Director of Public Prosecutions v Waldon
[2016] VCC 1069
•14 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01953
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAMERON WALDON |
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 July 2016 | |
DATE OF SENTENCE: | 14 July 2016 | |
CASE MAY BE CITED AS: | DPP v Waldon | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1069 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Pleaded guilty to 1 charge of grooming, a representative charge of committing an indecent act with a child under 16, and a charge of possession of child pornography – victim has mild intellectual disability and autism – offending more serious due to breach of trust, victim’s age, her vulnerabilities, and as it occurred when offender in position of authority – reasonable chances of rehabilitation – but minimal explanation for offending.
Sentence: 8 months’ imprisonment, and a 2 year community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Stylianou | OPP |
| For the Accused | Mr B. Bourke | DCA Lawyers |
HER HONOUR:
1 At the outset, I advise that I am using the name of a sexual offences complainant in these reasons. The name will be anonymised in the later published version of these reasons. I remind those listening to these remarks as read out that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[1].
[1] Section 4 Judicial Proceedings Reports Act
2 Cameron Waldon, you have pleaded guilty to three crimes under Victorian law: a charge of grooming, a representative charge of committing an indecent act with a child under 16, and a charge of possession of child pornography. Each of these offences has maximum sentence of 10 years’ imprisonment.
3 I sentence you on the basis of the Prosecution Opening[2] which was read out in court. In summary, you were working as a youth worker at an education centre which was described as assisting the transition of young adults with intellectual disabilities. In that capacity, you knew Danielle Smith[3], then aged 14 years. She suffers from autism and has a mild intellectual disability.
[2] Exhibit A
[3] A pseudonym.
4 Between April and July 2015, you communicated with Danielle by messages and in person in sexually explicit ways, including sending her photographs of your genitalia, and asking her to send you photographs of her body, and a video of her performing a sexual act. I find that you cajoled, threatened and manipulated her during this course of conduct. The full details of your grooming activity are in paragraph 7 of the Prosecution Opening (Charge 1).
5 On three occasions, you were alone with Danielle in your office at the school, and stroked her thighs (Charge 2). Despite her challenging you on the first occasion, you persisted with this activity on the two subsequent occasions.
6 Because of your continuing requests for sexual photographs, Danielle eventually sent you three sexual images of herself. The last two were sent to your phone on 23 July 2015, and are the subject of Charge 3.
7 The following day, 24 July, Danielle’s sister saw the recent messages passing between you and told her mother. Mrs Smith spoke to Danielle and then the school and police were notified. You communicated with Mrs Smith, initially denying the events, and then attempted to shift blame to Danielle, and minimise your actions. I find that this attitude continued in your interview with police, including your evasiveness about your encouragement of Danielle to send you explicit photographs.
8 Any sexual offending against a child is serious. In your case, this is made even more serious by the egregious breach of trust of Danielle and her family, when you perpetrated these acts on her while in a position of authority, and when you were well aware of her age and other vulnerabilities. Your role was intended to support her, and the other students, in the transition from childhood to adulthood and from school to whatever may come after. Instead, your activities have greatly undermined her.
9 In assessing the objective seriousness of the overall offending, I recognise that your particular offending is not at the high end of seriousness for any of the offences, when the range of offending behaviour which can be incorporated in each of the three offences is taken into account. Clearly however, the grooming charge is the most serious of the charges you face, and none of the offences is at the lowest end of the scale, because of the significant breach of trust.
10 I received statements read by Danielle and her mother in court as to the impact your crimes have had on her and the family[4]. These are matters which I very much take into account in deciding the appropriate sentence.
[4] Exhibit B – read and recorded on an earlier occasion, 23 February 2016.
11 Just selecting some parts of those statements to demonstrate the impact, I note that Danielle speaks of being angry that you took advantage of her, of being scared because she considers you are still in a position to hurt her, and being scared to meet new people because you took away her trust. She speaks of finding it difficult to sleep, and when she does, she has nightmares about you. She now hates school, as it reminds her of what you did to her there. She feels like her whole life has been changed by the fallout from your crimes. She felt like it was her fault.
12 Her mother in her statement describes how the relationship between Danielle and her sister and mother was affected as Danielle felt betrayed by them looking at her devices; how Danielle’s nature has changed from a bubbly, outgoing child to a withdrawn, subdued, fearful girl; how the whole family has been affected by the need to cope with a child who already had special needs being left deeply confused, embarrassed, traumatised and angry by your crimes. Mrs Smith described her feelings of guilt for what she has seen as her failures as a mother.
13 I want to say to Danielle, to her mother, and to the whole family: the only one who is at fault is the one who is at the back of the court. The only one who is to feel guilty is the one who has pleaded guilty to three serious crimes. Danielle must not feel that any of this was her fault. A child is never, never, responsible when an adult draws the child into a world that is only for adults, a world of sexual experiences. It is not possible for parents to know everything that is happening at every moment of their child's lives, especially as they become more independent. I find it very encouraging to read Danielle’s final words in her statement: that hopefully [after the hearing] she will finally get her life back, that she will get a little bit of peace, will not have to be as scared, and will be happy again. I wish Danielle and her family all the best for a brighter future.
14 Returning to you, Mr Waldon, I now consider the factors personal to you which I must take into account. The first of these is the fact that you pleaded guilty, and did so at the earliest opportunity. I accept that this shows that by then you accepted responsibility for your offending, and demonstrated a level of remorse for the impact of what you did on Danielle. Your plea of guilty has not only saved the community the time and cost of a trial, but it has saved Danielle from the ordeal of giving evidence, although not from having to repeatedly tell what happened to her during the investigation. As a result of your plea of guilty, the sentence I will impose is less than would have been imposed had you been found guilty by a jury after a trial.
15 Next, you have no criminal record. That means that you are to be sentenced as a person who was of good character until you began committing these offences, and not as a person who has previously committed any offence or an offence of a similar nature.
16 Next, I take into account that you continue to receive strong support from your fiancée, mother, sister, grandfather and friends, many of whom were in court. Through their evidence before me or in their written references[5], they expressed their shock and disbelief that the man of the character as they knew you could commit such crimes against a child. Whilst obviously not condoning your crimes, their continued support is vital to your rehabilitation.
[5] Exhibit 4
17 Your relationship with your fiancée continues, although your marriage plans for early next year in New Zealand have been postponed in recognition that the sentence you receive today will, one way or another, require you to remain in Victoria for a period of time. I note that you were in that relationship during the period of the offending, and became engaged to be married in that time. This did not operate as a factor to prevent you offending then, but it is to be hoped that it will operate that way in future.
18 You were aged 31 when you offended, and are now aged 32 years. No real explanation has been put forward for your criminal behaviour by you or anyone else, other than that perhaps both you and your fiancée were unhappy in the jobs you then had, and that you are considered to be immature and naïve with a dependent and avoidant personality according to the opinion of psychologist Mr Jeffrey Cummins[6]. He was of the view that you feel a chronic inadequacy, and that you have never come to terms with the sudden death of your father in a road accident while you were travelling and working overseas in 2008.
[6] Exhibit 2
19 Mr Cummins assessed you on 2nd and 15th March this year, and after the plea was adjourned on 8th April, you attended on him for further testing and treatment on five subsequent occasions. Mr Cummins provided two reports and gave evidence before me. He said that you had established a good therapeutic rapport and have another appointment to continue treatment later this month. He assessed your risk of re-offending as moderate to low initially, and is of the opinion that although you had difficulty accepting the full import of your grooming behaviour, you are now developing more insight and so your risk is tending towards low. However, he was clear that this is only on the basis that you access the treatment that you need to address your offending. He thought that six to nine months was a minimum period for such treatment and expressed a willingness to continue working with you if you are in the community, either by you attending him voluntarily or through a community correction order.
20 Mr Cummins addressed the anxiety that you are feeling because of your situation, and expressed the opinion that if you were to be imprisoned, your mental health was likely to deteriorate very significantly, and that you would present as a vulnerable prisoner.
21 Turning to your background, you have always been a keen and active sportsman. After secondary schooling, you completed a diploma in sports administration, and then completed a bachelor’s degree in recreation management and leadership. This led to employment in outdoor education camps for school children of all ages, and you had a Working with Children permit. You returned to Melbourne following your father’s death, resuming this work, and then resumed your travel, working as a tour guide in outdoor activities in Canada.
22 In 2011, you returned to Melbourne again and began working in various youth programs, ultimately finding your combined part time employment at the education centre that Danielle attended, where there was a total of about 15 students with special needs, and also at a secondary school. You were employed in these capacities for about 6 months and resigned both positions a week after police interviewed you for these offences. In August 2015, you returned to an outdoor occupation which you much prefer, and are being fast-tracked through a horticultural apprenticeship. I received a letter from your current employer[7].
[7] Exhibit 3
23 It is clear from this employment history that you have worked with children for most of your adult life, formally or informally. A friend of yours who worked with you in the outdoor education field gave evidence that you were highly regarded in the way you worked with these groups. Of course, as a result of becoming a registered sex offender due to these charges, you will be unable to work with children again. But there is another aspect to this work history.
24 The evidence of Mr Cummins was that you said, and I am paraphrasing, you had not had appropriate training in dealing with the sorts of things you had to deal with as a youth worker. Mr Cummins did not accept that, and neither do I. First, any adult knows that it is never appropriate to cross the boundaries with underage people, and that any sexual interaction, by words or deed, is illegal. Second, your education and work experience could not have proceeded without that imperative being canvassed by your one or more of your employers at some stage. On the basis of Mr Cummins’ evidence I accept that it is at least possible that while you knew you had breached the boundaries, because of your personality type, you allowed yourself to believe, wrongly, that you were interacting with a female with the same emotional immaturity as you. This delusion clearly must be addressed in any treatment that you undertake.
25 On balance, however, I am satisfied that your chances of rehabilitation are reasonable. On the one hand, your family and friends will not condone a return to criminal behaviour, and you continue in a long term stable adult relationship. You are now involved in an occupation which you enjoy, and are doing well in training for future employment in that field. However, I assess your prospects as only reasonable because of the matters I just referred to, as well as the lack of any real explanation for your crimes, which make it hard to be confident that you will not re-offend.
26 In my view, there is still a risk of you committing similar crimes, but this risk will be reduced if you successfully undertake a Sex Offender program.
27 An important principle in my sentencing of you is the need to express the denunciation of society for sexual crimes committed against a child, and especially one with added vulnerabilities. Also, by my sentence, I must try to deter other men from preying on vulnerable teenagers; this is known as general deterrence. Because it is not known why you committed the offences, I am of the view that it is necessary for my sentence to also deter you from re-offending, although I recognise that your passage through the criminal justice system for the first time will, for you, be an incentive not to make a return visit.
28 There are two final matters before I turn to the sentence. The first is that an application has been made by the prosecution for an intimate forensic sample to be taken from you and through your counsel you have not consented to this. Your counsel submitted that as you have no criminal record, were not employed as a teacher when the offences were committed against a student, and the offences are objectively of a lower level of seriousness, it is not in the interests of justice to make the order. I have had regard to the seriousness of any offence committed against a child, and in particular, the serious nature of a grooming offence, on which charge the application is made, and I have decided that I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor, or nurse, or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that the police may use reasonable force to enable such a procedure to take place.
29 The second matter is that as I mentioned a few moments ago, as a result of my sentence today, you become a registrable sex offender. As your crimes were committed against a child, but involve no penetration, they are class two offences. You will be required within seven days of today or your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life.
30 Turning to the sentence, the prosecution submitted that there must be a term of imprisonment imposed because of the breach of trust, the particular vulnerability of the complainant of which you were aware, the threats in your grooming conduct, and your initial denials and blame shifting. The prosecutor referred me to the recent comments of the Court of Appeal. While that case dealt with the offence of incest, the remarks about sexual offending against children are apposite, as follows[8]:
“Community values:
One of the key concerns of the criminal law is the vindication of the community’s social values. Pre-eminent among those values is the protection of the personal integrity and physical safety of young and/or vulnerable children.[9] …
...
Importantly, there is now much greater understanding of the trauma and long term harm suffered by children who are sexually abused.”
[8]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 at [124]
[9]DPP v DJK [2003] VSCA 109; DPP v Toomey [2006] VSCA 90.
31 If you are to be sentenced to imprisonment on the first two charges, you must then be sentenced as a serious sex offender on Charge 3. However, the prosecution conceded that a combined sentence of imprisonment and a community correction order was open as an appropriate disposition.
32 Your counsel submitted that I should not impose a sentence of imprisonment, because the three charges revolve around the same conduct, occur over a short period, and are objectively of lower seriousness; because you have no criminal record; pleaded guilty early; have been assessed as having a low risk of re-offending; maintain a stable relationship; and the offending is out of character.
33 He submitted that if I were to impose a sentence of imprisonment, which I can only do if satisfied that there is no alternative to imprisonment, it should be what he described as a ‘notional’ one.
34 You were assessed and found suitable for a community correction order. As I said on the day of the plea, having you assessed did not mean that I had already decided what the appropriate sentence will be.
35 I have had regard to the one other sentence imposed for the charge of grooming since it became law in 2015[10]. The sentencing practice for this type of offence is therefore limited to this one case, but I have found it useful.
[10]DPP v Hussain [2016] VCC, unreported, County Court of Victoria, 13 May 2016
36 In that case of Hussain, the offender was younger than you, aged 25 years, and had arrived in Australia as a refugee from the Taliban. The complainant in that case was aged only 10 years and the grooming took place over 5 months, but was conducted entirely over the internet; the offender and victim were not known to each other and never met. The sentencing judge found the offender had limited insight and reasonable but limited prospects of rehabilitation, and took into account the potential for him to be deported. That offender was also charged with possession of child pornography for receiving one explicit photograph from the child at his request, and was also charged with procuring a minor for child pornography. These offences all had the maximum penalty of 10 years’ imprisonment[11], as in your case. That offender received a sentence on the charge of grooming of 12 months’ imprisonment.
[11] The maximum for possession of child pornography is stated as 5 years, but this appears to be incorrect.
37 I have decided that I have no alternative to imposing a term of imprisonment on the charge of grooming. That is because of the gross breach of trust involved, the age and vulnerability of the child, the threats and manipulation I have found you engaged in during the course of the grooming conduct, the period of four months over which you persisted with the conduct, and the fact that there was personal contact to provide the opportunity to engage in the conduct as compared to grooming conducted over the internet only.
38 I have taken into account that you will be going into custody as a first offender and the evidence of Mr Cummins as to the possible impact on your mental health. The order that I sign will note this.
39 With respect to Charges 2 and 3, I have decided that I do have an alternative to imprisonment, because those offences involve offending at the low end of the scale of possible conduct for such crimes[12], and are part of the overall grooming conduct, albeit constituting separate offences. I have not forgotten that Charge 2 is representative of three occasions.
[12] DPP v Cole (a pseudonym) [2014] VCC, unreported, County Court of Victoria, 7 November 2014; Cole (a pseudonym) v DPP [2015] VSCA 144, Court of Appeal 20 March 2015
40 My intention is that you undergo a community correction order on Charges 2 and 3. My intention is that order will commence immediately on your release from prison. I will make the formal orders shortly, but I propose to sentence you to eight months’ imprisonment, followed by a two year community correction order with certain conditions. The term of imprisonment is not, and not intended to be, notional; it reflects the time that I consider in all the circumstances you should be required to serve on the grooming charge. As you will not be sentenced as a serious sex offender there is no reduction in the effect of the principle of totality. I have therefore considered the punitive aspects of the community correction order for Charges 2 and 3, combined with the obvious punitive aspect of imprisonment on Charge 1 and am satisfied that this combined sentence appropriately reflects the seriousness of your overall offending of which the conduct is overlapping, as well as meeting all other sentencing objectives.
41 Yes, stand up, please, Mr Waldon.
42 You are convicted and sentenced as follows:
43 On Charge 1, grooming - 8 months’ imprisonment.
44 On Charges 2 and 3, you are convicted, and if you agree, you will be released on a community correction order for two years on both charges, to commence on your release from the sentence imposed on Charge 1. That order will have the conditions that are attached to every order which are: that you must report to and receive visits from Community Corrections; must notify Community Corrections of any change of address or employment; must not leave Victoria without the permission of Community Corrections; and must comply with any direction given by Community Corrections to ensure compliance.
45 I will also order that you comply with other conditions during that two years: you must perform 200 hours of unpaid community work; you must be under supervision; you must attend for mental health treatment and assessment as directed by Community Corrections and you must undertake and complete a Sex Offenders program as directed by Community Corrections. These last two conditions might be with Mr Cummins and monitored by the Community Corrections office, or it might be undertaken through Community Corrections.
46
You will now be asked by my associate to sign two documents. The first is acknowledging that you now receive a form notifying you of your reporting obligations under the Sex Offenders Registration Act. The second is to show that you agree to abide by the conditions of the community correction order.
Mr Bourke, either you or your instructor can accompany my associate.
47 MR BOURKE: I will get my instructor to go down and help him.
48 HER HONOUR: Yes, thank you. I will just have a look at the document. Yes, you can take a seat for the moment, Mr Waldon. Can I just indicate that the standard form includes references to all sorts of mental health assessment and treatment but the Community Corrections people will be well aware of the assessment of Mr Cummins and his opinions as to that.
49 If you could stand up again, please, Mr Waldon. I neglected to tell you before you signed the community correction order that if your circumstances change after you have started the order you may apply to the court for the order to be varied or cancelled. I also need to advise you that if you do not comply with any condition of the order, that you will be brought back before me to be re-sentenced on those two charges.
50 Having had regard to those two matters that I neglected to tell you, do you still agree to be bound by the conditions of the order? Thank you. I will now sign that order. Yes, a copy of that will be made available to the defence.
51 MR BOURKE: If Your Honour pleases.
52 HER HONOUR: I have also signed the order for disposal of the items listed, which was by consent, and have signed the order for the forensic sample.
53
Finally, I announce that if you had not pleaded guilty to these offences but had been found guilty after a trial, the sentence I would have imposed on all charges is a term of imprisonment of three years with a minimum of
12 months.
54 No other orders required?
55 MS STYLIANOU: No, Your Honour. If the court pleases.
56 MR BOURKE: No, Your Honour.
57 HER HONOUR: Thank you. Mr Waldon may be taken out. I thank counsel for their assistance and, once again, everyone for their conduct of themselves in these difficult matters.
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