Director of Public Prosecutions v Watton

[2018] VCC 778

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02173

DIRECTOR OF PUBLIC PROSECUTIONS

v

DALE WILLIAM WATTON

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2018
DATE OF SENTENCE:	31 May 2018
CASE MAY BE CITED AS:	DPP v Watton
MEDIUM NEUTRAL CITATION:	[2018] VCC 778

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty to 2 charges  sexual penetration under 16; 2 charges indecent act under 16; one charge of making child pornography, offending occurred  when offender was 17 – 23 years old -  3 young male complainants  between 13 – 16 years old – alcohol given to complainants -  small community – offender subject to sexual abuse  as a child – lacked parental  protection, direction and guidance – physical abuse from mother   - adjustment disorder with mixed anxiety and depressed mood – has not offended over a considerable period - general deterrence important.
Sentence:  5 years with   non parole period of 2 years 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton Mr N Dogherty for sentence	OPP
For the Accused	Mr P. Tiwana   Mr V. Wang  for sentence	Dribbin & Brown

Pages 1 - 12

 

 

HER HONOUR: 

1Dale William Watton, you have pleaded guilty to two charges of sexual penetration of a child under 16, two charges of committing an indecent act with a child under 16 and one charge of making child pornography. 

2You committed these crimes many years ago, starting in 1996 with the last offending occurring between 2003 and 2009.  Before setting out the circumstances of the offending, I will traverse the background to it, as it should become clear that the context is particularly important in explaining why the offences occurred.

3You are now aged 39, until recently working as a sales manager and living a stable law-abiding life.  In 2004, aged 23, you were convicted of committing an indecent act with a child under 16 and you were placed on a community-based order for 12 months with a number of treatment-based conditions.  You breached that order, but it was confirmed and later varied.  In addition, you have a number of traffic offences and some dishonesty offences of a minor nature.

4The early offending occurred in a country town.  You had moved there with your mother and her partner when you were aged about 14.  Your parents had separated when you were about four and soon afterwards, your mother re-partnered.  Her partner was verbally abusive and emotionally cruel to you.  He excluded you from activities and outings and ordered you to your bedroom when he was home.  

5Your mother worked long hours in a retail job and you were often left to your own devices.  Your mother was physically abusive towards you, often striking you with a belt or her open hand.  One such incident occurred when you were age 11, when she assaulted you in an extreme manner causing you extensive bruising all over your body. 

6This led to you going to live with your father but he also worked long hours, leaving you to look after yourself and eat takeaway food every day.  Occasionally, you were beaten by an older sister who had problematic issues of her own.  You were also subjected to sexual abuse between the ages of eight and 12 by a friend's older brother and your sister's male friend. 

7You moved back to live with your mother in 1993.  A year later when you were 15, your mother and her partner went to live in Queensland.  You were not included in that relocation and you were left to live alone.  You worked at a local bakery and grocery store and did a paper round to make enough money to feed yourself and pay the bills.  Meanwhile, your mother came and went from Queensland and eventually settled in the town permanently. 

8In 1998, your sister attempted suicide.  She was the mother of three young children, including a baby a few months old.  You collected the children from Melbourne and took them home where they lived with you and their grandmother for some time.  You formed a close bond with the baby, Michael, and were instrumental in raising him.  Tragically, he died of cot death when he was 16 months old.  You led a very lonely and isolated life, both earlier in childhood and later in the small town and during your assessment by the psychologist, Dr Barth, you said that both your parents had "nothing to do with my life." 

9Fortunately, it seems that they now both regret this and are supportive with both your parents attending court recently. 

10You were relatively bright at school but the lack of parental guidance saw you truanting often and you were required to complete VCE over three years.  During your teenage years, you tried to develop friendships through community sport but at the same time, you developed anti-social behaviour such as heavy drinking, shoplifting and occasional minor theft. 

11Heavy drinking was a particular focus of your involvement with the local football court which of course is not an unusual phenomenon.  Alcohol was apparently a feature of most of your offending over the years, and although you seem capable of reducing your drinking from time to time, weekend binge drinking remains a problem for you.

12You have also used illicit drugs, ecstasy and cocaine, sometimes on a daily basis but not for some months. 

13It was shortly after the incident of sexual abuse on you when you were 12 that you offended against an eight-year-old boy, resulting in the conviction for indecent assault in 1992.  This was at a time of emerging ambivalence about your sexuality.  You discussed this with Dr Barth, explaining that homosexuality was strongly disapproved of in the country town and that your family had similar attitudes so it was not until your early 20s that you disclosed your sexuality to your family and friends.  This was very positive and a turning point for you and the beginning of a more stable life, developing healthy sexual relationships with adult males.

14You also discussed with Dr Barth your history of viewing pornography which has always excluded child pornography and indicates that the charge against you does not reflect any such predisposition but was limited to the circumstances of this offence.

15The complainant in relation to Charge 1 is “A” who was ten years old when you met him through his older siblings and through his mother and your mother being friends.  When he was about 13, you visited his home one evening when his mother was at work.  His parents were separated and his father lived interstate.  The complainant's older brother was at home.

16You dared the complainant to do a "nudie run" out the front of his house and back again.  He did that but you would not give him back his clothes.  He went into his room to get some other clothes and you followed him in and began to grope his penis.  The complainant was shocked and did not know what to do.  You then performed oral sex on him.  He told you to stop and you did so.  You told the complainant not to tell anyone because people would think he was gay.  This was his first sexual experience and he did not tell anyone.

17After his school grades began to be affected by the incident, he told the school counsellor who recommended that he tell his mother, but he did not do so because it was a small town where you both lived and his mother was friends with your mother. 

18Charge 1 is a charge of sexual penetration of a child under 16. 

19The same complainant was also the subject of Charge 2, committing an indecent act with a child under 16.  He was about 15 at the time when you were in charge of the local swimming pool.  One night after you had finished work at the pool, you and the complainant decided to go for a swim in the pool afterhours when no one else was there.  When the complainant was climbing out of the pool on the ladder, you came up behind him in the water and bear hugged him.  You wrapped your arms around his waist with your hands near his groin.  You then tried to pull him back into the water and grabbed his penis from behind through his bathers.  The complainant pushed you off and told you to stop doing it and said if you ever tried to do it again, he would tell the police.  You apologised and promised not to do it again.

20A short time later, the complainant was told that you were coming to stay for a while at his house.  The complainant was unhappy about this and told his mother about the offending.  She suggested that he report it to the police but he did not want to.  From then on, you were not allowed to visit the complainant's house and he no longer associated with you without others being present.  Sometime later, he moved interstate and you moved away from the town

21In early 2016, the complainant “A” received a message from an old friend from the same town, “B” .  “A” had never told “B” about his experience with you but “B” told “A” that he had experienced a sexual incident with you and had recently reported it to the police in Victoria.  When “A” later received a telephone call from the Victorian police, he disclosed the offending by you against him. 

22“B”  met you when he was about 14 or 15, when you were in charge of the swimming pool in the town.  About two months later at your house, you asked him to take off his clothes so you could do a drawing of him.  You told him it would help you get into art school.  When complainant  “B” took off his clothes, you touched and masturbated his penis.  The complainant has stated that he had no real idea what was going on.  That is Charge 3, committing an indecent act with a child under 16.  This occurred a short time before you left the area

23“B” did not tell anyone about this for years.  He told a friend some years ago. 

24In January 2016, he was shown a snapshot on Facebook which appeared to have been taken from a video depicting a person in bed in a non-sexual context.  He believes the person is probably himself.  It was on this day that he told the police about his experience with you. 

25The third complainant is “C”  who met you in 2006 through a mutual friend at the football club where you had been the coach.  “C” met with you many times and you would provide alcohol for him and let him drive your car.  When he was 14, he was at your house one night with a friend of his.  All three of you were drinking alcohol which you supplied that night as you usually did for them.  When you were in the kitchen and “C” was in the lounge room he sent you a text message, asking if he could drive your car.  You replied by text, "When your mate blows you."  You then sent him another message saying, "You can drive but come and see me in the spare room." 

26When “C” went into the spare room, you were lying on the bed and you asked him to lie next to you.  After locking the door and turning the light off, you put your hands down his pants and touched his penis.  You then performed oral sex on him and then exposed your own penis and ejaculated.  That is
Charge 5, sexual penetration of a child under 16.  It is a representative charge representing one or two acts per month and a further act at the end of the date range.

27After this initial event, you told “C” that he could drive your car.  From that time onwards, you would wait until “C” had been drinking and then initiate sex with him, with driving the car being offered as a reward.  Whenever “C” stayed at your house, you would wake him up by touching his penis and often “C” would pretend to be asleep to avoid you touching him.  You would ask him if you could kiss him on the lips and to have anal sex but “C” always said no and would not let you.  You would bribe him to get him to do what you wanted or supply him with alcohol to get him drunk. 

28For example, in early 2008, “C” was raising money to go on an athletics tour in the USA.  You promised to help.  You retracted this promise when “C” would not agree to your proposal that if you allowed him to drive your car, he would allow you to masturbate him while he was driving.  “C” made a statement to the police about these matters in February 2016. 

29Charge 4, making child pornography occurred on various dates between January 2003 and December 2009.  This was discovered in September 2014 by your sisters when you left a sports bag at the house of one of your sisters.  It was locked and on cutting open the bag, they found many VHS tapes containing child pornography.  They contacted the police and handed over the bag and the videos.  There were 215 video files of child pornography falling into Categories 1, 2, 3 and 4, mostly in Category 2.  There were 15 different male children covertly captured by you on film shown either masturbating and ejaculating to pornography in your home, showering naked in your bathroom, being covertly filmed getting changed into their bathers at unknown locations or you engaging in sexually penetrative behaviour with them.

30You filmed each of these children except “C” without their knowledge.  You can be seen on some of the recordings to be playing pornography to the boys and encouraging them to masturbate.  One film shows three naked boys in a swimming pool, one appearing to be eight years old, another between six and eight and the third child's age cannot be determined.  You can also be observed on two occasions removing the underwear of boys aged about 14 to 15 years to expose their genital area, spreading their legs and/or touching their genitals.  On both occasions, each boy appears to be severely affected by alcohol to the point of being incoherent.

31Multiple VHS tapes show you engaging in sexual penetration with “C” who appears to be aged between 13 and 15 years.  You can be seen on numerous occasions on the tapes adjusting the position of the camera angles and ensuring the recorder is capturing the boys.  In total, there were two boys aged between six and eight, one boy aged between eight and ten and 12 boys aged between 12 and 17.  You kept these films and did not transmit them to anyone.

32You were interviewed on 12 May 2016 and on the morning of the committal hearing on 25 October 2017, the case resolved to a plea of guilty before any witnesses were called to give evidence.  You spared the witnesses the ordeal of having to give evidence and be cross-examined and the expense and inconvenience of a trial was avoided.  You are entitled to a discount on your sentence for having facilitated the criminal justice system in that way, and I also accept your plea as an indication of remorse which you have expressed elsewhere as well.

33There are other mitigating factors which I take into account in determining your sentence.  It is not surprising to read in Dr Barth's report that you have suffered with significant emotional, interpersonal and sexual issues and that his diagnosis is of an adjustment disorder with mixed anxiety and depressed mood.  Dr Barth considers you are at risk of further deterioration without ongoing psychological treatment. 

34The offending that is the subject of the first three charges took place a long time ago, commencing when you were 17 and ending when you were 23. 
Charge 4, the making of child pornography, occurred over the following six years.  If you had been dealt with immediately after the offending in relation to Charges 1 and 2, as a young offender your rehabilitation would have been the paramount sentencing consideration.  At the time of the offending and in relation to Charge 3, you were aged between 22 and 23 and so as a youthful offender, rehabilitation would have been an important sentencing consideration for that and the other charges. 

35As a child, you had been subjected to sexual abuse and I have set out the broader deprivation you suffered while you were growing up.  Without adequate nurturing, protection, direction and guidance from your parents during the years when you were a vulnerable child and young person and despite your own efforts to continue your education and stay involved in the community, you offended egregiously against other vulnerable boys. 

36Perhaps if there had been opportunities for young people in your situation to feel supported at times of confusion as to sexual identity, support which is probably more likely to occur these days, your offending might not have happened. 

37The impact of your offending against “B” and “A” has been described in the victim impact statements they provided.  “B” said he had had great difficulty at the time, making sure he avoided you, and this made him appear unwilling to fit in with his peer group.  At the same time, he was unable to tell anyone, knowing that you were trusted in the community and any complaint would not have appeared credible because of that. 

38A similar impact was experienced by  “A” when as a teenage boy, he had to keep the abuse secret and had to avoid you and felt distanced from his peer group.  It adversely affected his school work which led to questions being asked.  He felt distrusting of others because he feared something similar might occur again. 

39All the offences are serious crimes and attract a maximum prison term of ten years in each case.  You are not a first-time offender but there has been no subsequent offending for many years since your life became more settled and stable.  Prison will be difficult for you, more difficult than for those who did not suffer as you do from a serious mood disorder and I take that into account.

40Dr Barth's testing of you revealed that the risk of further sexual offending is regarded as moderate to high.  This is because of your previous criminal history, the contact you had with the complainants in an escalating fashion and that there were three of them.  Your use of alcohol is an additional contributing factor, and that you committed the offences in a context of significant personal difficulties, including problems with self-awareness (having been the victim of sexual abuse), minimisation about the offending and lack of insight regarding it.  These matters are set out in considerable detail by Dr Barth in his report dated 23 April 2018. 

41Dr Barth considers you will be in a good position to work towards your rehabilitation with protective factors in your favour, such as having taken full responsibility for your offending and being willing to participate in sex offender treatment.  You have sound intelligence, positive support from your parents and good work skills but you will need counselling and treatment for alcohol abuse in addition to the sex offender program. 

42Your father has provided a letter for the court in which he described the very poignant circumstances of your separation from your mother when you were very young and that you overcame the deep hurt you experienced because of this, to become a valued member of the community and within the extended family.

43Your mother's letter to the court is equally poignant in its reference to the sadness of your childhood and the lack of guidance from her and your father,  something which, for her part, she greatly regrets.  She said you have now been supporting her through times of ill health.  She described your sporting success and achievements including being house captain, school sports captain and SRC president.  It appears that you had both sporting and leadership talent but those attributes were not sufficient to adequately sustain you as you faced very difficult challenges for a teenage boy with extremely inadequate family support.

44A custodial sentence will be difficult for you as I said a few moments ago and Dr Barth recommends that appropriate precaution be put in place to guard against deterioration of your mood, given your propensity for intense emotional distress and I will make that clear on the gaol order. 

45General deterrence is of great importance in cases like this.  The community regards this type of offending with abhorrence and the court must denounce firmly the abuse of children in this way.  Just punishment and the need to deter you yourself are also important sentencing considerations, tempered by the mitigating factors to which I have referred. 

46Although there has been no delay in the progress of this case since you were charged, it has been many years since the last of the offending and your life has taken a very different path since that time.  Despite some hesitation emerging from the psychological report as to the level of confidence in your rehabilitation relating to insight and matters such as self-esteem and a tendency to resort to alcohol, it is  clear that you are a very different person than the young man who offended years ago. 

47Although you committed very serious offences, your rehabilitation to date is a significant mitigating factor as it helps to ensure the protection of the community which is the primary purpose of sentencing in cases like this.  A further aspect of delay is that if you had been dealt with as a young person, the need for general deterrence would have played a lesser role in sentencing and I take that into account.

48Balancing all these factors which must inform my decision as to sentence, I must also apply the principle of totality and ensure that the sentence I impose is not crushing upon you. 

49Mr Donaghy and Mr Wang, I have just prepared a summary of the sentence for you so you can follow it if need be.

50COUNSEL:  Thank you, Your Honour. 

51HER HONOUR:  Would you stand now please, Mr Watton?

52I sentence you as follows.  For Charge 1, two years and nine months' imprisonment.

53For Charges 2, 3 and 4, two years for each charge.

54And for Charge 5, three years.

55The sentence for Charge 5 is the base sentence for purposes of cumulation.  The provisions of the Sentencing Act require me to sentence you as a serious sexual offender for each charge following Charge 2, and so cumulation must be applied to charges 3, 4 and 5 unless otherwise directed.  I order that six months of each of the sentences for Charges 1, 2, 3 and 4 be served in cumulation upon the base sentence.  That results in a total effective sentence of five years. 

56I order that you will become eligible for parole after serving two years and six months. 

57You have been in custody for 22 days by my calculation and I declare that time to have already been served and I shall cause that to be noted on the court record.  Under the Sex Offenders Registration Act, you will be required to provide your details to the police every year for the rest of your life after you are released.  Shortly, you will be given a form to sign in relation to that. 

58The prosecution has applied for a disposal order and I make that order; also, for an order for a forensic sample of saliva to be obtained under s.464ZF of the Crimes Act.  I understand that neither of those orders are opposed and I make those orders. 

59In relation to the forensic sample, Mr Watton, I have to advise you that the police do have the power to use reasonable force to obtain that sample, but I trust that will not be necessary. 

60And finally, if you had pleaded not guilty to these charges, I would have sentenced you to seven years' imprisonment with a non-parole period of four years. 

61Are there any other matters that I have neglected or omitted, Mr Donaghy?

62MR DONAGHY:  No, thank you, Your Honour. 

63HER HONOUR:  Mr Wang?

64MR WANG:  No, Your Honour.  

65HER HONOUR:  Thank you.  Mr Wang, do you want to go to the dock with my associate?

66MR WANG:  Yes, if I may.  Thank you, Your Honour.

67HER HONOUR:  Adjourn the court.

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