Director of Public Prosecutions v Walkingshaw

[2024] VCC 1185

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-02347
CR-23-00848
CR-23-00849

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENDON WALKINGSHAW

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 August 2024
CASE MAY BE CITED AS:	DPP V Walkingshaw
MEDIUM NEUTRAL CITATION:	[2024] VCC 1185

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE

Catchwords: Fail to comply with reporting obligations, use carriage service to transmit indecent communication to a person believed to be under 16 years of age, possession of child abuse material, contravene prohibition order, commit indictable offence while on bail. Intellectual disability – registered offender – failure to notify police of social media accounts – communication with undercover officer – indecent image – child abuse material stored on mobile phone – company of person under 18 not reported to police – experienced extreme punishment at young age – foster care – NDIS – IQ extremely low range – all sexual offences involving children are serious – punishment and specific deterrence - exceptional circumstances s20(1)(b) Crimes Act – delay – relatively young age – rehabilitation – justice plan

Legislation Cited:      Commonwealth Crimes Act 1914 (Cth), Sentencing Act 1991 (Vic), Sex Offenders Registration Act 2004 (Vic), Crimes Act 1958 (Vic), Sex Offender Registration Act 2004 (Vic)

Cases Cited:R v Verdins [2007] VSCA 102, Bugmy v The Queen [2013] HCA 37

Sentence: Sentence: 18 months imprisonment – Recognisance Release Order, 18 months $200 - immediate release – Community Corrections Order for 18 months with justice plan;

6AAA declaration– 21 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J. Ollquist (plea)	Office of Public Prosecutions
Ms D. Gang (sentence)
For the Accused	Ms S Wendlandt	Mary Foley

HER HONOUR:

1Brendon Walkingshaw, you have pleaded guilty to two indictments.

2The first indictment contains three charges:

·        one rolled-up charge of failing to comply with reporting obligations, which carries a maximum penalty of five years’ imprisonment;

·        one charge of using carriage service to transmit indecent communication to a person whom you believed to be under 16 years of age, which carries a maximum penalty of 10 years’ imprisonment; and

·        one charge of possession of child abuse material, which carries a maximum penalty of 10 years’ imprisonment.

3The second indictment contains:

·        one charge of failing to comply with reporting obligations, which carries a maximum penalty of five years’ imprisonment;

·        one rolled-up charge of failing to comply with reporting obligations, which carries a maximum penalty of five years’ imprisonment; and

·        one charge of contravene prohibition order, which carries a maximum penalty of five years’ imprisonment.

4That final charge, of contravene prohibition order resulted in you being charged with the related summary offence of commit an indictable offence whilst on bail, and you consented to my hearing that offence in this plea in mitigation of penalty, and you pleaded guilty to that offence, which carries a maximum penalty of three months’ imprisonment or 30 penalty units.

5The prosecution has relied on a summary of prosecution opening dated 7 February 2024 in proof of your charges, which was read and marked as Exhibit A. The prosecution relied on the following documents as well:

·        Sentence passed upon you by His Honour Judge Mullaly of this court dated 18 August 2017 (Exhibit B);

·        Community Corrections report dated 28 June 2024 (Exhibit C); and

·        Prosecution submissions on plea dated 24 July 2024 (Exhibit D).

6Your counsel relied on the following documents:

·        Plea submissions dated 5 February 2024 (Exhibit

·        Support letter from Ermha365 (Complex Mental Health and Disability Services) dated 30 January 2024 (Exhibit 2);

·        Report of Dr Kelly Sinclair, neuropsychologist, dated 27 April 2023 (Exhibit 3);

·        Behavioural Support Plan – NDIS, prepared by Max Tagliabue dated 3 January 2024 (Exhibit 4);

·        Further defence submissions dated 23 July 2024 (Exhibit 6);

·        Disability Overview Report of DFFH, prepared by Ms Karen Biggs, dated 13 June 2024 (Exhibit 7);

·        Additional reports of Dr Kelly Sinclair, neuropsychologist, (Exhibit 8); and

·        Letter from Julie Aspelang dated 24 June 2024 of Ermha365 (Exhibit 9).

7I have considered these written documents very carefully in determining my sentencing order, as well as the reasons that I am now explaining.  I have been assisted by oral submissions from your counsel and counsel for the prosecution in this matter.

Circumstances of your offending

8You were born in April 1997, and have an intellectual disability, which is a topic to which I will return.  As a result of your prior offending, you became a registrable offender on 23 August 2017, and you were obliged to comply with the reporting obligations imposed by the Sex Offenders Registration Act 2004 for a reporting period of eight years from that date. Those obligations included that you were required to notify the police of any electronic usernames used by you on social media.

9In November 2021, police became aware that you were using Instagram, and had failed to notify the police as required of your electronic usernames.  A police operative then started communicating with you on Instagram using the name 'Indiana'.

10The electronic usernames linked to you were 'Shoreboy4835', 'walkingshore.mm', and 'brendonwalkingshaw2019', and your failure to comply with your reporting obligations by failing to report these three usernames is the offending referable to your Charge 1 on your first indictment, a rolled-up charge of failing to comply with reporting obligations.

11On 27 November 2021, the police member using the pseudonym 'Indiana', purporting to be 14 year old girl living in the Mornington Peninsula, requested to follow 'Shoreboy4835', which was one of the user names that police had identified was being used by you.

12A conversation took place between you and 'Indiana' on Instagram between 27 November 2021 and 16 December 2021.  During that conversation, 'Indiana' told you she was 14 and asked how old you were, and you correctly told her that you were then 24.  You asked her whether she liked you as a friend, and she responded 'Yeah I guess do you that’s the letter you like me?'  To which you replied, 'yes as a friend'.

13On 13 December 2021, you sent her an image depicting you shirtless, laying in bed and smiling, and you used Instagram to send her short voice recordings.  The following, sexualised, conversation took place between you:

INDIANA

Wot U doing then?

BRENDON WALKINGSHAW

(Voice recording) On Facebook and just doing something

INDIANA

Wot something

BRENDON WALKINGSHAW

(Voice recording) Well 1 can’t say because you’re 14 yeah?

INDIANA

14
Why can’t u say it?

BRENDON WALKINGSHAW

(Voice recording) Because it’s an adult thing that a man does in bed

INDIANA

Sleep? Lol

BRENDON WALKINGSHAW

No

INDIANA

ldk wot u mean

BRENDAN WALKINGSHAW

(Voice recording) Do 1 really have to tell you what 1 mean?

INDIANA

Yep lol. Can kids do it too?

BRENDON WALKINGSHAW

(Voice recording) When a man gets hard and 1 don’t know if kids can do it too

INDIANA

Lol (crying side laughing emoji)

BRENDON WALKINGSHAW

(Voice recording) So you know what I’m doing?

INDIANA

Not really lols

BRENDAN WALKINGSHAW

(Voice recording, first second inaudible) myself, that’s what a man does

INDIANA

Oh really why?

BRENDON WALKINGSHAW

1 don’t know because

INDIANA

Lol

BRENDON WALKINGSHAW

(Voice recording) Ever had a boyfriend?

INDIANA

Nope

BRENDON WALKINGSHAW

Really why

INDIANA

Idk

BRENDON WALKINGSHAW

(Voice recording) Okay so you have never seen one before of what 1 was saying

INDIANA

A boy? (smiling with teeth emoji)

BRENDON WALKINGSHAW

(Voice recording) A boy's thing which is a penis

INDIANA

Na

BRENDON WALKINGSHAW

(Voice recording) So you haven’t seen one before?

INDIANA

Nope

BRENDON WALKINGSHAW

(Voice recording) Okay

(Voice recording) Would you want to see one or not? Not mine but

INDIANA

ldk. Lol

BRENDON WALKINGSHAW

(Voice recording) You can see mine if you want

INDIANA

Up to u

BRENDON WALKINGSHAW

(Voice recording) It’s up to you if you want to see mine

INDIANA

I’m not sure. Lol

BRENDON WALKINGSHAW

Ok

(Voice recording) If 1 did take a photo of my penis, what would you do with it?

INDIANA

ldk. Look at it 1 guess

I’m not sure Lol

14And at 10.31 pm on 13 December 2021, you sent her an image that depicted an adult male penis with red pubic hair.  This is the offending referable to your Charge 2 on the first indictment of use a carriage service to transmit indecent communication.

15On 21 December 2021, police attended your residential address in Norlane and executed a search warrant.  Police seized a Samsung Galaxy mobile phone located in your hand and you assisted them with the phone.  The phone was seized for forensic analysis, and the three usernames referable to your first charge were identified in connection with your use of the Instagram app.

16You were taken to the Geelong Police Station for interview, with your carer from the Eastern Regions Mental Health Association (Ermha) present during your interview.

17Your mobile phone was later subjected to forensic analysis, and child abuse material was located on that phone, including seven Category 1 images, involving real prepubescent children under the age of 13, involved in or witnessing a sexual act, with a focus on genitals or the anal region, some of which have been described to me, including a child no older than five years of age being abused, another image of an erect penis attempting to penetrate a child’s bottom, and young female children performing sexual acts on adult males.  Forty Category 2 images were detected, that is, other illegal files involving children under the age of 16, some of which have been described to me, but which involve pubescent children in sexually explicit poses, and on occasion being subjected to sexual acts by adults.  Your possession of these images is the offending referable to Charge 3 on your first indictment of possession of child abuse material, and you know this, it's not on.

18On 5 April 2021, which is some six months prior to your commission of these offences, you walked along Bellerine Street, Geelong in the company of four people, including a person under the age of 18.  You did not report the contact to the police, though you were obliged to do so under the Sex Offenders Registration Act.  This is the offending referable to your Charge 1 on your second indictment of fail to comply with reporting obligations.

19Between 10 September 2020 and 29 April 2021, you failed to notify police of a Facebook account that you held in the name of 'Brendon Gordon', and Snapchat accounts in the name of 'singleboy2138' and 'BRNWALK'.  Your failure to report these accounts is the offending referable to your Charge 2 on the second indictment, a rolled-up charge of failing to comply with reporting obligations.

20You were interviewed by police on 29 April 2021, and you told police that you were aware that the person was under the age of 18, and that you had met her through a friend and that she wanted to hang around you; and you admitted in respect of the electronic user names that you were aware of your obligation to report those usernames, however, you had created new usernames as you believed your online accounts had been hacked by an ex-girlfriend.

21On 25 January 2022, you were served with a Sex Offenders Prohibition Order, which stated that you were prohibited from using the internet to access social media communications or messaging platforms.  On 27 September 2022, Victoria police members visited you at your home address, and during a police search for your mobile phone, an Xbox application on your phone revealed that you had been using a messaging service attached to that application to chat to other persons, in breach of your Sex Offenders Prohibition Order.  This is the offending referable to your Charge 3 on your second indictment of contravene prohibition order.  I understand that you were on bail at the time of your commission of the Xbox offence, and your breach of your bail undertaking is the offending referable to your related summary offence.

Plea of guilty and timing

22I accept and take into account in significant mitigation of penalty that you pleaded guilty to each of these offences at the earliest possible stage, in December 2022, which was a point in time where the listing of trials in this court was significantly affected by delays as a result of the COVID-19 pandemic.  I take into account in mitigation of penalty as I have mentioned, the plea, the timing, the significant utilitarian benefit, and the fact that your plea is indicative of some remorse.

Personal circumstances

23You were aged between 24 and 25 at the time of your offending, and you are now 27 years of age.  You were still relatively young at the time of your offending, and you are still capable of growing out of your temptation to offend.

24I have been provided with a series of reports that tell me about your childhood and upbringing.  You were the eldest of three children born to your parents, and I am very sorry to say that you had a very difficult childhood, which involved extreme punishment from a very young age, with the Department of Health and Human Services becoming involved from the time that you were approximately four years of age due to their concerns about you being exposed to emotional and physical abuse.  You were removed from your parents’ care at around 12 or 13 years of age, though it could have been a little later, and then you lived in foster care and group homes across regional Victoria, and you have had ongoing support workers since then.

25At the age of 18, you were moved out of group homes and started living alone, supported by Adult Disability Services, co-ordinated by Ermha365, which provides support for complex mental health and disabilities.  They also act as your NDIS support coordinators. As part of your NDIS package, you have had access to a senior behaviour support practitioner through the Centre for Positive Behaviour for the last 18 months, which helps you to build emotional regulation abilities.

26You have type 1 diabetes, which is treated with insulin (though management was poor when you were a child), and impaired intellectual functioning with a full-scale IQ of about 68, though other assessments would have evaluated you as having a full-scale IQ lower than that.

27As a teenager, you apparently acted out and were at risk of self-harm, and you have created difficulties in management of sexualised behaviour – in fact these offences, particularly your transmission of the indecent image, and the child exploitation material offence, show that you still have some difficulties with controlling your impulses.

28In 2016, when you were 18 years of age, you engaged in sexual acts with a child under the age of 16 which resulted in a plea of guilty to three charges of indecent act with a child under 16, and in August 2017, you were placed on a community correction order with a justice plan for a period of two years, and were ordered to comply with the Sex Offenders Registration Act, which has led to the charges before me. You satisfactorily completed that CCO. In January 2020, you were convicted of a charge of fail to comply with reporting obligations, you were found guilty, and were without conviction fined $400.

29Having read the reports that I have been provided with great care, I note that you have told your medical examiners that you 'wish you had never done it' in relation to this offending, and you have managed to identify 'not being bored' and 'keeping busy' as ways that you could use to avoid reoffending.  You have been worried about a prison sentence being imposed on you since your commission of the offences.

30I am pleased to note the level of support that you receive through Ermha365, including current services from a support worker four days per week for four to six hours per day, which helps you with transport, shopping, attendance at day programs including NDIS funded gym and occupational therapy programs.  You have been provided with a mobile phone that does not have access to the internet.

31You have recently started employment as a car detailer at Magic Hands Car Wash in Belmont, working 9 am-1.30 pm two days a week, and you are understandably very proud to hold down that role. You have previously worked in gardening.

32Testing confirms your IQ as falling in the extremely low range, with your verbal comprehension index in particular in the extremely low range.  You can briefly focus your attention to individual tasks, but you struggle to sustain concentration across testing sessions.  Your assessments indicate that you have an intellectual disability that is permanent, which has been present since childhood and continues to be present now and at the time of offending behaviour.  You also have cognitive weaknesses which are generally moderate to severe, which impact on your capacity to understand, reason and problem solve using your vocabulary and acquired knowledge.  In particular, you will struggle to learn from past experiences and adjust behaviour accordingly without support, meaning that you will be more likely to revert to past actions and ways of managing situations.

Objective criminality, moral culpability

33I agree with the prosecution that all sexual offences involving children are serious. For instance, you possessed images of both young children and adolescents involved in sexual activity and in sexual posing, and this behaviour is very bad. You sent an image of your penis to a person whom you believed to be 14 years of age. You have also had exceptional difficulty in complying with your obligations under the Sex Offenders Registration Act 2004 (Vic) but also the prohibition order of the court, and your undertaking of bail, as you are tempted to behave in ways that at some level you know to be wrong at some level.

34However, when it comes to my understanding your moral culpability and reason for offending, I understand and accept that your limited intellectual functioning impacts on your decision-making capacities and means that you are less likely than a person of full intellectual capacity to be able to make sensible choices.  This reduces your moral culpability, and it also means that when I turn to the purposes for which sentence must be imposed, I can moderate the weight to attach to general deterrence and denunciation, as the case law tells me that we do not send messages to the community generally via sentencing persons of limited intellectual functioning.  I was told that you felt lonely and isolated during the pandemic, which is when these offences occurred.  Your last offence in time, the contravene prohibition order charge, breached a bail undertaking.

35In considering your background and character, I note that you have a limited prior history, however, the offences that you have committed in the past are relevant.  However, I must also take into account fully your childhood disadvantage, which also mitigates the sentence.   In other words, I accept the submissions provided by each of the barristers, which tell me I must attach mitigatory weight to the factors outlined in previous cases of Verdins, (and here I will say that I find all factors to be activated), and Bugmy.

Relevant sentencing principles, legal argument, sentencing purposes

36On Charge 2 of your first indictment, that is of using carriage service to transmit indecent communication to person under 16 years of age, the Commonwealth Crimes Act 1914, s16AAB(1)(b), obliges me to impose a mandatory term of imprisonment of three years’ imprisonment, given that you have previously been convicted of a child sexual abuse offence.  This is a long sentence – it shows us how seriously the government takes this type of case.  However, that sentence may be reduced by up to 50 per cent if an accused has cooperated with authorities, which I am prepared to find that you have, and has pleaded guilty, which you have.  I am prepared to reduce the mandatory sentence by the maximum of 50 per cent. 

37In relation to the sentence of 18 months’ imprisonment that I must impose then, both counsel have urged me to find, pursuant to s20(1)(b) of the Crimes Act, that exceptional circumstances exist in your case, that allow me to release you immediately.  I find there to be exceptional circumstances, based on the findings of the authors of the various reports that I have received that you are significantly intellectually impaired, that you are eligible for NDIS funding, and that you are actively supported in the community for your needs.   Your personal circumstances are such as to form an exception, which is outside the ordinary course.  Accordingly, I will indicate I am prepared on that charge to release you on the mandatory sentence of 18 months on your own recognisance forthwith, that is, without serving any of that sentence, for a period of 18 months from today.

38Sentencing principles also allow me to have regard to the delay between your commission of the offences and today’s sentence, and your relatively young age at the time of your commission of these offences.   I understand that it has been an unpleasant experience for you to be brought to court on the significant number of occasions that you have faced myself and my predecessors in resolving this matter, and the delay has weighed heavily upon your mind.   I have been told that there is no offending subsequent to the third charge on the second indictment, involving as it did a breach of bail.

39I need to punish you for your conduct and try as best I can to deter you from other similar conduct in the future.  I am also obliged by sentencing law to allow for your continued rehabilitation.  I am concerned about your risk of reoffending, involving as it does your compromised ability to resist the temptation to engage in this type of behaviour.  However, I have had you assessed for your suitability for a community correction order, so that the Office of Corrections could assist you with the rehabilitation process that you have already started undertaking. 

40Totality is relevant, as these offences are connected in time, and there is a similarity between your breach of reporting obligations, and then the contravene prohibition order.  In other words, I need to make sure I don’t punish you twice.  As your breach of bail aggravates that last offence, I will convict you and discharge you of that summary offence to make sure that there is no extra punishment once I have taken that into account in aggravation of that prohibition order charge.

41The Office of Corrections has assessed you as suitable for an order, with a justice plan and a supervision condition.  I commend the support workers who have assisted you through Ermha365 in the community, and I have some confidence that with their assistance, and the assistance of the Office of Corrections in administrating the justice plan and supervision, that not only will you be suitably punished for your offending, aside from the Commonwealth offence which leads to a different order, but that the office will be able to continue to assist with your rehabilitation and moderate further what they consider to be your medium risk of reoffending.  You have been assessed as suitable for an order as I have said, subject to conditions of supervision, and a justice plan.   If you are willing to agree, on Charges 1 and 3 of your first indictment, and all charges on your second indictment, I will convict you and place you on a community correction order with those conditions.  That is, a justice plan and supervision, for a period of 18 months.  Are you willing to agree to a community correction order on those five charges on those terms?

42OFFENDER:  Yes, Your Honour.

43HER HONOUR:  Thank you.  On your related summary offence of commit indictable offence whilst on bail, you are convicted and discharged.

44As I have said, on the charge of use carriage service to transmit indecent communication to a person whom you believed to be under 16 years of age, you will be convicted and sentenced to 18 months' imprisonment, and released immediately if you are willing to agree to a recognisance, which is like a bond or a promise, to be of good behaviour for 18 months in the sum of $200.  If you are of good behaviour, you will not need to serve the 18 months, and will not need to pay the $200.  Are you willing to enter into that recognisance release order or bond order?

45MS FOLEY:  It's a promise, it's a promise not to do it again.

46OFFENDER:  Yes.

47HER HONOUR:  Just let me say, if you breach the community corrections order, or the recognisance release order, you will need to come back before me for resentencing.  You will need to sign those orders in a moment which we will email to Ms Foley.

48Were it not for your pleas of guilty in this case, had you pleaded not guilty but been convicted by a jury after trial, I would have imposed a total effective sentence of 21 months' imprisonment.

49HER HONOUR:  Mr Walkingshaw, on your Commonwealth charge, I have already asked you this but in relation to your 18 months' imprisonment, are you willing to give a promise to be of good behaviour for eight months or else you will forfeit your $200 and you will have to come back before me for sentencing, you might face that 18 months.

50OFFENDER:  Yes, Your Honour.

51HER HONOUR:  All right.  And on all of the other charges, except for the breach of bail, which I have convicted you and discharged you on, so all of the other serious charges are you willing to enter into a community corrections order for 18 months on conditions of a justice plan and supervision?

52OFFENDER:  Yes, Your Honour.

53HER HONOUR:  All right.  You need to go to the Geelong Office of Corrections within two business days, which is by the end of Wednesday, and we're going to give you some paperwork to sign and then take with you.

54Now, another question.  Dr Gang, I understand that you wish to apply for a sex offender registration order for the mandatory period of life.  Is that the case?

55DR GANG:  Yes, Your Honour.

56HER HONOUR:  Ms Foley, it is a mandatory period and I don't have any discretion, but do you need to be heard in relation to the imposition of the mandatory term under the Sex Offender Registration Act obligations of life?

57MS FOLEY:  No, Your Honour.

58HER HONOUR:  All right, I will add that to my order. 

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