Director of Public Prosecutions v Walkley

[2015] VCC 1348

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01724

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON JOSHUA WALKLEY

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 September 2015
CASE MAY BE CITED AS:	DPP v Walkley
MEDIUM NEUTRAL CITATION:	[2015] VCC 1348

REASONS FOR SENTENCE
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Subject:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Klopper
For the Offender	Mr J. Dowsley

HER HONOUR: 

1Jason Joshua Walkley, you have pleaded guilty to three charges of sexual penetration of a child under 16 years.  The maximum penalty for that offence is ten years' imprisonment. 

2The circumstances of your offending are set out in detail in the Summary of Prosecution Opening for Plea, which was tendered as Exhibit A.  In brief, the circumstances were as follows.  The offending occurred between 1 January 2011 and 16 August 2011.  The complainant was 13 at the start of the offending and turned 14 in February 2011.  You were 22 at the start of the offending and turned 23 in late January 2011.

3In January 2011 the complainant was staying with a male friend.  You met her and you became boyfriend and girlfriend.  The relationship was on and off but went on for the next eight months or so.  The complainant told you she was 14 and you said you were 17.  She found out from your brother that you were 23.  You met her mother.  You said that you were not in a relationship with the girl but were looking after her.  Between January and August 2011 you spent many nights together, sometimes in parks or in a train station or at the houses of associates.

4The three charges relate to three occasions on which you had sexual intercourse with the girl.  On one occasion you both were drinking with friends in a friend's room.  You had sexual intercourse in the friend's bed.  That is the subject matter of Charge 1.  On another occasion you were spending nights in a carriage of the Puffing Billy train in Belgrave.  On one night the complainant let you have sex with her.  That is the subject matter of Charge 2.

5On another occasion, towards the end of the charge period, the complainant had not seen you for a while.  The complainant met you and her sister at a suburban train station.  You had a car.  You went for a drive with the complainant, the complainant's sister and another friend.  You stopped the car.  The sister and the friend went for a walk.  You and the complainant had sex in the car.  That is the subject matter of Charge 3.

6During the relationship the complainant had told her Department of Human Services worker about the relationship.  You had some contact with the complainant's mother and the complainant's stepfather, as well as the worker. 

7

In March 2011 the complainant was spoken to by police but did not make a statement.  Police arranged to speak to you, but you did not attend.  On

5 August 2011 the complainant went to the police station and a VARE was conducted with her on 19 August 2011. 

8

You were interviewed on 14 March 2011.  You denied any sexual relationship.  You were charged on 3 June 2014 and you were remanded on these charges on 26 September 2014.  The matter resolved at a committal mention on

29 September 2014.  You later sought to change your plea, but there were further negotiations and the matter was resolved on the basis of the current charges.  You were arraigned on 8 May 2015.

9When police interviewed you, you were in custody.  On 27 June 2013, on unrelated charges of intentionally cause serious injury, false imprisonment and theft, you were sentenced to a term of imprisonment of nine years and two months with a non-parole period of six years.  You have been in custody on remand or serving a sentence since 18 October 2012.

10In her Victim Impact Statement, which was tendered as Exhibit C, the complainant says that she was angry and scared at the time and that she lost her sense of trust in other people.  It is clear that the complainant was going through a very troubled period at the time of this offending.  From her Victim Impact Statement, it appears that in the last year or so she has made very positive efforts to have better relationships with her family and friends and to engage in vocational education.  It seems that she is in a now much better position than she was earlier. 

11Reports were tendered on your behalf from Dr Adam Deakin, consultant psychiatrist, dated 17 March 2015 (Exhibit 2), Ms Carla Lechner, consultant psychologist, dated 7 March 2015 (Exhibit 3), Dr Lester Walton, consultant psychiatrist, 7 May 2013 (Exhibit 4), Dr Lindsay Vowels, clinical neuropsychologist, who assessed you on 11 April 2013 (Exhibit 5) and Knox Child and Family Services, dated 18 January 1994 (Exhibit 6).

12I have taken your personal circumstances into account in sentencing you.  It is clear from the reports that you have experienced difficulties in your life since early childhood.  You were brought up by your mother.  You were diagnosed with ADHD in early childhood.  You had learning and hearing difficulties as a young child.  You struggled at school.  Apart from a brief period in TAFE, you have had no effective formal education since Grade 5.  You ran away from home when you were 11.  You were in the care of the Department of Human Services up until the age of 18, although you did have some continuing contact with your mother.  You were seriously assaulted whilst you were in residential care while you were 13 or 14, leading to a severe brain injury. 

13You started committing crimes whilst you were in residential care.  You have a long history of offending involving drugs, dishonesty and violence.  You have no prior criminal history for sexual offending.  You have used a variety of drugs and alcohol since you were young.  Cannabis and heroin have been the main drugs that you have abused.  You were using methamphetamine prior to your imprisonment.

14You have some ongoing phone contact with your mother, but no visitors whilst you have been in custody.  You have no strong or stable supports by way of family or friends.  You have no employment history. 

15You have been assessed as mild to moderately intellectually disabled with an acquired brain injury with antisocial personality traits.  Recent reports suggest that you are at risk of becoming institutionalised.  It seems that that process is underway with you making comments suggesting that you cope better in custody than in the community.

16In sentencing submissions your counsel relied on your plea of guilty, which it was submitted had a utilitarian benefit.  There were no submissions as to remorse, as you have said that you do not recall this offending.  Your counsel also placed reliance on your lack of any previous or subsequent sexual offending, your relative youth at the time of offending and the delay in this matter.  Your counsel made submissions in respect of the medical issues and disabilities you face.  Your counsel submitted that it should be borne in mind that you would serve your sentence in protection.  Your counsel sought a largely concurrent sentence in application, particularly of the principles of totality.  Your counsel suggested that, given your risks of institutionalisation, your prospects of rehabilitation would be likely to be reduced the longer you were in prison, consistent with the material in the reports.

17The prosecutor, in sentencing submissions, accepted your intellectual deficits and that there had been considerable delay in this matter.  The prosecutor also said that there were a lack of aggravating features and that this offending was towards the lower end of this type of offending.  The prosecutor sought a term of imprisonment but submitted that it was not sought that the current non-parole period should be disturbed.

18Jason Walkley, any sexual offending against a child is serious.  You knew it was not legal to have sex with a girl that age.  Parliament made these activities criminal to protect children against those who would exploit them and their own bad decisions.  You were older and more experienced.  She was young and in a vulnerable situation.  You did not help or protect her.  You had sex with her when you should not have, and denied it when asked about it by her mother, her worker and the police.

19There are a number of mitigating factors that must be taken into account.  You have pleaded guilty.  That has had considerable benefit in saving the trauma and expense of a trial.  It can be regarded as an acceptance of your legal responsibility, although it cannot be regarded as an expression of genuine remorse given what you have said, that you do not remember this offending.

20You were relatively young at the time and are now still relatively young.  In terms of your age, it has to be taken into account that you have an intellectual disability and an acquired brain injury.

21In respect of the issue of rehabilitation, that is very difficult to assess.  It is relevant that you have no priors for sexual offending, but you have committed many crimes, you have been in gaol, and that has not stopped you offending in the past.  It appears that you have poor impulse control.  On the reports available to me, I conclude that there is a greater risk of you offending in terms of violence rather than sexual offending.  It is clear that you have had problems with drug and alcohol issues in the past.  You have had some psychiatric support in custody but have not been engaged in programs for purposes of rehabilitation in terms of drugs and alcohol or violence.  Programs in respect of sexual offending are not likely to be of assistance to you whilst you are not able to remember the offending.  I consider that your prospects of rehabilitation at this stage are reasonable as to sexual offending.  It does appear that you understand the issue that you are not to have sex with people underage.  You have no history of sexual offending.  I regard your prospects of rehabilitation as to other types of offending as being low.

22The issue of rehabilitation is somewhat subsumed by the length of your current sentence, but I consider that specific deterrence must have some weight in sentencing.  You must understand that there will be serious consequences if you reoffend ever again by having sex with a child under 16.

23I have taken into account that your continued custody and risk of institutionalisation is not likely to increase your prospects of rehabilitation once you are released.  It is to be hoped that that might change with some future interventions whilst you are in custody. 

24I consider that there must be application of Verdins' principles in respect of sentencing you, particularly in relation to your intellectual disability and acquired brain injury.  Those matters, in my view, reduce your moral culpability, as I consider that you have a lowered ability to make the correct moral and legal decisions. 

25The age differences in this case are not great, and effectively are reduced by the impact of your intellectual disability and acquired brain injury.  I consider that sentence should be moderated in terms of general deterrence as in application of Verdins' principles. 

26Despite coping reasonably well with custody, I think you are vulnerable in custody.  I note that you have already been assaulted in custody.  I think your intellectual disability and acquired brain injury are likely to make imprisonment more difficult for you.  I consider that your depression and anxiety are likely to worsen.

27The delay in this case has been unusually long and has not been in the interests of justice for either you or the complainant.  That is a very relevant matter to the issue of concurrency.

28I have taken into account that you have spent your term of imprisonment in protection and will continue to spend your term of imprisonment in protection.

29After taking into account all the matters in mitigation, I consider a sentence of imprisonment is warranted for the purposes of denunciation, just punishment and general deterrence.  You will be sentenced to a term of imprisonment on each charge.  Therefore, you will be sentenced on Charge 3 as a serious sexual offender with community protection being the principal purpose of the sentence.  I do not intend to impose a disproportionate sentence for that purpose. 

30Under the Serious Sexual Offender provisions, the sentence on Charge 3 is to be served cumulatively unless I otherwise order.  To order total concurrency in this case would, in my view, offend the principles of totality and proportionality.

31I consider that a portion of this sentence ought to be served cumulatively on the sentence you are currently serving to reflect the different nature of this offending and different victim, but I do not intend to change your current potential parole date.

32On Charge 1, you are convicted and sentenced to two years' imprisonment.  On Charge 2, you are convicted and sentenced to two years' imprisonment.  On Charge 3, you are convicted and sentenced to two years' imprisonment.

33The sentence on Charge 3 is the base sentence.  Three months of each of the sentences on Charges 1 and 2 are to be served cumulatively on each other and on the sentence on Charge 3.  The total effective sentence is a term of imprisonment of two years and six months.  Six months of that sentence is to be served cumulatively on your current sentence.

34In respect of the sentence I am imposing today and the sentence imposed on 27 June 2013, I fix a new non-parole period of six years. 

35But for your plea of guilty, I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years.

36You have already been provided with the paperwork in terms of the Sexual Offender Registration Act.  Because you pleaded to three Class 1 offences, you will be required to comply with the reporting provisions of that legislation for the rest of your life.

37You are sentenced in respect of Charge 3 as a serious sexual offender, and that will be recorded in the records of the court. 

38Mr Walkley, the effect of all that is I have not disturbed your current parole date, so that is whenever it is in October 2018, potentially.  That will be up to the Parole Board, so you need to do what you can to - if you want to get parole, which I assume you want to do, then you need to do whatever you can to positively impress the Parole Board.  It will mean that ultimately, if you are released on parole, you will have six months longer on parole than you would have otherwise had because of this offending. 

39Make very sure in future that you check the age of any girl or woman that you have sex with, and make sure you do not have sex with anybody under the age of 16.  Do you understand that?

40OFFENDER:  Yes, Miss.

41HER HONOUR:  In fact, I think, given your age now, you had better not have sex with any girl under the age of 18 even if they agree, all right?

42OFFENDER:  Yeah.

43HER HONOUR:  You clearly must not have sex with anybody unless they do agree first before you have sex.  You understand that?

44OFFENDER:  Yes.

45HER HONOUR:  All right.

46OFFENDER:  Yes.

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