Director of Public Prosecutions v Walton (a pseudonym)
[2016] VCC 1874
•5 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES WALTON[1] |
[1] A pseudonym
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1-4 August, 13 October 2016 | |
DATE OF SENTENCE: | 5 December 2016 | |
CASE MAY BE CITED AS: | DPP v Walton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1874 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sexual Penetration of a child under 16
Legislation Cited:
Cases Cited:R v Khem [2008] VSCA 136, R v Clarkson (2011) 32 VR 361, Adamson v R [2015] VSCA 194, DPP v Terrick and ors [2009] VSCA 220, DPP v CPD (2009) 22 VR 533, DDJ (2009) 22 VR 444, Dalgliesh [2016] VSC 148
Sentence: Imprisonment for 12 months, 24 months on a Community Correction Order upon his release from custody, Registered Sex Offender and Forensic Sample Order
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APPEARANCES: | Counsel | Solicitors |
For the DPP (Plea) | Mr P. Stefanovic Ms B. Goding | OPP |
| For the Accused (Plea) (Sentence) | Mr C. Terry Ms J. Caust | Lewenberg & Lewenberg |
HER HONOUR:
1 At the outset, I advise that I am using a pseudonym for the names of the offender and the complainant in these reasons to protect the privacy of the complainant. I remind those listening to these remarks that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[2]. The accused will be called James Walton and the complainant will be called Deidre Fallon.
[2] Section 4 Judicial Proceedings Reports Act
2 James Walton, you have pleaded guilty to one charge of sexual penetration against a child under 16 years. In the circumstances of this case, the maximum sentence for this offence is 10 years’ imprisonment.
3 I sentence you on the basis of the Prosecution Opening read out in court[3], which is an agreed summary. In brief, you met Deidre Fallon, who is your cousin, for the first time in 2013 when you were aged 21 and she was aged 15. You quickly became close friends, but the relationship developed into an intimate one. On the basis of the summary, I am satisfied that you took advantage of Deidre’s youth, inexperience, and particular vulnerabilities, and pressured her to allow you to be sexually intimate with her. This culminated in you penetrating her vagina with your penis, which is the subject of the charge. You asked her if you could ‘go further’, and when Deirdre said ‘okay’, you ejaculated into her vagina.
[3] Exhibit A dated 11 October 2016
4 In order to pass a just sentence, I must assess the seriousness of your offending. What distinguishes worst case offending from midrange or low range offending is the nature and extent of the offending conduct, its frequency and duration and the circumstances in which it occurred. Sexual penetration of a child, which is a person aged under 18, is always a serious offence and despite your counsel’s submissions, I am satisfied about a number of features that make your offence even more serious.
5 First, you caused Deidre physical pain when you penetrated her;
6 Next, there was a level of trust in you because you were an adult at 21 years, as well as being a relative, and you abused the trust of Deidre and her mother;
7 Next, there are 6 years’ difference in age between you and Deidre;
8 Next, Deirdre suffers from a lifelong condition of osteogenesis imperfecta; you knew this, and took advantage of the physical and emotional vulnerabilities her condition brought to her life;
9 Next, the level of harm caused to Deidre is high, as I will return to in a moment; and
10 Lastly, your penetration of Deidre without use of a condom exposed her to the risk of pregnancy and the risk of contracting a sexually transmitted disease[4], both serious risks in a physically vulnerable 15 year old.
[4]R v Khem [2008] VSCA 136
11 On the other hand, while there is a background of sexual activity, including penetration, against which the act in the charge is to be placed, showing it is not an isolated sexual act, the act for which you are to be sentenced is a single event of that type of penetration.
12 As a result of considering these features, I find that your offending does not fall towards the lower end of the spectrum of this type of offence where the maximum sentence is 10 years’ imprisonment, but is towards the middle of the range for this type of offence.
13 I received victim impact statements from Deidre and her mother[5] and I take the effect on them into account in deciding the appropriate sentence. Both gave vivid accounts of the impact of your offending. Deidre was already a vulnerable teenager and the impact on her is greater because of that. Deirdre is on my assessment[6] a highly intelligent young woman (now aged 19). However, the material I have from her makes it clear that she continues to suffer considerable psychological harm and may well do so in the long term. Amongst other traumatic outcomes, she has been unable to finish her schooling, despite her obvious intelligence, because of the impact on her of your offending.
[5] Exhibit B
[6] Based on hearing her give evidence before me during the Special Hearing.
14 When it comes to children, who are those aged under 18, it is presumed that they suffer harm from a sexual offence being committed against them, harm which can be long term and serious and both physical and psychological[7], and which includes future harm[8]. All of these aspects apply to Deidre.
[7]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[8]Adamson v R [2015] VSCA 194 at [56]
15 Because of certain views you seem to hold about the way the sexual relationship developed[9], it is necessary for me to point out to you that just because at that time, Deidre was apparently willing to have a boyfriend and be like other teenagers who did not suffer from her condition, that does not mean that you caused her no harm. At the age of 15, Deidre thought that you and she were in a loving relationship, as shown by the language between you on Facebook. However, her motivation is irrelevant, because the harm is presumed[10]. In this case, not only has the presumption of harm not been rebutted, there is positive evidence that Deidre has been significantly harmed.
[9] Exhibit 2, Report of Dr Deacon
[10] Ibid [31]
16 Deidre expresses guilt and responsibility for the impact of your offending on her family. I want to say to Deidre that she is not guilty and is not responsible for what you did to her, nor for the impact on the family. The only person who is guilty is you, and the only person who is responsible is you, as you were the adult in the situation.
17 I do wish Deidre and her family well and hope that with this case being completed, they will be able to begin moving into a future with brighter expectations.
18 Against the seriousness of your offending, I must balance the factors in your favour to which your counsel referred me.[11] The first of these factors is your plea of guilty. I accept that the plea of guilty saved the community the cost of a full trial, but that is all. You will receive what is called a utilitarian benefit from your plea of guilty, which means you will receive a lesser sentence than if you had been found guilty after a trial.
[11] Exhibit 1
19 However, you have shown no remorse or acceptance of responsibility and your plea certainly does not reflect either of these factors. The case began as a trial, with you denying that the events on the original indictment happened. After nearly two days of pre-trial submissions and rulings, at 3pm cross examination of the complainant began in a Special Hearing held before the jury was empanelled. During cross examination, Deidre was questioned by your counsel about Facebook communications between you. In response, the following day she produced many pages of messages showing that not only was there a sexually intimate relationship, but that you were well aware that it was illegal. The trial was adjourned until the next day, and on day four of the hearing, you changed your plea to guilty. Deidre was not spared the ordeal of giving evidence and the community was only spared the time and cost of the balance of the trial.
20 The next matter that I take into account in your favour is that you have no relevant criminal record alleged against you. You were dealt with for a number of driving offences in the Children’s Court committed not long before you turned 18, and you were dealt with in the Magistrates’ Court, both in Queensland for trespass, and in Victoria for offences of riotous behaviour, carrying a dangerous article, criminal damage and contravening a Family Violence Intervention Order. However, I note that you have not previously committed an offence of a sexual nature. I also note that it is not alleged that you have committed any offences since 2013 when this offence occurred.
21 The next matter that I take into account is that you were aged 21 years at the time of the offending and if you had been dealt with by a court soon after the event, you would have been sentenced as a young offender. That leads me to the next factor to take into account, which is the time that has passed since the offence. For reasons that are not of your making, other than the fact that a plea of not guilty results in a longer period of time until the trial, your case was heard more than three years after the event, mainly due to Deidre’s physical and mental ill health. I take into account that you have not re-offended in that time, are now in a relationship with an appropriately aged female, and together you are bringing up her daughter, and the son you have together.
22 Turning to your other personal circumstances, you are now aged 25 years. It seems you had a difficult upbringing. Until you were aged about 20, you thought your grandmother’s partner was your step-grandfather, but it emerged that he may indeed be your father, as your mother was apparently sexually abused by him over many years. You have three older half-siblings, but the only contact since this offence was committed is with your brother and that is a volatile relationship.
23 You lived with your mother in the LaTrobe Valley and had what was described as ‘reasonable relationships’ with some of her partners. You moved with your mother around South Australia, Queensland, Western Australia and Victoria, and with your brother spent a short period in foster care. According to the report of Dr Deacon, the psychiatrist with whom you had a short assessment[12], your mother was not nurturing, and physically abused you. You reported to him that you suffered major injuries as a baby and had a long stay in hospital. It is not known if you suffered a brain injury, but Dr Deacon estimated your intelligence to be low average.
[12] Exhibit 2, Report of Dr Deacon
24 You seem to have done most of your schooling in the LaTrobe Valley, eventually completing the equivalent of Years 10, 11 and 12 at TAFE, including obtaining the VCAL certificate. You finished your education at age 17, but from the chronology provided to me, it seems from age 16 you also worked in abattoirs for a number of months.
25 You have had a number of relationships. Your first lasted about 2 years when you were aged 17-19 and you have a son from that relationship now aged 8. After living briefly in different states at the age of 18, you moved to Queensland and lived with your second oldest sister. You obtained casual work through her boyfriend for about 5 years until you had an argument with that man and lost your job. You entered a second relationship during the time in Queensland and that lasted about 3 years, including a move back to Victoria with that partner. It is not clear on the information given to me how old you were during this second relationship.
26 You apparently moved between Queensland and Victoria constantly during the ages of 19 and 25. It was on one of these visits to Victoria that you met Deidre for the first time through your grandmothers, who are half-sisters. After the offending, during one of your visits to Queensland, you met your current partner with whom you now have a baby aged about 9 months old. You have settled together in a regional town in Victoria. Your partner is aware of the offence and she and your mother were in court to support you during the plea hearing.
27 Your history of relationships, as I have just outlined it, shows that when you met Deidre, you were not an inexperienced 21 year old desperate to be in a relationship; you had been in one, if not two, long term intimate relationships.
28 Turning to the report of the psychiatrist, the plea was adjourned so that your report of having a mental illness could be explored. Dr Deacon was to assess you on 3 October, but you arrived over 90 minutes late and he was able to see you for only 30 minutes. Despite this, Dr Deacon considered he was able to adequately cover areas relevant to his assessment, and he provided what in my view appears to be a comprehensive report given the brief time he had with you.
29 Apart from the matters I have already mentioned, Dr Deacon says that you told him you had been diagnosed with paranoid schizophrenia and had a number of admissions to hospital. You were prescribed medication, but stopped taking it because it made you too sleepy, and you were meant to engage in psychological therapy but only attended two sessions. You told him you had also been diagnosed with borderline personality disorder, and had harmed yourself from the age of 9 until about a year ago.
30 Dr Deacon expressed the opinion that your traumatic childhood probably led you to develop what he called “altered” social skills and poor understanding and respect for interpersonal boundaries. He described you as “partly asocialised”. I take his opinion into account as partly explaining your offending, but not necessarily causing the offending, and certainly not excusing it[13]. It does not remove the need for my sentence of you to provide general and specific deterrence, as well as community protection and social rehabilitation.
[13] DPP v Terrick and others [2009] VSCA 220
31 Dr Deacon was not convinced that you had a psychotic episode when aged 19 and did not consider it likely that you have schizophrenia. He thought the reported diagnosis of borderline personality disorder was more accurate and matched your history and presentation. He thought you appeared to lack a sense of self-identity, lack awareness of interpersonal boundaries, and present as glib and self-centred.
32 He did not think that you were open and candid when discussing the offence, and thought that you minimised and partly rationalised your criminal behaviour. He found no empathy or remorse and considered there was a failure by you to take responsibility. Overall, he thought your prospects for rehabilitation were unclear, and depend on your response to treatment. He considered that if your current relationship with your partner continues, that is a factor making it less likely you will reoffend.
33 I accept all of these opinions. I also find your prospects of rehabilitation hard to assess and I agree with Dr Deacon that you must undertake treatment to increase your prospects of rehabilitation, and to protect the community from you. Treatment should include a Sex Offenders Program, and assessment of your mental health to determine the correct diagnosis and how that may be managed, whether by prescription or therapy or both.
34 Your counsel submitted that you had found it difficult to access services in the past which you were ordered by courts to attend because of your unstable lifestyle. If you are placed on a court order to do programs today, you must obey that order. You spent three days in custody when charged with this offence. If you do not do what the order requires you to do, the consequences will be more gaol time.
35 Apart from those matters personal to you to which I have referred, I must also take into account what is called deterrence, especially general deterrence which is of the utmost importance in cases involving sexual offending against an underage person. That means that by my sentence of you the court must seek to deter other men from committing sexual offences against children. Further, I find that without treatment, there is a risk of you committing more offences, and so my sentence must also seek to deter you from re-offending.
36 Before I turn to the sentence, there is one further matter I must deal with. Application has been made for an intimate forensic sample to be taken from you and through your counsel you have not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the police may use reasonable force to enable such a procedure to take place.
37 Your counsel submitted that although you are at risk of receiving a prison sentence today, the appropriate penalty in your case is a Community Correction Order, because of your plea of guilty, lack of relevant prior convictions, age at the time of the offending, time that has passed since then, your personal circumstances and the lack of recent therapeutic treatment. The prosecutor on the plea submitted that such a sentence was within the range, but ‘only just’ as he put it.
38 You were assessed and found suitable for a Community Correction Order, although the assessor considered you to be at high risk of re-offending generally, and noted you have breached court orders in the past, including a probation order, and a community based order for non-payment of fines. You told the assessor that your life is different to what it was when you were unable to complete these orders, as you now have a stable relationship and accommodation. I note that your accommodation may change given the circumstances that were described to me this morning.
39 The court must impose a sentence that is just in all the circumstances, and that reflects the community’s abhorrence of sexual violence, particularly committed against children, with the damage that has caused to the victim in this case.
40 Further, while the prosecutor provided me with statistics of sentences for this type of offence[14], these are often not all that useful, and I note that recent Court of Appeal authority states that the guidance provided by current sentencing practice for a particular offence may conflict with the guidance provided by the statutory maximum, and where that is so, the requirement to have regard to current sentencing practice does not foreclose the possibility of an increase in the level of sentences[15]. The Court of Appeal in 2009, and again in 2016, found that there is a disparity between the maximum penalties and the sentences handed down for sexual penetration offences against children[16], with a real question as to the adequacy of current sentencing.
[14] Exhibit C
[15]DPP v CPD (2009) 22 VR 533 [7], citing R v AB (No 2) (2008) 18 VR 291, [68], [71]-[74]; CPD, [72]-[81]
[16]CPD,[8]-[9]; DDJ (2009) 22 VR 444, [72]; Dalgliesh [2016] VSCA 148 [87]
41 I have carefully considered all the matters in your favour, but I have come to the view that because of the features that make this a serious offence, which I outlined early on in these remarks, I have no option but to sentence you to a term of imprisonment. In imposing a sentence of imprisonment, I also take into account that, apart from the three days spent in custody when charged, you had not been to gaol before. You did not appear on the day you were to be sentenced last month; a warrant was issued; and you have been in custody on that warrant for 4 days.
42 I propose to sentence you to a term of imprisonment after which you are to be released on a Community Correction Order for a period of two years with certain conditions. Those conditions include those that are attached to every order which are: that you must report to and receive visits from Community Corrections; you must notify Community Corrections of any change of address or employment; you must not leave Victoria without the permission of Community Corrections, and that is an important one for you to note because I know you go interstate quite often; and you must comply with any direction given by Community Corrections to ensure compliance.
43 I will also order that you comply with other conditions during that 2 years: you must perform 150 hours of unpaid community work; you must be under supervision; you must attend for mental health treatment and assessment, and drug assessment and treatment as directed by Community Corrections; you must undertake and complete a Sex Offenders program as directed by Community Corrections; and you must return to court and appear before me so I can check on your progress. This last condition is called judicial monitoring.
44 Do you agree to be released after imprisonment to undertake a Community Correction Order with these conditions?
45 OFFENDER: Yes, Your Honour.
46 HER HONOUR: If your circumstances change after you commence the Community Correction Order, you may apply to the court for the order to be varied or cancelled. If you do not comply with a condition of the order, you will be brought back before me to be re-sentenced and that may involve more time in prison.
47 Do you understand what will happen if you do not complete any condition of the order?
48 OFFENDER: Yes, Your Honour.
49 HER HONOUR: Yes, stand up please. You are convicted and sentenced as follows:
50 On Charge 1 - 12 months’ imprisonment, after which you will be released on a Community Correction Order for two years with the conditions I just outlined.
51 By law, the Community Correction Order will commence on your release from prison. Community Corrections are directed to notify me of the actual commencement date, as that is dependent on when the Corrections authorities release you from custody.
52
The date for you to return to court for me to check on your progress will be about three months after that. I will set the time and date as 9.30am on
20 March 2018. I require the Community Corrections officer who is in charge of your case to provide me with a report on the steps taken by them for fulfilment of the conditions and your progress. That is to be provided by 18 March 2018. At this stage, I do not require any other person to attend on 20 March 2018 other than you, but of course, you may be legally represented if you choose, and the prosecution may attend if they wish. I will inform Community Corrections if they need to attend.
53 I declare that the time you have already spent in custody is 7 days not including today. That is to be deducted administratively from the sentence.
54 As a result of my sentence today, you become a registrable sex offender.You will be required within 7 days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for 15 years.
55 You will now be asked by my Associate to sign two documents. The first is acknowledging that you now receive a form notifying you of your reporting obligations under the Sex Offenders Registration Act. The second is to show that you agree to abide by the conditions of the Community Correction Order. Yes, you can take a seat while that is done and Ms Caust, you can - - -
56 MS CAUST: May I approach with your Associate, Your Honour?
57 HER HONOUR: Yes, certainly.
58 MS CAUST: Thank you, Your Honour.
59 HER HONOUR: Thank you. I have now signed the Community Correction Order. Ms Caust, I will have copies made available to you, I think, you are the most appropriate person to hand those to rather than the offender.
60 Finally, I advise you that the sentence I would have imposed on one charge of sexual penetration if you had not pleaded guilty, is 4 years’ imprisonment with a minimum of 20 months. That is not the sentence I am imposing but that is what I would have imposed after a trial.
61 Ms Goding, I have just realised I do not have the forensic sample orders here so I will have those signed and sent through to your instructor.
62 MS GODING: Thank you, Your Honour.
63 HER HONOUR: Thank you. The offender may be - - -
64 MS CAUST: Your Honour, may I just, sorry, quickly address the court on some custodial management issues?
65 HER HONOUR: Yes.
66 MS CAUST: Your Honour, Mr Walton, he suffers arthritic psoriasis.
67 HER HONOUR: Yes, thank you. I did not have any information about that on the plea but you are quite right, that was referred to in the Community Correction report. It was not mentioned at all and I was not given any medical material but yes, that will be noted that he has arthritic psoriasis.
68 MS CAUST: Thank you, Your Honour. He also tells me that he has - and I do not know whether I am pronouncing this correctly and I do not know how to spell it - it is spondylitis arthritis of the spine for which in the community, he has been prescribed tablets called Mobic. Both varieties of that condition or the psoriasis, sorry, he tells me, flares up with nerves and stress. He has been prescribed Seroquel with respect to the schizophrenia. I hear what Your Honour said with respect to Dr Deacon's report, but he has diagnosed in the community suffering schizophrenia and has been prescribed Seroquel.
69 HER HONOUR: Well the information that was given to me was that he was not taking it.
70 MS CAUST: No, he is not. He takes it - - -
71 HER HONOUR: But Dr Deacon's report will also be provided to the prison services.
72 MS CAUST: As the court pleases. Thank you, Your Honour. Your Honour does note that it is the first substantial time in custody.
73 HER HONOUR: Yes. So those matters will be noted on the order that is provided to the Corrections authorities.
74 MS CAUST: As the court pleases.
75 HER HONOUR: Yes, thank you.
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