Director of Public Prosecutions v Walters
[2012] VCC 1071
•27 July 2012
p
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01281
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK WALTERS |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 July 2012 | |
DATE OF SENTENCE: | 27 July 2012 | |
CASE MAY BE CITED AS: | DPP v. Walters | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1071 | |
REASONS FOR SENTENCE
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Catchwords: Sentence – guilty plea – sexual relationship with child under 16 – offending over 4 year period, commencing when complainant was 12 – prior conviction for sexual relationship with child under 16 – specific deterrence – minimising behaviour – 8 years imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C Burnside | OPP |
| For the Accused | Mr I Hayden | Patrick Dwyer |
HER HONOUR:
1 Mark Walters you have pleaded guilty to one charge of maintaining a sexual relationship with a child under 16. The offence covers a period from 17 April 2003 when the child turned 12, to 16 April 2007, the day before her 16 birthday. By law victims of sexual offences are entitled to have their anonymity preserved and their identity from being disclosed in a public domain. I am going to refer to the victim, by her proper name in the course of reading these reasons for sentence. I will, however, when the revised reasons are available, change her name to a pseudonym in order to attempt to protect her anonymity. For the same reason I will not be referring to names of people who have given evidence, apart from the psychologist Mr Cummins, so that if the reasons do find their way into the public domain I hope I will be able to protect against the identity of the victim being known by reason of connection with the names of other witnesses.
2 Before the offending started you had for some years known and been close to Susanna Smith's family. In fact you had known her mother Glenys since you were very young. So from 2000, three years before the offending started, you began to have regular almost weekly contact with the family, and it was in that context that you came to know Susanna.
3 One of the ways in which you came to know her and to gain her trust and the trust of her family was that you were a karate instructor. You taught Susanna and her brother karate, and you would take them to tournaments and lessons, sometimes up to three times a week. You also had a pilot's licence and had taken Susanna and her brother flying and on camping trips away from the family.
4 The agreed summary of facts reveals some conduct occurring before the period framed by the charges, which in hindsight could be described as grooming behaviour. Whether it was or not is not something I need make a finding about, but there was certainly, by the time Susanna was 11, incidents in which you had, in effect, normalised speaking of sexual matters to her, and had also tested her, it could be said, by seeing whether she could be trusted to keep secrets, something that you had told her was a secret and that had a sexual connotation.
5 At the time that you first met Susanna and started having regular contact with her and with her family, you were married. At the time of the offending, the subject of the charge commenced you were married and living with your wife. You separated from her during the period covered by the charge.
6 The charge itself then covers the development of sexual contact between you and Susanna from the time she was 12 up until the day before her 16 birthday. The agreed summary of facts reveals that from the time she was 12 you would initiate conversation with her about sexual matters, that you persuaded or encouraged her to display her underwear to you, that you moved from initial touching, inappropriate sexual touching, which you described as accidental and in your sleep, to more obvious direct sexual contact with her. The offending behaviour covers the range of sexual activities that one would see between a male and a woman in a sexual relationship. So there was rubbing of your penis against the complainant, revealing that you had an erect penis, touching her, reassuring her about the normality of the physical responses that she had, of playing games that would end up in sexual touching of her vagina and of your penis, escalating them to direct physical contact. You had her touch and kiss your penis and suck your penis. You digitally penetrated her, made her touch herself in your presence, or masturbate herself in your presence. You masturbated yourself in her presence. Ultimately she performed oral sex on you, and you then moved from digital penetration to penile/vaginal penetration. All of this behaviour occurred even before the child had turned 13.
7 So by the time she had turned 13 you were already having regular penile/vaginal sex with her, as well as engaging in other sexual activities. This was of course occurring in secret. By the time the child was 13 it was clear to some of the people around the two of you that you had an inappropriate sexual interest in her and that she was infatuated with you. You were specifically warned on her 13th birthday by her godmother that it could not happen, and that you had to wait until she was old enough. Undeterred by that warning you continued to have sexual activity with her, not only when you were able to get her on your own and away from other people, either in your own home, or in cars, or in other places, but ultimately becoming so emboldened that you were having sexual activity with her in the presence of her school friends.
8 Your marriage had come to an end and your wife had left by the end of 2004 when Susanna was 13, or 14. You then had sex with her regularly at your home. At one stage by the time the complainant was about 14, and because of the brazen nature of the sexual activity that you were engaging with her, in the presence of her brother and school friends, rumours started to go around her school about it. The Department of Human Services, the police, and the school administration became concerned and started making enquiries. Not only did Susanna deny any sexual activity, you encouraged her to do that, and you suggested that she perform certain activities to try and conceal any evidence if anybody sought to check that the two of you were engaging in sexual activities together.
9 You also used, in what can only be seen in a manipulative way, a suggestion that you would refuse to have sex with her for a period until the investigation by the police and Department of Human Services was over. This seemed to be, as far as I can work out from the agreed statement of facts, so that if asked if she had had sex with you in the days preceding the enquiry she could give an honest denial.
10 Although the charge of course finishes as it must at the day before the child turned 16, that was not the end of the sexual activity between the two of you. Shortly after, or about the time of her 16th birthday Susanna moved in with you and the two of you lived openly as a couple until, at age 17, the relationship came to an end and she moved out. It was not until nearly two years after that that Susanna was able to properly identify that what had happened was wrong and to make a complaint to the police.
11 You were arrested and questioned on 20 May 2010 and admitted engaging in sexual activity with Susanna. When questioned you said that the first sexual intercourse had been not long after her 13th birthday, although on the agreed statement of facts it is clear that the sexual intercourse had taken place before her 13th birthday and there was other sexual activity, including digital penetration and you having her perform oral sex on you before she had turned 13.
12 Significantly when asked whether you knew what you were doing was wrong, you told the police you did, but said, "People around me made it so comfortable for me that I chose to ignore what was right and wrong."
13 Susanna has provided a very detailed victim impact statement which was read aloud on the hearing of the plea. It is an extraordinarily insightful description, not only of the way she felt, but of the vice of people much older than a child having sex with them, warping their idea of what is normal, and denying them the right to have a childhood, growing up between the ages of 12 and 16, like other children, and coming to terms with being a little more grown up in the company of other children rather than under the control of a man much, much older than them.
14 It having been read in full in court on the previous occasion, I am not going to read it again, but her victim impact statement makes it very clear in her own words just exactly how bad this was, and the effect that it has had and is likely to continue to have on her.
15 You have a relevant and significant previous conviction. On 3 April 1996 you were sentenced by Her Honour Judge Curtain, as she then was, on four charges of sexual penetration of a child aged between ten and 16, as well as one of breach of an intervention order and one of criminal damage. Then, as now, you had inveigled your way into a family and befriended them. You turned your attentions to the 14 year old child of that family who had become infatuated with you. You were, as Her Honour pointed out, then nearly twice that child's age, you 26 and she 14.
16 Over her parent's opposition and in secrecy you encouraged her feelings for you and exploited them. The first act of sexual penetration of that child occurred when she had been permitted to see you for what was supposed to be the last time to terminate the relationship. Immediately after that act her family took the two of you to a police station where you were warned by a policeman of the consequences of sexual activity with her. You falsely denied having sexually penetrated her immediately before being taken to see the police and you clearly encouraged her to tell and maintain the same lie. Although you promised you would not see that child again you did. Eventually her father took out an intervention order against you which prohibited you from having contact with her.
17 You pleaded guilty to a representative charge of sexual penetration covering the period from the police warning to the making of that intervention order. You flouted that intervention order and on the final occasion that that child ran away from home to be with you, you allowed her to stay with you at two different places for three weeks before she made contact with her family and was reunited with them. The last two charges that you then pleaded guilty to were again representative charges relating to that three week runaway period.
18 The criminal damage charge related to damage to property belonging to your sister. The damage was apparently sustained to her property in retaliation for what you perceived to be interference with a relationship, with a person described in Her Honour's reasons as a previous girlfriend.
19 Judge Curtain sentenced you to three short cumulative terms of imprisonment in respect of the three representative charges of sexual penetration of a child under 16, and a short term of imprisonment to be served concurrently with the sexual offence sentences for the breach of the intervention order. In all a total effective sentence of ten and a half months was imposed upon you and you were directed to serve three months of that, with the balance of seven and a half months being suspended. In addition you were placed on a community based order for a period of 12 months. It is clear that the sentence imposed upon you by Her Honour, far from deterring you from engaging in sexual activity with underage girls, simply emboldened you to make a greater effort to manipulate a situation to your advantage. This time the steps you took to inveigle yourself into Susanna's family and to secure their trust, to encourage her affections, and then to alienate her from her family and friends, were more persistent, long term, and from your perspective, effective in securing your desired ends.
20 With this child you were three times her age. A 22 year age gap from a 12 year old child, Susanna's age when the first sexual activity covered by the charge commenced, to a 34 year old adult, is an uncrossable chasm in terms of experience of life and emotional maturity. Those of her family members or yours who think to scorn her and see her as responsible for the choices she made as a 12 year old would do well to bear in mind her youth and immaturity. They and you would do better to reflect on the manipulative behaviours which you employed to exploit her infatuation.
21 Although the charge to which you pleaded guilty is called maintaining a sexual relationship with a child under 16 it is worth noting that the description of that charge has since been changed so it is now characterised as sexual exploitation of a child under 16. That better reflects the nature and characterisation of the conduct in which you engaged.
22 As you did before Her Honour Judge Curtain on the last occasion, so here you relied on the establishment of a new relationship with a young woman legally capable of consenting to a sexual relationship with you, as indicating that you posed a low risk of re-offending in like manner. Your relationship with that young woman, who you later married, was described to Her Honour Judge Curtain as a steadying influence on you. In the time between your sentencing by Judge Curtain and the time you came before me, the picture of hope that that relationship presented, when Her Honour sentenced you, had changed. The relationship with your then wife deteriorated and eventually came to an end. By the time your plea before me was presented it was described by you as an abusive relationship, with you being the victim of violence and physical abuse at her hands.
23 Your current wife gave evidence on the plea, as did her father. It is clear that she and he, and her extended family, are very supportive of you. She has given evidence that the relationship will endure whilst you serve what each of you acknowledges will inevitably be a term of imprisonment for this offence, and she is looking forward to resuming life together when you have finished your sentence.
24 A report was provided by the experienced forensic psychologist Mr Jeffrey Cummins. In it he rules out any intellectual deficits, problems with substance abuse, or any psychiatric conditions which could explain or contextualise the offending. Indeed on the material before me it is clear you had all the childhood advantages of family stability, education, and vocational training that one wishes all children in our society could enjoy. One sibling closest to you in age suffered from muscular dystrophy. You and your twin shared in caring for his physical needs at home, and continued to do so for the last years of his life when he became too much for your parents to manage at home and was placed in Yoralla. You showed a capacity to care for people with physical and intellectual disabilities, not only with your brother but with others.
25 You have had a very good employment history and you would appear to be comfortable off financially as a result. You continue to have close relationships with your parents, and many of your siblings, in particular your twin brother. You are supported by your parents, your twin, and other family members as well as some members of Susanna's family, at court. You appear to have a good capacity to make friends and to maintain friendships.
26 You have achieved at a high level for many years in karate, initially as a performer but also for a long time as a coach. You have obtained your pilot's licence.
27 Having regard to the circumstances of your previous conviction, and his overall assessment of you, Mr Cummins assessed your risk of re-offending as at the high end of moderate, or the low end of high. In his opinion you are still having difficulty appropriately appraising the seriousness of your offending behaviour, and accordingly have difficulty in developing remorse and victim empathy.
28
Mr Hayden submitted on the plea that you are remorseful. I see no support for that. Remorsefulness does not mean sorry for yourself and the situation that you now find yourself in. Mr Hayden said that reading the victim impact statement had brought home to you the effect of your behaviour. In light of
Mr Cummins' experience and his considered opinion, I find that difficult to accept. It simply does not sit with the range of minimising behaviours that you are still otherwise, through your instructions to Mr Hayden, exhibiting on the plea. You sort to rely as a mitigator on a statement from Susanna's father that he had accepted the relationship, and on the evidence to like effect from her cousin, who had a long time ago been your twin brother's girlfriend.
29 The fact that Susanna, having been under your control from the age of 12, did not see at the time that what was happening was wrong, and the fact that what you describe as a relationship was countenanced and even supported by family members does not in any way mitigate your wrong doing. It means at best that one can lament that others who maybe could have taken a stronger stand against what you were doing did not.
30 Having regard to these matters sought to be put and relied on, on the plea, I see no reason to believe that you have now, simply as a result of reading the victim impact statement, gained insight into your wrongdoing, and feel genuine remorse for Susanna. I see no reason to reject Mr Cummins' opinion as to your difficulty in developing remorse and victim empathy. You are still, in Mr Cummins' assessment, rationalising your behaviour by describing it as consensual and by emphasising your perception that your friends and Susanna's family were supportive of what you still insisted to him on calling a relationship. The conduct of the plea was consistent with that.
31 As I said to Mr Hayden in the course of his submissions, given your intelligence, the absence of intellectual or physical impairments, and the strong family support that you have, you would appear to be a good candidate for participation in a sex offender treatment program. You have indicated your preparedness to engage in one. It can only be hoped that you do participate in one and that through that you will see your minimising behaviour for what it is, and develop victim empathy and genuine remorse. That too may stop you characterising what happened as a relationship. It was not a relationship, it was an exploitation of inequality.
32 When she sentenced you Her Honour Judge Curtain described your behaviour as involving an arrogant, callous, and wilful disregard of the law. She pointed out in response to the position you maintained at the time that you and that girl had truly loved each other, and that she was a willing partner, that you should have exercised judgment, prudence, and maturity, rather than succumbing to your carnal desire. Notwithstanding that, and notwithstanding that when questioned by the police in respect of this child you acknowledged that what you were doing was wrong, you still indicated a lack of preparedness to take personal responsibility and to exercise self control. That was typified by that statement from you in the interview to which I have already referred, about you choosing to ignore what was right and wrong, and blaming other people for making it comfortable for you.
33 I have made extensive reference to the circumstances of the past offending and to Her Honour Judge Curtain's sentencing remarks. I want to make it very clear that you are not being punished again for what she has sentenced you for. She has sentenced you and you have served that punishment. The relevance of quoting so extensively from the circumstances and from her sentencing remarks is because what you did, what was said at the time, and the sentence, are relevant to the weight that I must place on specific deterrence and to the way in which your moral culpability is characterised, and so therefore, to the weight to be placed on denunciation. It is clear that the sentence I must impose upon you today must reflect denunciation, just punishment, and deterrence, both general and specific. It is clear that specific deterrence must be given considerable weight. It is clear that you were not deterred by the previous experience of exposure, charge, and sentence, and in my view your risk of re-offending is high. You knew that what you were doing was wrong, legally and morally. You placed satisfaction of your selfish sexual desires over all other considerations and shamelessly exploited a child. You worked you way into her family, you gained their trust and breached it repeatedly and disgracefully.
34 The consequences for her are and will be profound. As she said, you took away her childhood, and she is struggling to come to terms with what she now sees, as a young adult, in a very different light from the way she as a child viewed what was happening. There is a very good reason why we as a community protect young people from sexual exploitation, until their emotional and intellectual maturity catches up with their physical development, until they have the maturity to make informed decisions and to see beyond the day or the next day, and to think about the longer term implications of the decisions that they are making.
35 The maximum sentence for the charge to which you have pleaded guilty is 25 years imprisonment. You are, by reason of your previous convictions for the sexual offences, to be sentenced as a serious sexual offender under the Sentencing Act. I make that declaration and direct that it be noted on the record.
36 Protection of community is a real consideration here, having regard to your history, and to the persistent nature of the offending covered by this charge, however I do not see that there is any need to impose a disproportionate sentence in order to achieve that end.
37 Your other previous convictions, that is for the criminal damage charge associated with the sexual offending, an earlier minor previous criminal damage charge, and a social security fraud charge, are not directly relevant for sentencing purposes today. The social security fraud charge shows perhaps consistently, but in a different and a very minor way, a lack of morality and a readiness to blame others; however that can really be no more than in a very minor way confirmatory of the view that I have already expressed about you related directly to the offence for which I am sentencing you, and I do not consider that those other convictions are such as to justify the giving of any additional weight by reason of specific deterrence or otherwise to the sentence that I impose today.
38 Whether you embark upon a sexual offender treatment program, as you have indicated you are prepared to, is a matter for you, and whether you benefit from it if you do is a matter that clearly I cannot at this stage make accurate predictions about, save for identifying those factors that would objectively identify you as a good candidate for a program, and a good candidate for learning from such a program. What I have done is structure the sentence to allow for that possibility, and to encourage that possibility. I have done so particularly in considering the length of the non parole period which should be fixed. It is structured in a way that should provide the means and the encouragement to undergo a sex offender treatment program in custody and upon parole, if that is the way the Parole Board sees fit to deal with you. There are clear benefits to the community and to you if you are released upon parole with the supervision that that can provide, and undergoing an in the community part of a sex offender treatment program at that stage, when of course you will be more at risk of considering forming inappropriate relationships than you are in custody.
39 Under the Sex Offender Registration Act the nature of this offence, and having regard to your previous convictions, means that you are to be placed on the sex offender register for life. The Act provides me with no discretion in a decision as to whether to place you on the register or in the decision as to the term of being placed on the register. They are both arbitrary matters determined by legislation.
40 I consider that this offence, when seen against your past history, would, if I had had a discretion about it, have made you an appropriate person to be placed on the register. If I had a discretion as to the term I would have preferred to impose a reporting period of a lesser, finite time, and to leave it open to the authorities to apply for an extension if at the time it was thought that it was necessary to have it for an extended period. That is, if your behaviour after release and after a period on the register showed that there was a continuing cause for concern. I have no discretion though, in relation to that, and must do, reluctant as I am to do so, what Parliament requires.
41 There are other ancillary orders that are required to be made. A request has been made for an order for the taking of a forensic sample from you, and the placing of that sample on the register. I consider it appropriate to do so having regard to the seriousness of this offending, and in particular to the circumstances where you and Susanna denied, when police and DHS became involved, that there was sexual activity between you when clearly there had been at that stage. Also I have regard to your previous convictions and I note that you have consented to that order.
42 That sample I am ordering is to be taken by way of buccal sample. That involves the provision of a saliva sample obtained by the rubbing of a swab like a cotton bud on the inside of your mouth, until a sufficient sample has been obtained. I must warn you that if you do not cooperate in the provision of that sample the police are authorised to use reasonable force in order to obtain a sample, and it is highly likely that they will, in those circumstances, resort to the more invasive means of taking a sample, that is by blood sample. Do you understand that?
43 There is also a request for a disposal order in respect of items found when you were arrested and your home searched, and again that is consented to and I consider it appropriate to make it.
44
Before I formally pass sentence on you I will have given to you notification of the reporting conditions under the Sex Offender Registration Act. You are not required to sign a receipt acknowledging you have received them but you can do so if you wish. I will ask Mr Hayden or his instructor to accompany my associate down to the dock. The condition should actually stay with
Mr Walters rather than with you Mr Hayden. Would you now please stand Mr Walters?
45 Mark Walters, on the one charge to which you pleaded guilty you are convicted. You are sentenced to be imprisoned for a period of eight years. I fix a period of six years as the time that you must serve before being eligible for parole. I declare that you have spent 11 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty I would have sentenced you to a term of imprisonment of ten years and fixed a period of eight years as the time you would have had to have served before being eligible for parole. I have already made the serious sex offender declaration and the sex offender registration life order.
46 Does the sentence that I have pronounced reflect what I said I intended to do?
MS BURNSIDE: Yes Your Honour.
HER HONOUR: Any further orders required to be made?
MS BURNSIDE: No Your Honour.
MR HAYDEN: No Your Honour.
HER HONOUR: Thank you, could you remove Mr Walters please? I have another matter that was listed for 9.30 so I'll stand down.
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