce reoffending. 

46      Mr Robertson, can you take that up, make sure your client understands it and if he does get him to sign it please.

47      MR ROBERTSON:  I should just check, sir, that was under the age of 16 not 10.

48      HIS HONOUR:  What did I say? 

49      MR ROBERTSON:  10.

50      HIS HONOUR:  16.  Sorry, it says 10 there.

51      MR ROBERTSON:  It says 10. 

52      HIS HONOUR:  My Associate has had to manually enter it because the system collapsed. 

53      You can come out of the dock, thanks, Mr Wadley. 

54      Adjourn the court please. 

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