Director of Public Prosecutions v Watts

[2014] VCC 382

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT EDMUND WATTS

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Geelong
DATE OF HEARING:	18 March 2014
DATE OF SENTENCE:	18 March 2014
CASE MAY BE CITED AS:	DPP v WATTS
MEDIUM NEUTRAL CITATION:	[2014] VCC 382

REASONS FOR SENTENCE
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Subject: Indecent act in presence of a child, Sexual penetration of a child, possession of

child pornography, recklessly cause injury.

Catchwords
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	OPP
For the Offender	Ms J. Munster	Mary Foley - VLA

HIS HONOUR: 

1Scott Edmund Watts, you have pleaded guilty to four charges of indecent act in the presence of a child, one charge of sexual penetration of a child, one charge of possession of child pornography and one charge of recklessly causing injury.

2The facts of your offending are set out in Exhibit A, the prosecution opening.  I was informed by your counsel that I could treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and sentence you on the basis of the facts therein contained. 

3Briefly stated, in early 2013 you were at your home in Bannockburn babysitting your de-facto partner's children then aged seven and five.  You had both children naked in the lounge area of your home and directed them to watch a pornographic movie whilst masturbating in their presence.  That is the basis of Charges 1 and 2.

4You directed that the seven year old girl grab her five year old brother's penis and pull it whilst the five year old boy rubbed his sister's vagina.  You continued to masturbate.  That is the basis of Charges 3 and 4.

5You digitally penetrated the vagina of the seven year old girl touching her clitoris.  You were still masturbating yourself and that is the basis of Charge 5. 

6You were interviewed by the Police on 7 June 2013 and admitted downloading child pornography over a period of five years.  You knew it was wrong you said and that the children in the child pornography images were suffering.

7A number of zip files, password protected, were in your computer and I have no information as to the number of images you possessed, the nature and quality of the images is unknown and no forensic examination of your computer has been undertaken.  The possession of that child pornography is the basis of Charge 6.

8On 6 May 2013 you struck your partner's five year old son a number of times to the arms with a belt.  The child had lit a fire in your lounge room on the floor, apparently, and you were purportedly punishing him.  The child suffered bruising to the arm and that is the basis of Charge 7.

9Victim Impact Statements were filed by both parents of your child victims.  Clearly, both are highly traumatised by your crimes.  Both are understandably angry and bitter at your theft of their children's innocence. 

10The childrens' mother, says in Exhibit B, that you have betrayed her and her children.  You have taken her children's innocence.  She asked herself time and again why she was unable to protect the one thing that really matters to her,that being her children. She says she is bitter and irreparably damaged by your crimes.  She points out that her children have changed since the crimes were committed by you.  They are terrified that you will come after them and that the threats you made to them are deeply embedded in their minds.

11Since the offending, the children have displayed sexualised game playing and she has - had difficulty in coping.  She is tearful, angry towards you and sad for her children.  She suffers nightmares and is only able to go to sleep when she is exhausted.  She has had counselling and seen a psychologist to assist her with the trauma of your crimes.

12She has been unable to sustain much work over the past months due to her anxiety and depression.  In a supplementary statement, she describes how her daughter has experience difficulties at school.  She says that her daughter is now quarantined in school into special play groups and her movements and behaviour are monitored.

13"I despise the offender" she says.  "I hate the way he's made me feel guilty for not being there to protect them.  I am constantly emotional, pain and sorrow swamped by unbelievable amounts of guilt.  The emotions I feel are unbearable at times.  My family feels split apart because of the offender's selfish acts of sexual gratification.  My life and my family feel ripped apart to the core." 

14The father, in his Victim Impact Statement, Exhibit C, says, "When I found out that my two innocent children had been sexually touched, I felt numb.  It was like a really bad dream that I couldn't wake up from.  I can't stop crying.  This is a horrible way to live.  I don't trust people. I was never like that.  I don't feel I can trust anyone any more.”  “The children,” he says, "Now do things they would not have done before." And he says that, “Scott, - you - have taught them to touch each other.” 

15He blames himself for your sexual assault of the children and he felt that if he only could have kept the relationship then maybe his children would have been spared the situation that you put them in.

16He says he has to constantly reassure both children that you will not be coming to their house.  His children's innocence is gone and nothing will bring it back.  He constantly has to deal with the fact that he was not there to protect them.  

17He believes that his son has deep emotional issues and he hopes that with counselling they will get through this.  He is sleeping, he feels like crying, he wants to vomit.  He is understandably angry and experiences profound sadness.  He says, "I hate you with every fibre of my existence for destroying my children and family." 

18In a supplementary statement he outlines receiving a call from Child Protection in relation to his daughter's behaviour and the behaviour she has exhibited at school and he has noticed a downward spiral in her behaviour since your offending and has he correctly says the ripple effect of your offending goes on.  People everywhere are hurt by what you did.  I take the Victim Impact Statements into account in sentencing you.

19You have admitted a very limited criminal record.  In 2008 you were released on a bond without conviction for six months on a charge of failing to do a required act.  This apparently relates to GST declarations and is completely irrelevant for sentencing in this matter.  I sentence you as a man without any relevant prior convictions.

20Turning to your personal circumstances you are now 29 years of age being born on 14 October 1984.  Your history is set out in detail in the comprehensive and helpful submissions of your counsel, Exhibit 1 - and the report of Dr Sullivan, Exhibit 2.

21You grew up on your grandparents farm in Bannockburn.  Your parents are now supportive of you and your father attended court today.  You have two siblings, both of whom now support you although your sister apparently had great difficulty in doing so up until recent times.

22You attended a number of schools and were regularly expelled.  You were rejected from St Augustine's midway through Year 9 before completing a Handbrake Turn Program.  You have obtained a certificate in Mechanics from the Gordon Institute. 

23You have had numerous jobs: labouring, as an apprentice chef, as an insurance salesman, truck driving.  You commenced a driving business in 2007 that left you in debt when it collapsed.  You spent nearly two years in the Navy before returning to Victoria where you worked in a quarry and sold cars before starting an agricultural farm contracting business in 2011.  That business also collapsed when this offending came to light. 

24You have had two long term relationships but are presently living on the family farm with your parents and grandmother.  You have reasonable health although it appears you have issues with high blood pressure, elevated cholesterol and possible sleep apnoea.

25You have a reported history of ADHD and Bipolar Affective Disorder.  That diagnosis no longer established and I refer to Exhibit 2 the report of Dr Sullivan.  You have a history of suffering from depression and are currently taking medication for that condition. 

26When you were charged with this offending you experienced a severe psychological reaction that saw you admitted to the psychiatric unit at Geelong Hospital for several days.  You were apparently suicidal.  You have sought counselling since and are now described as reasonably stable.  Your depressive history may have some connection to your use, firstly, of cannabis but significantly amphetamines which you have used since you were 19.  You ceased amphetamine use when you were arrested last year. 

27Dr Sullivan reports in Exhibit 2 that he examined you on 22 November last year and that you appeared to be of low average intellect.  In terms of insight you acknowledge your wrongdoing and express contrition and disgust for your behaviour.

28Dr Sullivan reports that currently, you do not show features of a clinically significant mood disorder. Nevertheless, he says, you are at risk of future depressive episodes given the past episodes of mild to moderate severity and occasional suicidal ideation.

29He reports that, "There is no indication of psychotic illness or cognitive impairment.  I was not persuaded that Mr Watts showed features of a personality disorder.  He has been able to gain employment in a range of fields including the military and has managed long-term relationships and has little evidence of anti-social behaviour in the past."

30Dr Sullivan says that the conduct involved in your offending would satisfy a provisional diagnosis of paedophilic disorder, non-exclusive type, sexually attracted to females. He says, "Although his internet child pornography may have been associated with amphetamine use and his emotional response is one of guilt, masturbation to the images and behaviours, enacting these images remains suggestive of some form of deviant sexual arousal.  Mr Watts acknowledges these issues are problematic and it is likely that exploration and a sexual offender treatment program will clarify this issue somewhat.  His acceptance of responsibility and remorse suggests that he will do well in treatment and will be amenable to psychological exploration.

31The description of the offences seems likely to have been associated with impulsive actions occurring opportunistically when he was sexually aroused.  Underpinning the offences was the use of pornography as a means of escapism and potentially to lift his mood, or when using stimulants and pornography use appeared to be a significant driver to the alleged offences.  The pornography use is also likely to have been associated with deviant sexual arousal to female children." 

32I take the contents of Dr Sullivan's report into account in sentencing you and I direct that a copy of it be provided to the prison authorities and the Parole Board.

33It is clear that you are required to undergo the sex offenders program whilst you are in custody.  I take into account your pleas of guilty.  I accept that those pleas were entered at an early stage.  I also accept those pleas are accompanied by genuine remorse for your offending.

34You have saved the community the time and expense of a criminal trial and, more importantly, spared your victims and their parents the enormous trauma of giving evidence and attending a trial.  You are entitled to and shall receive a significant reduction to the sentence I would otherwise impose to reflect those pleas of guilty.  I will return to the effect of that reduction subsequently.

35I take into account your co-operation with the police.  Although you were less than 100 per cent honest in some of your answers  you made substantial and relevant admissions and volunteered information to your detriment especially in relation to the child pornography charge.

36I accept that you are remorseful, your pleas of guilty, your answers to police in your record of interview and your statements to Dr Sullivan, all evidence your remorse and disgust at your conduct.

37I take into account your lack of prior convictions, you had worked hard, been involved in the community through sport and volunteer fire fighting and had otherwise demonstrated 28 years of good character. 

38You have personally suffered as a result of your crimes.  You have lost the respect of the community, you have lost friendships, you have lost your business and you have experienced great shame at your arrest and prosecution.

39I take into account your established history of depression and accept that this will make your time in custody more onerous for you than it would, perhaps, for those without your depressive disposition.

40Your prospects of rehabilitation must be seen as reasonable.  You enjoy family support and have a long work history.  Have expressed remorse and have prior good character.  Your offending was isolated and opportunistic.  If you conclude or complete the sex offender's program in custody your rehabilitative prospects would be further enhanced. 

41Because I propose to impose term of imprisonment in respect of all charges you fall to be sentenced as a serious sexual offender in respect of Charges 3, 4, 5 and 6.  I must regard protection of the community from you as the significant or primary sentencing factor on those charges.

42To achieve that purpose the court may impose a disproportionate sentence.  The prosecution concede that there is no need to impose a disproportionate sentence in your case.  Because of the mitigatory factors to which I have referred there is ample scope to protect the community with the sentences otherwise available to this court. 

43I direct that it be recorded in the records of the court that you have been sentenced as a serious sexual offender in respect of Charges 3, 4, 5 and 6.  The basic purposes for which a court may impose any sentences are punishment, deterrence - both specific and general, rehabilitation, denunciation and protection of the community. 

44In sentencing you, I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and the personal circumstances of you and those of your victims.

45I am required to balance the interests of the community in seeking to ensure that as far as possible offenders such as you are rehabilitated and reintegrated into society with the need to properly punish criminal behaviour.  I have to balance, in short, the circumstances of your offending and your personal circumstances.  I must also have regard to the sentencing practices of the courts for this type of offending.

46Your offending was extremely serious.  The maximum penalties prescribed by parliament demonstrate how seriously these offences are regarded.  You were in a position of trust.  You were supposed to protect these children, not abuse them for your personal sexual satisfaction.  Society must protect its children.  Any sexual abuse of children cannot be excused or tolerated.  Your victims were very  young.  At seven and five they should not have been exposed to the depravity that you displayed.

47General deterrence is a significant factor in this case.  Those minded to sexually interfere with children need be aware that they will be severely punished for their crimes.  The sentence I must impose should express denunciation for your conduct and protect the community whilst you were undergoing a sentence that hopefully will promote your rehabilitation and it should also personally deter you from future offending.

48Principles of totality and cumulation have relevance in sentencing you.  It is clear that the conduct involved in Charges 1 and 2 is the same for both charges.  There should therefore be total concurrency for these charges. 

49Similarly, the conduct involved with Charges 3 and 4 all involve some common features although not as identical as perhaps Charges 1 and 2 were.  There should, in my view, be substantial concurrency between these charges. 

50The conduct in Charges 1 to 5 all occur in a short compass as part of an isolated course of conduct.  Totality of sentence is significant and there is a need for significant overall concurrency in sentence and for moderation of individual sentences. 

51So far as Charge 6 is concerned, it is clear that your admissions were the primary evidence of your offending.  Given the lack of forensic evidence I regard this offence as a relatively low level example of the offence of possess child pornography. I have had regard to the decision of Dellasandro 2010 VSA 60 and Gent 2005 162 ASCR p.29 in arriving an appropriate sentence for this charge.

52Again, general deterrence to protect child victims is the principle sentencing consideration in child pornography cases. .

53Finally, so far as Charge 7 is concerned I regard your conduct as excessive parental discipline.  You physically injured a five year old boy.  Even if he had lit a fire you were not justified in lashing him.  Stand up, please?

54On all charges you will be convicted.

55On Charge 1, indecent act in the presence of a child you are sentenced to two years' imprisonment.

56On Charge 2, indecent act in the presence of a child you are sentenced to two years' imprisonment.

57On Charge 3, indecent act in the presence of a child you are sentenced to two years' imprisonment. 

58On Charge 4, indecent act in the presence of a child you are sentenced to two years' imprisonment.

59On Charge 5 the offence of sexual penetration of a child you are sentenced to four years' imprisonment. 

60On Charge 6 - the charge of possess child pornography you are sentence to 6 months' imprisonment

61On Charge 7 the charge of recklessly causing injury you are sentenced to one months' imprisonment.

62Having regard to the principles of cumulation and totality to which I refer I order that one year of the sentence imposed on Charge 1, one year of the sentence imposed on Charge 4 and three months of the sentence imposed on Charge 6 be served cumulatively upon the sentence imposed on Charge 5 which I declare to be the base sentence. 

63That is an effective term of imprisonment of six years and three months.  I order that you serve a non-parole period of four years and three months before being eligible for parole.

64I indicate that but for your pleas of guilty I would have imposed an effective term of imprisonment of eight years with a non-parole period of six years. 

65I have made the 464ZF order for the provision of a forensic sample and the disposal order sought by the Crown.  Pursuant to the Sex Offences Registration Act you are to report for life. 

66I am obliged to hand you a copy of your reporting requirements.  Ms Munster, go down with my Associate and have your client sign an acknowledgement that he's been handed those requirements.

67MS MUNSTER:  Yes, Your Honour.

68HIS HONOUR:  Thank you.  Are there any other orders required?

69MR TRIANDOS:  No, Your Honour.

70HIS HONOUR:  Any other matters, Ms Munster?

71MS MUNSTER:  Just, Your Honour, one matter on the remand warrant if you could note please that it is his first time in custody and the medication.

72HIS HONOUR:  Yes, he needs his antidepressant medication and first time in custody on the gaol return.

73MS MUNSTER:  Thank you, Your Honour.

74HIS HONOUR:  thank you, I will stand down for the next matter.

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