Director of Public Prosecutions v Walton
[2020] VCC 1839
•20 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-20-01083
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL BRIAN WALTON |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 November 2020 | |
DATE OF SENTENCE: | 20 November 2020 | |
CASE MAY BE CITED AS: | DPP v Walton | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1839 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Bestiality – Theft – Possession of drug of dependence – Offender stole victim’s dog, restrained it and sexually abused it with a carrot – Animal cruelty – Dog suffered injuries – Very serious offending – Relevant prior criminal history – Offender’s time in custody more difficult due to being victimised for offending – Circumstances surrounding COVID-19 taken into account.
Legislation Cited: Crimes Act 1958 ss 54A, 74(1); Crimes Amendment (Sexual Offences) Act 2016; Drugs, Poisons and Controlled Substances Act 1981 s 73(1); Prevention of Cruelty to Animals Act 1986 s 9(1); Sentencing Act 1991 ss 6AAA, 18, 44, 48CA.
Cases Cited: Boulton v The Queen (2014) 46 VR 308.
Sentence: Imprisonment for a period of 12 months, together with a community correction order for a period of 2 years and 6 months and a fine of $500.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin | Office of Public Prosecutions |
| For the Accused | Mr P Skehan | Victoria Legal Aid |
HIS HONOUR:
Introduction
Paul Brian Walton, you have pleaded guilty to: one charge of theft, contrary to s 74(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 1); one charge of bestiality contrary to s 54A of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016, which carries a maximum penalty of five years imprisonment
(Charge 2); and one charge of possess a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, which in this case carries a maximum penalty of five penalty units (Charge 3).
You have also pleaded guilty to the related summary charge of cruelty to an animal, contrary to s 9(1) of the Prevention of Cruelty to Animals Act 1986, which carries a maximum penalty of 12 months imprisonment (Summary Charge 3).
You have admitted your prior criminal history.
Circumstances of the Offending
A summary of prosecution opening was tendered on the plea and may be summarised as follows:
At the time of the offending you were 52 years of age and resided on your own at the Ardmona Caravan Park.
The victim in this matter is Ivan McCarthy, who was born on 26 July 1944. You have known Mr McCarthy for approximately seven to eight years via his association with your father, Bob Walton. Mr McCarthy operates a farming property at Karramomous which you have attended at various times to visit and go fishing in a nearby channel. Mr McCarthy owns a female Kelpie cross dog who answers to the name of Gemma and is approximately 12 years old.
In the early afternoon of 6 April 2020, Mr McCarthy was in the vicinity of the rear of his residence, putting washing on the line. He observed your vehicle travelling down his driveway and heard you call out. Mr McCarthy then observed you to drive off quickly in your vehicle onto the Shepparton-Euroa Road. Although Mr McCarthy did not visibly sight you, he recognised your voice and your blue Commodore sedan. You did not physically seek out Mr McCarthy to speak to him.
On your departure, Mr McCarthy realised that his dog was gone. The dog had been present prior to you being at his residence. The dog is friendly, would go to any person and was familiar with you from your past visits to Mr McCarthy’s property. Immediately Mr McCarthy formed the belief that you had taken his dog. He got into his vehicle and attempted to locate you but was unsuccessful. It is these facts that relate to Charge 1, theft.
Mr McCarthy rang your parents and spoke to your mother, Val Walton, however, did not advise her of the situation so as not to upset her. Later in the afternoon, Mr McCarthy rang back and had a conversation with your father. He informed your father of his belief that you had taken his dog, before contacting the police to advise that his dog had been stolen.
At about 4.55 pm, your father contacted the informant, Detective Leading Senior Constable Trimby, and advised of the situation. At about 5pm the informant contacted Mr McCarthy, who provided verbal details of the day’s event.
On 7 April 2020 police attended your address at the Ardmona Caravan Park. You were present and your clothes were covered in what appeared to be dog hair. Enquiries were made with you in relation to Mr McCarthy’s dog, and you advised that the dog was in the caravan.
On the floor of the caravan police observed the dog tied up, unable to move, shaking and visibly in distress. Black tape was taped around the dog’s front and back legs binding them together, and a length of white rope was tied around the dog’s front and back legs. The dog’s mouth was also bound with black tape, preventing her from opening her mouth. It is these facts that relate to Summary Charge 3, cruelty to an animal.
A jar of lubricant and a large raw carrot with what appeared to be blood on it were also on the floor of the caravan in close proximity to the dog. These facts give rise to Charge 2, bestiality. A roll of black tape, the lid of the lubricant and a plastic bag containing green vegetable matter were on the seat of the caravan. The approximate weight of the cannabis is 5 grams. It is these facts that give rise to Charge 3, possession of cannabis.
Whilst in the caravan police observed adult pornographic material playing on a television screen. Police seized various items from within the caravan and your vehicle. You were arrested and conveyed to the Shepparton Police Station.
Charge 2 is based solely on your penetration of the dog’s vagina with a carrot. Shepparton Municipal Rangers assisted with the rescue of the dog and conveyed it to a local veterinary clinic where it was given intravenous pain relief. On examination, there was bruising around the dog’s anal and vaginal areas as well as internal vaginal injuries. The veterinary surgeon made the following observations in her statement:
There was moist blood tinged mucoid staining around her perineum…I opted to sedate and then lightly anaesthetise Gemma to proceed with examination as she was becoming increasingly distressed at any approach to her hind end. Once anaesthetised, I clipped the damp, slightly matted hair from around the perineum to reveal slight perivalvar discolouration, which seemed consistent with bruising. On specific digital examination there was a roughened, traumatised surface to the right lateral vaginal wall mucosa of approximately 3 centimetres in length, suspicious of a superficial internal vaginal wall tear. Rectal temperature taking caused significant heart rate elevation despite being lightly anaesthetised at the time when performed. In light of this, no digital rectal examination was performed. Instead we opted to monitor her next bowel motion(s). It was noted that her passage of faeces showed blood and mucoid material on the surface of the faeces'.
During a review on 14 July 2020 the veterinary surgeon noted:
Digital vaginal exam – superficial vaginal tear still present in the dorsolateral aspect, approximately 2 centimetres extending for 3 to 4 centimetres and understandably vary on examination but no fresh blood and should heal with time. Rectal examination – unremarkable.
You were interviewed on 7 April 2020 and your record of interview was a mixture of answers and, ‘no comment’ statements. You admitted to attending Mr McCarthy’s property in the afternoon of 6 April 2020 in your blue Holden sedan, calling out and taking the dog from the yard. You admitted that you put tape on the dog and restrained it. When asked why you restrained the dog you said ‘what I intended to do but I never did.’ You admitted the cannabis was for your personal use.
Nature and Gravity of the Offending
When consideration is given to all the circumstances of this matter, your offending can only be viewed as very serious. The facts demonstrate that a degree of planning was involved, commencing by you stealing the dog from the victim. Once you had the dog at your premises, you used tape and rope to secure the dog in order for you to commit what can only be described as a serious example of animal cruelty.
As noted, the act of taping the dog's legs and jaw and the use of the rope related to the related summary offence, which is particularised in this instance as ‘intentional abuse’. In my view, while this conduct was part of a continuous episode that involved the bestiality, it represents a serious example of this offence also.
Charge 2 on the indictment is confined to the sexual penetration of the dog as particularised, which resulted in the physical injuries described. When the police entered the caravan, the dog was observed to be shaking and visibly distressed, when she was observed bound and unable to move. Further, the veterinary surgeon was required to anaesthetise the dog in order to proceed with the examination due to the distress the dog was experiencing. In the circumstances, I accept the submission of the prosecution that your conduct in relation to Charge 2 is a ‘serious example of a serious offence’.
Personal Circumstances
You are 53 years of age and at the time of the offending you were residing on your own at the Ardmona Caravan Park.
You were born in Melbourne and you have a younger brother, aged 49. However, you had a falling out with him and do not have contact. You have a daughter, aged 26, who has an intellectual disability. Your daughter lives independently with her partner. Her partner does not permit you to have contact with your daughter. However, you have some contact when she is at your parents' house. Your parents are still alive, although suffer from some medical conditions. You maintain contact with them via telephone while in custody and they remain supportive of you. You have no other close friends or supports in the community.
You attended schools in Melbourne, ultimately leaving at Year 9 level as a result of being bullied.
You have a consistent work history from the age of 16 when you helped your uncle with a mail run, while also working at the local supermarket. You have worked in various industries including as a truck driver, a construction labourer, with your father as a diesel mechanic and in wrecking yards. I was told that your longest period of unemployment was for some 14 months from late 2019.
You have relevant criminal prior history, including a conviction in 2016 for bestiality. The facts of that case are very similar to the offending in this instance, and I was provided with the summaries in relation to those matters. The offending involved three separate dogs and while there are similarities to the current offending, your conduct on that occasion was of a more serious nature than that represented here. Further, I note that on that occasion you were placed on the Sex Offenders Register for the remainder of your life.
You also have a prior conviction for incest recorded in 2002. On that occasion you were sentenced to 11 years and six months with a non-parole period of eight years.
You have been on remand for this matter since your arrest on 7 April 2020. As a consequence of the nature of the offending you have received threats and harassment in custody and as such, you spend the majority of your time in your cell. You have also been serving your time on remand subject to restricted conditions as a result of the pandemic.
In the days following the plea, as a result of publicity, I was informed that you have received a number of threats via social media.
Sentencing Considerations
Mr Skehan, who appeared on your behalf, raised a number of matters in mitigation. First and foremost is your plea of guilty. You indicated a plea of guilty to this offending on 25 August 2020 at the committal mention stage, which I accept is a plea at the earliest opportunity. Your early plea has spared court time and expense and the need for witnesses to give evidence. Further, as a result of jury trials being suspended due to the pandemic, your plea brings to a conclusion a matter which may have been delayed for a significant period of time before a trial could be conducted.
It was also submitted on your behalf that as a consequence of the nature of your offending, your time on remand has been made particularly difficult. As noted above, you have been subjected to harassment and threats by fellow inmates whilst on remand. Mr Skehan also submitted that during your last sentence in relation to similar offending you were also subjected to assaults and harassment, even within a sex offenders’ unit. As noted above, you have also received new threats since the plea was conducted. Mr Devlin, who appeared on behalf of the Director of Public Prosecutions, accepted your time in custody will be made more difficult because of the unique nature of the offending. I accept that the nature of your offending is not common, and you have been victimised as a result, making your time in custody more difficult.
I take into account the circumstances surrounding the COVID-19 pandemic. It is well settled that the pandemic has imposed greater burdens on prisoners and their families, and I note that you have been in custody since 7 April 2020, subject to those restrictions. I take these matters into account.
Mr Devlin submitted that the relevant sentencing considerations are deterrence, both general and specific, denunciation of your conduct, just punishment and protection of the community. I agree that each of those principles have application. As to specific deterrence, when you committed these offences you had only been released months earlier for very similar offending. You also have a prior conviction for a sex offence. In my view, specific deterrence must therefore feature prominently in the sentencing discretion.
Given your relevant criminal history, your limited support in the community and the fact that you have not been given the opportunity to address some of the core issues relevant to the offending, your prospects of rehabilitation are unable to be assessed positively.
I was told that you were required to complete the Sex Offender’s Treatment Program as part of your recent previous sentence before being eligible for parole. Despite your willingness to participate, the program was not made available to you in custody within the non-parole period and you were therefore required to serve the whole of your sentence. The result was that you were released into the community with no support or supervision and without having completed the program designed to assist you.
Despite that lost opportunity to address the issues that led to the offending, I was told that upon your release, on your own initiative, you made contact with a psychologist who has some expertise in this area. However, you were only able to complete one appointment before you were remanded on this offending. Thus, it was submitted that a combination sentence would be able to meet the relevant sentencing considerations and provide you the opportunity to engage in relevant therapy while also being supervised in the community.
Mr Devlin submitted that while a community correction order may give you more certainty of being able to engage in treatment, when consideration is given to the other relevant and prominent sentencing considerations, a combination sentence is outside the range and that the circumstances call for a head sentence with a non-parole period.
I had you assessed for a community correction order and you have been found suitable. I note the comments of the writer which support your willingness to seek assistance in dealing with your offending as follows:
Mr Walton indicated that he knew his actions would have consequences and could not offer any insight into why he acted on his impulses. He stated, ‘Well, I don’t know…this is why I want to go to counselling…because I don’t want it to keep happening.’
[1] (2014) 46 VR 308.
In this instance, the court is required to balance a number of relevant sentencing considerations, including protection of the community and rehabilitation. In my view, while your offending calls for a term of imprisonment, the community would be better served if a longer period of supervision is able to be provided to you upon your release that would incorporate an opportunity to address some of the core issues that led to the offending. A combination sentence, pursuant to s 44 of the Sentencing Act 1991, is in my view able to meet the relevant and applicable sentencing considerations in that regard. It must not be forgotten that a community correction order (whether alone or in combination with a term of imprisonment) is both punitive and therapeutic and in this case, the order I impose will have punitive and therapeutic components and will follow a further period of imprisonment than you have already served. While perhaps now trite, the Court of Appeal's comments in
Boulton v The Queen[1]remain current and, in my view, applicable in this instance:
The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and punishment.[2]
[2] Ibid at [113].
Finally, while I am not required to make any further order, I note that you remain on the Sex Offenders Register for life and thus there is an added layer of supervision when you are released into the community.
Sentence
Paul Brian Walton, on Charge 1, theft, you are convicted and sentenced to 3 months imprisonment. On Charge 2, bestiality, you are convicted and sentenced to 12 months imprisonment. On Charge 3, possess a drug of dependence, being a small amount for personal use, you are convicted and fined $500. On Summary Charge 3, cruelty to an animal, you are convicted and sentenced to 4 months imprisonment.
The sentences of imprisonment will be concurrent, making a total effective sentence of 12 months imprisonment as the prison component of the combination sentence, pursuant to s 44 of the Sentencing Act 1991.
Upon your release from custody you will be placed on a community correction order with conviction for a period of 2 years and 6 months. As noted, the order will have punitive and therapeutic components. You will be required to complete 150 hours of unpaid community work. You will be subject to treatment and rehabilitation conditions to address your offending behaviours, your mental health and your drug use. You will also be subject to supervision.
Pursuant to s 48CA of the Sentencing Act1991, I direct that all of the hours that you satisfactorily complete, pursuant to the treatment and rehabilitation conditions, may be credited as hours of unpaid community work.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 237 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 2 years with a non-parole period of 18 months.
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