Director of Public Prosecutions v Wall (a pseudonym)
[2022] VCC 1217
•29 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DONNA WALL (A PSEUDONYM)[1] |
[1] To ensure there is no identification of a victim of a sexual offence, these published reasons for sentence have been anonymised by the adoption of pseudonyms in place of the names of the offender, co-offenders, and victim and the removal of all identifying information. A schedule of substitutions will be retained by the Court for future reference.
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 June 2022 | |
DATE OF SENTENCE: | 29 July 2022 | |
CASE MAY BE CITED AS: | DPP v Wall (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1217 | |
REASONS FOR SENTENCE
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Subject: Criminal.
Catchwords: early plea of guilty; 1 charge of compel sexual penetration; 7 charges of sexual penetration of a child under 16 years; 2 charges of cause injury intentionally; victim under care, supervision or authority of accused; accused foster mother of victim; accused extradited from United Kingdom; co-offenders involved; parity with co-offenders not appropriate; no comparable sentencing cases; accused sentenced as serious sex offender.
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Crimes Amendment (Rape) Act 2007; Crimes (Amendment) Act 2000; Sex Offenders Registration Act 2004 (Vic)
Cases Cited: Clarkson v The Queen (2011) 32 VR 361; Adamson v R [2015] VSCA 194; DPP v Toomey [2006] VSCA 90; Fichtner v the Queen [2019] VSCA 297; Meharry v the Queen [2017] VSCA 387; Worboyes v The Queen [2021] VSCA 169; DPP v Bales [2015] VSCA 261; Mush v The Queen [2019] VSCA 307.
Sentence: convicted and sentenced to a Total Effective Sentence of 20 years’ and six months’ imprisonment, with a non-parole period of 16 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Hamill | Office of Public Prosecutions |
| For the Accused | Mr G. Casement | Slades & Parsons |
HER HONOUR:
Introduction
1Donna Wall, between October 2011 and January 2013 you subjected your teenage foster daughter, Nicki, to the most vile and degrading sexual and physical abuse. It is beyond understanding how you could be so cruel to a child you had fostered since she was six years old, whose surname you had changed to your own; a child who called you “mum”. Nothing could ever excuse your behaviour, but you have not even attempted to explain it.
2Your conduct only came to an end when Nicki, who has since changed her surname back to Coates, escaped from your care after a particularly nasty episode of physical abuse on 6 January 2013. A stranger discovered an injured Nicki hiding in their garage the next day and took her to a police station where she described the events of the day before. She was immediately removed from your care and placed in an alternative foster care arrangement.
3On 9 January 2013 you were interviewed in relation to Nicki’s physical injuries – nothing then being known about the sexual abuse – and denied responsibility. You were released without charge pending further investigation but left Australia soon after and did not return.
4The police commenced investigating all your abuse – physical and sexual – in August 2015 after Nicki’s new foster mother drove Nicki past her old home and she broke down crying. Later that night Nicki revealed the true extent of her ordeal to her foster mother and police were informed. On 1 August 2018 charges and a warrant for your arrest were issued. In 2019 police learned that you were living in the United Kingdom and commenced extradition proceedings. You were arrested in the United Kingdom in March 2020 and have been in custody, in the United Kingdom and Australia, ever since: a total of 863 days not including today.
5
In November 2020, you were extradited to Australia. You originally intended to run a contested committal, but after several adjournments, ultimately pleaded guilty and were committed by straight hand-up brief to this court on
25 November 2021.
6On 2 June 2022 you pleaded guilty before me to 10 charges, eight sexual offences and two causing injury charges.
7The sexual offending occurred on six separate days (or incidents) over the period 22 October 2011 to 6 January 2013 with some charges covering more than one instance of the charged activity. The causing injury charges occurred on two distinct days at the end of that period, namely, 4 January and 6 January 2013.
8Charge 1 is a charge of compelling Nicki to sexually penetrate herself, and Charges 2 - 8 are charges of sexual penetration of a child under 16, where you either personally performed the acts of penetration or directed former foster children of yours, specifically Connor Wall or Francis Gamble, to do so.
9In detail:
· Charge 1, is a rolled-up charge comprising three instances of you compelling Nicki to digitally penetrate her own vagina (during incidents 1, 2 and 3);
· Charge 2, is a rolled-up charge comprising four instances of you causing Connor to digitally penetrate Nicki’s vagina (during incidents 1, 2, 4 and 5);
· Charge 3 is a rolled-up charge comprising three instances of you causing Connor to penetrate Nicki’s vagina with his penis (once during incident 2 and twice during incident 5);
· Charge 4, comprises a single instance of you penetrating Nicki’s vagina with a vibrator during incident 1;
· Charge 5, comprises a single instance of you causing Connor to penetrate Nicki’s vagina with a vibrator during incident 1;
· Charge 6, comprises a single instance of you causing Nicki to penetrate Francis’ vagina with her tongue during incident 3;
· Charge 7, is a rolled-up charge comprising four instances of you causing Francis to penetrate Nicki’s vagina with a dildo and a wooden spoon (once during incident 3 and three times during incident 6);
· Charge 8, comprising a single instance of you causing Francis to insert a dildo into Nicki’s anus during incident 3.
10Charges 9 and 10 are the causing injury charges.
11After a plea on your behalf, it falls to me to sentence you for your conduct. Francis and Connor have already been sentenced for their role in the offending. I will return to the sentences they received at a later point, but their cases are quite different to yours. Apart from anything else, having fostered each of them as children you still wielded enormous influence over them as adults. You started fostering Connor when he was 8 years old and fostered Francis from when she was 14 years old. It was not submitted by your counsel, Mr Casement, that you should receive the same sentence as either of them.
12In arriving at an appropriate sentence for you, which really means the length of the term of imprisonment, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[2] Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
Circumstances of the offending[3]
13Although shocking, it is necessary for me to describe the circumstances of your offending in some detail to convey its true gravity. At the time, you, Connor, Francis and Nicki were all living together in your home in east Melbourne. You were in your mid-50s, Connor was in his late 20s, Francis was in her early to mid-20s and Nicki was 14 or 15 years old. Connor and Francis were actually in a relationship and had three children of their own, who were also living with you, as were Nicki’s younger sister, Francis’ sister and Francis’ sister’s two children. Nicki’s younger sister was being fostered by you and Francis’ sister had previously been fostered by you.
14Throughout the period of the offending, you claimed to have a psychic friend named Robyn who would communicate with you via text messages. You managed to convince at least Nicki that this imaginary friend really existed and that she was the one directing the conduct the subject of the charges.
Incident 1: Which involved you and Connor Wall
15The first incident occurred when Nicki was in Year 9. After collecting her from school you told both Nicki and Connor that Robyn had told you that Nicki was “obsessed with sex” and was a “slut” who wants to “grow up too fast”. You told them that Robyn had specifically said that she, being Nicki, needed to have sex with Connor. Nicki cried and denied the accusations, but you told her to go to your room and you and Connor followed soon after.
16You told Connor to go into the ensuite bathroom and close the door and Nicki to remove her clothes and start playing with herself on the bed. Nicki said she did not know what to do, so you told her to rub her vagina with her fingers. Out of fear she complied, inserting her finger into her vagina and rubbing herself for five minutes. That conduct is part of Charge 1: Compelling sexual penetration.
17You then told Connor to come out of the ensuite, undress his lower half and play with Nicki’s vagina. He then rubbed her vagina for around five minutes, simultaneously masturbating himself, whilst you watched on. You then told him to “go further and do more” so he inserted up to three fingers into Nicki’s vagina and moved them in and out. That conduct is part of Charge 2: Sexual penetration of a child under 16.
18At your direction, Connor then retrieved a vibrator and lubricant from his bedroom. You lubricated the vibrator and rubbed it on the outside of Nicki’s vagina, before inserting it, causing her a great deal of pain. After she attempted to push you away and begged you to stop, you removed the vibrator, but about a minute later inserted it again. You ignored Nicki’s tears and pleas to stop, saying you did not care if it hurt and you thought she would like it. The second penetration comprises Charge 4: Sexual penetration of a child under 16 and lasted for about
10 minutes.[2]Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).
[3] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.
19You then told Connor to insert the vibrator into Nicki’s vagina and turn it on, which he did for about 15 minutes. That conduct is Charge 5: Sexual penetration of a child under 16. This caused Nicki excruciating pain and when she tried to push Connor away, he told her he “had to do it.”
20This incident ended with you telling Connor that he could finish now. There was blood all over the bed sheets and on Nicki’s vagina, bottom, legs, and hands. You gave her some baby wipes and told her to take the sheets to the laundry.
Incident 2: Involving you and Connor Wall
21About two months later you woke Nicki and took her downstairs where Connor and Francis were waiting. Francis appeared very angry, it seems because she knew what you had in mind. After Connor and Francis went outside for a cigarette you told Nicki she was going to have sex with Connor, because that is what she wanted. Following your direction to “finger” herself, Nicki inserted her finger into her own vagina. That is part of Charge 1: Compelling sexual penetration.
22You then brought Connor in from outside and Francis left the house. You told him to play with himself and “take over” digitally penetrating Nicki’s vagina, which he did for less than 10 minutes. That conduct is part of Charge 2: Sexual penetration of a child under 16.
23You then told Connor to get a condom from his bedroom and have sex with Nicki. He did this, first on top of her and then underneath until he ejaculated, at that point saying “We’re done”. That conduct is part of Charge 3: Sexual penetration of a child under 16.
24You returned to the room and told them to dress. You told Nicki to get out of her “slutty ways” and go back to bed.
25After this incident you, Connor and Francis started segregating Nicki from the rest of the family in the house and treating her differently. She was too scared to tell anybody about what had happened because she thought Robyn would know and would tell you and you would then punish her.
Incident 3: Involving you, Francis Gamble and Connor Wall
26About one week later you again woke Nicki and took her downstairs to Francis and Connor’s bedroom, saying “Hurry up, you slut” as you went. Once there, you told the three of them that Robyn had told you that Nicki now wanted to be a lesbian and do lesbian stuff with Francis to annoy Connor. Nicki protested but you insisted that she, Nicki, wanted it to happen and so therefore it would. You also said that Robyn had said that Nicki wanted Connor to watch the whole thing. Nicki felt powerless to change what Robyn had said and obeyed your commands whilst Connor sat on a chair at the end of the bed and watched the whole episode.
27As you directed, Nicki undressed and digitally penetrated her own and Francis’ vagina at the same time. Penetration of her own vagina is part of Charge 1: Compelling sexual penetration.
28After about five minutes, you told them to get into the “69 position”. When Nicki told you she did not know what that meant you described it to her and confirmed that she, Nicki, wanted to do it. Nicki positioned herself on top of Francis’ naked body and at your direction inserted her tongue into Francis’ vagina. That is Charge 6: Sexual penetration of a child under 16.
29Soon after, you told them it was not “good enough,” and purported to show Francis a text message. Francis retrieved a large dildo from the wardrobe. You told Francis to put lubricant on it and to “shove it into” Nicki’s vagina because Nicki would enjoy it. Nicki was scared. She protested saying that it was Robyn, not her, who wanted it to happen but you insisted that she was the one who wanted it.
30As Nicki lay on the bed, Francis pushed her legs apart and inserted the dildo inside Nicki’s vagina, pushing and pulling it for about 10 minutes. That conduct is part of Charge 7: Sexual penetration of a child under 16. Nicki was disgusted with herself and hated you and the others for what you were doing.
31You then purported to show Francis another text message from Robyn whereupon Francis told Nicki to turn over, lubricated the dildo and inserted it into Nicki’s anus for about 10 minutes. Whilst not in pain Nicki was disgusted and uncomfortable throughout. After it was over you again gave Nicki some wipes to clean herself and said, “Go back to bed, you disgusting little girl.” That conduct is Charge 8: Sexual penetration of a child under 16.
Incident 4: Involving you and Connor Wall
32The fourth incident occurred on a hot summer afternoon, shortly before Nicki’s 15th birthday. It started with Nicki digitally penetrating herself after you told her to go to her room and “finger” herself because Robyn had told you that she should. A few minutes later Connor entered her bedroom closing the door behind him. He told Nicki that Robyn had messaged you that he, Connor, had to join in. He told Nicki, “I’ve got to do it, or you will be in trouble” and then he put three fingers inside her vagina and continued doing so for about an hour on Nicki’s estimate. That conduct is part of Charge 2: Sexual penetration of a child under 16.
Incident 5: Involving you and Connor Wall
33In about December 2012, Nicki required surgery on a broken arm and spent about 12 days in hospital. About a week after she returned home, when her arm was still in a sling and she was still in pain, you told her that Robyn had messaged you that she, Nicki, “wanted to have more sex with Connor”. That night, you told Nicki to go to your bedroom, which she did, to find Connor sitting naked on the bed. You told her to take her clothes off and that she knew what to do. She was too afraid not to comply despite her pain. After you went into your ensuite bathroom and partially closed the door, Connor put four fingers inside Nicki’s vagina whilst making her masturbate his penis. He tried to kiss Nicki, but she pushed him away. Connor’s putting his fingers inside Nicki’s vagina is part of Charge 2: Sexual penetration of a child under 16.
34After about 10 minutes, Connor got on top of Nicki and proceeded to have penile-vaginal sexual intercourse in a rough fashion and without a condom. That conduct is part of Charge 3: Sexual penetration of a child under 16.
35Nicki asked him to stop a number of times because her arm was hurting. He initially ignored her but then went to speak to you in the ensuite bathroom. You and Connor then came out of the bathroom and you declared that, “Robyn said to keep going because it’s what you want, and you are enjoying it”. You dismissed Nicki’s denials and complaints of pain, telling her she was lying and to “keep going, you little slut”.
36Connor then moved Nicki so that she was on her hands and knees and after lubricating his penis and fingers, he penetrated her vagina from behind with his fingers and then his penis. Nicki was in pain and crying throughout. The penile penetration is part of Charge 3: Sexual penetration of a child under 16.
After about five minutes Connor removed his penis and went into the ensuite bathroom where he ejaculated. You told the still crying Nicki to put her clothes on and said, “I hope you have learned your lesson and you can start behaving”.
Incident 6: Involving you and Francis Gamble
37The last sexual incident occurred later that same evening. You and Francis woke Nicki and told her to undress and lie on the floor, which she did. You said she was a “dirty disgusting person”. You then produced a wooden spoon, pushed Nicki face-down onto the bed and struck her hard over 150 times to her buttocks with all sides of the spoon. You told her she was a “little slut” and who needed to start behaving and ignored her cries of pain and pleas to stop.
38You then made Nicki lie on the floor again and whilst you pulled her legs apart, Francis put the handle of the wooden spoon inside her vagina. This is part of Charge 7: Sexual penetration of a child under 16.
39As if what you were doing was not bad enough, both you and Francis laughed at Nicki whilst you were doing it. You then pretended to show Francis a text message, whereupon she said to Nicki, “You’re gonna like this one”, and shoved the bowl end of the wooden spoon vertically into Nicki’s vagina. That conduct is part of Charge 7: Sexual penetration of a child under 16.
40After a short time, at your direction, Francis turned the spoon around so that the bowl was horizontal and continued to penetrate Nicki’s vagina for about
10 minutes. That conduct is part of Charge 7: Sexual Penetration of a child under 16. Both you and Francis laughed when Nicki flinched in pain, commenting, “Oooh, she liked that one”.41At the conclusion of this episode you said to Nicki that she should, “learn [her] lesson and behave [herself]”and that she was a "disgusting little girl".
Intentionally causing injury charges
42In the morning of Friday, 4 January 2013, Nicki was gardening, presumably at your direction, when you and Francis came out of the house looking angry. Even though it was about 40 degrees you told Nicki to remove her gardening gloves and Francis told her to do 20 push-ups on the bricks in the courtyard. You said if she did not do them “properly”, they would find a stick and whack her with it. Nicki started doing the push-ups but you and Francis told her she was not doing them properly and yelled at her to keep going. After she had done about 12 push-ups she stopped, whereupon you hit her hands with a 1-centimetre thick wooden bed slat. Thereafter, every time Nicki stopped either you or Francis hit her hands with the slat. At first you did not hit hard, but as you got angrier you hit harder. Nicki estimates you hit her three times with the slat before giving the slat to Francis and going inside. When the ordeal was over Nicki returned to doing the gardening for the rest of the day.
43Nicki received bruising and small cuts on her hands from being struck with the bed slat. She also got blisters from the push-ups. This conduct is Charge 9: Causing injury intentionally.
44Two days later Nicki was doing chores inside the house. She had wrapped wet tea towels around her bruised hands for protection. After she finished you told her to remove the tea towels and took her outside to the courtyard where Francis was waiting, holding a bed slat. One of you told her to do 20 push-ups, which she started. Again, the two of you yelled at her that she was not doing them properly. After she stopped the first time, Francis hit her on the feet and hands with a corner of the slat while you yelled at her to keep going. Francis hit Nicki very hard with the slat on her back and on her legs and, after telling her to stand up, on her feet. She received bruises on her legs, feet and hands, a cut on her left hand and a bruise on her inner right knee that was bleeding. She also received blisters to the palms of her hands from doing the push-ups. This conduct is Charge 10: Causing injury intentionally.
45When Francis took a break, you approached her and whispered something into her ear. This gave Nicki an opportunity to run away. She jumped the back fence and ran and walked through back streets until she saw a house with a
“Safety House” sign on the front where she slept in the garage and was later found and taken to the police as I have already described.46The police photographed Nicki’s injuries and on 7 January 2013 she was medically examined with the following injuries recorded:
a. Swelling of the right forearm with multiple linear abrasions;
b. Three bruises and an abrasion on the right hand;
c. Multiple scratch marks on the right forearm;
d. Two bruises on the left arm, one with multiple scratch marks;
e. A bruise on the left palm and an abrasion with black margins just below the left wrist;
f. Four linear abrasions on the back;
g. Multiple bruises, along with an abrasion on the buttocks;
h. Eight bruises to the anterior (that's the back) of the legs;
i. Swelling and bruising to both feet;
j. Multiple bruises to the front of the legs and an abrasion to the left knee which Nicki attributed to falling down while completing push-ups.
47Nicki did not tell the police about the sexual abuse at that stage because she was too scared. So pernicious were your lies that she believed Robyn would know what she said and would tell you.
48When you were interviewed on 9 January 2013 you described your recent relationship with Nicki as “not that great” and admitted you got her to do gardening as punishment for what you claimed was her stealing and lying. You denied telling her to do push-ups or being in any way responsible for Nicki’s injuries which you essentially blamed on Francis. You said that after the event Francis had told you she had hit Nicki who had then run away because Nicki had threatened to hurt Francis’ baby. You said you had personally seen Nicki with her hand around the baby's neck. You said the allegations against you were “bullshit”.
49Francis had been interviewed before you and had given the same account as you. She denied that you were involved. She was interviewed again on 27 April 2013 and this time told the truth. She explained that you had told her what to say in her first interview, but she had decided to tell the truth because you were no longer in Australia. In February 2018, she provided a statement detailing the sexual abuse of Nicki.
Your personal circumstances
50Turning now to your personal circumstances which were outlined in written submissions and supplemented orally by Mr Casement.
51You were born in April 1957 which makes you now 65 years old.
52When you were three years old your parents relinquished care of you and your younger brother by taking you to Berry Street, a service that provides out of home care for children. You have vague memories of being locked out of the family home with your brother and of being alone outside before this happened.
53Despite this unfortunate beginning, you describe your childhood as “happy” and say that you “had no problems growing up” as you and your brother were soon adopted by a family in Box Hill. You had a positive relationship with this family and were not abused in any way. Your adoptive parents remained married until their deaths in 1999 and 2001.
54You have not spoken to your brother since your adoptive father died in 2001. Nor have you had any further contact with your birth parents whom you believe are now deceased.
55You were above average academically and completed secondary school at Blackburn High School. You then attended a business college and obtained a secretarial diploma in 1975. After a short stint of teaching at the college, you worked in various secretarial roles for about 20 years.
56You had a number of intimate relationships in your 20s, and were engaged at one stage, but that relationship ended before you married. You have no biological children. You started fostering children in 1985, when you were in your late 20s. Over the years fostering children became a full-time occupation and you left the work force.
57After your police interview in January 2013, you apparently attempted to take your own life by overdosing on oxycodone and were hospitalised. You have not otherwise been treated for any emotional or psychological issues. You are medicated for high blood pressure and have arthritis in your knees and ankles which causes you “considerable pain”. You do not use any illicit substances and rarely drink alcohol.
58In February 2013 you travelled to the United States of America with Connor before continuing on to England in April 2013 without him. You were familiar with England, having travelled there several times prior to 2013. You obtained a visa and were able to live and work there without restriction. You worked for McDonald's, initially as a Customer Care Assistant, but were promoted to Customer Experience Leader, training staff across seven stores.
59You have been held in protective custody since entering remand in Victoria. Despite the lockdowns and additional restrictions of being in protective custody, you have taken all work and course opportunities available. You work by sewing prison uniform tracksuits and have completed courses in IT, OH&S, strengthening relationships, and received your 'White Card'. At the time of your plea, you were completing a traffic management course.
Objective Gravity of your offending and moral culpability
60Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender.
61Offending involving the sexual abuse of children is inherently serious. If there was any doubt about that the maximum penalties of your sexual offences make it perfectly clear. They are:
· For the offence of compelling sexual penetration: 25 years' imprisonment;[4] and
· For the offence of sexual penetration of a child under 16: 15 years' imprisonment (that is because Nicki was aged between 12 and 16 and was under your care, supervision and authority).[5]
[4]Crimes Act 1958 (Vic) s 38A, as amended by the Crimes Amendment (Rape) Act 2007.
[5]Crimes Act 1958 (Vic) s 45, as amended by the Crimes (Amendment) Act 2000.
62The offence of causing injury intentionally is an offence of lesser inherent seriousness but still has a maximum of 10 years' imprisonment.[6]
[6] Crimes Act 1958 (Vic) s 18.
63One only has to recite the facts in this case to appreciate the gravity of your particular offending. What you did can only be described as evil, depraved, and sadistic. If one had to choose a single unifying feature to all your offences, it would be your abject cruelty. As I said at the start of these remarks how you could have treated a child you undertook to love and nurture in this way is incomprehensible. Why you did it remains a mystery.
64Having regard to the following matters I regard all your offences as serious, or very serious, examples of their type and your moral culpability as extremely high:
1. All offending involved an egregious breach of trust, Nicki being a child you knew to be vulnerable by virtue of her situation and with respect to whom you had voluntarily assumed the role of foster parent. You breached not only Nicki’s trust but the trust society placed in you as a foster parent. Further, if it was true, as you told the police in your interview, that Nicki had a learning difficulty, you knew her to be even more vulnerable.
2. All offending occurred in the family home, a place where Nicki was entitled to feel safe.
3. All offending was planned and premeditated.
4. Your use of a fictional person exploited Nicki’s vulnerability and was calculated to increase her sense of helplessness by allowing you to distance yourself from the decision making.
5. Your involvement of your co-offenders would also have increased Nicki’s sense of helplessness as they were adult family members she should have been able to trust and appeal to for help.
6. All offences were carried out in a particularly degrading and humiliating way, including the use of belittling and abusive language.
7. The offending was repeated and protracted, meaning not only did you have ample opportunity to reflect on your behaviour and desist, but also that Nicki would have become increasingly fearful of further abuse, something you must have known.
8. Four of your offences were rolled up charges automatically increasing their seriousness.
9. You forced Nicki to engage in a broad range of sexual activity involving different types of penetration, the use of objects, more than one person and different sexes. In so doing you deprived her of sexual autonomy and the right to make sexual choices for herself. You did this notwithstanding Nicki was obviously naïve about some, if not all, of the activity; indeed you did it with the intention of introducing her into the activity.
10. Some of the sexual activity was painful and some was accompanied by physical violence.
11. You consistently ignored Nicki’s protests and cries of pain. To the contrary you appeared to delight in taunting her.
12. Incident five involved unprotected penile-vaginal penetration with the attendant risks of disease and pregnancy.
65There is absolutely no doubt you knew what you were doing was cruel and wrong. It matters not that you did not personally carry out all the physical acts constituting the crimes, since you enlisted and directed your co-offenders to do so. Nothing in your personal circumstances explains your conduct or reduces your moral culpability. If anything, your own history of being relinquished by your parents makes your behaviour even more baffling.
Impact of your offending
66I am required to take into account the impact of offending on victims and their personal circumstances.[7] There is a legal presumption that premature sexual activity causes long term and serious physical and psychological harm to children.[8] The courts also recognise that rehabilitation of children who have been sexually abused may be more difficult than rehabilitation of the offender. In that regard, it was said in a case called Director of Public Prosecutions v Toomey:
Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.[9]
[7] Sentencing Act (n 2) sub-ss 5(2)(daa), (da) and (db).
[8] Clarkson v The Queen (2011) 32 VR 361, 368 [26], 371 [33]; Adamson v R [2015] VSCA 194, [56].
[9] DPP v Toomey [2006] VSCA 90, [22] (‘Toomey’).
67Nicki is now 24 years old. Her victim impact statement graphically demonstrates the reason for the legal presumption. She actually describes your offences against her as “inhumane mistreatment”.
68
She says, “[her] life has been impacted forever” and that she now lives with
Post-Traumatic Stress Disorder and anxiety disorders, which impact her daily life, including her relationships with friends, family and strangers. She wonders what she might have achieved had she not been subject to your abuse.
69She says the “destructive pain I suffered caused by sexual abuse is indescribable”, and that you “deprived [her] of so much in [her] life that the words will never be strong enough to describe how this has impacted [her]”.
70There is no doubt that your actions have had, and will continue to have, a profound impact on Nicki’s life. It is a testament to her courage and resilience that despite your crimes she is still optimistic. She concludes her statement by declaring that although she will never forget your crimes she is, “not a victim but a survivor of injustice, a survivor of repulsive crimes [who is] stronger than ever”.
Current Sentencing Practices
71To promote consistency of approach in sentencing, particularly, the application of relevant principles, I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.
72I have had regard to the cases to which I was referred by Ms Hamill, however as she noted they could not really be considered comparable.[10] The circumstances of the offending and offenders were just too different. Sexual offending against children is all to common, however the lack of any comparable cases really serves to highlight how uniquely perverted and depraved your conduct was.
[10] Fichtner v the Queen [2019] VSCA 297; Meharry v the Queen [2017] VSCA 387.
Parity
73I have also had regard to the sentences imposed on your co-offenders. In
August 2013 Francis Gamble pleaded guilty to two counts of intentionally causing injury in relation to the push-up incidents and was sentenced to a Community Corrections Order. Then, in November 2018 Connor Wall and
Francis Gamble pleaded guilty to seven and five charges respectively of sexual penetration of a child under 16 and were each sentenced to Community Corrections Orders.74Even though Mr Casement did not contend you should receive the same sentence as your co-offenders it is desirable that I say something to explain what will be a significantly different outcome for you. The learned sentencing judge in their case found they each had significant mitigating factors which do not exist in your case, including but not limited to, extenuating personal circumstances, substantially reduced moral culpability, extreme remorse and cooperation with the authorities. I note there is, as I have said before, a non-publication order in relation to each of your co-offenders which must be observed by any media or members of the public present today.
Plea of Guilty, co-operation and remorse
75The single most significant mitigating factor in your favour is your plea of guilty. I note that you did not consent to your extradition to Australia and at that stage continued to deny the offences. Further, you initially sought to cross-examine witnesses at the committal stage before entering a plea of guilty immediately prior to your committal. Accordingly, your plea of guilty was not made at the first opportunity, however it was made at a relatively early stage. You are entitled to a significant discount in your sentence for this plea of guilty. By pleading guilty you have facilitated the course of justice and taken legal responsibility for your crimes. You have also spared your victim and other witnesses the ordeal of coming to court to give evidence. Moreover, our Court of Appeal has repeatedly emphasised the high value of pleas of guilty entered during the pandemic and the need for sentences to reflect this.[11]
[11] See, eg, Worboyes v The Queen [2021] VSCA 169, [39].
76It was submitted on your behalf that your plea of guilty was accompanied by remorse. If so, you would be entitled to an even greater discount. The only evidence relied upon was an apology you delivered through Mr Casement at the plea for all the pain, hurt and distress you had caused Nicki. This apology stands in stark contrast with your police interview on 9 January 2013, when you lied about how Nicki sustained her injuries and sought to deflect blame onto Francis and indeed onto Nicki. In the absence of any explanation for your offending and in light of your attitude to extradition and initial desire to contest the charges, it is difficult to see your apology as anything other than strategic. At best it indicates only an emerging awareness of the harm you have caused. I will take it into account, but I give it little weight.
Your character and risk of reoffending
77I turn to your character and risk of reoffending. You have one prior court appearance from 1997 and no subsequent matters. Although this criminal history is dated and very limited it is concerning that that appearance was for an unlawful assault on a foster child. I have not had the benefit of any expert opinion on your risk of re-offending and the absence of any explanation for your conduct further hampers my assessment. Nevertheless, I consider you have reasonable prospects of rehabilitation. Apart from anything else this is because of your age or because the age you will be upon your release and the fact it seems unlikely you will again be placed in a position of care over children again.
Delay
78I mention the considerable delay between offending and sentence if only to clarify that the prosecution does not rely upon you leaving the jurisdiction in 2013 as an aggravating factor. Given you were only interviewed in relation to the assaults and were released without charge, the prosecution do not assert you were fleeing the jurisdiction. By the same token, apart from the fact you were able to point to a lack of any further offending in the intervening period, the defence do not rely upon the delay as mitigating.
The burden of imprisonment
79In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you. I take into account the fact that your time in custody has been, and will continue to be, harder by virtue of you being in protective custody with all that that entails. I also take into account the effects of the pandemic. I accept that a term of imprisonment during the pandemic is harder than at other times. As well as the worry of contracting the virus in prison, there are periods of quarantine, occasional lockdowns, activities and programs are curtailed, and personal visits may be reduced or suspended. In that regard I note that you were held in virtual 24-hour lockdown for almost eight months in England before your extradition.
Purposes of Sentencing
80Turning to the purposes of sentencing. I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required. Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality.
81There is some qualification of those general sentencing principles in your case. In particular, by sentencing you to a term of imprisonment on Charges 1 and 2, which I will do, you will become a serious sexual offender. This means for the remaining sexual offence charges, Charges 3 to 8, I will be required to consider protection of the community as the principal sentencing purpose and will be entitled to impose a disproportionate sentence to achieve that purpose. Further, in respect of those charges there will be a statutory presumption of cumulation of the individual sentences. The more serious the overall offending the more that presumption will operate to moderate the principle of totality.[12]
[12]DPP v Bales [2015] VSCA 261, [38]; Mush v The Queen [2019] VSCA 307, [89]-[91].
82Even without those provisions your offending clearly warrants a substantial term of imprisonment. The prosecution have not submitted that a disproportionate sentence is necessary and I am satisfied that I have enough sentencing discretion to achieve the purpose of community protection in your case without doing so. Similarly, I consider that the balancing of the presumption of cumulation and the principle of totality requires that I not order full cumulation in respect of Charges 3 to 8, particularly given the overlap of dates and circumstances, although not conduct. Indeed, I consider I need to order substantial concurrency of all sentences in order to avoid a crushing and wholly disproportionate sentence. Therefore, pursuant to s 6E of the Sentencing Act 1991 (Vic), where necessary I “otherwise direct”, to give effect to my orders for cumulation and concurrency.
83The courts have repeatedly emphasised that in sentencing for sexual offences against children general deterrence and denunciation are paramount sentencing considerations. This applies particularly to offenders like you who are entrusted with the care of their victims, whether as family members or otherwise. Anyone who is tempted to offend against children in the belief they can do so with impunity needs to know that when their crimes come to light, they will be punished severely.
84The case of Toomey, to which I have previously referred, emphasised the need for sentences to vindicate not only the individual victims, but also the values of society, “fundamental to which is the protection of its children”.[13]As the court in Toomey said crimes such as yours are extremely serious not only because they impact the individual victims, but because they damage the community as a whole.
[13]Toomey (n 9) [17], [22] per Vincent J.
85Although not as important as general deterrence and denunciation, the principles of specific deterrence and community protection do have some role to play in your case. That is, as well as deterring others, my sentence needs to deter you from reoffending and to protect the community from you.
86Of course, my sentence must also be just. It must reflect your mitigating factors and promote your rehabilitation, that being one of the best ways to protect the community. My sentence will allow for your rehabilitation in the fixing of a
non-parole period.Sentence
87Now Ms Wall, I'm going to proceed to sentence now and as I say, you can remain seated.
88Weighing up the competing considerations as best I can, you are convicted on each charge and sentenced to terms of imprisonment as follows.
89On Charge 1, which is the compelling sexual penetration comprising three instances of you compelling Nicki to digitally penetrate her own vagina, six years.
90On Charge 2, sexual penetration of a child under 16, comprising four instances of you causing Connor to digitally penetrate Nicki’s vagina, seven years.
91On Charge 3, sexual penetration of a child under 16 comprising three instances of you causing Connor to penetrate Nicki’s vagina with his penis, 10 and a half years.
92On Charge 4, sexual penetration of a child under 16, comprising a single instance of you penetrating Nicki’s vagina with a vibrator, six years.
93On Charge 5, sexual penetration of a child under 16 comprising a single instance of you causing Connor to penetrate Nicki’s vagina with a vibrator, six and a half years.
94On Charge 6, sexual penetration of a child under 16 comprising a single instance of you causing Nicki to penetrate Francis’ vagina with her tongue, six years.
95On Charge 7, sexual penetration of a child under 16 comprising four instances of you causing Francis to penetrate Nicki’s vagina with a dildo and a wooden spoon, 10 and a half years.
96On Charge 8, sexual penetration of a child under 16 comprising a single instance of you causing Francis to insert a dildo into Nicki’s anus, six and a half years.
97On Charge 9, causing injury intentionally, three years.
98On Charge 10, causing injury intentionally, three and a half years.
99The sentence I have imposed on Charge 3 is the base sentence. I direct that one year of the sentence on Charge 1, one year of the sentence on Charge 2,
18 months of the sentence on Charge 4, six months of the sentence on Charge 5, 18 months of the sentence on Charge 6, 18 months of the sentence on Charge 7, 18 months of the sentence on Charge 8, eight months of the sentence on
Charge 9 and 10 months of the sentence on Charge 10, be cumulative upon each other and on the base sentence.100That makes a total effective sentence of 20 years and six months' imprisonment. I set a non-parole period of 16 years' imprisonment. That is the earliest time at which you can be released. It does not mean you will be released, it depends on the Adult Parole Board and the decision they make about that.
Pre-sentence Detention
101I declare that you have already served a total of 863 days of pre-sentence detention, not including today, in respect of this sentence and order that this declaration be entered in the records of the court and the period be deducted administratively.
Section 6AAA
102If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of 29 years' imprisonment with a non-parole period of 23 years.
Sex Offence Registration
103I declare pursuant to s 6F that you have been sentenced as a serious sexual offender in respect of Charges 3 to 8.
104You have pleaded guilty to more than two Class 1 offences within the meaning of the Sex Offenders Registration Act 2004 (Vic). This means that you will be required to comply with the reporting obligations under that Act for the rest of your life.
105The Sex Offenders Registration Act 2004 (Vic) provides that you must be given a notice setting out your reporting obligations under the Act and what will happen if you do not comply with those obligations.
106The court will arrange for that notice to be sent to you in prison.
107In my published sentencing reasons I will anonymise them by using pseudonyms for Nicki and for the co-offenders and I will also set out my sentences in this matter in tabular form for ease of reference and understanding.
108Ms Wall, do you understand the sentence that I have imposed? Yes, you're nodding your head. Are there any other matters that anyone wishes to raise with me, before I adjourn?
109MS HAMILL: No, Your Honour.
110MR CASEMENT: If I could remain on the link with my client for a small period of time, Your Honour, I'd be grateful.
111HER HONOUR: Yes, that is fine. We do have another matter which is actually overdue, I'm not sure how that affects it but we'll allow you to certainly talk with Ms Wall. It's fine.
112MR CASEMENT: It will only be for a minute or two Your Honour.
113HER HONOUR: That's fine.
114MR CASEMENT: Just to indicate when our next communication will be.
115HER HONOUR: That's fine. All right, thank you I'll leave the Bench.
- - -
Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Compelling sexual penetration comprising 3 instances of you compelling Nicki to digitally penetrate her own vagina (during incidents 1, 2 and 3) rolled-up charge | 25 years | 6 years | 1 year |
| 2 | Sexual penetration of a child under 16 comprising 4 instances of you causing Connor to digitally penetrate Nicki’s vagina (during incidents 1, 2, 4 and 5) rolled-up charge | 15 years | 7 years | 1 year |
| 3 | Sexual penetration of a child under 16 comprising 3 instances of you causing Connor to penetrate Nicki’s vagina with his penis (once during incident 2 and twice during incident 5) rolled-up charge Sentenced as serious sex offender | 15 years | 10 ½ years | Base |
| 4 | Sexual penetration of a child under 16 comprising a single instance of you penetrating Nicki’s vagina with a vibrator during incident 1 Sentenced as serious sex offender | 15 years | 6 years | 18 months |
| 5 | Sexual penetration of a child under 16 comprising a single instance of you causing Connor to penetrate Nicki’s vagina with a vibrator during incident 1 Sentenced as serious sex offender | 15 years | 6 ½ years | 6 months |
| 6 | Sexual penetration of a child under 16 comprising a single instance of you causing Nicki to penetrate Francis’ vagina with her tongue during incident 3 Sentenced as serious sex offender | 15 years | 6 years | 18 months |
| 7 | Sexual penetration of a child under 16 comprising 4 instances of you causing Francis to penetrate Nicki’s vagina with a dildo and a wooden spoon (once during incident 3 and three times during incident 6) rolled-up charge Sentenced as serious sex offender | 15 years | 10 ½ years | 18 months |
| 8 | Sexual penetration of a child under 16 comprising a single instance of you causing Francis to insert a dildo into Nicki’s anus (during incident 3) Sentenced as serious sex offender | 15 years | 6 ½ years | 18 months |
| 9 | Causing injury intentionally | 10 years | 3 years | 8 months |
| 10 | Causing injury intentionally | 10 years | 3 ½ years | 10 months |
Total Effective Sentence: | 20 years and 6 months’ imprisonment | |||
Non-Parole Period: | 16 years’ imprisonment | |||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 863 days | |||
| 6AAA Statement: 29 years’ imprisonment with a non-parole period of 23 years’ imprisonment | ||||
| Other relevant orders: · Pursuant to s 6F, sentenced as a Serious Sexual Offender in respect of charges 3 to 8 · Life reporting under the Sex Offenders Registration Act 2004 | ||||
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