Director of Public Prosecutions v Walker (a pseudonym)
[2022] VCC 1743
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LA TROBE VALLET
CRIMINAL DIVISION
BETWEEN:
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIAM WALKER (a pseudonym) |
AND BETWEEN:
| THE KING |
| v |
| LIAM WALKER (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2022 (Plea) and 2 September 2022 (Further Plea) | |
DATE OF SENTENCE: | 16 September 2022 | |
CASE MAY BE CITED AS: | DPP v Walker (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1743 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of rape (State) – two charges of using a carriage service to procure a person believed to be under 16 years of age (Commonwealth) - relatively early plea of guilty – some of the Verdins limbs enlivened – reasonable prospects of rehabilitation – sentence falls below the standard sentence for rape – decline to make a recognizance release order on the Commonwealth Matter
Legislation Cited: Sentencing Act 1991; Criminal Procedure Act 2009; Crimes Act 1914; Sex Offenders Registration Act 2004
Cases Cited:Victorsen v The Queen [2020] VSCA 248; Worboyes v R [2021] VSCA 169; Verdins v R [2007] VSCA 102; DPP v O’Neill [2015] VSCA 325; Barbaro v R [2012] VSCA 288
Sentence:On the charge of rape, 5 years imprisonment with a non-parole period of 3 years imprisonment; on each of the charges of using a carriage service to procure a person believed to be under 16, six months and nine months imprisonment to be commenced at the expiration of the non-parole period of the rape charge
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Plea – Mr B. Sonnet Further Plea and Sentence – Ms S. Coombes | Office of Public Prosecutions |
| For the Commonwealth Director of Public Prosecutions | Plea – Mr B. Sonnet Further Plea and Sentence – Mr B. Stevens | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr B. Penno | Warren Graham & Murphy Lawyers |
HIS HONOUR:
Introduction
1Liam Walker[1], I am directing these remarks to you now.
[1]A pseudonym
2You have pleaded guilty to
(a) a charge of rape; and,
(b) two charges of using a carriage service to procure a person believed to be under 16 years of age.
3The charge of rape is a rolled-up charge. In your case, it comprises two offences of rape into the single charge of rape.
4The maximum penalties for these charges are:
(a) rape – 25 years' imprisonment;
(b) using a carriage service to procure a person believed to be under 16 – 15 years' imprisonment.
5The offence of rape is also a standard sentence offence. I will explain its significance later.
Circumstances
6The document entitled 'Summary of prosecution opening on plea' is Exhibit A. This exhibit concerns the charge of rape. There is another document entitled 'Prosecution opening for plea'. It is Exhibit C. It concerns the charges of using a carriage service to procure a person believed to be under 16.
Rape
7In 2014 or 2015, the complainant met you through your brother.
8On 10 January 2019, the complainant fought with her mother and her mother's partner and left their home which is in a town in the Latrobe Valley. With your permission, she came to your home to stay the night. At that time, you were 27 and she was 20.
9You and she had a meal and watched television together. The complainant showered and went to bed. She became ill and you attended her. However, your attention developed into sexual abuse. You took off her shorts and underwear, despite her telling you to stop on a number of occasions. Then you placed one of your fingers in her vagina and moved it around for about ten minutes. She pushed you off her. However, you fingered her vagina for about five minutes. You did this even though she told you to stop as she did not like it. She threatened to tell her mother but you did not stop.
10After she had been sick again, you lay on top of her and inserted your penis into her vagina. You were not wearing a condom. After thrusting for some time, you stopped and got off her. She does not know whether you ejaculated. These occasions of penetration constitute the rolled up charge of rape.
Carriage Service (Berry[2])
[2] A pseudonym
11Between 30 June and 1 July 2020, you communicated with Jessica Berry[3], a person you believed was 14 years of age. You did this using Facebook Messenger. Although Ms Berry was in fact aged 53, she pretended to be 14 in an attempt to stop you contacting her. However, this had the opposite effect. You sent sexually explicit messages and suggested a meeting in order to engage in sexual activity. These circumstances constitute Charge 1.
[3] A pseudonym
12Ms Berry approached the police on 1 July. On 21 July, you were arrested and interviewed. Initially, you denied involvement. After a while, you made partial admissions.
Carriage Service (Dorothy T[4])
[4] A pseudonym
13
On 23 September 2021, a member of Victoria Police was conducting online duties on Facebook. He pretended to be a 15 year-old female called
‘Dorothy T’.
14The police member started a conversation with you. From the outset, he told you Dorothy T was 15. That day, you and Dorothy T exchanged 350 messages. It ended with you inviting Dorothy T to meet you the next day. After obtaining her mobile phone number, you again requested her to visit, inviting her to stay at your home and questioning her about the sexual activities you and she would engage in upon meeting. Both of you agreed to meet the next day.
15Over the next 27 hours, about 750 messages were exchanged between both of you. The content of those messages are summarised in paragraph 21 of Exhibit C.
Victim Impact Statement
16On 11 May 2022, the victim of the rape charge made an impact statement. Even to this day, she is very anxious in public. This is especially so when she is with her family, friends, her fiancée and his friends.
17The events have adversely affected her sleep. For a young person, she sleeps as little as three or four hours. Sometimes, she does not sleep at all.
18Nevertheless, she has gained a Certificate III in Early Childhood and Care. She has acquired a car and a learner's permit.
19Following the rape, she needed to return to Queensland, away from her family. This move caused her grief. Only now, is she able to travel to Melbourne and the La Trobe Valley.
20She is finding considerable benefit through counselling provided by the Centre against Sexual Assault. Her counsellor has suggested ways and means by which she can avoid thinking about the rape. At present, it is not entirely successful. However, she hopes to work full-time in childcare, have a happy life and, ‘eventually it will be out of my head for good so I don't deal with the flashbacks anymore.'
Personal Circumstances
21You are now 31. You were born and raised in East Gippsland. Your parents, aged in their early sixties, are still together and you have a close relationship with them. You have a younger brother Tyler[5], aged 29. Both you and he suffer from Attention Deficit Hyperactivity Disorder.
[5] A pseudonym
22You attended a secondary school for about six months. You had trouble learning and were bullied. You transferred to a special school. With the assistance of teaching aides, you completed a modified version of VCAL, focussing on landscaping and gardening.
23You have had some employment since leaving school. Until going into custody, you were employed in lawn maintenance, working two days a week.
24You left home for the first time when you were 28 and lived in shared accommodation for about two years. After difficulty with your housemate, you went to live in another place with your brother. However, after these charges were laid, you have returned to live with your parents in Pakenham.
25You have had several relationships. The longest lasted about two and a half years, ending in 2019. You are not now in a relationship. However, you are the father of two children, whom you have never met.
26At the age of four an optometrist, diagnosed you as suffering from Progressive Optic Atrophy[6]. Between then and your last visit to him in October 2013, the condition of your eyes deteriorated. At that visit, the optometrist considered you were legally blind. Additionally, you had reduced colour vision and particularly reduced low contrast vision. Although the optometrist had not seen you since 2013, he did not expect your condition to have improved. According to him, it could only stay the same or deteriorate.
[6] Exhibit 3: report dated 14 October 2021
27On 8 March 2022, a paediatrician, Peter Goss, wrote this letter:
'I managed [Liam] until 2019. He has a mild intellectual disability and attention deficit disorder and Retinitis pigmentosa. [Liam] has had combination of deficits with cognitive skills, anger problems, behavioural problems, adaptive behaviours and problems with daily living skills. This is further compounded with his vision impairments.'
Psychologist – Gina Cidoni
28Gina Cidoni is a psychologist. On 19 and 20 May 2022, she interviewed you at the request of your solicitors.[7]
[7] Report dated 20 May 2022
29Ms Cidoni would not say whether you are intellectually disabled because of your extremely low capacity in what she calls 'verbal comprehension'. This means your ability to understand and use language.
30Owing to an inability to see you face to face, Ms Cidoni tentatively diagnosed you as suffering from Autism Spectrum Disorder.
31Through a test, Ms Cidoni explored your risk of sexual re-offending. She found your risk was low-medium. However, she treated this finding cautiously because, if you suffered from Autism Spectrum Disorder, there are no tests in this regard for persons suffering from that disorder. She recommended:
(a) a face to face assessment to determine your full intellectual capacity;
(b) a similar assessment to determine whether you suffer from Autism Spectrum Disorder; and,
(c) an application to the NDIS.
32Finally, Ms Cidoni noted:[8]
‘His significant social and intellectual issues will make prison an extremely difficult place. Difficulties are communicating with others and being misunderstood or having intentions misinterpreted. He would be regarded as socially awkward. Further, there is very limited availability of treatment specific to his mental illness within the custodial environment which would limit the potential of rehabilitation whilst in custody.’
[8] Report at paragraph 81
Psychologist – Jessica Mooney
33At my request, you were interviewed on three occasions during August by a clinical and forensic psychologist, Jessica Mooney.[9]
[9] Report dated 30 August 2022
34Dr Mooney took a detailed history from you of the circumstances of each of the offences.
35For two reasons, Dr Mooney did not seek to ascertain whether you suffered from an Autism Spectrum Disorder or an intellectual disability. However, she did find:[10]
‘…it is evident that Mr [Walker] does present with several features consistent with ASD that may have contributed to his offending behaviour, including his difficulty initiating intimate relationships in a socially appropriate manner, his difficulty reading complex social and emotional cues, his tendency to interpret information literally, and his impaired ability to adopt the perspective of others and appreciate the impact of his behaviour on the victims.’
[10] At [60]
36After administering two tests, Static-99 and RSVP, Dr Mooney concluded you are a moderate to high risk of future sexual offending of the kind you have committed.
37Dr Mooney considered you may have difficulty coping with prison. You are deficient in social skills, including naivety, compliance, difficulty perceiving social and emotional complexities of social situations. These render you liable to be exploited or victimised. The structure and routine of prison will help you, changes will not.
Discussion
Purposes
38Section 5(1) of the Sentencing Act 1991 (the Sentencing Act) sets out the purposes for which sentences may be imposed;
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character
(c) to establish conditions within which it is considered that the offender’s rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and,
(e) to protect the community from the offender.
39Each of those purposes is relevant in your case.
Standard Sentence Scheme
40On 1 February 2018, the Standard Sentence Scheme commenced operating. Only a few criminal offences are standard sentencing offences for which standard sentences are prescribed. The offence contained in the charge of rape is one such offence. The standard sentence for that offence is 10 years' imprisonment. What then is the meaning of a standard sentence?
41First, it is the period of imprisonment specified for a particular offence. Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence and is in the middle of the range of seriousness.[11] The objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.[12] Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing.[13]
[11]s5A(1)(b)
[12] S5A(3)
[13] S5B(2)(a)
42In the case of Victorsen v The Queen[14], the Court discussed the standard sentence scheme. At paragraph 18, it said:
[14][2020] VSCA 248
‘In Brown, this Court said that a judge
when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
• is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
• does not affect the established ‘instinctive synthesis’ approach to sentencing;
• does not require or permit ‘two-stage sentencing’; and
• does not otherwise affect the matters which the court may, or must, take into account in sentencing.’
Guilty pleas
43With the offence of rape, you were charged on 25 November 2020. You were committed for trial at the second committal mention hearing. In this court, there was an examination under s198A of the Criminal Procedure Act 2009.
44With the Commonwealth charges, each was the subject of a separate proceeding. After three or four committal mention hearings, you were committed for a plea in this court in May 2022.
45In relation to all of the charges, in terms of the timing of your pleas, it is relatively early in the process, which starts with you being charged and ends with a trial.
46By pleading guilty to the charges, you have avoided a trial. You have saved the time and expense of a trial. You have allowed other trials to be listed earlier than would otherwise be the case. You have spared upwards of 22 witnesses the burden of giving evidence in a trial. Giving evidence is not easy, especially for the victim in the rape charge.
47At the present time, pleas of guilty deserve a greater discount on sentence. Why this is so was explained in the case of Worboyes v R[15], where the Court said:
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’
[15] [2021] VSCA 169 at [35]
48Four paragraphs later, the Court re-iterated this point:[16]
‘For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.’
[16] At [39]
49I would treat your guilty pleas as evidence of your remorse.
50I acknowledge the strength of the prosecution cases against you, especially that of the Commonwealth, that factor does lessen, to an extent, the mitigatory effect of your guilty pleas.
51Overall, your pleas of guilty require a very significant discount on the sentences I would have imposed in their absence.
Verdins
52Your counsel relied upon each of the limbs or propositions in the case of Verdins v R[17] and upon the passage from Dr Mooney's report, which I have already quoted. I will quoted it again:
‘…it is evident that Mr [Walker] does present with several features consistent with ASD that may have contributed to his offending behaviour, including his difficulty initiating intimate relationships in a socially appropriate manner, his difficulty reading complex social and emotional cues, his tendency to interpret information literally, and his impaired ability to adopt the perspective of others and appreciate the impact of his behaviour on the victims.’
[17][2007] VSCA 102
53There are two comments I would make about that passage. First, Dr Mooney uses the expression 'may have contributed' rather than a definite expression, say, 'did contribute' and , second, she does not refer to your intellectual state.
54This raises the considerations explained in DPP v O’Neill[18]:
‘Clearly, it is inappropriate to apply a mechanistic approach that, because an offender is said to suffer from impaired mental functioning, the offender thus attracts the Verdins principles. Such an approach is overly simplistic, and erroneous. As this Court emphasised in Verdins and many later cases, careful consideration needs to be given to whether the evidence establishes that mental capacity has been impaired and which of the circumstances set out in Verdins are engaged. It requires a rigorous evaluation of the evidence.’
[18] [2015] VSCA 325 at [68]
55In your case, the inability of Dr Mooney to diagnose Autism Spectrum Disorder is of little significance for she describes certain features or symptoms that exist with you. Moreover, Ms Cidoni's inability to say whether you are intellectually disabled due to your extremely low capacity in what she calls 'verbal comprehension' supports a finding that you are functioning at a low level intellectually. This is so even though Ms Cidoni and Dr Mooney do not formally diagnose you as suffering from intellectual disability as a recognised psychological disorder. This is a different matter from describing your level of intellectual functioning.
56In Verdins, the Court decided impaired mental functioning, whether temporary or permanent was relevant to sentencing in at least six ways:
(i)The condition could reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that was so, the condition affected the punishment that was just in all the circumstances and denunciation was less likely to be a relevant sentencing objective.
(ii)The condition could have a bearing on the kind of sentence that was imposed and the conditions in which it was to be served.
(iii)Whether general deterrence was to be moderated or eliminated as a sentencing consideration depended upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
(iv)Whether specific deterrence was to be moderated or eliminated as a sentencing consideration likewise depended upon the nature and severity of the symptoms of the condition, as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
(v)The existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.
(vi)Where there was a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this factor would tend to mitigate punishment.
57As to limb 1, Dr Mooney's tentative connection of your psychological state with your offending would led me to find limb 1 is not established.
58As to limb 2, owing to the restrictions imposed by the law and proper sentencing principles, I could not sentence you to imprisonment of certain limited period and a Community Correction Order. The term of imprisonment would be far too short even allowing for your pre-sentence detention.
59As to limb 3, general deterrence aims to deter potential offenders from committing the same or similar offences which you have committed. Your counsel submitted it would be unfair, they are his words, to give full weight to this purpose of sentencing for someone with an intellectual disability and your psychological problems.
60Although your counsel spoke in terms of unfairness, I would say the number of potential offenders who would identify with you is limited. General deterrence should be moderated.
61
As to limb 4, I do not consider there should be any moderation of your sentences due to your psychological and intellectual state. With your risk of re-offending, I would accept the assessment of Dr Mooney instead of that of Ms Cidoni, for
Dr Mooney had a greater opportunity to assess you. She concluded you are a moderate to high risk of future sexual offending of the kind you have committed.
62
As to limb 5, both psychologists consider your psychological and intellectual state would adversely affect your time in prison. Ms Cidoni is more emphatic than
Dr Mooney:
‘His significant social and intellectual issues will make prison an extremely difficult place. Difficulties are communicating with others and being misunderstood or having intentions misinterpreted. He would be regarded as socially awkward. Further, there is very limited availability of treatment specific to his mental illness within the custodial environment which would limit the potential of rehabilitation whilst in custody.’
63I accept her view based on all of the material available to me. It is interesting to note that little is made of your near blindness in the context of prison. There should be a moderation of the sentences under this limb.
64As to limb 6, this is a strict limb and there is no evidence to support it.
Rehabilitation
65Despite the observations brought to my attention by Mr Stevens in his submission in Barbaro v R[19], on the material, I accept you are remorseful for your offending. You have not previously been found guilty or convicted of any criminal offence. Your previous good character merits some mitigation of the sentences in its own right. However, it is relevant to the question of rehabilitation. It shows you have been of good behaviour for many years. It instils some confidence you will return to that state, reinforced by the deterrent effect of my sentences. Although Dr Mooney assessed your risk of re-offending and giving reasons for doing so, she did not factor the deterrent effect of imprisonment. You have never been to prison before. For you, it is and will be an especially difficult environment. I would expect the deterrent effect to be very significant.
[19] [2012] VSCA 288 at [38]
66You have the strong and continued support of your parents, both of whom are only in their early sixties. They should be able to support you for many years.
67Nowadays, I expect you will receive assistance to overcome future criminal behaviour while in prison. Corrections Victoria have a special unit called Forensic Intervention Services devoted to addressing the issues raised by your offending. Subject to counsel's submissions. I would provide copies of both psychological reports to that unit.
68Overall, your prospects of rehabilitation are reasonable. I do not consider them guarded or uncertain.
Delay
69I do not consider there has been any delay in bringing these charges before the court.
Totality
70In sentencing you, I must apply the principle of totality. Not only should individual sentences be proportionate to the offending but where there is more than one charge, the total sentence must be proportionate to the overall offending. Plainly, the rape charge is by far the most serious of the three offences charged against you. Apart from guide provided by the maximum penalty and the standard sentence, there is also the significant effect of your offending on the victim. Whereas, with the Commonwealth offences, as it turns out, in one instance there is no victim and, in the other, marginally so, if at all.
Section 5B(5) statement
71I have already referred to the standard sentence for rape. In reaching my sentence on the charge, I have considered the relevant standard sentence. My sentence for rape is considerably lower than the standard sentence for rape, which is ten years' imprisonment. I have reached my sentence after considering various matters, including the gravity of the offence involving its rolled up nature, your degree of culpability, the effect on the victim, your remorse, and your guilty plea.
Commonwealth offences
72As is usually the case with the Commonwealth, counsel for the Commonwealth Director of Public Prosecutions has provided a very detailed submission and a summary of comparable cases in Appendix B. The submissions examined the factors relevant in sentencing for Commonwealth offences of procuring, generally, and in the context of your offences. It also discussed the various relevant sentencing considerations under the Crimes Act 1914, also in considerable detail.
Sentences
73
On the charge of rape, I sentence you to five years' imprisonment. I will set a
non-parole period of three years' imprisonment.
74On the Commonwealth charges:
(a) on the charge of using a carriage service to procure a person believed to be under 16 between 30 June and 1 July 2020, I sentence you to six months' imprisonment;
(b) on the charge of using a carriage service to procure a person believed to be under 16 between 23 and 24 September 2021, I sentence you to nine months' imprisonment.
75I direct the sentences on these charges, that is, the Commonwealth charges, commence at the expiration of the non-parole period imposed for the charge of rape.
76I declare 137 days of your pre-sentence detention as time served under these sentences.
Sex Offenders Registration Act 2004
77The two commonwealth charges of using a carriage service to procure a person believed to be under 16, are Class 2 offences under the Sex Offenders Registration Act 2004. Upon a finding of guilt for these offences, you became a registrable offender. Accordingly, you must comply with the reporting obligations under that Act for a period of 15 years.
Section 6AAA
78In relation to the charge of rape, if you had not pleaded guilty I would have sentenced you to seven years' imprisonment and set a non-parole period of four years and three months' imprisonment.
Other matters
79I decline to make a recognisance release order in this case, notwithstanding the length of my sentence on Charge 3, because you, Mr Walker, are expected, or I expect you to be serving a State sentence on the day after the end of the Federal sentence.
80And for completeness, in respect of s15 of the Sentencing Act 1991, which Ms Coombes drew to my attention, I would find that there is no application where there are State and Federal sentences of imprisonment imposed in the same proceeding.
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