Director of Public Prosecutions v Wainwright (a pseudonym)
[2024] VCC 381
•26 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OSCAR WAINWRIGHT (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 March 2024 |
DATE OF SENTENCE: | 26 March 2024 |
CASE MAY BE CITED AS: | DPP v Wainwright (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 381 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Four charges of incident act with a child under 16 years – Plea of guilty – Historic offending – Profound childhood disadvantage and trauma - Delay
Legislation Cited: Sentencing Act 1991 – Sex Offenders Registration Act 2004
Cases Cited:R v [Oscar Wainwright] (District Court of New South Wales, Huggett J 19 October 2018).
Sentence:Total effective sentence of 4 years’ imprisonment with a non-parole period of 22 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Martin | Office of Public Prosecutions |
For the Accused | Ms F. Fox | Stephen Peterson Lawyers |
HIS HONOUR:
1Oscar Wainwright,[1] you have pleaded guilty to four charges of indecent act with a child under 16. Two of the charges are rolled-up charges. The maximum penalty for indecent act with a child under 16 is 10 years' imprisonment. You have admitted a criminal record that discloses prior convictions. There are also subsequent convictions that relate to similar offending pre-dating your commission of the offences before me for which you are serving a lengthy sentence. The offending before me relates to a 10 to 11-year-old child who I will refer to as Aaron Berger[2] in the years 2013 to 2014.
[1] A pseudonym.
[2] A pseudonym.
Circumstances of Offending
2Aaron Berger is now 21 years of age. At the time of the offending, he lived with his mother and her partner and his two younger sisters. This residence was attached to a Defence Force base. Aaron’s mother was an employee of the Australian Defence Force. The victim's family lived at this address between 2013 and 2014. You were aged between 34 to 35 at the time of offending. In 2013 and 2014, you lived on the same Defence Force base with your partner, your stepson and a baby son. You were employed by the Australian Defence Force.
3On 5 July 2018, Aaron participated in a child forensic interview. As a result of this statement, a series of offences were disclosed.
4Charge 1, indecent act, relates to the period sometime between 2 July 2013 and 14 February 2014. Aaron was 10 and he attended your residence. He understood the reason for attending was so that you could give him the 'birds and the bees talk'. Aaron’s mother does not recall this arrangement being made. You showed Aaron your penis and said 'This is what a penis looks like. Can I see yours?' and Aaron said 'Yes'. You took Aaron’s penis from his pants and began stroking it. You told Aaron that this act was called masturbation. You started to masturbate your own penis in front of Aaron. That is a rolled-up charge, those two acts rolled into the one charge.
5Charge 2, sometime between 2 July 2013 and 14 February 2014, again when Aaron was 10, he attended your residence to play with your stepson. You told Aaron that your stepson was not home and invited him inside. In the living room you instructed Aaron to sit on the couch next to you, you placed your left hand down Aaron’s pants, grabbed his penis and started to masturbate him. At the same time, you held your penis and began to masturbate. At this point, you asked Aaron to put his penis into your mouth. Aaron said no. Shortly thereafter, your mobile phone rang, causing you to stop what you were doing and after speaking on the phone you told Aaron to go home. That is also a rolled-up charge.
6Charge 3, on Aaron’s 11th birthday he received a lightsabre as a birthday gift. He went next door to show your stepson the lightsabre. You answered the door and told him that your stepson was out. You invited Aaron in to watch a movie. Aaron entered the lounge room and sat down on the couch. You put a movie on the TV. You told Aaron to stand up. You then pulled down his pants and underpants, you began to masturbate him. You talked about how men and women have sex, describing the use of a vagina and how some men like to put their penis into a vagina and how some men like to put their penis into a bottom.
7You then asked if you could put your penis into Aaron’s anus. Aaron said no. You then asked if he wanted to put his penis in your mouth. Aaron again declined. You continued to masturbate him. You looked at your watch and told Aaron that he would have to go as your wife would soon be home. Charge 3 is a stand-alone charge.
8Charge 4, sometime between 1 March 2014 and 26 June, Aaron again went next door to play with your stepson. Again, you said your stepson was not home and suggested he come into the living room and watch a movie. You started watching the movie 'How to Train Your Dragon". You sat down next to Aaron and placed your hands down his pants and started to masturbate his penis. You said that it was normal to feel like he was going to explode or erupt. You told Aaron to put his penis into your mouth, but he declined. You continued to masturbate him and asked several times if he would like to put his penis into your mouth. Your wife pulled up in her vehicle causing you to quickly pull up Aaron’s pants and you took him to the computer and said out loud 'That's what [interstate] base looks like' pointing to an image on the computer. Charge 4 is a stand-alone charge.
9In mid-2014, Aaron moved interstate with his family. In June 2018 he was at home and discussion came up about his behaviour changing when living at the Victorian base and Aaron burst into tears and told his mother that his behaviour change was due to your offending. This matter resolved following a sentencing indication hearing on 16 February this year. I am told and I accept that you always intended to seek a sentence indication in the matter and of course the matter then needs to proceed through the system to get to this court for that to take place.
Victim Impact Statement
10A victim impact statement prepared by Aaron’s mother was read aloud and tendered on the plea. The statement highlights the severe impact that offending such as yours causes. It has caused deep distress and psychological trauma in Aaron and has robbed him of happiness and joy in life and has in part robbed a mother of a relationship with her child. Your crimes have traumatised Aaron deeply and many negative consequences have flowed from that. I take these impacts into account.
11Your current circumstances are relevant. Of significance from a sentencing perspective is the sentence you are currently undergoing. You were sentenced on 19 October 2018 in New South Wales by Judge Huggett to a total effective sentence of eight years with a non-parole period of five years for offending which pre-dates the offending before me and is not dissimilar to the offending before me.[3]
[3]R v [Oscar Wainwright] (District Court of New South Wales, Huggett J 19 October 2018).
Personal Circumstances
12In relation to your personal circumstances, these are set out in some detail in Ms Fox's excellent outline of submissions on your behalf. They are also referenced in Judge Huggett's sentence and in considerable detail in the report of Patrick Newton. I do not propose to reproduce the detail but make these findings in summary. You are 45 years of age. Your father passed away when you were three. You have four siblings from your mother's side to three separate fathers and nine siblings from your paternal side. You now have no meaningful relationship with your mother.
13In fact, I was told you have no contact with your family, and this is due to a profoundly disadvantaged, unsafe and traumatic childhood, including many negative experiences that involved you being the victim of repeated sexual assault from a young age and your mother not protecting you from this harm. I do not propose to go into the detail of those circumstances save to emphasise that the trauma was of an extremely high level and disadvantage and dysfunction and trauma could be described as profound, I accept the matters summarised in Judge Huggett's sentence on this topic and the detail provided in the Newton report at paragraphs 12 to 15.
14I have perused documents obtained under subpoena from VOCAT and DFFH which corroborate these childhood experiences. Intuitively, these horrific experiences feed into an assessment of moral culpability. These are very serious crimes before me. The conduct must be denounced in very strong terms. General deterrence is a dominant consideration as is specific deterrence in your case. You knew the wrongfulness of your conduct and the harm it causes. Nevertheless, I also take into account forces that have shaped you and your responses, forces not of your making. It is the mark of a humane society that the moral judgment expressed through sentencing recognises these circumstances and the sentences for your crimes are mitigated accordingly.
Further matters in mitigation
15Turning to other personal matters. Aside from those early childhood experiences, in spite of that disadvantage, you have a good work history, and you can be proud of your career achievements. You served in the Australian Defence Force for approximately 14 years, serving as a medic, leaving the Defence Force when you were charged with the offences for which you are now serving sentence. Prior to employment in the Defence Force, you held a number of manual roles including factory work and air conditioning installation and cleaning.
16Those experiences have some importance because they give you confidence that when you are released from prison on parole, should that occur, or when you are released at least, you will be able to find employment. You are confident that you will be able to find employment and your past record would indicate that is so. Clearly the Defence Force is closed off to you. Mr Newton's report was of great assistance to me. In particular, from a sentencing perspective, aside from the history I have just touched upon, Mr Newton opined in relation to your long history of depression and experience of hospitalisation and suicidal ideation:
'I have noted that he suffered a complicated brief response in the wake of his brother's death in 2009 or thereabouts and developed a more severe depressive episode including strong suicidal ideation'.[4]
[4] Paragraph 29.
17At that time you were engaged with anger management courses with the Veterans' Counselling Service. In 2015 you were admitted as an inpatient in a Defence Force Barracks and spent three months as an inpatient in the Mosman Private Hospital psychiatry ward after becoming intensely suicidal and that was around the time of the charges for the New South Wales Offending. In 2016, you were admitted to the Austin Hospital as an inpatient for approximately two weeks. Subsequent to the plea hearing, or during a further plea at least, I was provided with medical materials that support what I have just touched on in summary.
18You are diagnosed as having recurrent major depressive disorder and I have taken that into account, particularly in relation to your experience of custody. Your partner, Ms Sutterby, who has been attending and supportive of you during these hearings, remains a person in support of you. You and her have a son aged 9 who you continue to have communication with and a relationship with him is a motivating factor for you to exit custody and not return again. Being a father to your son is something that is a positive support and motivation for you. Of significance from a sentencing point of view of course is the issue of totality.
19There is also a relevant issue of delay in your case. The initial complaint was made in 2018. Charges were filed in October 2021. You were transferred from New South Wales in May 2023 and remanded on the matters now before me in June last year. Of course, you have since become eligible for parole on the New South Wales sentence, but of course you remain remanded on these matters, but you do not have any pre-sentence detention available to you on that basis given that you are serving that New South Wales sentence.
20I have taken those factors into account, and I must impose a sentence that sees a proportionate sentence overall to the aggregate criminality. I have also taken into account your plea of guilty. You are entitled to a discount in relation to your plea of guilty. The plea of guilty has a significant utilitarian benefit. The prosecution has made some reasonable concessions in relation to sentence and the factors to be taken into account. In oral submissions, Ms Martin rightly emphasised the serious aspects of the offending, particularly the persistence and certainly in terms of dialogue and requests for activity, there was the prospect of escalation of offending.
21The young age of the complainant and the effect on your victim are of course also very important features. General deterrence is a very significant factor given the difficulty of detection often in these offences and this case is no exception that a child of 10 or 11 has great difficulty raising these matters with a person in authority or a parent and it is not unusual for the facts of offending to emerge in the sort of circumstances that they did in this case. As a community we have to protect children and it is very important that I impose a sentence which appropriately denounces the conduct.
Sentence
22Now turning to sentence. I sentence you as follows.
23In respect of Charge 1, you are sentenced to two years' imprisonment.
24Charge 2, you are also sentenced to two years' imprisonment.
25Charge 3, notwithstanding that Charge 3 is a stand-alone charge in contrast to the rolled-up charge of Charges 1 and 2, I consider that the overall conduct including the matters discussed and the requests made by you, justified an increase in sentence. Furthermore, the persistence displayed as time went on. For those reasons, on Charges 3 and 4, the sentences imposed are higher than on Charges 1 and 2 notwithstanding that they are not rolled-up charges. Charge 3, you are sentenced to two and a half years' imprisonment.
26On Charge 4, you are sentenced to two and a half years' imprisonment.
27The sentences imposed. Six months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 2 and six months of the sentence imposed on Charge 3 are to be served cumulatively upon the sentence imposed on Charge 4. That makes a total effective sentence of four years' imprisonment. I set a non-parole period of 22 months. That sentence commences today and for purposes of clarity, it is to run concurrently with the sentence you are now undergoing, and, for absolute clarity, I think I still must set an overall new non-parole period which I do so of 22 months from today's date.
28Given the offences before me, Charges 1 to 4 being Class 2 offences, I declare that you are a registrable offender and must comply with the reporting obligations of the Sex Offenders Registration Act 2004 and the reporting period is for life. I also declare that you have been sentenced as a serious sexual offender in respect of Charges 3 and 4 and that is to be entered into the records of the court.
29I have not made specific orders for concurrency, but I do so given the presumption of cumulation other than the periods of six months on each of Charges 1 to 3 that I direct are to be served cumulatively, the sentence on each of Charges 1 to 4 is to be served concurrently and I have made those orders to give effect to the principle of totality.
30Pursuant to s6AAA, were it not for your pleas of guilty, I would have sentenced you to a total effective sentence of five years with a non-parole period of three years. Now are there any other orders I need to make?
31MS MARTIN: No, Your Honour.
32HIS HONOUR: All right. Now the only matter that remains is that any discussion of the pseudonym. What does the prosecution have to say about that?
33MS MARTIN: I had indicated Your Honour that there would be no issue taken given if Your Honour was to go into the level, sorry, level of detail in relation to Mr Wainwright’s background and that of his siblings. I have made it clear I did not consider it necessary for the purpose of the current victim. I do not think it is required for that, there are other protections in place. But if Your Honour was going to go into detail about the background and the abuse involving the siblings, then it would probably be required, but Your Honour has not done that.
34HIS HONOUR: I have not.
35MS MARTIN: So it is really a matter for Your Honour. It is probably not required.
36HIS HONOUR: Yes, all right. Well I will reflect on it, Ms Fox. I don't know that I am going to, but I will reflect on it.
37MS FOX: Your Honour, I wonder if my learned friend might – I don't know whether the views of the complainant have been canvassed. I am just perhaps adopting an overly cautious approach, the reasons identify that this this particular complainant was living next to the accused at the Defence Force base. He then moves interstate and that is the time at which something is identified. I do not know, and I do not know that Your Honour can take on judicial notice how large the Defence Force community is. It could be big, it could be small, I do not know how common it is to move interstate, but certainly ‑ ‑ ‑
38HIS HONOUR: I mean the other thing is I can anonymise those aspects of it. I just do not know that there is a strong enough reason to use a pseudonym for him. I agree that we should try to make sure that in publishing the reasons for sentence, I am not identifying the complainant. There are probably other steps I can take to do that. I will consider it. I have not closed my mind to it, but yes, it is not obvious to me, but I will reflect on it.
39MS FOX: Yes, thank you, Your Honour.
40HIS HONOUR: Thank you. All right. So, Mr Wainwright, you will be eligible for parole in 22 months and I did not state it in the reasons for sentence, but I would accede to your submission that a period of parole is important in a matter such as this given the nature of the offending. All right, we will adjourn the court.
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