Director of Public Prosecutions v Walsh

[2022] VCC 615

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -18-02233

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY WALSH

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	1-10 December 2021
DATE OF SENTENCE:	4 May 2022
CASE MAY BE CITED AS:	DPP v Walsh
MEDIUM NEUTRAL CITATION:	[2022] VCC 615

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW

Catchwords:  Sexual penetration of a child aged between 10 and 16 –  Young offender –  No priors –  Imprisonment – SORA reporting obligations – Serious Sexual Offender

Legislation Cited: s. 45(1) and s. 45(2)(b) Crimes Act 1958 – s. 6F, s. 11 and s. 18 Sentencing Act1991

Cases Cited:R v Macfie [2000] VSCA 174 – Verdins [2007] VSCA 102 – Schultz [2019] VSCA 179 – R.H. McL v R (2000) 203 CLR 472 – Gordon (a pseudonym) v R  [2013] VSCA 343

Sentence:Sentenced to a period of five and a half years imprisonment with a non-parole period of four years imprisonment – Disposal order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Mr A. Cecil
For the Offender	Mr J. Lavery	Mr T. McCulloch

HIS HONOUR:

1Mr Ashley Walsh is aged 28, born in May 1994.  He was 22 at the time of this offending.  In this trial, Mr Moore appeared on behalf of the Director; Mr John Lavery appeared on behalf of Mr Walsh, on the plea, Mr McCulloch appeared, and does appear today; Mr Cecil appears today on behalf of the Director.

2Mr Walsh stood trial in regard to nine charges concerning sexual allegations committed against the victim.   The victim was 14 at the time, having been born in 2002.

3This trial took place in Morwell from 1 December 2021 to 10 December 2021.  The jury found Mr Walsh not guilty of Charges 1 to 5 and Charge 9.  The jury convicted Mr Walsh of Charges 6, 7 and 8.  On 28 March 2022, the plea was effected in this case.

4Each of the charges concern an offence, committed in January of 2017, against s45(1) and s45(2)(b), being to sexually penetrate a child aged between 10 and 16, such child being at the time under the care, supervision or authority of Mr Walsh, the maximum penalty prescribed by Parliament for such an offence is 15 years.

5There was no issue in the trial as to Mr Walsh having such status, and indeed, the facts set out in [3] of the opening were accepted by Mr McCulloch on the plea.

6While relationship in the circumstances as referred to does not have to be legally delegated (see R v Macfie [2000] VSCA 174, [21]), enquiries made by the Court to the Director post the plea confirm that Mr Walsh was the victim's caregiver from 23 November 2016 to the date of this offending. Despite requests, I have not been able to confirm that such caregiving status was pursuant to law.

Circumstances as to 23 January 2017

7All three offences occurred, as I said, on the same date, and approximately at the same time, in the care home at Morwell.  At approximately 1 pm, after his wife went off for a sleep, shortly thereafter, Mr Walsh had the child sit on his lap.  This was apparently not an infrequent event during the time she had been at the home.

8Charge 6 involves Mr Walsh standing in front of the child and penetrating her orally with his penis.  Such went on for approximately five minutes.

9Charge 7 involved, and for approximately the same time, sexual intercourse with her on the couch.

10And then Charge 8 occurred after Charge 7, when he had her get on her knees, and he penetrated her orally, and subsequently ejaculated into her mouth.

11Albeit the plea before the jury, Mr Walsh made full admissions in a record of interview the same day, at the Morwell police station, to the happening of these charges:  see Question and Answer 46.  Pre-trial, there was an application to exclude this record of interview.  In a ruling made on 7 May 2019, Judge Sexton (as she then was) refused such application.

12There is no victim impact filed.  PSD is agreed today at 145 days.  I believe I have signed the disposal order already; if not, I will.

13The three charges that I am required to sentence upon are all charges which are defined as sexual offences pursuant to Clause 1, Schedule 1 of the Sentencing Act, and upon the imposition of a gaol term for Charges 6 and 7, the serious sex offender provisions apply:  that is, as to Charge 8.

14There was no submission by the prosecution, pursuant to s6D(b), that a disproportionate sentence should be imposed upon Mr Walsh, and the prosecution accept that despite the provisions of 6E, full concurrency is not in order, due to the circumstances of the offending and the issue of totality.

15SORA reporting provisions are applicable given the convictions in this matter, and as the offences all occurred on the one day, I understand it is deemed, therefore, to be a one-occasion offending, and the reporting period that will be relevant to Mr Walsh will be a period of some 15 years. 

16It is accepted by the prosecution that s5AA of the Sentencing Act has no applicability upon the facts of this case, and further that these offences are not standard sentencing offences.

17On the plea, Mr McCulloch accepted the gravity of the crimes, comprising three forms of penetration and, in regard to Charge 7, albeit there was no ejaculation, such intercourse took place without protection.  Further, the offending in Charge 8 was aggravated by the fact that Mr Walsh ejaculated into the mouth of the child.

18Mr McCulloch made the point that the Court should accept the 'spontaneous' nature of this offending, and indeed that appears to be true in the sense that it can be described, it seems to me, in the circumstances as both situational and opportunistic.  However, of course, the very reason for this legislation being brought in by Parliament is to protect children, particularly young children, in such circumstances, especially where they are in a care environment.

19Mr McCulloch also submitted that I needed to take into account that the three offences occur at the same time, and essentially can be classified as one event; that there was no violence perpetrated upon the child, over and above the violence involved in the acts themselves; and the child herself 'has showed no opposition in any way'.  By that there is no suggestion of consent, but, as the child accepted in the VARE, given her actions, it may well have been that Mr Walsh took the view that she was in fact consenting.  However, it is to be noted in the VARE that she states that she was overwhelmed by the circumstances and impacts of what was happening to her.

20The personal background of Mr Walsh was put to me in the written submissions tendered in regard to sentencing, and they make up [6] to [10].

21The issue of delay is a substantial issue, it being pointed out that it has been over five years since the offending, which took place on 23 January 2017.  Essentially, this extreme delay has been caused by COVID, which, it was estimated, cost the processing of this case some two years.

22It was pointed out that during this time, Mr Walsh has continued to lead a positive existence:  there has been no offending; there has been no cessation of work.  Indeed he has continued to work, admirably, despite circumstances whereby, as a result of these crimes, he was evicted from the home, has had a loss of residence, and had periods of unstable accommodation.

23During that time, he has established a new relationship, with a current partner, Karli, who has children.  However, there are access difficulties, especially in his current position, but prior to that time, with him being able to be in that relationship, because of such children and the Department's role.  And, in particular, Exhibit 4 has been tendered, which is a character reference by Karli, and further, Exhibits 5 and 6, character references by her parents.

24Exhibits 2 and 3 make up reports of the psychologist Mr Cummins.  They are dated February of 2022 and March of 2022.

25It is noted in the first report, Exhibit 2, that, as I have already indicated, albeit post findings of the jury, it is the view of Mr Walsh, and he does maintain his innocence.  At 57, Mr Cummins talks about concerns as to issues of self-harm, and as a result thereof, as part of the additional notes to sentencing, we will provide both reports to Corrections.

26The circumstances set out in Mr Cummins' report indicate that the principles set out in Verdins, in particular principles 5 and 6, apply to this sentence, and such was accepted by the prosecution.  There is no doubt, given his particular mental state, that there are additional risks, and the fact of serving a gaol sentence will be more burdensome to him than a person who did not have those issues.

27With a diagnosis of complex PTSD, his service of gaol, since the recording of the jury's verdict, certainly has been burdensome.  There is also, as I have indicated, that risk of self-harm.  And it is to be noted that, due to the type of crime, and the somewhat skewed views as to criminality in the gaol, he has been required to be placed in protection at the Hopkins institution.

28Mr McCulloch advised the Court that, despite his ongoing view as to his guilt, he has instructed that he will involve himself in the necessary programs in the gaol, which relate to sexual offenders.  It is noted that he has found, to date, gaol difficult, by way of social isolation and the fact that he is a 'naturally hardworking person' and misses that environment.

29As Mr McCulloch noted at [19] of his written submissions, Mr Walsh, despite maintaining his innocence, is aware that, given the verdicts, a significant period of imprisonment was likely to be passed by the Court.

30Mr McCulloch also stressed that, despite the circumstances, he is of an age that this Court must consider the issue of rehabilitation.  I accept that totally.  He is a young man, with no prior history, with good references, good work background, and I would accept that he is a person who should be able to rehabilitate after the period of imprisonment is served.

31In submission, Mr McCulloch gave to the Court the case of Schulz [2019] VSCA 179, in particular for the Court to note the comments at [106], as to the risk of 'double punishment'. Clearly, Mr McCulloch accepted, the Court must take into account the breach of trust in this matter and the vulnerability of the child, who had a difficult past. The issue as to 'double punishment' comes about, of course, with understanding that they are the very factors which differentiate, and are part of the elements as to, a charge under s45(2)(b) from a charge under s45(2)(c), and in those circumstances, it is very necessary to not take those matters into account by way of aggravation, when they make up the elements.

32Mr McCulloch also accepted that given the circumstances set out in [112], a degree of currency was attracted, as was accepted by the prosecution.  Mr McCulloch put that Schultz can be generally illustrative as a yardstick as to sentencing, despite the obvious differences:  that is, that in Schulz, the age gap was much higher, being 51 years as against 14; that the offending as to sexual penetration in that case involved three separate occasions; and the offending was over a much longer period.  As I say, however, I accept it as a general illustration as to sentencing.

33I make the point, of course, that the plea of not guilty and the maintenance of his innocence are not matters that go against him.  Of course, what must be pointed out is that the benefits of remorse, effected by a plea of guilty, cannot be taken into account.

34Mr Walsh will be found guilty on all three charges.  A conviction will be recorded on all three charges, consistent with the determination of the jury.

35On Charge 6, he will be sentenced to a period of imprisonment of four years.

36On Charge 7, he will be sentenced to a period of imprisonment of five years. 

37Given those determinations, he is now to be sentenced as a serious sexual offender, and the serious offender provisions apply. 

38Insofar as Charge 8, he will be sentenced to a period of imprisonment of four and a half years.

39I record as the base sentence the sentence imposed in Charge 7, being a sentence of five years, and cumulate with that six months of the sentence of Charge 8, on top of the base sentence, of five years, making a total effective sentence of five and a half years.

40To the extent that such sentence does not mirror s6E of the Sentencing Act, I am acutely aware of the provisions of s6E and the words of the High Court in R.H. McL v R (2000) 203 CLR 472, [75] to [78], as to the more limited scope of totality in the circumstances, given the legislative intent. Indeed, this situation is described as a tension by Redlich AJ in Gordon (a pseudonym) v R [2013] VSCA 343.

41However, the limited cumulation that I have applied in this case, despite the provision set out under s6E, is such that I am fortified in such determination by the submissions of the prosecution, and indeed the circumstances of the offending.

42Pursuant to s11 of the Sentencing Act, I order that the non-parole period should be four years, and that, pursuant to s18, the 145 days served by way of pre-sentence detention be declared as service of this sentence; and I order that such determination be recorded in the records of this Court.

43I also, pursuant to the provisions of s6F, as to Charge 8, am required to also have recorded in the records of this Court that, in regard to Charge 8, Mr Walsh is sentenced as a serious sexual offender.  Given the circumstances of this case, there is obviously no 6AAA declaration required.

44Mr Walsh, the end result of all of that is, the total effective sentence that you are sentenced to is one of five and a half years, and I order that the non-parole period that you must serve is a period of four years, of which you have already served 145 days.

45I will provide you, Mr McCulloch, with the opportunity to talk to your client, if you want to, when I leave the Bench, but that time will be limited, as we are running a trial.

46MR McCULLOCH:  Thank you, Your Honour, for that indication.  I think what I'll do is, I'll arrange a conference, though.

47HIS HONOUR:  Right.  That will be fine.

48MR McCULLOCH:  Thank you.

49HIS HONOUR:  Thank you.  Any matter from either party as to the sentence?

50MR CECIL:  No, Your Honour.

51HIS HONOUR:  Thank you.  Good luck, Mr Walsh.  I am sure my comments as to your rehabilitation will prove to be correct. 

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