Director of Public Prosecutions v Walker

[2019] VCC 59

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-01943

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRAVIS WALKER

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 February 2019
CASE MAY BE CITED AS:	DPP v Walker
MEDIUM NEUTRAL CITATION:	[2019] VCC 59

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms H. Baxter
For the Accused	Ms A. Wong

HER HONOUR:

1       Travis Walker, you have pleaded guilty before me to one charge of using a carriage service to groom a person under 16 years of age and one charge of using a carriage service to menace, harass or cause offence.

2 Both charges arise under the Criminal Code. Charge 1 being an offence under ss474.27(1) of the Commonwealth Criminal Code with a maximum penalty of 12 years’ imprisonment or 720 penalty units, or both. Charge 2 is laid pursuant to ss474.17(1) of the Commonwealth Criminal Code, the maximum penalty for which is three years’ imprisonment or 120 penalty units. You have also pleaded guilty to the summary charge of committing an indictable offence whilst on bail, which offence was uplifted pursuant to the Criminal Procedure Act to be dealt with in these proceedings.

3       The facts underlying this offending are as follows.

4       On 8 April 2018, police from the joint anti-child exploitation team began a covert online operation using Facebook Messenger, whereby Detective Senior Constable Clint Ousley purported to be a 14 year old girl called “Emily Jane”.  Detective Ousley created a Facebook profile identifying “Emily” as a female, but with no other details.  Later that day, a male, “Wade”, identified as you, wrote to “Emily” on the application and then engaged in conversation, asking her how old she was, to which Detective Ousley replied “14”.  You then told “Emily” that you were 20 and asked if that was okay, asked if she was single and for her to send you a picture.

5       On 9 April 2018, you and “Emily” continued to chat, you asking if you could date, saying long distance relationships were your type.  You asked her to date but not to tell her mother and when “Emily” asked what the two of you would do, you responded “Fuck”.  You then tried to call “Emily” who had told you she had never had sex before.  You then asked “Emily” to have a video sex chat and asked her to take a photograph of herself so you could see whether her breasts were big, and said you were having a “wank” over her and later told her that you loved her.  Later that same day, you asked “Emily” if she wanted to see your dick, then sent her a photograph of yourself, exposing a flaccid penis and then immediately afterwards sent a second photograph of an erect penis asking “Emily” if she wanted to suck it and telling her that you wanted to “fuck her hard”.

6       The conversation continued into 10 April, you asking “Emily” whether she loved you, telling her that you loved her.  You again asked for a picture, then discussed with her the possibility of meeting, saying you could meet her if she travelled to Ararat by bus, and that if she came there, the two of you would "fuck".  Later that day, you told “Emily” that you hated your life, then blocked her on Facebook, after which there were no further conversations.

7       On 15 May 2018, a warrant was executed by police at your premises when your Smartphone was seized and you were interviewed by police in the presence of an independent third person.  You told police that the phone was yours, that you accessed that phone, that you were the only person who had access to your Facebook profile, that you could not remember the conversation with “Emily”, that you did understood there were laws about how old people had to be before they could have sex but did not know what that age was, and told police that if someone else was in your age range you could have sex with them but you were not allowed to.  You also said you knew you were not allowed to send naked pictures to other people, that it was wrong to ask “Emily” to have sex, admitted sending a photograph of your penis, admitted it was probably wrong to start the conversation, and that you believed it was illegal to have sex with someone who was 13.  You were then released on bail.  Those actions, in relation to "Emily" underlie Charge 1 on the indictment.

8       In relation to Charge 2, on 4 June 2018, whilst still on bail, you contacted your cousin, Sheena Carlyon, the two having met once previously and to whom you had been talking on the phone and texting since April 2017.  I should add you had met once previously.

9       In the afternoon on that day, you called Ms Carlyon and asked her for money to bail you out of the police station, but she said did not have any.  The next morning, you again rang her again and asked for money, at which point she asked you to stop calling her and her family, and to leave her alone. 

10      You rang Ms Carlyon again on 8 June, but she did not answer your call, so you contacted her on a private number telling her you wanted to split her and her boyfriend up. She again told you to leave her alone but later that evening, you again said you wanted to take her out of town at midnight and punch her in the back of the head.  Again she told you to leave her alone. 

11      On 9 June, you contacted Ms Carlyon again but she did not answer her phone and on the same day you contacted her boyfriend on a private number and  he told you to leave Ms Carlyon alone.  These actions underlie Charge 2 on the indictment.

12      You entered a plea to the charges on the indictment at the second committal mention hearing on 20 September 2018 and this was recognised by the prosecution as an early plea. 

13      I now turn to your personal circumstances.

14      You are a 23 year old man who lives in shared supported disability accommodation in Ararat, Victoria.  In January 2016, a neurological assessment placed your cognitive functioning at an overall IQ of 48, that is in the extremely low range.  You are the fourth of seven children born to your parents.  You did not speak until you were two or three years old.  You had a number of behavioural issues and child protection services had involvement with the family from the time you were quite young. 

15      Due to academic difficulties, you were transferred to the Warracknabeal Special School in 2004, finishing your education there at age 18. 

16      You were removed from your family home by the Department of Health and Human Services in 2008 and placed into State care which continued until 2013, when you turned 18 and decided to return to your family home.

17      Ultimately, in late 2013, police became involved and you were referred by them for case management due to issues including homelessness, concerning behaviours, heightened emotional state, self-harm, inability to cope, suicide threats, threatening harm to others, financial difficulties, Family Intervention Orders and criminal justice involvement. 

18      You have a number of previous appearances before a criminal court beginning in 2016 when you were fined $1,000 for behaving in a riotous manner and assault with a weapon.  Again that year you were placed on a 12 month Community Correction Order on charges of contravening a Family Violence Order and in 2017, were placed on an adjournment for (indistinct words) behaviour on a charge of criminal damage.  On 17 January 2018, you were placed on a Community Correction Order for 12 months on charges of wilfully damaging property, throwing a missile, unlawful assault, unlawfully beating another person, use threatening words, and a second charge of wilfully damaging property.

19      You have been a client of Disability Services with the Department of Health and Human Services for many years.  A report from Denise Robson and Lisa Leniart, Disability Justice Individual Support Workers with the West Division, who worked with you for some years, noted that your disability and function level impacted on all areas of daily living, that you have literacy and numeracy skills equivalent to Grade 2-3 level, and that you are vulnerable in the community due to your poor interpersonal skills which place you at a high risk of conflict with others.  The authors stated “although he communicates with clear speech and can engage in verbal conversations he lacks insight and knowledge to react appropriately in challenging or emotionally charged environments”.

20      They noted that clinical neuropsychologist, Louise Boyne, who assessed you in 2016, made the point that you display what they call a:

“Broadly intact orientation, marginal strength in vocabulary and verbally held knowledge and his strength in learning and memory for new auditory presented information are likely to give the impression that he is cognitively more able than is in fact the case.”

21      In other words, the way you present is that you are a fluent communicator, with a good command of language and that this in fact can mask what is a profound intellectual disability.  The authors noted that you displayed poor regulation of your emotions and that in times of emotional escalation you had physical altercations with persons in authority. 

22      You are now an NDIS participant with a support coordinator to implement your NDIS plan, which includes occupational health assessment, employment and Outreach, comprises one-to-one access to community and counselling. 

23      You are also undergoing grief and loss counselling, one of your brothers having died, there also having been significant disruption in your relations with your family.  You have a financial administrator and guardian appointed by VCAT to make decisions about accommodation and access to services, and you moved into your current accommodation in about 2016. 

24      The report’s authors described you as presenting as a young man who wanted to be accepted by other people, particularly by your family, and that relationships with family members had often involved conflict and resulted in intervention orders being taken out against you.  This is something that has upset you very much over the years.

25      At your residence, staff support you with your daily living activities and have reported that you show good skills with them but require occasional prompting and support to motivate you to participate.  You are being supported to re-engage with grief counselling again over the death of your father and the recent sudden death of a niece.  It is also planned that there be counselling aimed at emotional regulation. 

26      At the time of the plea, you were not accessing a formal day program.  However, I understand one has now been commenced for you.  You are supported by various services, including your Disability Justice Manager, accommodation staff and support coordinator with the NDIS.

27      The authors reported “Mr Walker has been found to work well with consistent staff who are familiar with his support needs”. 

28      You are also to be referred to the Disability Forensic Assessment and Treatment Service, a state wide disability forensic service that delivers treatment support and residential services for people with a disability who display high risk antisocial behaviour and who are involved or at risk of being involved in the criminal justice system.

29      For the purposes of the plea a justice plan had been developed by those working with you, as it was thought that it was most appropriate to be placed on a community corrections order.  During the plea; however, it was pointed out that it may be more appropriate to deal with you, because the charges are Commonwealth charges, Mr Walker, I am speaking in very - I am speaking in legal language.  I am going to speak to you in less legal language when I finish talking like this, all right?

30      OFFENDER:  Yep.

31      HER HONOUR:  All right?  Because it probably all sounds like it is not making sense but I have to talk in this way when I am handing down a sentence.  And I was referred to the sentencing provisions of the Commonwealth Crimes Act 2014, specifically s20(b)(y) which refers to program probation orders.  Essentially s20(b)(y) allows for a situation where a person is convicted of a Federal offence and the court is satisfied the person suffers from an intellectual disability which has contributed to the commission of the offence and an appropriate education program or treatment is available, the court can release that person on condition that the person undertake the program or treatment specified in the order for a particular period.

32      It was submitted by the prosecution that the nature of your offending was such that I should impose a term of imprisonment but allow for you to be released on a recognisance order.  I understand, given the nature of the offending, which also included offending whilst on bail, that is when you rang your cousin and harassed her on the phone, you were on bail for offending arising from the conversation that you had had with "Emily" on Facebook.  It was submitted there were general and specific deterrent aspects of such a sentence, which are appropriate in this case.  With the greatest respect, I do not agree with that submission.  You have a profound intellectual disability and therefore, in my view, are not a suitable vehicle for either general or specific deterrence insofar as this offending is concerned.

33      

Neither end of the Bar table, if I can put it this way, made a submission that I should deal with you by a term of imprisonment to be immediately served.  And indeed for the same reasons, I would not regard such a disposition to be appropriate in your case.  Materials on the plea included also an assessment by psychologist, Dr Aaron Cunningham, and in his report dated

15 October 2018, Dr Cunningham gave his opinion that you did not present with overt indicators of sexual deviance but that your offending appeared to occur, "In the context of loneliness, emotional disconnection and impaired intellect".  He said that you struggle to explain the inappropriateness of sexual relations with a person under 16, which he thought was due to impaired intellect rather than deviance.

34      Importantly, Dr Cunningham stated:

“He presents with limited ability to manage and regulate emotional state and inhibit impulses.  In my opinion, he was vulnerable to engaging in contact with others due to his loneliness and isolation.  He presents with a need for belonging and acceptance that was not being met.”

35      In my view, that opinion very adequately explains both sets of behaviour as represented by Charges 1 and 2 on the indictment and the summary offence of committing an offence whilst on bail.  In all the circumstances it is my view that I should deal with you by way of placement on the probation order pursuant to s20(b)(y).  I am satisfied and indeed it was conceded by both prosecution and defence that an appropriate education program or treatment is available.  I note also the concession was made, commendably, by Madam Prosecutor that grounds two to six in Verdins have application in your case.

36      In the circumstances, I have said, I propose placing you on this order which will last for a period of two years.  Now, pursuant to s6AAA, I declared that had you pleaded not guilty - probably does not even need to go on transcript.  I will edit it out.

37      MS BAXTER:  It's not required for Commonwealth offending.

38      HER HONOUR:  Thank God.  Because I was about to say.  It's very doubtful that Mr Walker could even conduct a trial.

39      MS BAXTER:  Yes, and it's actually occurred to me, and we've already discussed this, but it did occur to me during the Supreme Court bail application that - and Ms Wong might be able to assist further, that it was sort of - a big issue was that it was determined in one of the reports that it was found on balance that he was able to even understand or take instructions.

40      HER HONOUR:  Yes. 

41      MS BAXTER:  So, it just occurred to me after we'd already had the discussion.  So, I feel that that sort of feeds into that issue of being suitable.

42      HER HONOUR:  Yes.

43      MS BAXTER:  That His Honour Justice Champion certainly considered that to be a very serious factor.

44      HER HONOUR:  Yes, well it - well, we've already had the discussion about what happened.

45      MS BAXTER:  Yes, yes.

46      HER HONOUR:  When he went to see his grandfather and what happened after that.  Anyway, that doesn't matter.  All right, so, now, I was - I've managed to lose - I've got a welter of materials here and I just seem to - and I know that you've sent me a form, which I very much appreciate.  What I will do is we will sign it at this end and then we'll forward it up to Ararat.  Where are you?

47      MS WONG:  Your Honour, I'm in Ballarat. 

48      HER HONOUR:  Ballarat.

49      MS WONG:  So, what would happen is that your associate emails me the order and I can make sure Mr Walker signs it here and then I can undertake to send it back to the court.

50      HER HONOUR:  All right, well we'll do that.

51      MS BAXTER:  Your Honour, the only other thing is - and that's contained in the further - - -

52      HER HONOUR:  And in relation to the commit and indictable offence on bail, this is most unusual but give his profound disability and given the lack of emotional regulation, I'm going to convict and discharge on that.

53      MS BAXTER:  Ms Wong and I had discussions and they were certainly along those lines that that would be the submission that would be made.

54      HER HONOUR:  Yes, yes.  All right, good.

55      MS WONG:  As the court pleases.

56      HER HONOUR:  I'm quite psychic really aren't I?  That'll be coming out of the transcript as well.  All right, yes, no, in the circumstances I'd, you know, as to how these offending occurred.

57      MS BAXTER:  Just one other thing, Your Honour.  As a result, the offender will, of the groom offence, the offender will become a sex offender's - be put on the sex offender's registration.

58      HER HONOUR:  How's he going to negotiate that?  For how long?

59      MS BAXTER:  It's a period of eight years.

60      HER HONOUR:  There is capacity - - -

61      MS BAXTER:  Exceptional circumstances.

62      HER HONOUR:  I think there are exceptional circumstances.

63      MS BAXTER:  I don't have instructions on that point, Your Honour, so I'm not able to make any submissions about that.  I could provide - - -

64      HER HONOUR:  Ms Wong, is it - sorry, I just chopped you off very rudely.  It is likely there would be submissions made about exceptional circumstances applying in this case?

65      MS WONG:  To be honest, Your Honour, I hadn't really turned my mind to it.  I thought it was automatic, five years but if there is scope for a submission to be made, then I would assume - - -

66      HER HONOUR:  I'm going to adjourn that.

67      MS WONG:  - - - that Mr Walker - be appropriate.

68      HER HONOUR:  I'm going to adjourn that because, on the face of it, there are exceptional circumstances.  I can't see how this man can possibly negotiate the requirements and also there is, in terms of how this offending came about an indeed the nature of the police operation, I have no criticism of it at all but again, the remoteness of this, and the brevity of it, I just think all play into that.  So, I'm going to adjourn that.  Why don't I - I'll adjourn it for mention.

69      MS BAXTER:  Yes, Your Honour.

70      HER HONOUR:  All right, just to give people time.  So, what if I - a month?  Would that be?

71      MS BAXTER:  A month is more than sufficient time for the prosecution.

72      MS WONG:  Your Honour, that would be fine for me.  I am on leave for a period of time in March.

73      HER HONOUR:  Yes.

74      MS WONG:  I can give you those dates.  So, I'll be away in March until around the 14th.

75      HER HONOUR:  Well, why don't I set it down, rather than as a mention, because that'll be about six weeks away.  Why don't I actually set it down for an actual hearing?

76      MS BAXTER:  That's suitable, Your Honour.

77      HER HONOUR:  Is that all right with you, Ms Wong?

78      MS WONG:  Yes.

79      HER HONOUR:  All right, let's - what's - no, I think it can be fitting into - it won't take long.  I don't - - -

80      MS BAXTER:  No, and Your Honour I can provide written submission in advance and certainly allow Ms Wong to respond to those.

81      HER HONOUR:  That would be really helpful.  No, I don't think it's going to be a sort of, you know, massively fraught out day upon day.  We'll put it down at 9.30.

82      ASSOCIATE:  (Indistinct words).

83      HER HONOUR:  Yes.

84      ASSOCIATE:  19 March.

85      HER HONOUR:  19 March at 9.30, how's that work?

86      MS WONG:  That should work for me, Your Honour.  Perhaps, I don't - - -

87      HER HONOUR:  I don't require the presence of Mr Walker.

88      MS WONG:  Thank you.

89      ASSOCIATE:  He's placed on the register.  He'll have to be there to sign.

90      HER HONOUR:  Well, we'll see.  No, we'll just sort it.

91      ASSOCIATE:  All right.

92      HER HONOUR:  Look, I hope that doesn't mean it looks - it's as if I'm pre-judging the issue but I think we can be safe to say Mr Walker does not apply.

93      MS BAXTER:  I will see what instructions I can get, Your Honour.

94      HER HONOUR:  Yes.  Thank you.  Thank you very much.  And I thank you very much for your - you've been enormously helpful during this, after my leaping down your throat when you first started, you've been so helpful Madam Prosecutor and I'm very grateful to you, thank you.  Very well, I think that's everything.  All right, now, Mr Walker, judges have to talk in a really legal way when they hand down sentences, all right?

95      OFFENDER:  That's fine.

96      HER HONOUR:  So, I'm sure I used a lot of language you didn't understand.  What's happened is, Ms Wong will explain this to you, I've put you on a probation order.  What that means is it lasts for two years and it means that you have to stay out of trouble.

97      OFFENDER:  M'hmm.

98      HER HONOUR:  All right, really, really important.  And you have to, there's a justice plan, there's a plan that your workers have worked out for you and you have to do it.

99      OFFENDER:  Yep.

100     HER HONOUR:  All right?  Does that make sense, Ms Wong?

101     MS WONG:  Yes.

102     HER HONOUR:  I don't think I need say anymore than that.  But if you don't do it, you'll get into trouble and you get brought back in front of me.  All right, and the trouble is, you know, there's a good chance you could end up going to gaol or something if you keep getting into trouble and you don't do what you're supposed to on this, you're going to be brought back to court again.  Does that make sense to you?

103     OFFENDER:  Yes.

104     HER HONOUR:  Can you tell me what I just said to you?

105     OFFENDER:  To basically obey my order.

106     HER HONOUR:  And what happens if you don't?

107     OFFENDER:  Go to gaol.  Go back to gaol.

108     HER HONOUR:  Possibly, all right?  All right.  As long as you understand that.  That's important.  Thank you.

109     MS BAXTER:  Your Honour, if I could just clarify, particularly while Ms Wong is here.  I could hand you up the copy of the order.  There's a period, the defendant is to be of good behaviour for a period of two years.

110     HER HONOUR:  Yes.

111     MS BAXTER:  There's also point (b), that Mr Walker will be required to be subject to the supervision of his DHHS worker.

112     HER HONOUR:  Yes.

113     MS BAXTER:  Does Your Honour intend that to be a period of two years also?

114     HER HONOUR:  Well, yes, yes, I kind of rather he had the supervision, yes.  Are you all right with that, Ms Wong?

115     MS WONG:  Yes, it would make sense, otherwise the order has no meaning.

116     HER HONOUR:  No, I agree.  All right.  Thank you.  What's the date today?

117     ASSOCIATE:  Today's 1 May.

118     OFFENDER:  The 1st today, Your Honour.

119     HER HONOUR:  Thank you.  And, all right, so that's all sorted.  All right, so, do I - I have to sign this?

120     MS BAXTER:  Yes, Your Honour.

121     HER HONOUR:  Yes.

122     MS BAXTER:  The second page.

123     HER HONOUR:  Yes.  So, is it appropriate I sign it first?

124     MS BAXTER:  I think in circumstances it would be.

125     HER HONOUR:  All right, I've signed that.  We'll forward that up to you.  I'm going to stand down.  You can give the - if you could the details of how my associate gets it up to you, Ms Wong.

126     MS WONG:  Yes.

127     HER HONOUR:  And that takes care of everything.

128     MS BAXTER:  As the court pleases.

129     MS WONG:  As the court pleases.

130     HER HONOUR:  Thank you very much.  Here Ronami.

131     ASSOCIATE:  Thank you, Judge.

132     HER HONOUR:  Thank you so much.  Again, I thank counsel very much.  You've both been extremely helpful.  You've made my life a lot easier, so thank you.  All right, yes.  Good luck with everything, Mr Walker, all right?

133     OFFENDER:  Thank you very much, Your Honour.

134     HER HONOUR:  All right, you take care.  Thank you very much.

135     OFFENDER:  You too.

136     HER HONOUR:  We will stand down till 11.30.  Thank you.

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