Director of Public Prosecutions v Walker

[2014] VCC 1151

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01613

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL WALKER

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	February 3, March 24, July 8 2014
DATE OF SENTENCE:	21 July 2014
CASE MAY BE CITED AS:	DPP v Walker
MEDIUM NEUTRAL CITATION:	[2014] VCC 1151

REASONS FOR SENTENCE
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Subject:  Sexual Penetration, Indecent Act with Child Under 16
Sentence: 3 years imprisonment with 22 months non parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Martin
For the Accused	Dr M. Fitzgerald

HIS HONOUR:

1Michael Walker, you have pleaded guilty to one charge of committing an indecent act with or in the presence of a child under 16 and one charge of sexual penetration of a child under 16.  Both offences occurred on 2 February 2013.

2The maximum penalty for each offence is ten years' imprisonment.

3The circumstances of your offending are set out in an Amended Summary of prosecution opening which I marked as Exhibit A on the plea.  That document was read to the court by the prosecutor Ms Parkes and, accepted by your counsel Dr. Marich as being accurate and, as forming a proper basis upon which I can proceed to pass sentence in this matter.  It is not necessary that I repeat what is there set out except in summary form.

4The victim in this matter was aged 15 at the time of your offending.  She is intellectually impaired.  Shortly before the offending she walked near a toilet block to go to the toilet.  You approached her and took her into the toilets where you kissed her on the lips and neck.  You then left the toilet block but a short time later returned.  Inside one of the cubicles of the female toilets you removed the clothing of your victim and you removed your clothing.  You kissed her all over her body including her lips, breasts and neck and you touched her legs, breasts, bottom and vagina.  Charge 1 is a rolled up charge embracing this offending.  Your offending was opportunistic but it was initiated by you when you followed the victim into the toilet cubicle.

5Whilst in the cubicle of the female toilets you inserted your finger into the victim’s vagina.  That conduct constitutes Charge 2.  It too is serious offending.

6Even though your offending in both offences was spontaneous and occurred over a short period of time both offences were nonetheless serious.

7When the victim went to her home she told her carers what had happened and police were called.  They interviewed the victim the same day.

8You were interviewed on 17 April 2013 when you admitted kissing, touching and digitally penetrating the victim.  Your admissions were made before analysis of a forensic sample taken from you.  Dr. Marich submitted and I accept your admissions were made with candour.  You were aged 43 at the time of offending and thus you were considerably older than the victim.  You suffer from a mild intellectual disability and at the time of offending you had been drinking heavily.  You told Mr McMullen a psychologist that interviewed you for the purposes of this sentencing that on the day of the offences you had consumed a couple of beers at a mate’s place followed by 6 to 8 pots at the RSL.  I shall return to these factors shortly.  You told police the victim told you she was aged 19 and asked you to have sex with her and it was her that initiated the physical contact between the two of you.  During the plea Dr Marich conceded that there was no defence of consent open to you because you could not have proved on the balance of probabilities that you believed the victim was 16 years of age.

9You have pleaded guilty to the charges and that is to your credit.  Although you were formally committed it was on the basis of the hand up brief and not otherwise contested.  You pleaded guilty before me on 3 February this year and the matter was then adjourned whilst a psychological report was obtained.  You remained on bail until the formal plea.  By your pleas you have saved the time and costs of a trial and importantly you have saved your victim from having to give evidence against you.  You are entitled to a lesser sentence because of these factors and I have taken this into account in passing sentence.

10I turn to your background circumstances.  Dr Marich relied upon a psychological report from Gary McMullen which was tendered in evidence and marked as Exhibit 1.  Mr McMullen examined you on 7 February 2014 for one hour and forty minutes during which he also had you conclude a number of psychometric tests.

11You are one of ten children and you get along well with all siblings although no-one was in court to support you.  You told Mr McMullen that all of your family are big drinkers.  You attended primary school in Watsonia and later Watsonia Technical School where you completed Year 10.  According to the history which you gave Mr McMullen you did well at school although I doubt this was accurate.  You enjoyed sport and are said to have got on well with classmates.

12Since leaving school you have had a number of unskilled jobs and have generally had a good work record.  Before being remanded you worked as a forklift driver.

13You have a daughter aged 16 from a previous relationship.  She lives with her mother, but you have regular contact with her and you enjoy a good relationship with her.  You told Mr McMullen that you maintain what you described as an “on again off again” relationship with a woman Joanne whom you described as a drug addict.

14In giving a history of yourself to Mr McMullen, you told him that you began to use marijuana aged 16 and between 18 and 23 years you smoked marijuana heavily.  You continue to use marijuana on an occasional basis.  You have been drinking alcohol on a daily basis since aged 18.  You told Mr McMullen you drink less during the week but heavily on weekends.  Mr McMullen noted that when you saw him you smelt of alcohol and your speech was slurred as a result of alcohol consumption.

15Mr McMullen carried out various psychometric testing of you.  He reached a number of conclusions:

·That you have been an alcoholic all of your adult life and meet the criteria for diagnosis of alcohol use disorder severe;

·Tests are highly suggestive of the presence of frontal brain damage which can cause a variety of cognitive and behavioural problems.  This is probably as a result of prolonged excessive alcohol use;

·You meet the criteria for diagnosis of Borderline Intellectual Functioning.  He concluded that during your school years your IQ would have been within normal range but there has been a significant decline in adult years.  You presently have an IQ of 81 placing you in the 10^th percentile.  With respect to your verbal, school related learning (i.e. what you know) you are operating at the level of an early adolescent not an adult.  With respect to your non verbal skills and ability to solve new problems, you are probably operating at the level of a child less than nine years of age.

16For the purpose of sentencing I accept the evidence about you in Mr McMullen’s report.  Dr Marich did not rely upon your diagnosis of frontal brain damage as contributing or being causative of your offending.  But I do take it into account so far as assessing your offending is concerned because it may have meant that in fact the power gap which would normally ordinarily exist between a 43‑year‑old man and a 15‑year‑old girl may have been reduced in the circumstances.

17Dr Marich submitted that having regard to your level of intellectual functioning that is a matter I can and should take into account when deciding upon an appropriate disposition.  I agree with this submission and I have reduced the time that you will actually spend in gaol as a consequence and in fixing a parole period.

18Dr Marich submitted you are remorseful as shown by your genuine pleas of guilty and I accept that you are.  You appear to have family support and you have always had employment.  You do have a number of prior convictions mostly for dishonesty offending and you have not offended in any way since 2003.  You have never been to gaol before.  Importantly, this is your first offence for offending of this kind.

19Having regard to all of these factors and whilst recognising that I must consider imposing a sentence with immediate imprisonment, Dr Marich nevertheless submitted that I should have you assessed and place you on a Community Corrections Order with conviction and conditions.

20Ms Parkes submitted that the offending here was too serious for a Community Corrections Order disposition and that I should impose an immediate term of imprisonment.  She pointed to the age and intellectual disability of the victim and the considerable disparity in your ages.  Ms Parkes submitted that proper application of the principle of general deterrence and the need for the sentence to reflect appropriate denunciation of your offending meant that an immediate gaol sentence ought be imposed.  In passing sentence I have accepted and acted on these submissions, but as I say, in considering the length of sentence, I have reduced it from what I would normally have imposed because of your level of intellectual functioning which, in my view, will make the sentence you serve be more difficult for you than for other prisoners not suffering mild intellectual disability.

21On Charge 1 you are convicted and sentenced to a term of imprisonment of 12 months.

22On Charge 2 you are convicted and sentenced to a term of imprisonment of two and a half years.

23I order and direct that 6 months of the sentence imposed on Charge 1 cumulate upon the sentence I have imposed on Charge 2 making a total effective head sentence of three years' imprisonment.

24I direct that you serve a minimum period of 22 months' imprisonment before being eligible for release on parole.

25For the purposes of section 6AAA of the Sentencing Act 1991 I state I have imposed sentences being terms of imprisonment and I have reduced the overall sentence I would have imposed but for your pleas of guilty. Had it not been for your pleas of guilty to the charges I would have imposed a total effective term of imprisonment of five years and I would have fixed a non‑parole period of three and a half years' imprisonment.

26I recommend that whilst in prison, that you be referred for assessment and treatment under any relevant sexual offender treatment programs and that this matter also be brought to the attention of the Parole Board at the relevant time.

27I note that you have served 13 days in custody. Accordingly, pursuant to subsection 18(4) Sentencing Act 1991 I declare that the period of 13 days be reckoned as time already served under the sentences passed today and be noted accordingly in the Court records and deducted administratively.

28For the purposes of the Sex Offenders Registration Act 2004 you have been convicted of one Class 1 offence and one Class 2 offence and pursuant to the application of sections 6 and 34 of that Act you are a registrable offender with reporting obligations for 15 years. I strongly advise you to take advice in prison as to your obligations under the Sex Offenders Registration Act 2004. 

29The prosecution has applied for retention of a forensic sample taken from you shortly after your arrest which was used for DNA analysis.  The application was not opposed by your counsel and having regard to the seriousness of your offending it is in the public interest that the application be granted and I have signed the order submitted.

30Any questions, Mr Fitzgerald?

31MR FITZGERALD:  No, Your Honour.

32HIS HONOUR:  Ms Martin?

33MS MARTIN:  No, Your Honour.

34HIS HONOUR:  Thank you.  You may be removed.

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