Director of Public Prosecutions v Walls
[2015] VCC 1955
•10 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 14-01960
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID WALLS |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 & 10 December 2015 |
| DATE OF SENTENCE: | 10 December 2015 |
| CASE MAY BE CITED AS: | DPP v Walls |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1955 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Sexual penetration of a child under 16 years – indecent act with a child under 16 years
Legislation Cited: Sentencing Act 1991, Sex Offenders' Registration Act 2004
Cases Cited: Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
McAleer v The Queen [2015] VSCA 4
Sherritt v The Queen [2015] VSCA 1
Marocchini v The Queen [2015] VSCA 29
Cole (a Pseudonym) v The Queen [2015] VSCA 44
Charles v The Queen [2011] VSCA 399
Verdins v The Queen (2007) VSCA 102
R v Tsiaras [1996] 1 VR 398
Sentence:3-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Moran | Office of Public Prosecutions |
| For the Accused | Mr I. Crisp | Thexton Lawyers |
Pages 1 - 13
HIS HONOUR:
1Mr Walls, you have pleaded guilty of one charge of sexual penetration of a child under 16 years and two charges of indecent act with a child under 16 years.
- The offence of sexual penetration with a child under 16 with the aggravating circumstance that the child was under 10 years of age carries a maximum penalty of 20 years' imprisonment.
- The offence of indecent act with a child under the age of 16 carries a maximum penalty of 10 years' imprisonment.
2You were born on 16 June 1935 and you were aged 55 to 57 when this offending occurred. You are now aged 80.
3You have no criminal record.
4The victim in this matter was born on 15 February 1985. She is currently 30 years old and was aged between 6 and 8 years old at the time of the offending.
5The background circumstances of the offending are as follows.
6The victim went to after-school care at your home between the ages of 6 and 8. Your wife Eileen Walls ran a small after-school business where a handful of children would be in her care from after school until the early evening. The victim recalls that she was always the last kid there and that her mother would pick her up around 5.30-5.45 pm.
7At the Walls' house there was a small shed connected to the garage. You would often work in the shed while children were at your house being looked after by your wife.
8The victim often played with a ball at your home. The ball would sometimes go into the shed where you were working in the shed. The victim would go into the shed to retrieve the ball. Over time you became more and more physical with the victim during this process of retrieving the ball. This included putting your arms around the victim with the ball in your hand and held against her body. Over time you moved your hand closer and closer to the victim's vagina until the tennis ball was pushed up against her vagina. This is the context in which the specific conduct occurred.
9Up until this point in time the victim interpreted your behaviour as a game and enjoyed going to the shed to retrieve the ball.
10The victim recalls that the sexual touching of her by you tended to happen only when the weather was cold because the shed door stayed open during warm weather.
11I now turn to the circumstances of the specific offences themselves.
12The first incident that the victim can specifically recall occurred between 1 April 1991 and 30 April 1992. On this occasion when the victim went into the shed you went up to her with the ball in one of your hands and put your arms around her from behind. You moved the ball against her stomach so tightly she could not move, then moved the ball lower and lower until it was pushed up against her vagina.
13The next incident occurred between 1 May 1992 and 30 June 1992 after the victim's father left to go to live in Queensland. On this occasion when the victim was playing with the ball outside, you came and took the ball from her and walked into the shed. You said: "…. come and get the ball off me". In the shed you came up to the victim from behind, placed both of your arms over the top of her shoulders, held the ball in one hand and used the other hand to press on her vagina. You rubbed the victim's vagina over the outside of her clothing. This conduct gives rise to Charge 1 - Indecent act with a child under 16, which is a representative charge of other conduct.
14The next offence occurred in July of 1992. On this occasion when the victim was playing with the ball outside, you took the ball from her and walked into the shed indicating that she should come and get it from you. In the shed you grabbed the victim from behind, held the ball in one hand and used the other hand to rub the victim's vagina over the outside of her clothing. You then put your right hand down the front of the victim's underpants and started rubbing her bare vagina with your hand. You quickly progressed to rubbing the inside of the victim's vagina with your fingers.
15This was the first time you touched the victim's vagina on her bare skin. This conduct gave rise to Charge 2 - Sexual penetration of a child under 16, which again is a representative charge.
16The next offence also occurred in July of 1992. On this occasion the victim was playing with the ball outside and you again took the ball from her and told her to come into the shed. In the shed you immediately put your arms around the victim holding her tightly. Straight away you put one of her hands over her vagina and started rubbing it. After a short time of doing that, you then put your hand down her underpants and started rubbing the inside of victim's vagina with your fingers. This conduct is also represented by Charge 2 on the indictment.
17From 1 August 1992 to 31 October 1992 you touched the victim on the vagina in the shed almost every time she attended after-school care. This is included as context to your offending.
18On one such occasion the victim was playing with the ball near the shed. On this occasion she entered the shed and you held her from behind with your hand near her vagina outside her clothes. Another child entered the shed and pushed you and told you to get off the victim. You shooed that child away, who then left the shed. You then touched the victim's vagina. This conduct is also represented by Charge 1 on the indictment.
19Around April of 1993 when the victim was 8 years old your touching of the victim's vagina in the shed was still occurring almost every day the victim attended after-school care. The victim recalls the final time you touched her in this way because after this occasion she stopped going into the shed altogether.
20On this final occasion the victim went into the shed and you grabbed her from behind with both hands. Whilst holding the ball in one hand you put your other hand down the victim's underpants and fondled the lips of her vagina. This conduct gave rise to Charge 3 - Indecent act with a child under 16.
21You were interviewed by police on 3 April 2014 and denied committing the alleged offences.
22A committal hearing was conducted on 5 and 6 November in 2015 during which multiple witnesses including the victim were cross‑examined. The victim also gave evidence and was cross‑examined during pre‑trial argument. The matter resolved to a plea of guilty on 27 November 2015 after two days of pre‑trial argument.
23The Victim Impact Statements, one from the primary victim and the other from her mother, bear eloquent testimony to the hurtful emotional consequences of your acts.
24As is quite typical, the primary victim suppressed the detail of your abuse for many years. This has resulted in feelings of resentment from time to time and anger which has impacted on her relationships with others, including her parents - particularly her mother - and within her employment. She has suffered some very dark periods with depression and has sought various psychological counselling over the years. As well as the emotional turmoil this has had, it has also had a financial impact upon her.
25The victim's mother has also suffered. She has felt anger at you for what you did to her daughter and, however wrongfully, feels self‑blame for not being able to protect her daughter. She is very distressed and heartbroken at the emotional impact that the offending has had on her daughter.
26I now turn to your personal circumstances.
27As I noted earlier, you were aged from 55 to 57 when this offending occurred, you are now aged 80 and you have no criminal record.
28You had an unfortunate start to life with your father dying when you were aged six. You were one of eight children and circumstances required that you leave school and commence working at a very early age. You commenced work at 13 and you have a long and consistent work record, ultimately retiring at the age of 65.
29References tendered document your capacity for work together with qualities of responsibility, trustworthiness and initiative.
30You have been married for 55 years and your wife attended at your plea hearing and remains supportive of you. You were unable to have your own children; however you adopted a brother's son when that brother, his wife and daughter were killed in a house fire. You and your wife later adopted another son and daughter. This extended family remains close and you have ten grandchildren.
31You have a history of a variety of medical complications consistent with your age which was set out as a bundle of documents tendered as Exhibit “2” on your plea.
32In particular, you have suffered a minor stroke in 2011, aortic complications from 2005, transient depression since 2002, epigastric pain and various other physical issues. You had a stent inserted for cardiac problems and continue to suffer from an enlarged aorta which has the potential for further serious deterioration. Your various conditions are currently being managed by prescription medicine including daily Aspirin for your heart, Nexium for gastric pain, Crestor for blood levels, OsteVit‑D for vitamin deficiency, Panadol for general pain and Zoloft for depression.
33From a clinical perspective your treating medical practitioner has concluded that a term of imprisonment would be extremely difficult for you and has particular concern that there is a significant risk of relapsing depression, despite medication, which may have serious consequences.
34In mitigation I take into account the matters urged on your behalf by your counsel, including your plea of guilty before the commencement of the trial proper, sparing the victim the further anxiety and stress of protracted court proceedings and challenges to her truth. This finding is qualified by the late time at which your guilty plea was entered and the fact that the victim and another witness were subjected to examination on a pre‑trial issue.
35I do however give you some credit for specific remorse. This would otherwise have been a case of word against word concerning events very many years ago where the jury would have been given strong directions on forensic disadvantage to the accused and your otherwise good character. You chose not to take the course that a contest might result in a finding of not guilty or where a jury might not be able to agree. Such results in these circumstances are not uncommon or atypical.
36I take into account your good character both prior to and subsequent to this offending. This is not just represented by your lack of any prior or subsequent offending but by your history of responsible employment and compassionate and caring role in relation to your adopted children and the maintenance of your marriage.
37I also take into account the delay of 23 years since the offending, which in combination with the fact that you have not re‑offended in any way reduces but does not eliminate what otherwise would need to apply to give effect to specific deterrence.
38I take into account obviously your old age which, together with your wide range of medical issues (both physical and psychological) will make any period of imprisonment extremely difficult for you.
39I also take into account the nature of the particular offending itself. Not all the offending was penetrative and where there was actual penetration the conduct was more fondling than deeply penetrative.
40The crimes of sexual penetration and indecent act with a child under 16 are serious, and in the case of penetration often result in immediate imprisonment and for a significant term. Sexual assaults against children are unfortunately not uncommon and are to be deplored. The courts are expected to protect the rights of children. The victim in this case was only six to eight years old at the time of offending and you were aged from 55 to 57. Furthermore your offending was aggravated by you having been in a position of trust. She was a young child in a care facility where she was entitled to feel safe and her parents were entitled to feel that she would be protected. The offending was also repeated over a significant period. The long‑term effects of your offending on the primary victim have been profound and have altered her life.
41The basic purposes for which a court may impose a sentence are punishment, deterrence (that is both specific to you and general to deter other people from committing a like offence), rehabilitation of the offender, denunciation and the protection of the community. In sentencing I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
42The principles of general and specific deterrence, just punishment and denunciation of this conduct remain of importance despite the passing of many years, your advanced age and personal circumstances. It is not unusual that many offenders of this type of conduct are otherwise of good character, and age cannot be allowed to be a justification for an unacceptably inappropriate sentence.
43I am satisfied however that because of your age and health, the years since offending and the other mitigating features referred to, you are less of an appropriate vehicle for the purposes of general and specific deterrence, that imprisonment will weigh more heavily on you than upon a younger offender and one in normal health and that there is a serious risk that imprisonment will have a very significant adverse effect on your mental and possibly physical health.
44Your counsel submitted that an appropriately-conditioned community correction order would satisfy the various sentencing considerations. The prosecution submitted that such an outcome is within appropriate sentencing range in the context as specified by counsel for the prosecution: that it be appropriately conditioned and contain a requirement for counselling through the course of a sexual offenders program.
45I have considered these submissions carefully with considerable regard to the serious nature of the offending and the need for appropriate punishment, deterrence and expression of denunciation by the court.
46In his submission on your behalf, your counsel gave specific emphasis to the recent decision of the Court of Appeal in the case of Boulton v The Queen[1]. I have given close considerations to the principles expressed in that decision and the further expressions from the Court of Appeal in subsequent decisions, including McAleer[2], Sherritt[3], Marocchini[4] and Cole[5]. I have also carefully considered the provisions of the Sentencing Act 1991, in particular s.5(4C), the sentencing overview of cases for these offences as set out in the Victorian Sentencing Manual and the authorities of Charles[6], Verdins[7] and Tsiaras[8].
[1] Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
[2] McAleer v The Queen [2015] VSCA 4
[3] Sherritt v The Queen [2015] VSCA 1
[4] Marocchini v The Queen [2015] VSCA 29
[5] Cole (a Pseudonym) v The Queen [2015] VSCA 44
[6] Charles v The Queen [2011] VSCA 399
[7] Verdins v The Queen (2007) VSCA 102
[8] R v Tsiaras [1996] 1 VR 398
47In the recently changed landscape of sentencing law, even in cases of objectively grave conduct a court may conclude that some or all of the punitive, deterrent and denunciatory purposes of sentences can be sufficiently achieved with conditions within a community correction order tailored to an offender's circumstances and the causes of offending, directed at rehabilitative purposes. Boulton emphasises that sentencing courts need to rethink the conventional wisdom about whether prison is the only option.
48I have given careful attention to:
a)the purposes for which the sentence is to be imposed, and
b)whether those purposes can be achieved by a community correction order to which one or more of the specified onerous conditions may be attached.
49I have also considered that, given a community correction order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, whether there is any feature of the offences or the offender which requires the conclusion that imprisonment, with all of its disadvantages, is the only option.
50I have also considered the Community Corrections Suitability Report which has assessed you as suitable, should I so order.
51On balance, in the particular circumstances of this case I am persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your immediate confinement in prison. In my view, in light of the particular extenuating circumstances of this case, a community correction order of a significant length and directed at punishment as well as rehabilitation will achieve the necessary sentencing balance. It will be no soft option. It has the benefit, both for you and the community, of avoiding the potentially corrosive aspects of prison confinement on a vulnerable offender and the risk of undoing the rehabilitation and good character already achieved. The protection of the public from the risk of any further offending will be more likely achieved from the rehabilitative courses and counselling available within the Corrections program.
52Mr Walls, could you please now stand?
53On Charges 1, 2 and 3 you are convicted and ordered to undergo a community correction order for a period of three years.
54The community correction order commences today and ends on 9 December 2018. The correction centre you will attend is the Moorabbin Community Correctional Service at 1140 Nepean Highway, Highett, and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm this Monday, 14 December 2015.
55All the mandatory terms of the community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer;
· you perform 300 hours of unpaid community work as directed by the regional manager;
· you undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or if necessary treatment in a hospital or residential facility as directed by the regional manager;
· you undergo programs to reduce offending as directed, and in particular attend for assessment and participation with the Sex Offender Advice and Treatment Service.
56Now I believe from the pre‑sentence report that you have had the mandatory terms of the community correction order explained to you. However I will go through those with you again just now. You will also receive a copy of the order. The mandatory terms are:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must report to and receive visits from a community corrections officer;
· you must report to the Community Corrections Centre, that is, the Moorabbin centre, within two clear working days of the order starting, and as I have already indicated, that is this Monday, 14 December;
· you must notify a community corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a community corrections officer; and
· you must obey all lawful instructions from and directions of community corrections officers. Such directions may be given either orally or in writing.
57Do you understand and agree to those conditions, Mr Walls?
58OFFENDER: Yes, Your Honour.
59HIS HONOUR: If you are ill or if there are exceptional circumstances, the order may be suspended for a period of time and if your circumstances materially alter, you may apply for a variation or cancellation of the order. In either case you must notify the community corrections service, that is, the centre at Moorabbin, and I would recommend that you obtain legal advice if any of those things happen.
60However I must warn you that if you breach any condition of this order you will be brought back to court and that you will be back before me. One of the options open for me is to cancel the community correction order and re-sentence you on the original charge, and I may also deal with you for the breach by sending you to prison for up to three months. So it re-opens the sentencing process.
61Mr Walls, do you understand the consequences of breaching your community correction order?
62OFFENDER: Yes, Your Honour.
63HIS HONOUR: Now there is a further matter to which I need attend. You may take a seat for the moment, Mr Walls.
64The offences to which you have pleaded guilty are registrable offences pursuant to the provision of the Sex Offenders Registration Act 2004 and by reason of your being sentenced for these offences you are a registrable offender obliged to comply with the reporting obligations imposed by that Act. Pursuant to s.50 of that Act, I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of your reporting period, which in your case is for life.
65My associate will shortly hand to you the Notification Of Reporting Obligations form which I have already signed. Your representative Mr Crisp in court today will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you, to sign the Acknowledgement that you have received the Notification form and to return the Acknowledgement to my associate.
66Those registration materials can now be passed to Mr Walls through Mr Crisp. You can leave the dock at this stage and come down just behind Mr Crisp for this purpose.
67(Offender signs documentation.)
68At the plea hearing the Crown sought an order which was not opposed for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest.
69I must inform you that if at the time of the request for the forensic sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that Mr Walls?
70OFFENDER: Yes, Your Honour.
71HIS HONOUR: All right. That concludes my sentencing remarks.
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