Director of Public Prosecutions v Waite

[2018] VCC 800

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

AT WODONGA
CRIMINAL JURISDICTION

CR-17-00948

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN WAITE

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Wodonga
DATE OF HEARING:
DATE OF SENTENCE:	31 May 2018
CASE MAY BE CITED AS:	DPP v Waite
MEDIUM NEUTRAL CITATION:	[2018] VCC 800

EX TEMPORE 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. Cordy
For the Accused	Ms J. Swiney

Pages 1 - 13

 

 

HIS HONOUR: 

1Stephen Victor Waite, you have pleaded guilty to one charge of transmitting child pornography material, using a carriage service contrary to the provisions of the Commonwealth Criminal Code which carries with it a maximum penalty of 15 years' imprisonment.  This is a rolled-up charge for offending which occurred between 22 January 2015 and 12 February 2015, encompassing a series of nine transmissions over the internet. 

2You have a 4 month old daughter to your present partner, who is presently pregnant again to you, a son to a previous partner and another a son and daughter from a further previous relationship.  You have had occasional contact with your daughter from the previous relationship and she was, at the time of this offending, 14 years of age.  At the relevant time you lived in West Wodonga. 

3The significance of you having a daughter becomes plain during the course of my articulation of the prosecution case which is set out in summary of prosecution opening, which became Exhibit 1 on the plea, and which I heavily rely upon.

4Despite the transmissions that referring to both to your daughter and your sister, they have both been interviewed by the authorities and it is plain that they have not been sexually interfered with in any of the ways so vividly and disgustingly described by you to the no less than nine other recipients of this material.

5In the transmissions your daughter is variously described as being 10, 11, 12, 13, and 14 years old at the time of the acts which you describe.  Thus, she is either pre-pubescent or pubescent.  In all descriptions, she is a young girl.

6Noteworthy is the fact that though the descriptions commence on 22 January 2015, and continue to 12 February 2015, you commence with descriptions of sexual activity of a high and gross order.  It is not a case that the descriptions become more vivid or more sexually intrusive upon your daughter.

7The first transmission involved you engaging in a chat with other persons over the internet, utilising the mobile social network, AirG. 

8The first was on 22 January 2015 in which you transmitted the following, "I love younger girls my 12 year old daughter sits on my lap in undies and got me hard I put her on the bed and spread her legs and rubbed her with lube and then I took her virginity she was crying and telling me to stop she won't tell any1 I raped her".

9The second occurred some six days later, on 28 January 2015, where with another AirG user, you transmitted, "I let my daughter rub my dik...I let my daughter rub me...11 she let’s me play with her...No but I'm going to fuck her today".  The intervening responses from the other user of AirG are not included in the summary in that regard.  But it is plain, as with other exchanges that I will come to in this second one, that it was very much an interactive exercise with you and the other user.

10On that same day, you engaged with another AirG user, transmitting, "Hey my daughter is 11 I walked in in boxers and she kept looking down so I asked if she wanted me to show her she told me she wanted to touch it I told her she could if she took her pants off so I could touch her she let me try to fuck her but it hurt too much".

11On the third occasion on that same day, with yet another AirG user, you wrote, "11...a few times she's let me play with her bum...every weekend she wears tight shorts no undies when she comes she likes me perving on her so I get hard so she can rub it... She won't let me take any so her mum don't find out I'm going to fuck her Friday night I hope I'm not too big... She looks 14 nice tits sexy arse hot legs blonde hair".

12On 4 February, you had a series of another three exchanges with three other users of that social medium.  In the first, you transmitted the following, "I like touching my daughters arse she is sexy and she has slept with me and took her undies off so I could touch her she told me to stop and she knew I was hard...11 nearly 12 she looks about 15... Yes I've asked her if she will tell any1 and she said no she don't want to see me in trouble… No she tells me to stop when she feels me get hard it scares her".

13The second exchange with another user you wrote, "Hey sexy my daughters 13 year old friend caught me perving up her school dress she went and took my undies off and asked me if I would like to suck my dick".

14The final exchange on that day with another AirG user transmitted, "I'll b yr daddy I love young girls I rub my 11yo daughter up and tried to fuck her but I'm too big for a tiny pussy".

15The following day on 5 February, with the eighth AirG user, you write, "My daughter is watching me rub my kok… I like choking chicks with it… She's 13… Yep… I told her to get out of my room… She walks in on me in shower all the time in her undies and bra and teases me until I'm hard then watches me pull myself off… Yes I had a 15yo black girl for 2 weeks she would cry every time I fucked her she let me fuck her arse she needed 4 stiches wen I finished… She likes it she tells me I can do what I want to her… Yep… Na… Step daughter...  Yer I would... Yep her mum tells me she thinks her daughter is sleeping with an older guy… I’d break ur arse in real good then choke u with my dic… She don’t know she teases me wen she at work… Show Mme a pic of your arse make me cum… If I wasn't so big I’d be fucking her now… Send to my phone… I'm gonna to get my daughter to pull me off". 

16Then, 55 minutes later to that same eighth receiver you wrote, "She ain't no virgin she rode me like a pornstar.  She made me cum pretty quick".

17The final user was in contact with you over a period of five days between 7 to 12 February.  This was a far more extensive exchange and as a result, that exchange was set out in annexure 1 in summary of Crown prosecution opening.  It starts with a query from the other user, "Tell me about your daughter".

You respond readily.  The exchange continues, "When she showed her pussy?" and you said, "She kept looking at my dick so I told her show me hers and I'll show mine".  The conversation occurred on four days, the 7th, 8th, 11th, and 12th.  It is plain from that exchange, that the other user was very interested in hearing from you what you had done to your daughter, such as on
12 February you are asked, "Do you lick that pussy?" you respond, "We working on it.  Yes".

18The other responder continues to query what had happened in the past, and later, on 12 February, you write, "I'm going to c her at her mum's tonight I told her to take her undies off so I can touch her in her room.  I have licked her bum and fingered it".  You later on say, "Yep I like underage girls", and still later, "She's only 11 an half".

19You also wrote still on 12 February, "Would you babysit young girls and help me molest them I'll fuck a 10yo no younger".  You also end up during the course of this exchange, in writing to the other user, "Come to Albury".  The other user responds, "I would love to…" and you continue, "mmmmm is she naughty.  I will show u how sic I am".

20You continue saying a little later, "I told her I'm going to video her on Friday night when she comes over".  The other recipient writes, "Mmmm would love to see her pussy as you lick it".  You respond, "She tells me I'm dirty.  I want to fuck her bum it's so sexy".  Then at 11.26 the same day you write, "I make her bend over and spread her bum I use to force my young sister and her friends  my sister let me rape her for 2 years.  Friday night, I'm going to pop her cherry" and on it continues.

21In the New South Wales Court of Appeal decision of R v De Leeuw [2018] NSWCCA 183 at paragraph 72, their Honours Johnson J, Ward JA, and Garling J, set out the principles that must be applied in relation to sentencing for child pornography offences. Their Honours observed that, except in exceptional circumstances, a sentence involving an immediate term of imprisonment is ordinarily warranted.

22Their Honours set out the need to identify the objective seriousness of the offending, and unsurprisingly state that general deterrence, that is, deterring others, is the primary sentencing consideration.  Their Honours observe that child pornography occurs at an international level and is becoming increasingly prevalent with the advent of the internet as a means of allowing people to access and obtain child pornography and that it is difficult to detect given the anonymity provided by the internet.  Their Honours observed that the possession of child pornography material creates a market for the continued corruption and exploitation of children and that child pornography is not a victimless crime.

23There is no suggestion that there was any actual activity as described.  It is accepted that what you wrote was product of your fantasies.  It is therefore to the objective gravity of this offending that I turn to.  What you engaged in involved you having explicit exchanges with no less than nine other users which you continued with over a period of three weeks.

24The first and indeed the last of those exchanges were gross.  The last was indeed a conversation of the utmost depravity.  Each of the descriptions descended, as necessary in your mind, into great detail.  You utilised the image of your own daughter in order to provide scenario to the various recipients of your materials.  She was, as I have indicated, described in age for a particular purpose, namely to identify her as being either pre-pubescent or pubescent.  Thus, your descriptions to your various recipients involved describing her as a ten year old, 11 year old, 12 year old, 13 year old, 14 year old.

25Your communications included descriptions of incest with your daughter as well as the rape of your sister, over a period of two years.  Whilst it is true that the acts you described were fantasies, created in your mind, they were described in such a way as to appear real to the recipients of your transmissions.

26You even went to the level, in relation to the ninth recipient, of inviting that person to come to Albury.  It is to be borne in mind that these were real-time exchanges.  You knew precisely what you were doing.  The exchanges, being in writing, do not have the quality of traffickability as images such as photographs or videos do.

27The offending that you engaged in was motivated by your sexual gratification and of the sexual gratification with the recipient of this material.
It has not been suggested that this material was prepared for sale or further distribution.  Athough it was suggested by Mr Cordy that it could be so distributed  I do not agree with that submission.

28Ms Swiney, in her most helpful plea, submitted that the offending occurred over a limited duration, albeit three weeks, and that it was not sophisticated in terms of you trying to hide your identity and that there is no profit motive in this matter, In particular, Ms Swiney submitted that it is significant that this offending stopped well before detection.  I accept those submissions.

29Further, it is put that there has been a considerable delay in the resolution of this matter, the offending having now occurred some three years and three months ago.  Further, it is put that you have no relevant prior criminal history.  All those submissions of Ms Swiney I accept and act upon.

30I shall return to the fact that you pleaded guilty in due course.  It is necessary at this point, however, to turn briefly to your prior criminal history.  In New South Wales, you have had some seven court appearances in the lower courts, involving a number of .05 matters, driving whilst disqualified, and drug matters.

31You have had nine court appearances in Victoria, involving both theft and handling and two occasions where you have been driving whilst your authorisation has been cancelled, or you were disqualified, and one involving driving whilst your alcohol level was above the prescribed level.

32There are also drug offences of low level, involving possession of amphetamines and trafficking cannabis, which I note you were dealt with without conviction.

33You have had three community corrections orders, two of which you have breached.  That prior criminal history is of little, if any moment in my view, in relation to this offending.

34Your personal background is extensively set out in the psychological report of Warren Simmons, which became Exhibit SW1 on the plea.  My précis of your background from that report is as follows.  You are a 37 year old man of average intelligence.  You born and raised in Shepparton, you have other siblings, and your parents separated when you were about nine.

35You were given the choice, as were your siblings, to live either with your mother or father.  In the end, you lived with your father, who formed a relationship with another woman with whom he had further children.  You described to Mr Simmons an early childhood that was positive, stating that you always had what you needed.

36At the age of 15, you left school and moved out of home.  You report that, at the time, you were not getting on with your father's new partner, although presentlyyou do.  You attended Mitchell Secondary College but you lost interest in schooling and left, obtaining work as a labourer and other seasonal work.  in short, your employment record is a limited one and you estimate that you would have worked less than ten years in all.  You are currently receiving Centrelink payments.

37You were introduced to cannabis at the age of 13 by your uncle and by the age of 15 you were smoking on a regular basis.  Also at the age of 15, you began using amphetamines, and you have used a variety of other different illicit substances.  On Mr Simmons' analysis, you did not appear to have any cognitive impairment.  In short, you have led a rather dissolute life. As I have noted, you have a four month old to your present partner and she is apparently pregnant again to you. 

38When I read Mr Simmons' report in my chambers, there were two passages in it that were startling.  At p.5 of the report, under the heading, "Psychosexual history", Mr Simmons opines, "There was no evidence of any deviancy including interest in exhibitionism, voyeurism, or attraction in minors".

39Not content with that assertion, in the penultimate paragraph p.7, Mr Simmons returns to the topic writing, "There was little in Mr Waite's history or other behaviour to suggest that he has an interest in minors, nor is he engaging in behaviour that would allow him to commit such offences".

40Mr Simmons commences his report by saying that he had had the opportunity of reading the summary of charges and criminal history report.  I understand from counsel, Ms Swiney, that he indeed had the summary of prosecution opening.  Nobody, having read that material, could have any doubt whatsoever about your interest in sexual interaction with children.

41It would seem that Mr Simmons, in his own world, accepts the assertion by you, without qualification, that you have no interest in minors, thereby entirely ignoring the fact that you were to plead guilty to this charge and the evidentiary foundation for that charge.  Thus, a subjective analysis of a client, in this case you, Mr Waite, leads Mr Simmons to trump the plea of guilty and the foundational facts for that plea of guilty, in order to make completely unwarranted assertions contained in those two passages.

42I was, during the course of the plea, having read that, so discombobulated that I had to take time to leave court and settle myself.

43Sentencing judges are entitled to be provided with reports from experts that are founded not simply on some subjective analysis of what the client tells them, but a holistic approach, so that the sentencing judge is not distracted, as I was, by the assertions of Mr Simmons in this particular case.

44As time has progressed, I am now in a position to sentence you, and in doing so, I do not in any way seek to punish you for what has occurred, which was entirely of course, out of your control, in relation to Mr Simmons and his report.

45It has also been suggested that there is some explanation in relation to your offending, because you were using methylamphetamine heavily at the time.  This is an assertion which does not seem to have any evidentiary foundation.  Your methylamphetamine use and your engaging in child pornography transmissions are entirely irrelevant.  Even if there were such a connection, it would simply go to explain the offending, but not excuse it.

46This matter was listed for trial in the May sittings, but you have pleaded guilty. And fortunately for you the matter eventually resolved into a plea.  The utility of the plea is a matter I must take into account.  This is a trial which would have taken something in the order of five days.

47Your plea of guilty reveals that you have some insight into this offending.  Because of the delay and the absence of any further offending, and the absence entirely of past offending of the kind that I must deal with, I assess your prospects of rehabilitation as being reasonable.

48You have a long history of drug use.  Your are now aged 37 and it is time that that drug use cease or else you will be returning to gaol more often and for longer periods of time.  The choice is in the end, for you.

49Please stand.  Taking all these matters into account, I sentence you to eight months' imprisonment, and will release you on a three year community corrections order, subject to you being under supervision during that three year period, and treatment and rehabilitation programs in relation to drugs and programs aimed at reducing reoffending.

50Bear this in mind, Mr Waite.  This requires your consent.  If you consent to this community corrections order, and you breach it, you will not be brought back before a Magistrate.  You will not be brought back before another judge of this court.  You will be brought back before me, and the most likely result will be that you will go back to gaol.  So do not think that this is some easy way out.  It is not.

51If you breach this community corrections order if you consent to it, you come back before me.  Are you prepared to enter into that community corrections order?

52ACCUSED:  I do, Your Honour.

53HIS HONOUR:  Out of the s.6AAA is 18 months, with a minimum of 12.

54MR CORDY:  And there is a reporting period under the Sex Offenders Registration Act of eight years.

55HIS HONOUR:  Yes.  I should add, but for the plea of guilty, I would have sentenced you to a period of 18 months with a minimum of 12, and take a seat, Mr Waite.  As a result of the charge, you become a registrable offender under the Sex Offenders Registration Act and those reporting obligations, under that Act, will continue for a period of eight years.

56Mr Cordy, any corrections or omissions?

57MR CORDY:  No, I believe that covers it, Your Honour.

58HIS HONOUR:  Ms Swiney, is there anything that you wish to say in terms of corrections or omissions?

59MS SWINEY:  Your Honour, I just missed the s.6AAA?  You were fading ‑ ‑ ‑

60HIS HONOUR:  18 months, with a minimum of 12.

61MS SWINEY:  Thank you, Your Honour.

62HIS HONOUR:  Have you got the order ready, Mr Brown?  Whilst we are waiting for that, Mr Cordy, what is the situation of the appeals?

63(At this stage the court proceeded with another matter.)

64MR CORDY:  Perhaps if Your Honour stands down in a moment, and allows my learned friend to have an opportunity to speak with Mr Waite over the video link, and to that end, perhaps if the custody officers bring him to the lectern so that he can ‑ ‑ ‑

65HIS HONOUR:  Sorry, the ‑ ‑ ‑

66MR CORDY:  Perhaps if the custody officers bring him to the lectern, so that he can have a proper conversation with Ms Swiney.

67HIS HONOUR:  Yes, well I will speak to the police officers in charge of security shortly once we have finished with this rattling machine.

68MR CORDY:  Yes.

69HIS HONOUR:  Take a seat, Mr Cordy.  Just in terms of the police officers and security, what is being suggested is that Mr Waite has an opportunity of speaking with his counsel.

70VOICE (from the body of the court):  Yes.

71HIS HONOUR:  And that that occur at the Bar table.  Is that satisfactory to you?

72VOICE:  This will be in the court?

73HIS HONOUR:  Sorry?

74VOICE:  This will be in the court?

75HIS HONOUR:  Yes.

76VOICE:  Yes.

77HIS HONOUR:  Otherwise, the court will clear, other than in relation to my staff.  Is that satisfactory, Ms Swiney?

78MS SWINEY:  Yes, Your Honour.  Thank you.

79HIS HONOUR:  Yes, please state a seat.  Thank you, Senior.  What will happen, Ms Swiney, as soon as your client signs the community corrections order, a copy will be made and provided to Mr Waite, and a signed copy will be imaged and sent to you, if that is suitable.

80MS SWINEY:  Thank you, Your Honour.

81HIS HONOUR:  Will you take this Mr Brown, to the Dock please, for Mr Waite's signature.  Yes and a copy of the Sex Offender Registration papers will also be provided to Mr Waite now, and both will be sent to you.  Mr Rowrse will remain court, whilst you have an opportunity of speaking to you client, Ms Swiney.

82MS SWINEY:  Thank you, Your Honour.

83HIS HONOUR:  Whatever you say, he will not repeat back to me.

84MS SWINEY:  Thank you, of course.

85HIS HONOUR:  If that could also be made confidential, thank you. 

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