Director of Public Prosecutions v Wallace (a pseudonym)
[2019] VCC 2211
•19 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARRY WALLACE (A PSEUDONYM) |
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| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Melbourne |
| DATES OF HEARING: | Trial:12, 13, 15,16 August 2019, Mentions: 28 August, 2 September 5 September 2019 Trial: 9, 10, 11, 12, 13, 16, 17, 18 19 September 2019 Plea: 16 December 2019 |
| DATE OF SENTENCE: | 19 December 2019 |
| CASE MAY BE CITED AS: | DPP v Wallace (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2211 |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Offender found guilty by a jury of 12 charges of sexual penetration of a child under 16 – offender aged 28, complainant aged 15 – trusted friend of family – complainant developed crush on offender – increasingly suggestive Facebook messages exchanged – opportunistic offending on two occasions a month apart – no remorse.
Cases Cited: PDA v R [2010] VSCA 94
Sentence: 7 years 6 months imprisonment 4 years non parole period.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C Foot (trial/plea) Ms I. Moffatt (sentence) | OPP |
| For the Accused | Mr V. Peters | Rainer Martini & Associates |
HER HONOUR:
1Harry Wallace[1], you have been found guilty by a jury of 12 charges of sexual penetration of a child under 16. The complainant, Danielle Butler[2], is the youngest daughter in a family whom you befriended about eight years ago. She was about seven at that time and you were a frequent visitor to her home until January 2018 when the complaint was made. You were close to her mother, Mandy Butler[3] and to her brother Brendan Butler[4]. Indeed you got on well with all the family.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
2In mid-2017, when Danielle was aged 15, she developed a crush on you. You were then aged 28. She began communicating with you by Facebook Messenger and the two of you exchanged increasingly suggestive messages. The family was aware of Danielle’s crush on you and it was the subject of jokes which she did not like. In late November or early December 2017, Mrs Butler was away from home for several weeks for a work commitment, returning home only at weekends.
3One evening when she was away, you were visiting the home as you often did, seated in the loungeroom on a couch next to Danielle. The two of you were playing a computer game on your respective electronic devices while Mike Butler[5], Danielle’s father, sat a few feet away with his back to you both, playing a game on an Xbox. You and Danielle had a doona over you and you placed your hand on her thigh, then moved your fingers on top of her underwear before inserting them into her vagina. That is Charge 1.
[5] A pseudonym.
4The other offending took place on Christmas Eve or in the early hours of Christmas Day 2017. On Christmas Eve you went with the family to a nearby hotel for drinks at happy hour. When you all returned to the Butler home in about the middle of the evening, Brendan and Mike Butler were very drunk and went to bed. Brendan got up at one stage as he was vomiting and had to be persuaded to go back to bed. His partner, Corina Hunt[6], was cleaning up and other family members were in the vicinity.
[6] A pseudonym.
5Eventually Brendan went to sleep and was snoring, which Danielle heard as she walked past the door on her way to feed her cat. Despite the activity in the house and the proximity of people there, you beckoned Danielle into Brendan’s room and you put your hand in her pants and in her words you fingered her, with your fingers in her vagina. Also in her words, you began, 'making out' together. That is Charge 2. Hearing someone at the front door, Danielle left the room and went to have a shower.
6She then sat in the loungeroom playing a computer game. You were also there and you asked her to get a phone charger for you. She went and got one and you asked her to plug it in. She bent down to do so and you put your hand on her buttocks and told her, 'Come here'. You again inserted your fingers into her vagina but stopped because you were aware that Jasmine Butler[7], the complainant's sister was still up. That is Charge 3. Brendan got up again briefly and after he had returned to bed, Danielle got onto the couch with you and another instance of digital penetration occurred then, Charge 4.
[7] A pseudonym.
7There followed a series of sexual acts which only need to be summarised as follows. Charges 5 and 8 were further instances of digital penetration.
Charges 6 and 11 were acts of penile-vaginal sex. Charges 7, 10 and 12 are instances of oral sex whereby you placed your penis in her mouth. In the case of Charge 12, you ejaculated in her mouth. Charge 9 is an instance of oral sex whereby you penetrated her vagina with your tongue. You told Danielle not to tell anyone but she told her friend Haylee Wong[8] what had taken place.[8] A pseudonym.
8Danielle told her after the first incident in late November and she told her on Christmas Day about the other incidents. On Christmas morning, Danielle told her brother's partner, Corina Hunt, that she had had sex with you the previous night. Sometime after this, you told Danielle to delete all the messages you had exchanged and also that you could no longer have a sexual relationship until she was 18. On 25 January, Danielle took an overdose of pills and she was taken to hospital. The following weekend she disclosed to her sister and then her mother what had taken place.
9She reported to the police on 30 January and the following day the complainant's mother, Mrs Butler, had a telephone conversation with you in which she asked you, 'How can you deny it?' You replied, 'When have I been alone with her?' Mrs Butler said, 'There is no point in lying, I have seen the messages'. You said, 'Yes, I know. I don't know why I did it, I'm sorry'.
10You were arrested on 6 February 2018 and a brief no-comment record of interview took place. You were released on bail and have remained on bail. Following the jury verdict on 19 September 2019, the case was adjourned for a plea hearing on 16 December.
GRAVITY OF THE OFFENDING
11Through your counsel you have conceded that these charges are very serious. Indeed they are so serious that the maximum penalty provided by the legislature is 15 years' imprisonment. Their gravity in this case is partly determined by the fact that in offending as you did, you exploited the emotions of a teenage girl 12 years younger than you. You betrayed the trust of the family who had accepted you as one of them, as each of them so eloquently expressed in their victim impact statements.
12During the trial Facebook messages between the complainant and her close friend were relied upon by the defence to disclose the complainant's role in encouraging the relationship and sexual activity. The jury must have accepted that the messages reflected accurately the development of the relationship between you and the complainant as well as the disclosure by the complainant to her friend on Christmas Day of the sexual activity which had occurred the previous evening.
13From those messages it can be deduced that in the weeks before the first offence, the complainant was vulnerable and depressed and saw a relationship with you as something that would make her happy. According to these messages she told you that. You have acknowledged that you should have walked away and that if you had, the offending would not have occurred.
14There had been an exchange of text messages between you both as I mentioned earlier but the complainant had deleted them at your request.
15The offending was of limited duration in the sense that it occurred on two occasions a month apart, but the seriousness of the second occasion on Christmas Eve is aggravated by the fact that it was a second time and extended to much more serious offending involving 11 separate acts. Both episodes of offending were particularly brazen in that they occurred in close proximity to the complainant's family. On the first occasion, her father was in the same room and on the second occasion, family members were in the near vicinity for most if not all of the time.
16I was referred to the decision in PDA v R[9] where the age gap between the emotionally vulnerable 15-year-old complainant and the offender was even greater and the offending occurred over several months. The offender was aged 37 and was a married man with children. The duration of the offending and the large number of instances of penetration in PDA are the chief distinguishing factors between that case and this, although it was arguably a case of greater exploitation than this case.
[9] [2010]VSCA 94
17The text messages that were exchanged in PDA were very explicit sexually and in your case they were suggestive rather than explicit. The similarities include the great age gap, the vulnerability of the complainant and the fact that each complainant told the offender that she was depressed. The offender in PDA pleaded guilty and with the benefit of that plea was sentenced to seven years and three months imprisonment with a non-parole period of three years and 10 months. The appeal against sentence was dismissed.
18At your trial the complainant was subjected to lengthy cross-examination lasting six hours and her parents, brother and sister all gave evidence and were cross-examined. Through your counsel, you have indicated that you are remorseful in the sense that you understand the trauma that your offending has caused the complainant and the turmoil it has inflicted on her immediate family. It seems that you acknowledge the sexual activity to some extent took place but that sits awkwardly with your denial of the charges and the trial which proceeded.
19As a consequence, your claim of remorse appears to be directed instead to your regret that any sexual contact occurred which in turn led to the end of your long friendship with the family. That appears to be the extent of your regret and it means that you are entitled to little if any benefit for remorse.
20With reference again to the victim impact statement, the complainant has explained her ongoing struggle with depression which was clearly pre-existing but the break between you, occurring immediately after the offending culminated in her suicide attempt.
21According to her statement and that of her father, there was a second and perhaps more serious attempt and she is currently being treated with counselling and with antidepressant and sleeping medication. Her family blame themselves for not having protected her from you and they feel betrayed by you, as they trusted you as if you were a member of the family.
PERSONAL BACKGROUND AND CIRCUMSTANCES
22You are now aged 30, a single man living with your elderly mother, helping to care for her as she faces several serious health problems and has limited mobility.
23Your brother also helps in this regard but as the father of five children, his time is limited. You have an excellent work history as a trained mechanic, until now working as a manager in a mechanic's business. There is no doubt that you are very well regarded and trusted by your work colleagues and by friends who have known you for a long time, according to the large number of references provided. You have no prior convictions nor anything pending and your referees regard your offending as being out of character.
24Your blemish-free record has only been marred by a recent conviction for drink driving, with a low blood alcohol reading resulting in loss of your licence for three months. Previous good character has reduced weight in a case like this. Perhaps its value lies in suggesting that in the absence of any criminogenic factors in a man of your age, your likelihood of reoffending may be reduced. That is relevant to sentencing in that for each of Charges 3 to 12, inclusive, you are to be sentenced as a serious sexual offender, with the protection of the community being the principle purpose of the sentence.
25However, I note that the prosecution does not seek a sentence that is disproportionate to the gravity of the offending. General deterrence is the most important principle in sentencing you, in that the sentence should send a message to others that such behaviour is not to be tolerated. Likewise, the court must denounce the crimes which are regarded with abhorrence by the community and which are understood to cause considerable harm to underage victims whom the law regards as too young and immature to give informed consent.
26Your counsel, Mr Peters, submitted that a Community Correction Order was an appropriate sentence, given that if sufficiently long and with suitable conditions and work hours, it could be adequately punitive. He submitted that on the contrary, nothing would be achieved by your imprisonment. The prosecution submission was that only a head sentence with a non-parole period would be adequate, largely in order to meet the need for general deterrence.
27My conclusion is that an immediate custodial sentence is necessary, both for punitive reasons and to reflect the importance of general deterrence and denunciation. A Community Correction Order or even one combined with a prison term would be inadequate to reflect this serious offending.
28Would you stand now please, Mr Wallace.
29I sentence you to the following terms of imprisonment.
For each of Charges 1 to 5 inclusive and Charge 8, which are all charges of digital penetration, three years.
For each of Charges 6 and 11, which are charges of penile-vaginal penetration, four years.
For each of Charges 7 and 10, charges of penetration of the complainant's mouth with your penis, three years.
For Charge 12, a further similar charge but with ejaculation into her mouth, three years and three months.
For Charge 9, a charge of penetrating the complainant's vagina with your tongue, three years.
The sentence for Charge 6 is the base sentence for purposes of cumulation. I order that 12 months of the sentence for Charge 11, six months of each of the sentences for Charges 1 and 12 and three months of each of the sentences for Charges 2, 3, 7, 8, 9 and 10 be served in cumulation upon the base sentence. The sentences for Charges 4 and 5 are to be served concurrently. This results in a total effective sentence of seven years and six months.
I order that you serve a minimum period of four years before being eligible for parole.
30In determining the orders for cumulation, I have taken into account the principle of totality and the need to avoid the sentence being a crushing one. I have also considered the fact that Charges 2 to 12 all took place on the same occasion but that there were breaks in the episode, after which your action would resume or continue, having had the opportunity to stop.
31The prosecution seeks an order for a forensic sample of saliva to be obtained and through your counsel you have consented to that. I make that order and must advise that the police have the power to use reasonable force to obtain the sample but I trust that will not be necessary.
32It is mandatory that you be registered under the Sex Offender Registration Act for life, which will require you to report your details to the police each year for the rest of your life after your release.
33It will be recorded that in relation to Charges 3 to 12, you are sentenced as a serious sex offender.
34Is there anything I have omitted?
35MS MOFFATT: No, Your Honour.
36HER HONOUR: Thank you. Mr Peters?
37MR PETERS: No, Your Honour.
38HER HONOUR: No, thank you. My associate has the sex offender registration form for signature. Do you want to accompany her to the dock with that,
Mr Peters?39Adjourn the court now please, Mr Percy.
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