Director of Public Prosecutions v Wallis
[2017] VCC 1159
•18 August 2017
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01987
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE JAMES WALLIS |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 1 February 2017, 27 March 2017, 30 June 2017 | |
DATE OF SENTENCE: | 18 August 2017 | |
CASE MAY BE CITED AS: | DPP v Wallis | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1159 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Sentencing – use a carriage service to menace, harass or cause offence contrary to s.474.17(1) of the Criminal Code (Cth) and transmit child pornography material using a carriage service contrary to s.474.19(1) of the Criminal Code (Cth).
Sentence: Community Correction Order for period of three years with special conditions of 200 hours unpaid community work, supervision, mental health assessment and treatment, and programs to address offending behaviour.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr I Buckley (Plea and Sentence) Mr D Holding (Plea) | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Accused | Mr R De Vietri | Victoria Legal Aid |
HER HONOUR:
1 Luke James Wallis, you have pleaded guilty before me to one charge of using a carriage service to menace, harass or cause offence, contrary to s.474.17(1) of the Criminal Code (Cth) and one charge of transmission of child pornography material using a carriage service contrary to s.474.19(1) of the Criminal Code (Cth).
2 The maximum penalty in respect to Charge 1 is three years’ imprisonment and in respect to Charge 2, 15 years’ imprisonment.
3 In addition, you have admitted your criminal record. That is of some relevance given that you do have a conviction for possession of child pornography.
4
There is a prior appearance recorded at the Bendigo Magistrates’ Court on
11 May 2004 for charges of criminal damage and behaving in an offensive manner in a public place for which you were dealt without conviction fines on both charges. On 3 April 2013 you were convicted of knowingly possess child pornography for which you were ordered to serve a 12 month term of imprisonment. The sentence was partially suspended under s.27 of the Sentencing Act1991 and the term to be served nominated as four months with an operational period of 12 months.
5 The Magistrates' Court conviction and sentence was appealed to the County Court on 16 April 2013. On that occasion your appeal was allowed and the Magistrates' Court order set aside. You were then placed on a three year Community Correction Order with the direction that you undertake 200 hours of community work, supervision, treatment for alcohol and drug dependency and mental health issues, and a further order was made that you be registered as a sex offender pursuant to the Sex Offenders Registration Act 2004.
6 Following discussions this morning between counsel, I have determined that that was a class 2 offence and the relevant period for reporting on that conviction alone is eight years. Although it is not clear from the record whether or not that was properly recorded.
7 On 11 December 2014, at the Melbourne County Court you were dealt with in respect to a contravention of that Community Correction Order. The breach was found proven and the order was confirmed. You completed your Community Correction Order on 15 April 2016.
8 I shall now move to the circumstances of the offending. You will be sentenced on the basis of the summary of the facts as set out in the Crown opening that was exhibited at the plea hearing.
9 Briefly, between 3 June 2016 and 9 August 2016, you used a Facebook account under various different names, to publish posts and comments on a public Facebook page in the name of “Sarah Monahan”. Those posts and comments are the subject of the two charges on the indictment.
10 The background is that Sarah Monahan, an Australian actor, who resides in the United States of America, played a role as a child actor on the television series “Hey Dad” between 1987 and 1993.
11 In 2010 Ms Monahan made public statements alleging that she had been sexually abused by Robert Hughes, the actor who played her on-screen father during her time working on the series.
12 On 16 May 2014, Hughes was convicted of a number of sexual offences including offending relating to Ms Monahan. An appeal brought by Mr Hughes against conviction and sentence was ultimately unsuccessful in the High Court of Australia.
13 In March 2016, Ms Monahan published a memoir titled “Allegedly”. She maintained and operated a public Facebook page for the purposes of her book promotion and to facilitate her interaction with her public supporters. She had at least 1,000 followers and any posts and comments made by other users in response to her posts were visible to any internet user who visited the Facebook page.
14 Between 3 June 2016 and 9 August 2016, you used Facebook accounts to create pages under various names to post comments on Sarah Monahan’s Facebook page, including posts under names relating to some known sex offenders as set out in paragraph 6 of the Crown opening.
15 Charge 1 relates to the various comments posted to the Facebook page by you and it included posts such as those described in paragraph 7 of the Crown opening.
16 On or about 15 July 2016, you used one of the Facebook accounts under the name of “Mr Swirl” to post a comment in relation to a post made by Ms Monahan on her Facebook page. That is the subject of Charge 2, use carriage service to transmit child pornography (“CP”) material.
17 The text of that is set out in paragraph 8 of the Crown opening and I do not propose to repeat it.
18 That post was subsequently examined and identified as child pornography and classified as Category 5 according to the categorisation model for child exploitation material of the Australian National Victim Image Library. You did not have any authority to transmit child pornography material and you were not acting in the public benefit or on behalf of a law enforcement agency.
19 On 11 August 2016, members of the Joint Anti Child Exploitation Team executed a search warrant at your premises.
20 You were present and were cautioned. You participated in a record of conversation with officers during which you made certain admissions that you created different Facebook pages, sometimes based on something you saw in the news that seemed controversial, to stir people up, cause offence and to get people riled up.
21 You confirmed that you had used a number of different Facebook usernames including some names that have been associated with past sexual offenders; and that you would use those names to get more attention.
22 In your interview you admitted you contacted Facebook user Sarah Monahan to stir her up particularly because:
“She was complaining so much about what was going on … She would never obviously understand sexual abuse of different degrees, she was on the lowest scale, touching, exposing stuff like that, and it just really pissed [you] that she could sit there and complain about your true victim and write this book and all this sort of stuff when she never really experienced what the real abuse in his personal was, so you decided to give her shit about that.”
23 You told police the purpose of the posts were to annoy Ms Monahan a little bit and that you made up the story that has been classified as child pornography, to try and get a good reaction.
24 You told police that you used Facebook names that you knew would upset users to get a reaction.
25 Mr Wallis, the impact of your offending has been great. A Victim Impact Statement completed by Sarah Monahan was tendered at the plea hearing.
26 That statement confirms the difficult few years that she has experienced having gone through a very public disclosure in respect to the allegations of sexual abuse by Robert Hughes.
27 Further, she was getting her life back to normal, feeling at peace and happy, enjoying life again when she started receiving your messages. That has caused her to be greatly upset. She stated that she would block access to you, but then you would use different names and personas to try and taunt her further.
28 She refers to the personal difficulties she had in terms of anger, depression and difficulties with sleeping at night. It saddened her that you impacted upon her life and also affected so many of the people whom she interacts with on a public basis on Facebook.
29 Mr Wallis, the offending is serious. You exploited the anonymity of the internet by posing under different names some of which have been associated with past serious sexual criminal behaviour to harass Ms Monahan. Further, the nature of the CP material that you posted on her Facebook page is vile and disturbing, and that fact was acknowledged by your counsel, Mr De Vietri, in the plea hearing.
30 Initially I considered that the offending was motivated by sexual gratification however, I have been persuaded having regard to the totality of the evidence, in particular, the evidence from Mr Joblin and Dr Sullivan that it is not.
31 Yours is a serious example of using a carriage service to menace and your behaviour must be condemned. Although the CP was text based and there is no victim as such, nonetheless the content is serious and is depraved, and you will be punished accordingly.
32 The focus in the sentence to be imposed will be to enable you to understand that such behaviour is criminal and unacceptable and that you must take steps to address this behaviour.
33 I have had regard to the public nature of your offending, the passage of time over which you offended, between 3 June 2016 and 9 August 2016, and the fact that you offended not long after you had completed your previous Community Correction Order.
34 This offending indicates that you do lack real insight into the effect of your offending behaviour and sexual offences generally. In sentencing you there is a real need to emphasise denunciation, general and specific deterrence.
35 You were arrested and charged on 11 August 2016 and you were fully co-operative with the investigators. You pleaded guilty at the first committal mention on 9 November 2016. The matter proceeded by way of straight-hand up brief and it is accepted that you entered a plea of guilty at the earliest opportunity.
36 You are now thirty-four and you were thirty-three at the time of the offending.
37 You were born and raised in Bendigo and have had a very troubled childhood. You have four sisters, a half-brother and two step-sisters. Your childhood was characterised as chaotic, disruptive and one which was characterised by real transience. You attended up to seven schools and completed Year 8 only. During your school years you were bullied and teased.
38 Your mother has schizophrenia and was a substance abuser. There was a lot of intervention in your early childhood years because of protective concerns. You have an ongoing relationship with your mother but it is strained having regard to a combination of both your mental illness and her mental illness and personality. You parents have never lived together.
39 Your father has re-partnered and re-married and lives in New Zealand and has done ever since you were about 17. He has only played a minor role in your life and has not provided any ongoing support over the years.
40 Your last memory of any significant involvement in your life by your father is when he assisted you to come out of State care or foster care when you were around 18 and he assisted you to set yourself up in the unit where you still reside.
41 You were declared a Ward of State as a young child and spent many years in foster homes, Baltara and a residential unit run by St Luke's Bendigo, until such time as you were able to secure your unit.
42 You have had treatment for ADHD and exhibited interpersonal emotional and learning difficulties from a very young age. You are described as a loner. You have very few social interactions.
43 Currently you continue to reside in your unit. You are on a disability support pension. You are especially fond of your cats.
44 There is very little else of interest happening in your life apart from the fact that you have a keen interest in storm chasing and photography. You are an excellent amateur photographer.
45 You were especially fond of your maternal grandmother to whom you were very close. She sadly died on 27 April 2016 in the months leading up to the offending.
46 You felt very empty after her passing but because you did not suffer any sadness or grief that you would have expected, this troubled you. You discussed this with your general practitioner who informed you that it may be a consequence of one or both of your mental illness or antidepressant medication that has led to a limited emotional range.
47 One possible explanation for this somewhat bizarre behaviour on your behalf that is reflected in this criminality, was because you were unable to process your grief and you were lacking an emotional response that made you desire to make yourself feel something and therefore you were driven to this sort of offending in a public forum in order to elicit reactions and therefore get some form of emotional engagement.
48 In your particular circumstances, I have accepted that this is a possible explanation for your behaviour but that in no way excuses your behaviour.
49 I have had regard to the context of the earlier charge of possession of child pornography that was the subject of the earlier conviction. I noted that that offending occurred in the context of heavy amphetamine use and that you were binging all night, staying up watching the internet with untoward purposes. The conviction related to 48 images only, half of which were said to be duplicates.
50 Since 2011, you have been free from amphetamines use. You have also been free from alcohol and smoking.
51 In relation to the breach of the Community Correction Order you completed the work hours and other conditions with the exception of the program addressing your offending behaviour. Unfortunately you were not able to conduct yourself in an appropriate manner in a group setting and therefore you were not able to complete that aspect, leading to the breach.
52 A feature that was noted during your past childhood treatment was that from an early age from around 11 or 12, you demonstrated an inability to function positively in a group and you disrupted any positive group activity. That was noted to be part of your character.
53 Following the breach, very real efforts were made by Corrections to try and accommodate your specific individual needs. You were then required to attend one-on-one sessions with a trained psychologist and counsellor with whom you got on well and you were able to successfully complete that order.
54 Various reports were provided to the court from Dr Subhash Das, psychiatrist, and Dr Clair McKenna, psychiatrist, who have treated you in the past, and the diagnosis of schizotypal personality disorder with mild depression was noted.
55 Mr Joblin, a consultant psychologist, who has seen you for the purposes of writing reports and providing evidence, both in the past and currently, confirmed the diagnosis of schizotypal personality disorder and depression. His opinion was that there was a nexus between your offending and your mental condition. Dr Cheng, your treating GP also supported a nexus between the offending and your mental impairment.
56 Having regard to the evidence I heard on the plea hearing, I then sought and obtained a report from Dr Danny Sullivan, consultant psychiatrist with Forensicare. His report of 26 June 2017 confirms the diagnosis of anti-social personality disorder and the fact that you meet the diagnostic criteria for schizotypal disorder which he says is akin to a personality disorder. He further confirmed that you do exhibit mild features of depression and anxiety. He did not consider that there was any ongoing evidence of paraphilia such as a sexual pre-occupation with children.
57 He said:
"Whilst I do not have a significant concern that the overt motivation for his behaviour was his own sexual excitement, his wilful manipulation of such imagery and content to affect distress in the recipients speaks to his willingness to use aggressive and sexualised imagery. I consider that anti-social personality disorder was associated with the offending as alleged. His lack of empathy, self-righteous beliefs and disregard for the feelings of others mildly impaired his capacity to exercise appropriate judgment but did not impact on his awareness of his wrongdoing".
58 Both Mr Joblin and Dr Sullivan agree that your anti-social personality disorder was associated with the offending. Your lack of empathy, self-righteous beliefs and disregard for the feelings of others did impair your capacity to exercise appropriate judgment at that time, but they are both in agreement that it did not impact upon your awareness of what you were doing was wrong.
59 Dr Sullivan said the personality disorder did not lead to the behaviour but was causally associated with its maintenance, in that you sought gratification at the expense of others and your desire to cause distress drove the behaviour. Your lack of remorse and ongoing defence of your behaviour and minimising of distress caused relates to your innate impairment empathy.
60 Mr De Vietri relied on the evidence of Mr Joblin and urged the court to have regard to the applicability of all the Verdins principles.
61 Mr Holding, on behalf of the Commonwealth, referred the court to the Court of Appeal decision of DPP v O’Neill [2015] VSCA 325 which states that the Verdin’s principles do not apply to personality disorders such as schizotypal personality disorders.
62 That is currently the law as it stands in Victoria and has been applied by other courts in this state.
63 At this stage I do not wish to say anything further about the applicability of the Verdins principles other than I am guided by the decision of DPP v O’Neill.
64 Overall I do not consider that your schizotypal personality disorder played a role in diminishing your capacity to understand the nature and gravity of your offending. I believe your actions were purposeful and do demonstrate that you knew what you were doing was wrong.
65 However your disorder did lead to the maintenance and the escalation of your behaviour and that needs to be taken into consideration.
66 There is still nonetheless a need in sentencing you to emphasise both general and specific deterrence.
67 I have taken into account your dysfunctional and difficult childhood that impacted upon your own personal psychological development and those impacts have not diminished over time and with repeated offending.[1]
[1]Bugmy v The Queen [2013] HCA 37 [43].
68 Your disorder has played a role in the offending. It helps explain your behaviour and it also helps explain why your behaviour continued on over the period of the charge. That will be given weight in arriving at a just sentence.
69 In your favour, I have taken into account the many matters put in mitigation by your counsel such as your co-operation with the law enforcement agents, full admissions in your record of interview, your adherence to very strict bail conditions since your arrest and your plea of guilty entered into at the earliest opportunity.
70 There is real utility in your plea. The expense and inconvenience of a trial has been avoided. You have facilitated justice and your sentence will be discounted.
71 Whenever anyone is dealt with by the courts and a plea of guilty is entered, in those circumstances, it must be demonstrated that there is a discount in the sentence given.
72 You now acknowledge that what you did was wrong and I accept that your pleas in the circumstances in which they were entered, is indicative of some remorse.
73 I accept that you do have prospects for rehabilitation that are fair. You are a person who has a recognised psychiatric illness. The material shows your condition is stable. You have demonstrated in the past with appropriate adjustments that you can adhere to court orders. You have expressed a willingness to undergo further treatment. Through your counsel you have expressed an understanding of the proposed orders and a willingness to accept the conditions of the proposed orders.
74 On your behalf, Mr De Vietri sought to distinguish your case from those which have resulted in immediate terms of imprisonment based on your mental illness, motivation for offending and factors put in mitigation, such that he submitted a Community Correction Order was warranted for a longer period than usual.
75 Ultimately, I have formed the view that the most appropriate disposition is one that ensures that you are treated and supervised by specialists in the community.
76 I accept that it is likely that imprisonment would weigh more heavily upon you because of your disorder and would aggravate your mental health as described by both Mr Joblin in his evidence and also Dr Sullivan in his report.
77 There is fragility concerning your psychiatric state and should you be incarcerated, that would further undermine your fragile psychiatric state.
78 Further you would be at risk of losing your long-term accommodation which has provided you with a stable place of accommodation since you were around 18. Such stability in a person's life such as yours, where you have had a disruptive and difficult past background, is essential. Such loss of accommodation would cause significant problems and would also, in my view, further undermine your fragile psychiatric state.
79
I accept Dr Sullivan's recommendations with respect to treatment and also
Mr Joblin's evidence that treatment in the community is necessary if one is to have any type of optimistic prognosis for you. Mr Joblin recommends one to one relationships and professional support and I endorse that recommendation.
80 Dr Danny Sullivan also said that it is possible that you could engage in individual therapy through the Sex Offender's Assessment and Treatment Service or be referred once more to the Problem Behaviour Program at Forensicare for individual treatment.
81 I recommend that the correctional authorities have regard to those recommendations having regard to the findings of both Mr Joblin and Dr Sullivan whom I note is a Consultant Forensic Psychiatrist and the Executive Director of Clinical Services at Forensicare currently.
82 The protection of the community is provided for by providing for your supervision under the Community Correction Order and also in ensuring that you attend further treatment programs that address your underlying behaviour.
83 Both charges are Commonwealth offences and therefore the court must impose a sentence that is of severity appropriate in all of the circumstances.
84 I have had regard to the matters set out in s.16A(2) of the Crimes Act 1914 (Cth) that are relevant and known to the court. I have also had regard to principles that apply to cases of this nature and I have had regard to the decisions of DPP Cth v Garside[2] and DPP v Smith[3] and in particular, the principles enunciated by His Honour, as he then was, Justice of Appeal Nettle at paragraph [23].
[2][2016] VSCA 74.
[3][2010] VSCA 215.
85 Child pornography offences are considered to be especially grave by the courts and the legislature and that is reflected in the increased maximum penalty of 15 years.
86 It is accepted by courts that general deterrence is of paramount consideration in sentencing for charges of this nature. The internet allows ease of access to material and dissemination of such material and also provides a degree of anonymity which makes it difficult to detect.
87 Ultimately I have formed the view that a sentence which encompasses a term of imprisonment and immediate release on a Recognisance Release Order and a Community Correction Order with strict conditions is the most appropriate sentence in all the circumstances.
88 In respect to the first charge, use a carriage service to menace, harass and offend, you will be convicted and placed on a Community Correction Order for three years commencing today's date and ending on 17 August 2020.
89 The mandatory conditions that apply to all Community Correction Orders apply and in addition there will be special conditions; unpaid community work, 200 hours over the three years, supervision over the three years and also, you must undergo any mental health assessment and treatment that has been recommended by the regional manager and participate in programs or courses that address your offending behaviours as directed by the regional manager.
90 Charge 2, the transmission of child pornography material charge, you will be convicted and sentenced to three months' imprisonment and you are released immediately on the basis that you enter a recognisance in the sum of $1000 to comply with these conditions; that you be of good behaviour for three years. That has been issued because you were charged with the offence of transmission of child pornography material using a carriage service contrary to s.474.19(1) of the Criminal Code (Cth).
91 I have sentenced you to a term of imprisonment for three months and I have decided that you should be released forthwith provided you comply with the conditions of this order.
92 Now you have had that recognisance explained to you. You do not have to pay the $1000 but in the event that you were to breach any of the conditions of the Recognisance Release Order, then you would have to forfeit that sum.
93 The three months imprisonment is not to be served immediately but in the event that you breach the order, then you would have to come back before me and have to be re-sentenced and you may risk having to serve that three months imprisonment.
94 The purpose of the order is to enable your conditional release into the community so you can attend to having appropriate treatment and management for your underlying offending behaviours.
95 I have explained to you the purpose and effect of the order, and the consequences that may flow if you fail without reasonable excuse to comply with the conditions of the order. Do you agree that you are bound by those conditions?
96 OFFENDER: Yes, Your Honour.
97 HER HONOUR: Thank you. All right. I will sign that. I have got to sign the back page too. I have not signed that.
98 MR BUCKLEY: Your Honour signs the first page - - -
99 HER HONOUR: Only the first page?
100 MR BUCKLEY: Then the offender signs on that page.
101 HER HONOUR: All right.
102 MR BUCKLEY: Then Your Honour signs again.
103 HER HONOUR: All right. We will get that done and the CCO signed as well. You have had that all explained to you so I will just ask that your counsel accompanies my associate.
104 MR DE VIETRI: Thank you, Your Honour.
105 HER HONOUR: I will announce the SORA so that those requirements can be given too.
106 Because of your convictions, you are now required to comply with the reporting conditions set out in the Sex Offenders Registration Act2004 (Vic) for a period of life[4] and a notification setting out the requirements of the SORA legislation will be provided to you.
[4]The order for the reporting period under the Sex Offenders Registration Act 2004 (Vic) was amended under s.104A of the Sentencing Act 1991 (Vic).
107 The only other order is the s.6AAA declaration. But for your plea of guilty in respect to both charges, I would have sentenced you to a term of imprisonment of three years to serve 18 months.
108 I think that covers everything now?
109 MR BUCKLEY: It does, Your Honour, thank you.
110 HER HONOUR: All right, thank you.
111 MR BUCKLEY: Your Honour, if I could just reiterate something that I said in Bendigo back in February?
112 HER HONOUR: Yes.
113 MR BUCKLEY: In respect to the exhibits tendered, the Victim Impact Statement was not read aloud.
114 HER HONOUR: No.
115 MR BUCKLEY: So if there was to be any application, the Crown would seek that that exhibit to not be released.
116 HER HONOUR: Right.
117 MR BUCKLEY: I just thought that I would reiterate that in case such application was made.
118 HER HONOUR: Right. So that completes the matter. I will get my associate to provide copies for you, Mr Di Vietri and Mr Buckley.
119 MR BUCKLEY: Thank you, Your Honour.
120 HER HONOUR: Gentlemen, it has been an interesting, complex and difficult matter to deal with. I thank you both for your attention to the matter.
121 MR DE VIETRI: As the court pleases.
122 HER HONOUR: And assistance that you have provided. Thank you.
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