Director of Public Prosecutions v Wakefield and Watkins
[2014] VCC 901
•13 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-02329
CR-13-02330
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COLIN WAKEFIELD, MELINDA WATKINS |
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JUDGE: | Her Honour Judge Gaynor | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 13 June 2014 | |
CASE MAY BE CITED AS: | DPP v Wakefield & Watkins | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 901 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T.S. Hoare | |
| For the Accused | Mr J. Irwin |
HER HONOUR:
1 Yes, you can remain seated until I tell you to stand. Colin John Wakefield and Melinda Watkins, you have each pleaded guilty before me to 19 charges of false imprisonment. You, Colin Wakefield, have pleaded guilty to six charges of recklessly causing injury. You have each pleaded guilty to five summary charges of failing to protect a child from physical harm and five charges of failing to protect a child from psychological harm, and you, Colin John Wakefield, have also pleaded guilty to one charge of unlawful assault, those summary charges being uplifted pursuant to s.145 of the Criminal Procedure Act.
2 The maximum penalty for false imprisonment is ten years imprisonment. The maximum penalty for recklessly causing injury is five years imprisonment. The maximum penalty for failing to protect a child from psychological harm and for the charge of failing to protect a child from physical harm is 12 months imprisonment, and the maximum penalty for unlawful assault is three months imprisonment.
3 The offending took place between September 2010 and July 2012, and the victims were your four children, Melinda Watkins. Jamal, your eldest son, was aged between ten and 14 at the time of the offending. Ethan, your second son, was aged between nine and 13. Ashley, your third son, was aged between seven and 11 and Sky, your youngest child, a daughter, was aged between four and eight. During this time the two of you, Colin Wakefield and Melinda Watkins, were living in a de facto relationship in a house with the four children at Alfredton.
4 The offending is fully outlined in the detailed prosecution summary which is exhibited with these sentencing remarks. Essentially, the charges arose from excessive disciplinary measures imposed primarily by you, Colin Wakefield, on the children. During this time you, Colin Wakefield, were the primary caregiver, you having been forced to give up work due to illness, and you, Melinda Watkins, were working five days a week as a store manager. In general terms, the false imprisonment arose from the three boys being locked regularly in their rooms both during the day, after school and on weekends for many hours at a time. At this stage Sky was often left unattended in the house when you, Wakefield, were watching or playing football for your local football team, particularly on weekends, and to which you often accompanied him, Melinda Watkins.
5 The boys were regularly locked in their rooms overnight with a bucket to use as a toilet. Your son, Colin Wakefield, Rory, came to the house most nights after school until he was picked up by his mother and stayed most weekends. He also was not locked in a room but was left unattended in the house when adults were absent. Sometimes Sky and Rory would let the boys out, and they would go back to their room when they heard one or other of you arrive back home. In relation to the charges of recklessly cause injury, on one occasion you, Colin Wakefield, were told that Ethan had been out of his room, and you verbally abused him and choked him so he could barely breathe. Ethan sustaining minor bruising on each side of his neck. This comprises charge 8 on the indictment.
6 On another occasion the three boys got out of the room where they had been locked, watched television, and used the deodorant belonging to you, Colin Wakefield. You discovered this and punished Ashley and Ethan by holding their hands over a naked flame. These actions were not described by either boy in their statements but were referred to by your son, Rory. You, Melinda Watkins, after discussion, agreed with this form of discipline. These actions by you, Colin Wakefield, underlie charges 15 and 16 on the indictment.
7 In May 2012, you, Colin Wakefield, struck Ethan on the lower back about four to five times with a belt causing bruising. These actions underlie charge 17 on the indictment, recklessly cause injury. In June 2012, you, Colin Wakefield, struck Jamal on the bottom with a folded belt about four times causing bruising to his buttocks, these actions underlying charge 18 on the indictment, recklessly cause injury. On July 7 2012, you, Colin Wakefield, accused Jamal of swearing and grabbed by him the throat, pushing him against a wall and squeezing so he was unable to breathe. At the same time you lifted him up so he was balancing on his tip toes. You finally let him go, but Jamal had visible finger marks on his neck for several hours afterwards. These actions underlie charge 25 on the indictment, recklessly cause injury.
8 In June 2012, on one occasion you, Colin Wakefield, grabbed Ethan by the arm and hit him to the head numerous times, these actions underlying the summary charge of unlawful assault. Interviews with the children revealed a regime where they only received a good meal when you, Melinda Watkins, were present. Otherwise, you, Colin Wakefield, fed the children two minute noodles, canned spaghetti or baked beans, butter sandwiches or toasted cheese sandwiches for dinner. The pantries were locked, and the children were forbidden access to the pantry containing most of the food. The children for breakfast ate Weet-Bix with hot water and often went to school with inadequate lunches. The contents of the boys’ room where kept to a bare minimum, containing a bunk, a single bed and a set of bunks, the light globe being removed from the light fitting. The windows were locked, and the door handle was changed so that once the door was shut it could be only opened from the outside.
9 The children had to perform numerous domestic chores and were punished if these were not carried out, on some occasions leaving for school without breakfast as they had to get their chores done first. You, Melinda Watkins, were aware of this situation and did not intervene, having instead regular talks with the children which you called “contacts” to try and get them to improve their behaviour. Eventually, the children told their maternal grandmother what was occurring. She took them to the Department of Human Services where reports were made, and the children were removed from your care. They have resided with their grandmother ever since.
10 Psychiatric evaluation of the children revealed each had received psychological and emotional harm affecting their emotional and intellectual development. Their general behaviour both at home and at school have greatly improved whilst in the care of their grandmother. Ethan, for example, who had been diagnosed with numerous conditions, including attention deficit order and obsessive compulsive disorder, has now reached a point where he no longer requires medication.
11 You were both arrested on July 8 2012 and conducted records of interview in a manner that was described by the prosecution as open and frank. You, Colin Wakefield, admitted you had locked the three boys in their room saying this is the only way you knew how to control Ethan’s behaviour. You admitted locking the boys in overnight and leaving the bucket to be used as a toilet and that their rooms contained a bare minimum of items. You admitted physically disciplining the children, including hitting them with a belt or whacking them with your hand. You denied choking Jamal, but said you had lifted him by his collar. You denied leaving the children alone in the house with the boys locked in their room. You said you did what you did as a form of discipline as the boys were breaking out at night, stealing and damaging property.
12 You, Melinda Wakefield, said that the majority of issues arose due to Ethan’s behaviour, he having been diagnosed, as I have said, with a number of conditions, including ADHD, OCD and ODD. You said there had been ongoing issues with the three boys stealing, damaging property and breaking out at night, and that you and Colin Wakefield had tried every form of discipline you knew. You admitted Colin Wakefield was the main disciplinarian and that the boys were often locked in their room as a punishment. You said they were locked in their room at night because of previous behaviour where Ashley and Ethan had broken out at night and wandered the streets.
13 I now turn to your personal circumstances, beginning with you, Colin Wakefield. You are now 38 years of age, one of two boys born to your parents. You have no prior criminal convictions. Your father was a shearer who also had a farm. Your parents were harsh disciplinarians, and you were expected to work hard on the family farm and carry out a large number of chores. You were physically disciplined but you respected your family and, essentially, had a good upbringing. You left school after year 10 to work on a mine run by a company on your father’s property, which employment you undertook for five years. You then worked in mines in Western Australia for two years, then returned and managed a quarry on the family farm for eight years. You then worked as a truck driver for a local firm for 12 months in the rural town where you were born, then moved to Melbourne where you worked as a truck driver.
14 You then moved to Geelong where you worked as a backhoe driver for about 12 months and then moved to Queensland in 2010 as a result of your relationship with Ms Wakefield. There you were diagnosed with the condition haemochromatosis, a condition where too much iron is produced in the blood. You returned to Victoria with Ms Watkins and her children but only worked as a truck driver for 12 months when you ceased employment due to the effects of the illness upon you, particularly in suffering from fatigue.
15 Your counsel said you imposed on Ms Watkins’s children the discipline that you had experienced as a boy yourself. You felt helpless in the face of the behavioural problems presented by Ms Wakefield’s sons, in particular, Ethan. Further, when Ms Watkins commenced full-time work and you took over the role of primary carer, you had few cooking skills and did not appreciate the inadequacy of the diet you were providing. A number of Department of Human Service reports were tendered on the plea. In particular, there was an assessment of you by psychologist, Dr Simon Kennedy in report dated 11 September 2011. In that report, you were described as engaging well with the services and, as I have said, were psychologically assessed as part of protective concerns and found to suffer from certain attitudes which, it was felt, had led to you treating the children in the way that you did.
16 You were found to suffer from a rigidity of personality, a tendency to take a fixed position, irrespective of feedback, a potential lack of empathy for children and to adopt a stereotypical parental approach with use of excessively harsh discipline as a means to an end approach. It was noted that you had a lack of experience with children and a lack of ability to consider that yours was a step-parenting, rather than biological parenting role.
17 Your insight into Department of Human Services’ concerns was described as positive and emerging, accepting your behaviour was inappropriate. Dr Kennedy stated, “He presented as open to solving the difficulty and also appears realistic about DHS’ views on his behaviour”. You told DHS you locked the children in a room as an act of desperation to control their behaviour, in particular Ethan’s behaviour.
18 You did not believe Ethan suffered from the various conditions he had been diagnosed with and believed the discipline was the answer. You said you were stubborn and, essentially, that as one disciplinary measure failed, you would impose another harsher one. You accepted that your behaviour and approach was wrong. You also accepted that the children, very clearly stated they no longer wished to have contact with you.
19 I now turn to you, Melinda Watkins. You are the second of five children born to your mother and have no prior convictions. You are 33 years old. An older sister was adopted out and your parents separated when you were seven, you having been born in New Zealand. You have two younger sisters and a younger brother, one sister and brother having drug problems and a sister suffering from depression.
20 After your parents separated, your mother took you and your younger sister to New South Wales, where you lived with your grandmother. Then began years of fairly chaotic living. Your family moved around a great deal. Your mother and grandmother, apparently, engaged in a number of relationships and two more siblings were born in those years. You reported frequent drug use by your mother and grandmother and the fact that police often visited your home, that there were large numbers of male partners coming in and out of the house, on one occasion, police arriving and you being told to hide a suspect package whilst they were there.
21 Your mother, largely believed in home schooling and your education was regularly interrupted by the constant moves. You left school at about 15 but worked continuously, at one stage, holding down three jobs at restaurants and food stores. Basically, your family moved constantly around New South Wales and Queensland.
22 You met the father of your children when you were 15 and by the time you were 25 had the four children. Your husband was apparently, extremely violent both to you and the children and you finally left him in 2005. You met Colin Wakefield in 2008, he presenting as stable and caring and, I note, that despite the complaints about your actions with the children, there has never been any complaint of violence perpetrated by him on you.
23 You moved with him to Victoria in 2009, your mother then following. You worked as a manager at a jewellery store for three years until 2013 when you ceased work on the birth of your son, Jackson, and now hold the occupation of home duties. It appears that you became dependent on Mr Wakefield and that because of your own chaotic upbringing and believed that the discipline he enforced on your children was appropriate.
24 According to Dr Kennedy, you appeared defensive and somewhat minimising when assessed by him as to, first, what Mr Wakefield had done and, second, the effect upon the children.
25 You were very keen for your children to receive proper formal education and it does appear that during this time, all four children did regularly attend school. However, it is noteworthy that at school, they showed significant problems with socialisation. Jamal certainly appeared to have intellectual abilities but it is clear from the ongoing reports that since being removed to your mother’s care, they are doing better at school, both academically and socially. And, again, as I have said, a lot of the difficulties and behavioural difficulties that they were displaying in your care appear now to have resolved.
26 You and Mr Wakefield now have a 13 month old son, who has been regularly monitored by the Department of Human Services, but appears to be a well cared for child who is progressing satisfactorily and there are no protective concerns in relation to him.
27 Since the Department of Human Services’ involvement, the two of you have voluntarily engaged in ongoing joint and individual counselling with Relationships Australia and with counsellors at the Wendouree Health Service.
28 It is clear from the various Department of Human Services’ reports that the children suffered significant emotional and psychological damage from the excessive disciplinary regime you, Colin Wakefield, imposed. It is equally clear, as I have said, they are coping with school, their lives have markedly improved since living with their grandmother. All are now, reportedly, doing well at school. All are adamant that they wish to remain with their grandmother and, in their victim impact statements, each child expressed considerable anger at the punishments and deprivations they experienced at the hands of you, Colin Wakefield, and which they saw you, Melinda Watkins, condone.
29 At the actual plea hearing, I expressed some concern at the amount of anger expressed by the children. I had thought, with the passing of time, that perhaps there would be some lessening of it and I was a little concerned that, perhaps, there was some encouragement to think of you in a particular way. On reflection, however, having gone through the material and having gone through the victim impact statements again, it is quite clear that the improvement in the children’s lives is so much that one would expect that their attitude towards both of you would be as angry in tone as was expressed.
30 Certainly, the animosity expressed towards you, Mr Wakefield, is extreme and insofar as you are concerned, Ms Watkins, it is quite clear they fell betrayed by you. It would seem that whilst initially there were plans for reunification, those plans and that long-term approach have now been abandoned by the Department of Human Services, given the children’s expressed wishes.
31 You, Colin Wakefield, are now employed on a full-time basis as a truck salesman, a position you have held for about 14 months working with a firm in Melbourne. This is, apparently, employment at which you excel and which is appropriate given the illness that you have, it being a less physical job.
32 I do accept that what you did, Colin Wakefield, and what you condoned, Ms Watkins, to the children was not a series of sadistic exercises, but comprised a harsh disciplinary regime that the pair of you considered appropriate, you, Colin Wakefield, due to your upbringing and, indeed, to some extent, you, Melinda Watkins, due to your own upbringing.
33 It is quite clear that the regime you imposed was, indeed, excessive and extremely inappropriate. The children were actively damaged by it. I accept that step-parenting can be a very difficult role. I accept that the children, who had come from a very violent situation with their own father, probably presented with particular difficulties. But it would also seem that your response to them, Colin Wakefield, exacerbated those and, in fact, amounted to a cruelty.
34 I accept that you are remorseful for your actions, to some extent, and that you have developed insight into your behaviour. Again, as I said, I accept that you, Melinda Watkins, had a chaotic and difficult upbringing and were traumatised by your husband’s violence and that, in those circumstances, the very structured – in fact, indeed – rigidly structured approach presented by Colin Wakefield would have proved particularly attractive to you and I accept that you believe the regime imposed was appropriate.
35 But, again, I stress, the two of you were entirely misguided in your approach and it is entirely appropriate that you face the charges that you do. The result of that regime, in my view, not only exacerbated the children’s condition and harmed them but, ultimately, has led to you, Melinda Watkins, losing a parental role in their lives and that would appear to be an ongoing matter and is something the pair of you need to consider and address on a long-term basis. It is going to take a great deal for the children to forgive you.
36 It was urged upon me that a sentence of imprisonment to be immediately served as appropriate in the circumstances and I have given anxious consideration to that proposition. Ultimately, whilst I condemn your actions, it does not need to me, given my acceptance of the fact that what you did amounted to an entirely over the top harsh and inappropriate disciplinary regime, that dealing with you by way of imprisonment to be immediately served is not the only way that I can deal or should deal with you.
37 Indeed, section 5 of the Sentencing Act makes it clear that I should not impose such a punishment unless it is the only one available in the circumstances. Neither of you have prior convictions. Both of you are hard workers. I have accepted that your behaviour, although harsh, extreme and, at times, cruel was not necessarily malicious or sadistic. The pair of you – and you, in particular, Ms Watkins – have very much suffered as a result, ultimately, of this regime. You have lost your children.
38 You, Melinda Watkins, have a 13 month old son, who is progressing well. You, Colin Wakefield, in gainful employment. The pair of you seem to accept that you are not going to be able to involve yourself in these children’s lives any further. Your infant son is progressing appropriately. You have pleaded guilty.
39 At the plea hearing, I ordered that each of you be assessed for placement on a community corrections order. Of particular concern to me, Colin Wakefield, were the comments of the assessing officer that, during the assessment process, you continued to blame Ethan for much of what had occurred and minimised a great deal of what had occurred. This seems to fly in the face of what you were saying to Department of Human Service officers.
40 The comments of the Community Corrections Office very much led me to reconsider whether or not, indeed, I should place you on a community corrections order as you appear, still, to be suffering under some sort of grievance at the behavioural difficulties presented by a child in your care and that the insight you purportedly have is, in fact, not present.
41 Certainly, behaviour such as this is deserving of punishment. And, certainly, violent behaviour to children is something which should be condemned, and which should attract principles of general deterrence which discourage other people in the community from behaving in that way. Children are always vulnerable victims. Children are always deserving of protection. And it is very much the duty of this court to protect children from this behaviour. The children are now, it appears – no matter what the two of you think about your mother, Ms Watkins – in caring and appropriate hands. Neither of you is trying to get the children back, or to impose yourself on their lives. There is now another child to consider, who appears to be progressing positively.
42 Ultimately, even though you spoke in the way that you did to the Community Corrections Officer, Mr Wakefield, I am still not convinced that dealing with you by way of a sentence of immediate imprisonment is the only appropriate response. Somewhat reluctantly – and I will be watching closely your progress over the next three years, Mr Wakefield – I have decided I will deal with you by placing you on a community corrections order. I am also prepared to do the same in relation to you, Ms Watkins. The two of you can regard yourselves as having escaped jail by a hair’s breadth.
43 Make no mistake, your behaviour was extraordinarily wrong and serious. You are extremely fortunate that no child was injured. It is fortunate that they were not permanently more seriously psychologically and emotionally harmed than they have been. It makes for heartrending reading, for example, looking at Jamal’s victim impact statement, talking about the fact that he can now attend to basic hygiene, such as cleaning his teeth, which was denied to him. Each of the children has had to have extensive dental work because they were not allowed to properly brush their teeth. That they couldn’t properly clean themselves.
44 That children in this day and age should go to school hungry, or exist on the diet that they were fed, is really appalling. A great of it was due to ignorance, and I hope you have learned from this. But, in saying what I’m saying, I’m anxious to make it clear I’m in no way trivialising the amount of trauma and difficulty experienced by these children over this period of time. Most serious, of course, is the incident of burning the children’s hands as a form of discipline. That is entirely inappropriate and completely wrong. In any event, each of you will be placed on a community corrections order. I am doing this on an aggregate basis, the offending all arising out of the same series of incidents. So, could you stand up, please, Colin Wakefield.
45 I cannot place you on a community corrections order unless you consent to do so. I will explain to you the core conditions that attach to this order. First, you must report to the Community Corrections Office within 48 hours – two clear working days – of being placed on the order. That is by Tuesday of next week. Whilst you are on the order you must not commit any offence punishable by imprisonment inside or outside Victoria. Thirdly, you must inform the Office of Corrections of any change of address or employment within two clear working days of that change.
46 Whilst on the order you may not leave Victoria without the permission of the Community Corrections Officer. You must report to and receive visits from the Community Corrections Officer. You must obey all lawful instructions of the Community Corrections Officer. I am going to order that you submit for assessment and treatment for psychological concerns, or mental health concerns. You still need more education about children, Mr Wakefield. It’s not necessarily a condition that I would have imposed had you not spoken in the way you did to the Community Corrections Office. You could not be more wrong about the way you are viewing this.
47 Certainly, I accept that Ethan would have presented as extremely challenging. But you do not blame a child for behaving in a particular way. There’s no doubt it would have been frustrating, and annoying. And it’s particularly hard when you are dealing with a stepchild. But you were the adult. He was the child. And you cannot get away from that. There were other ways of dealing with it. And the capacity for the children in any way to ultimately deal with the issues raised by their experiences with you is going to be eternally compromised until you can understand that your responsibilities as an adult towards a child never change no matter how badly or in how difficult a form that child behaves. I’m going to order that the order will last for three years. And I’m going to order that you perform 300 hours of unpaid community work. Do you consent to be placed on the order? Thank you. Have a seat.
48 Ms Watkins, can you stand up, please. Did you take in the core conditions that I outlined? Yes. I’m going to order that you be placed on a community corrections order for a period of two years. I’m going to order that, in addition to the core conditions, that you attend for and receive treatment for mental health concerns. Again, in order for the children particularly to reconcile what has occurred to them, for you to have some understanding over the years, it’s going to be important for these children to reconcile this. And you have to be in a position where you can be of assistance in this way.
49 In addition, you’ve got a child you’re bringing up who is going to want to know why he has got three brothers and a sister who aren’t living with him. There is going to be an array of problems. And I do accept you love your children. And I accept that it is a matter of some grief to you that they are no longer with you. You have to understand your role in this, and the part that you played in this. And you also need to develop, in my view, some independence of mind about an appropriate parenting style, rather than it simply being a reaction against your mother, and a reaction against the grievances that you hold about the way you were brought up. I’ve got some concerns about ordering community work for you. You’ve got a young child. I’m going to order that you undertake 100 hours of community work over the next two years. Do you consent to being placed on this order? Yes. Thank you. You can have a seat.
50 Pursuant to section 6AAA, I declare that had you, Colin Wakefield, not pleaded guilty I would have sentenced you to a term of imprisonment of two and a half years, and ordered that you serve a minimum term of 12 months. Pursuant to section 6AAA, I declare that had you, Melinda Watkins, not pleaded guilty I would have sentenced you to a term of imprisonment of 18 months, and order that you serve a minimum term of nine months. Thank you. We will just wait for the appropriate documentation to be prepared. Of course, each of the community-based orders will be a conviction.
51 Just returning to my sentencing remarks. Whilst I stated that you, Colin Wakefield, I accepted that you were remorseful for your actions, that seems to me to sit somewhat at odds with the views you expressed to the Community Corrections Officer. I accept that there is a limited amount of remorse on your part. I do, however, accept that you have pleaded guilty. And that I should have made the comment, in relation to each of you, by pleading guilty you have saved the children the trauma of being involved in the court process. And you have saved the community a great deal of time. This would have been a most complicated trial, and an extended trial. And you are both entitled to a discount for pleading guilty in the circumstances.
52 I have also taken into account your previous good histories, as I have said, the fact that you have been contributing and responsible members to the community, and that neither of you presents as likely to offend in the future or present as any danger to the community. Thank you. Yes. Thank you. We will stand down till 10.30. I thank counsel for their assistance in this matter.
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