Director of Public Prosecutions v Walkingshaw

[2017] VCC 1168

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-02217

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENDAN WALKINGSHAW

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 August 2017
CASE MAY BE CITED AS:	DPP v Walkingshaw
MEDIUM NEUTRAL CITATION:	[2017] VCC 1168

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Clancy	The Office of Public Prosecutions
For the Accused	Ms K. Blair	Michael Brugman Solicitors

HIS HONOUR: 

1Brendan Walkingshaw, you have a lifelong intellectual disability, because of that you were attending Nelson Park Special School.  There, you made a friend and from time to time, you would visit him after school.  Indeed, you would have an evening meal with the family from time to time.

2In early October 2016, when you were 18 years old, you were at your friend's house.  He had two sisters, the youngest being at the time eight and a half to nine.  You went into her room, got onto her bed where she was.  You kissed her, then you put your hand into her pants and touched her on the vagina. 
You then squeezed her buttocks and touched her in the chest area.

3In the following weeks, the young child told her mother what you had done.  Ultimately, you pleaded guilty to three charges of an indecent act with a child under the age of 16.

4What has to be appreciated is the very young age of the victim.  That said, the offences were brief and opportunistic.  Despite your significant intellectual disability, you do appreciate that what you did was wrong.  You have expressed remorse and have developed some insight.

5So to take the guidance of the Court of Appeal in this state in the important decision of R v Storey, my task as a sentencing judge is to assess what you did, why you did it and who you are.

6The first matter, I have dealt with briefly, that is what you did.  But that does not mean that I consider the offences as being not serious.  They are serious.  These crimes had a significant effect on the victim and her family.  Any form of sexual offending against a young child is a serious matter.  As to why you did what you did, plainly that can be attributed to your intellectual disability. 
You are not able to use proper judgment and maturity as sadly you are ill-equipped.  As such, your moral culpability is low.

7As a consequence of that, the weight to be given to denunciation, normally significant weight, is very much moderated.  So too is the important consideration of deterrence to you and others.  In respect of general deterrence, you are not a suitable candidate to use as an example to others.  The High Court in Muldrok has reiterated this as well as the matter previously mentioned about moral culpability being moderated.

8Other sentencing considerations that arise are due to matters personal to you.  I will go to the question of who you are and what the future holds for you shortly.  However, at this point, what I note and give significant mitigatory weight to is your very young age at the time of your offending, 18 and a few months.  Further, your lack of prior convictions and subsequent good behaviour are matters of importance and of significant mitigatory value.  Your plea of guilty means here that I must and will impose a less onerous sentence than otherwise would be the case.

9As to who you are and indeed what the future holds, I am well assisted by the following comprehensive reports.  That is, Dr Bath, a psychologist's report of 16 June 2017.  Dr Du Plessis, a paediatrician, his report is dated 6 February 2013 and Ms Michelle Battersby, psychologist, whose report is dated 1 July 2014.

10The key points in those reports were concisely articulated by your barrister,
Ms Blair, in written and oral submissions.  I will refer to them.  You are now 20.  You have been, as I have said, assessed as intellectual disabled, as in fact having an IQ between 55 and 59 as a child and more recently assessed with an IQ of 68.  You are eligible for services under the Disability Services Act. 
Your upbringing was one of significant disadvantage.  You were neglected and worse by parents who were themselves it seems not capable or adequately endowed to bring up a child with your problems.

11You have Type 1 diabetes and this was not well managed by your parents or indeed by you.  DHS, as they were then, were regularly involved in your life.  You were, in effect, abandoned by your parents at age 15.  You were placed in supported care by DHS and remained there until the age of 18.  Now, you are in the community but are significantly supported by a range of organisations that provide assistance.

12Since April 2015, you have been supported by Irma as part of the NDIS Scheme.  That was a voluntary arrangement.  You live independently in DHHS accommodation.  You are provided with assistance by workers coming to see you three days a week for a number of hours to just manage ordinary household and living arrangements.  You are involved in a relationship with someone who is a participant in the NDIS Scheme.

13The reports recently received by me when I sought a justice plan are a client overview report that of 14 August 2017, prepared Ms Kristen Peach for the Department of Health and Human Services.  A justice plan prepared by Ms Kristen Peach, dated 14 August 2017 and a community corrections report prepared in recent times and referred to this morning in the course of the discussions.

14Those reports, in particular client overview report, all confirm the matters that I have referred to and are set out in the previous report as to your upbringing and the difficulties that you face.  What is confirmed now is that you are perhaps under occupied, but there is not any concerns really beyond this.  Efforts are being made to assist you vocationally, perhaps to move into appropriate work.

15What was sought by your counsel was a community corrections order with a justice plan.  The prosecution supported this submission and I agree with it. 
All sentencing purposes in this unfortunate case are best met by a community corrections order with a justice plan.  It was last for two years.  There will be supervision and as I said, the other condition is that of a justice plan.

16So for committing the crimes of an indecent act with a child under the age of 16, I impose the penalty on Charge 1 of a community corrections order for two years.  Likewise, that applies to Charges 2 and 3.  I cannot aggregate the sentence, but that is the overall effect of it.

17By reason of the Sex Offenders Registration Act, I have no choice but to declare and ensure that you understand that you must register on the Sex Offenders Registration, pursuant to the Sex Offenders Registration Act.  The period of time is also mandatory and it is eight years.

18There are significant consequences that flow from that order.  There are responsibilities, onerous ones that now are placed on Mr Walkingshaw.  Mr Walkingshaw, they will be explained to you as best they can, but you have got to listen to what people tell you about that and keep giving them information so that you can be assisted in doing what you have to do.  I emphasise for those that are here to assist Mr Walkinshaw and perhaps to Mr Walkingshaw himself, that the requirements include any details that Mr Walkingshaw might have on the internet in playing games, any names or identities or emails or all sorts of things.  He may have none of them, I do not know but I note in the materials that he occupies himself playing video games and they may not involve any internet, but if they do, it sometimes catches people out that they're not fully registered in that regard.  In any event, hopefully that is attended to.

19There is an application for a forensic sample pursuant to the provisions of s.464.  I have considered that.  All cases must be considered, dependent on the unique circumstances.  Ordinarily someone with a concerning conduct would have an order made that they provide a forensic sample.  However, by reason of
Mr Walkingshaw's disability and the risks that he presents, up against the risks that there is a need for a forensic sample.  In the end, I consider that an order should not be made requiring him to provide a sample.

20I have taken into account the offence.  They are serious offences, as I have said, these are not serious examples of them.  I have taken into account the concept of the interests of justice and in my view the interests will be in favour of declining the application made by the Crown for a forensic sample.

21There will be documents produced shortly and they will have to be signed off by Mr Walkingshaw.  Is there anything further that arises?

22MS CLANCY:  No, Your Honour.

23MS BLAIR:  No, Your Honour.

24HIS HONOUR:  I think there is some changes, I am not sure, to s.6AAA whether they apply to this.  It used to be the case that I did not have to tell anyone who got a community corrections order what I would have done if they had pleaded not guilty.  Here, I would have imposed a penalty had he pleaded not guilty, but whether it would have been involved in any incarceration, I cannot say but it would have been a very high risk of it.  It has been a significant benefit given to him for his plea of guilty.

25Is there anything else?

26MS CLANCY:  No, Your Honour.

27HIS HONOUR:  All right, thank you.  There will be orders produced shortly. 
So it is clear, I have considered whether there should have been judicial monitoring.  I take into account how things have gone.  The burden that a court case places upon Mr Walkingshaw, I am sure if things go off the rails, I will be brought into it by reason of the non-compliance and breach.  So I am not going to compel Mr Walkingshaw to come back before me to tell me that things are going well.  Rather, he can get on with things without the burden of course until things do not go well which I hope does not happen and I don't expect it will.

28Mr Walkingshaw can come out of the dock.  Just sit near one of the people behind Ms Blair because we have got to get some papers and you have got to look at them and sign them.  What I might do, if you do not mind, is that will occur and perhaps I will stand down unless it is being produced right now.  It is here.  We will stay on.

29Ms Blair, the notice I have to give to Mr Walkingshaw relating to Sex Offenders Registration, that is just a concise 12 pages.  But the point of it is this, so I am not going to wait for him to read it all, I can assure you.  The point of it is that I must, in court, sign that or someone on my behalf sign that I have given it to him and he must sign that he has got it.  The transcript is not enough, apparently.  So that is what we will go through.

30MS BLAIR:  Yes.  Your Honour, we have already been working on those issues.  That is something that started back sort of in the Magistrates' Court.  We have been talking about what the consequences will be.

31HIS HONOUR:  Thank you.

32MS BLAIR:  Yes.

33HIS HONOUR:  I just raised the gaming thing because someone had to come back before me because they had breached that because they had an internet gaming name years ago that they had forgotten about.  That somehow was reason to breach someone and come back before the court.  I think a magistrate put him in gaol, but anyway.  It got sorted out.

34MS BLAIR:  That does apply here.  It does apply, so we will be onto it.

35HIS HONOUR:  Yes.  So Mr Walkingshaw, do you just want to stand up so I can see you and you can see me, more importantly. 

36What has happened is you have been put on a community corrections order that it has got a justice plan.  It is going to go for two years and you have to understand a few things.  The most important thing is you are not allowed to commit any offence in the two years otherwise you come back and see me.  Everything you can think of, if you committed the offence, would mean you would come back here.  I do not think you will, but you cannot pinch a can of drink from the service station or something like that, all right.  Even something like, it might seem minor, you cannot do it.  You should not do it, but if you do, you come back here and you have got to, people will help you, but you have got to go down and see the Community Corrections people within two days. 
Go on Monday or Tuesday.  You have got to follow what they ask you to do.

37They are going to keep you under a bit of supervision and you have to follow the justice plan.  That has been explained to you, all right. 

38OFFENDER:  Yep.

39HIS HONOUR:  So if you will do that, sign that, and that is sort of brings the court process to an end.  So it is over but there are things you have to do with the people outside the court that are very important that I have asked you to do.

40OFFENDER:  Yep.

41HIS HONOUR:  I have told you, you must do and they are willing and able to help you, all right?

42OFFENDER:  Yep.

43HIS HONOUR:  All right.  Sign this if you are able to or sign this if you wish to.  I think you are.  So the community corrections order I have signed and I note that Mr Walkingshaw has signed the acknowledgement pursuant to the Sex Offender Registration Regulations that he received the notice of obligations.  That will be sent to the Chief Commissioner of Police.  I thank counsel for their very significant assistance in a difficult case, Ms Flynn of course and to all those who helped Mr Walkingshaw and provided me with reports that I received from the Department of Health and Human Services and Department of Justice.  Thank you.

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