Director of Public Prosecutions v Wheeldon
[2018] VCC 1245
•9 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00509
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARIN LYNDON WHEELDON |
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JUDGE: | HER HONOUR JUDGE HANNAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 9 August 2018 | |
CASE MAY BE CITED AS: | DPP v Wheeldon | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1245 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sonnet | Office of Public Prosecutions |
| For the Accused | Mr A. Schwartz (Plea) Ms J. Parnell (Sentence) | Dribbin and Brown Criminal Law |
HER HONOUR:
1 Darin Wheeldon, you have pleaded guilty to four charges of rape. The maximum penalty for each offence is 25 years’ imprisonment.
2 Further, you have pleaded guilty to one charge of false imprisonment. The maximum penalty for that offence is 10 years’ imprisonment.
3 Further, you have pleaded guilty to one charge of intentionally causing injury. The maximum penalty for that offence is 10 years’ imprisonment.
4 Finally, you have pleaded guilty to one charge of theft. The maximum penalty for that offence is also 10 years’ imprisonment.
5 The four charges of rape are all representative charges, and the charge of false imprisonment, which is Charge 3, is an ongoing offence over the period commencing 3 July 2011 until the early hours of Monday, 4 July 2011. Charge 6 is a single offence, and Charge 7 is a rolled-up charge of theft which includes theft of a car, a credit card, and money.
6 All offences were committed between 2 and 4 July 2011 against the same victim.
7 The facts which found your offending are set out in the prosecution opening dated 14 February 2018. I do not propose to recite the contents of that document in full but direct that a copy be annexed to these reasons for sentence as the agreed factual basis upon which you have pleaded.
8 In essence however, the victim at the relevant time lived with her two children in a house in Dandenong subsequent to her marriage having broken down in early 2010. She was still in regular contact with her ex‑husband who had care of the children each weekend.
9 The victim met you through her work at a contact centre and soup kitchen, in July or August of 2010. You had commenced volunteering at that organisation. At that time you were living in Clayton. You told the victim that you were not happy in your accommodation, and as one of her then-boarders was about to move out, she invited you to move to her premises. You accepted and initially there was a good relationship. At some stage you moved to the bungalow at the rear of the property.
10 Over time you developed a sexual interest in the victim. She told you she was not interested, but you persisted, and ultimately there was some consensual sexual activity over a period of time. The last consensual sexual contact prior to the offending was around 1 May 2011, some two months prior to the conduct which founds the offences to which you have pleaded.
11 Leading up to the offending on 2 July 2011, the victim’s children were with their father. The victim by this stage thought that there was an understanding that there was not going to be an ongoing relationship between the two of you. Upon returning from an event, you commenced massaging her, ultimately moving your hand up to the area around her crotch, at which time she said “For the hundredth time, I have told you, I don’t want this.”
12 Following the victim’s protest you slapped her across the face, pulled off her jeans and underpants and then penetrated her vagina with your fingers. (This is represented by Charge 1.)
13 You then took her hand, took her to the bedroom, and took off her remaining clothes before tying her hands and feet to the bed. She was struggling, asking you to stop. You punched her to the stomach and attempted to stuff a singlet into her mouth. You then sat down on the bed and inserted your fingers into her vagina. It is this penetration which founds Charge 1, rape.
14 You left the room, returning with shaving cream and a razor. You commenced to shave the victim’s pubic hair. Upon completing this, you took a photograph on your mobile phone. The victim was telling you that you did not need to do this, that the two of you could talk. You were mumbling, but also becoming aggressive. You grabbed her breasts, and again inserted your fingers into her vagina. (This is again represented by Charge 1.)
15 You then apologised and untied the victim. You suggested you both have a shower. The victim complied due to fear. After the shower you returned to the bedroom and placed the victim’s hand on your penis, and she masturbated you. You then put your hand on the back of her head and she understood that she was required to perform oral sex upon you, which she did. You penetrated her mouth with your penis. (This is represented by Charge 4.) You ultimately ejaculated on yourself.
16 You asked the victim what she would do, and whether she would go to the police. She indicated to you that she would prefer that you handed yourself in. She told you that she forgave you and still cared for you as a friend. She asked you to leave, and you did. The victim did not contact police at this time because she trusted the ordeal was over and that you would hand yourself in.
17 The victim woke the next morning, being Sunday, 3 July 2011. She was alone. She telephoned a friend who was in New York and told her friend that you had raped her. Her friend told her to contact the police. The victim also contacted a counsellor, telling him that you had raped her and tied her to the bed.
18 By this stage you had returned to the victim’s premises and she started preparing to attend church. You followed her to the bedroom, pushing her onto the bed. You again tied her to the bed. You grabbed her nipples and twisted them, causing her pain, and told her if she screamed that was what was going to happen. You then untied her from the bed and tied her hands behind her back, placing a pillow case over her head. You took her to the bungalow at the rear of the premises and forced her face-down onto the bed, you tied her feet together with a dressing-gown cord. You then commenced beating the victim on her buttocks with a metal object that she thought was a coat hanger. While you were doing this you were saying “Consequences, consequences, consequences.” You rolled the victim over and again squeezed her nipples, telling her that you could have made such a good team.
19 At this stage you commenced threatening the victim and her children, referring to a friend who had just been released from jail who did not have any mercy for children. The victim could not see, as she had a pillow case over her head. She could hear you on a computer keyboard, and you told her that you had sent photos of her, her children, her house, and the soup kitchen where she worked, to your friend. You then made or pretended to make a phone call, asking somebody “Did you get the pictures and stuff? When I say the word it’s go.”
20 You then forced the victim to telephone her ex-husband to tell him she was too unwell to go to church.
21 You asked the victim how much money she had in the bank, and she said she was going to give it to you. You went to the computer and entered her passwords which she gave you but you were unable to access her account. This made you angry, and you again squeezed her nipples, which was very painful. You then inserted a finger or fingers into her anus (which is represented by Charge 5) and twisted her nipples. When the victim screamed you put your fingers in her mouth.
22 You then untied the victim and took her to the bedroom in the main house, before tying her to the bed and putting the pillow case back over her head. You went through her wallet and found her NAB card. The theft of this card is part of Charge 7. You then used the victim’s laptop to make a funds transfer of $1600 into your account. This theft is also part of Charge 7.
23 The victim by this stage could not see what you were doing due to the pillow case. You were taunting her, saying “This is very interesting. My friend taught me this. It’s a nice form of torture. It doesn’t leave any trace.” You then inserted sewing needles into each of the victim’s nipples, causing her immense pain. The needles were pushed right through, and exited the other side of the nipple. You forced the victim to leave these in her nipples until the following day. It is this conduct which founds Charge 6, intentionally causing injury. You continued to taunt the victim, saying “You look nice. maybe later we can pierce your clit”.
24 As a result of seeing an innocuous text on the victim’s phone, you became angry. You left the room and returned with a syringe-like object. You inserted it into the victim’s vagina and squirted liquid which produced a strong burning feeling. It is this conduct which founds Charge 2, rape. The prosecution assert that the substance was methylated spirits but for the purposes of sentencing I regard this as unclear. In any case, whatever the substance was, I accept that it caused a burning sensation. The victim was squirming in pain. You left the room and returned with another syringe; this time, the victim says, filled with what she thought was water. You again inserted it into her vagina and squirted it, which ameliorated the pain caused by the first substance to some extent.
25 At some stage while the victim was tied up on her bed you inserted a pestle from the kitchen into her vagina (this is represented by Charge 2). Following this you again twisted and pulled her nipples, taunting her, asking her “Where is your God now? Where are your friends?”
26 You then took her back to the bungalow, where you checked her account balance and yours, noting the money was not yet in your account. This again caused you to become angry. You twisted her nipples and said “Now we’re doing it my way”. You then again inserted your fingers into her vagina (represented by Charge 1). The victim was by this stage so frightened that she defecated. You put your fingers into her excrement and wiped them across her stomach. You then placed two fingers into her mouth and required her to suck them clean. The victim understandably felt disgusted. You then took her to the shower in the main house and stood outside the bathroom with the door open while she showered. After the shower you tied up her hands again, put the pillow case back over her head, and took her back to the bungalow where you made further enquiries about the money.
27 Following this, you told her that you were going for 'a little drive'. You told her if she shouted or did anything there would be ‘consequences’. You untied her and took her to the passenger seat of the vehicle. You were in possession of her credit card and phone. You drove away. This conduct is the commencement of Charge 3, false imprisonment, which ended at the time you crossed the border into New South Wales. Your theft of the motor vehicle forms part of Charge 7.
28 You drove to a factory area in Dandenong, where you stopped the car and forced the victim to get in the boot. At a later time you stopped for fuel, paying with the victim’s bankcard. This theft forms part of Charge 7. You continued driving with the victim still in the boot, and at some point disposed of her mobile phone. During the course of the journey you stopped at an ATM and withdrew $800 from the victim’s account. This also forms part of Charge 7, theft.
29 You continued driving with the victim in the boot until you reached a deserted rural area, where you allowed the victim to get into the front seat. You twisted her nipples through her clothing, and told her that there could be ‘no dramas’ or there would be ‘consequences’.
30 You drove through Koo Wee Rup, and at some stage grabbed the victim’s hand, placing it on your penis. You then undid her seatbelt and put your hand on the back of her head, and pushed her head into your lap. The victim understood she was required to perform oral sex upon you and you inserted your penis into her mouth (represented by Charge 4). She performed oral sex until you ejaculated. She spat your ejaculate onto the sleeve of her jumper.
31 You drove on, and the victim recognised signs for Gembrook. You told her that you were going to drive to the New South Wales border, where you would drop her off. You told her that you would continue on and ultimately get onto a boat and go where no one could find you. You continued on through Warburton towards Marysville. During this part of the drive you took the victim’s hand and put it down your pants so she was touching your penis. You again placed your hand behind her head, forcing her head down into your lap, and inserted your penis into her mouth (represented by Charge 4). You twisted her nipple over her clothing while she did that, causing her pain. She began to feel sick. You pulled over and she dry retched out of the car. You then continued to drive.
32 When you were close to Marysville you stopped and put the victim back in the boot. You drove to a caravan park in Alexandra and paid for a cabin. You then went to a supermarket and purchased food, drink and duct tape. The victim all the while remained in the boot. When it was nearly dark you finally let her out, directing her into the cabin. You stripped her naked and tied her hands behind her back with duct tape. You also put duct tape over her mouth and a pillow case over her head. Her ankles were taped together. After a short time she was able to get your attention. You removed the tape over her mouth and she asked you to loosen the tape on her wrists as her hands were going numb. You then tied her wrists with a tie instead, before putting her into the bed under the doona.
33 You ate and drank and got into bed with her. You took the pillow case off her head and untied her hands. You then pushed her head towards your penis and inserted your penis into her mouth. It is this penetration which founds Charge 4, rape. You pulled and twisted her nipples while you did this, which caused her a lot of pain. She performed oral sex and masturbated you until you ejaculated. You then tied her hands together again and covered her with a blanket. You tied something else to this restraint, which you held onto. The victim fell asleep.
34 At about 11pm the victim was awake and noticed that you were awake. You got up, untied her, and got dressed. You took her to the car and made her get into the boot, into which you placed a pillow taken from the cabin. You then drove away.
35 You subsequently stopped for fuel in Glenrowan at 1.30am on Monday, 4 July. You continued driving with the victim in the boot. At some stage you stopped and allowed her to sit in the front passenger seat. It was still dark. You again twisted her nipple, causing her pain. You again took her right hand and placed it on your penis, before pushing her head into your lap and inserting your penis into her mouth. (Represented by Charge 4.)
36 While the victim was performing oral sex and masturbating you, you inserted two fingers into her anus and pulled upwards, causing her significant pain. It is this conduct which founds Charge 5, rape. You said “You can scream as much as you like. No one’s going to hear you”. You put your fingers into her mouth and made her suck your fingers. You then inserted your penis into her mouth (represented by Charge 4) and again inserted your fingers into her anus (represented by Charge 5). This continued until you ejaculated into her mouth.
37 You continued to drive, and after a time you again forced the victim’s head onto your lap before penetrating her mouth with your penis (again represented by Charge 4). You again put two fingers into her anus and pulled upwards, forcing her bottom up (represented by Charge 5). You ejaculated into her mouth.
38 The car driven by you crossed into New South Wales. Your detention of the victim, from the time you detained her in her vehicle at her home until this time, all forms part of Charge 3.
39 Given the sentencing task in which I must engage, it is relevant to note the New South Wales offending, in relation to which you have already been sentenced, and the facts surrounding that offending.
40 After crossing into New South Wales you ultimately arrived at Young sometime between 4am and 5am on 4 July. You parked in an orchard. The victim was continually asking to be released, which made you angry. You twisted her nipple and forced her to touch your penis. You were found guilty of a charge of indecent assault based upon this conduct. You then forced the victim to perform oral sex upon you and you were found guilty of a charge of aggravated sexual intercourse without consent. The victim felt sick and you allowed her to stop performing oral sex. You made her get back into the boot of the car. You then drove to the Colonial Motel and checked in under an assumed name. You then did some shopping and drove back to the orchard. You allowed the victim to get out of the boot and into the passenger seat. You then drove to the Colonial Motel and parked outside a room and directed the victim inside. She was too frightened of torture to disobey.
41 Once in the room, you forced her to touch your penis (this founded a further charge of indecent assault, of which you were found guilty) and to perform oral sex upon you (which founded a further charge of aggravated sexual intercourse without consent, of which you were also found guilty).
42 You inserted two fingers into her anus, which also founded a charge of aggravated sexual intercourse without consent. The victim continued oral sex and masturbated you until you ejaculated. You then tied the victim up and put her to bed and she slept for a time. When she woke her nipples were very sore. You untied her, and said she could have a shower and take the needles out. She took them out and placed them in the sink. They were subsequently discovered by the police.
43 You then said that you were going out, you taped the victim’s wrists tightly behind her back, and put duct tape over her mouth. You placed her inside a cupboard in the motel room and tied the cupboard door handles closed with a tie. You left the room. This detention founded a charge of detaining for advantage, which was found proven by the jury when you were sentenced in New South Wales.
44 You came back a short time later, turned the TV volume up high, and told the victim you would be back in five minutes.
45 The victim was in the cupboard for some hours. Eventually, at about 6.20pm, she was able to force the door open by continually pushing. She got out of the room and went to motel reception and asked for help. Police were called. They attended and found the victim still bound.
46 At about 5.40pm on Monday, 4 July, you were involved in a single-vehicle collision after the victim’s car, which you were driving, veered off the roadway when it was heading east near Mount Lambie, which is about 200km from where you had left the victim. You were taken to hospital and subsequently arrested.
47 Examination of your mobile phone revealed a photograph depicting the victim’s vaginal area after you had shaved it, a photograph depicting the victim’s bruised buttocks, and a video taken in the cabin in the Alexandra tourist park, depicting the victim lying face-down on the bed, naked, wrists bound behind her, emphasising her bruised buttocks.
48 The victim was taken to Canberra Hospital for examination and was found to have injuries including bruising to both breasts, bruising to her buttocks, bruising to her wrists and hip, bruising to her left hand and left knee, lacerations of her lower lip, abrasions of her vaginal opening, shaved pubic hair, and her anus was tender.
49 You were charged in New South Wales, as I have said, with two counts of indecent assault, three counts of aggravated sexual intercourse without consent, and one count of detaining for advantage. You pleaded not guilty to all charges and stood trial in July and August 2013. You were convicted by a jury on all counts. You were sentenced on 14 October 2013 to a total effective term of eleven years with a non-parole period of seven years. The sentences were ordered to commence from 1 January 2012. I have had the advantage of reading remarks of the sentencing judge, which were tendered upon the plea.
You were extradited to Victoria by way of interstate prisoner transfer on 13 April 2016. The Victorian charges were listed for committal. The matter proceeded by way of straight hand-up brief to this court, you having entered pleas of not guilty to all charges. The matter was listed for trial commencing 12 February of this year. Ultimately the matter resolved, and a plea indictment was filed over on the second listed day, being the 13 February 2018. You were arraigned on that day.
It is trite to say that the offences which bring you before this court are serious in nature. This was prolonged offending. The victim was sexually and physically assaulted, restrained, forced to travel long distances in the boot, her head was covered. She was threatened, photographed while nude, taunted, and forced to lick her own faeces.
50 The victim was vulnerable and terrified. You had even threatened her children. There was significant power imbalance. You intentionally at times degraded and humiliated her to satisfy your own perverted desires. You clearly knew what you were doing was wrong, but you persisted.
51 You were calculated in trying not to get caught. Indeed, this was calculated offending, at least from the point that you started demanding that the victim make telephone calls to alleviate concerns about what would be her disappearance in circumstances where you intended to kidnap her. You made choices to keep her in the boot, choices to benefit your own plan, choices to protect yourself from being apprehended, choices to try and control her by fear and threat. You made those choices without loss of ability to know right from wrong, without any compromised intellect nor cognitive function.
52 Dr Glowinski opines that the pain you inflicted upon the victim was from your perspective punishment for hurt feeling. This provides neither mitigation nor any comfort to the victim
53 I have been conscious in sentencing you that the depravity of your conduct cannot be allowed to unbalance the task in which I must engage
Victim impact statement
54 I have received a victim impact statement and had the advantage of the victim reading her statement in court. What is contained in that statement is a compelling account of your offending and its aftermath. I do not propose to recite the contents of this statement in these remarks. Many of the matters are highly personal to the victim. What is clear is that your offending has rippled through the victim’s life and those of her children, and will continue to do so. We all have a right to live in our community without being subjected to this kind of offending.
55 Your conduct had a physical sequel and a psychological sequel, but what is clear is that the victim is a brave and dignified woman who clearly lives for her children and their welfare. She has faced two proceedings over a significant period of time. You pleaded not guilty in New South Wales. The matters were listed for trial in this court and resolved only after the victim was required to prepare for the trial and again relive these appalling events
56 The victim describes having been made hostage, of trauma, court dates, illness and stress. She specifically refers to the strain you put her through in Melbourne by not pleading guilty at an earlier time and her having to read through her statements again and relive, what she described as, those horrible gruesome days which were almost seven years ago.
57 The victim said:
“For seven years I’ve been marked by this event and I wish to be no longer marked. I have been hurt beyond comprehension, but I’ve made it through by the grace of God and the support of people who love me.”
58 As was noted in the sentencing remarks of her Honour Judge Murrell in the District Court in New South Wales on 14 October 2013, there have been impacts of a physical, psychological and economic nature to the victim, many of which are likely to be permanent. Her Honour noted that the victim suffered from claustrophobia, had frequent anxiety attacks, had lost her ability to easily work with men or to trust them, and had had to rid herself of her house and possessions. Her Honour acknowledged the suffering of the victim was of an extreme type and likely to continue. I can really say no more than I concur.
Prior convictions – interstate criminal history
59 I turn to your prior convictions.
60 You have been convicted of numerous offences of dishonesty, but most relevant for my purposes is your history of violence.
61 On 11 January 1999, at Holland Park Magistrates’ Court in Queensland, you were convicted of one charge of common assault and one charge of serious assault. On each charge you were convicted and fined $500.
62 On 25 February 1999, at Cairns Magistrates’ Court in Queensland, you were convicted of a number of offences including two charges of common assault. You were sentenced to community service.
63 You breached that order, and you were ultimately fined at the Brisbane Magistrates’ Court on 11 April 2001, on which date you were convicted of assault occasioning bodily harm. You were sentenced to be imprisoned for six months and that sentence was wholly suspended for three years.
64 On 18 April 2002, at the Perth Court of Petty Sessions, you were convicted of two charges of common assault, and one charge of assault occasioning bodily harm. You were sentenced to be imprisoned for a total of 12 months.
65 On 11 July 2003, at Blacktown Local Court, you were convicted of five charges of common assault and one charge of assault occasioning actual bodily harm. On the charges of common assault you were sentenced to be imprisoned for six months, and on remaining charge, twelve months. A non-parole period was set at nine months.
66 On 1 April 2005, at the Orange Local Court, you were convicted of one charge of common assault. You were sentenced to be imprisoned for twelve months with a non-parole period of eight months.
67 On 3 September 2007, at Cootamundra Local Court, you were convicted of assault occasioning bodily harm. You were sentenced to be imprisoned for twelve months. That sentence was suspended.
68 On 13 May 2009, at Penrith Local Court, you were convicted of common assault and sentenced to be imprisoned for six months.
69 In this jurisdiction, on 13 December 2006, at the Melbourne Magistrates’ Court, you were convicted of recklessly causing injury, along with a number of dishonesty offences. You were sentenced to be imprisoned for twelve months and that sentence was partially suspended.
70
What is clear is that you have a substantial history of violence. The matter which brings you before this court is violent offending .Specific deterrence must necessarily be given weight in the sentence I will impose this day.
Subsequent offending
71 While not a prior conviction for the purposes of sentencing on 19 December 2012, you were sentenced in NSW in relation to an assault on a prisoner in custody which occurred on 10 February 2012. You were sentenced to be imprisoned for 12 months.
Personal history
72 I turn to your personal history.
73 You are now aged forty-two. You were born in Penrith, New South Wales, and you are the only child to your parents. Your mother was tragically killed in a motor vehicle accident when you were an infant, and the identity of your father was not known to either you or your mother’s extended family. You sustained a fractured skull in the accident and you have been told that you were hospitalised for a month.
74 You were adopted by persons who knew your mother and members of your extended family, and thus you came to know some of your biological relatives over the years. You have consistently described your adoptive parents as being ‘salt of the earth’. You also have an adopted sister who is some seven years your junior. Your adoptive father worked as an industrial engraver and your adoptive mother in retail. You described living in a nice house and never wanting for anything.
75 You initially attended a grammar school but had some difficulties as regards both learning and conduct. You then attended Wollongong High School until Year 8, but you were transferred to a special school during the second half of that year as you were not doing well in mainstream schooling. After that you attended Edmund Rice College, but that only lasted six months before you were expelled.
76 You indicated it was about that time that your adoptive parents took you to see a doctor and you were prescribed Ritalin.
77 As regards your education, you described yourself as getting into fights at school and generally being unruly. In Year 7 you apparently brought a knife to school in response to having been assaulted the day prior by an older student. You recall a regular pattern of bullying. You report that you were inappropriately sexually touched by an Army cadet officer.
78 Outside school you report your family owning properties, and you enjoying camping and hunting with your adoptive father. You also enjoyed playing football.
79 After leaving school at 15 you moved out of home for a year before returning. You completed a pre‑apprenticeship as a pastry chef, but you could not get a position. Following that you engaged in labouring, in the main for people you met through the football club.
80 At eighteen you acquired a security licence and you worked in that area for a number of years. You were at that time also a member of the Army Reserves and playing rugby in Lismore. While working as a security guard you report being assaulted and rendered unconscious. You continued working in security, despite losing your licence as a result of being convicted of assault.
81 In subsequent years you worked in a number of industries, including with trucking companies, as a safety officer in the mines and on drilling rigs. You last worked for Jayco as a welder in 2011.
82 You describe struggling to maintain and sustain relationships. You indicated that when difficulty arises you simply pack up and leave. You told Dr Glowinski that you misinterpret conversations and get yourself into a situation where you either have to leave town or throw punches. You attribute your lack of ongoing friendships to your history of moving around Australia.
83 As regards your medical history, you sustained back injuries while playing football which resulted in you needing a laminectomy at eighteen. You report being left with chronic pain, and ultimately becoming dependent upon narcotics until you underwent successful rehabilitation in about 2010. You report you have suffered from two episodes of kidney stones, and you were diagnosed with diabetes and elevated blood pressure. You are currently medicated in relation to these conditions.
84 You report that you had a motorbike accident at twenty-two, but you could not recall the details, apart from the fact that you required surgery for a damaged small intestine.
85 For completeness, you indicate that you have no difficulties in relation to alcohol or illicit drug use.
Psychiatric history
86 You report that you had no psychological or psychiatric problems prior to being assaulted in Lismore. Subsequently, you described a pattern of misinterpreting conversations around you as being threatening and then lashing out. You described it to Dr Glowinski as being “like a fire that just gets worse”.
87 When assessed by Dr Walton, you told Dr Walton that you had been prone to bouts of depression since your early twenties, and that over twenty years ago you were admitted to a psychiatric unit in Shell Harbour, where there was a subsequent admission at Albury. You said in 2009 you made your way to Tasmania, where you remained for a few months before coming to Victoria in November of that year and receiving counselling under the auspices of the Salvation Army.
Against this background you met the victim in 2010 at the soup kitchen. She clearly felt sorry for you due to your significant difficulties with accommodation. As I have noted, she allowed you to move into the bungalow at the rear of her premises. There were casual sexual relations from about 2011. At times you assisted with the children. But it would, or should, have been clear to you by the date of this offending, that your feelings were not reciprocated and that the victim saw the relationship as a friendship.
88 I note for completeness that you are currently taking slow-release quetiapine and an anti-depressant medication. Whilst in custody you acknowledge incidents of attacking staff and swallowing razor blades, apparently with the intention of being placed in management which would guarantee you a cell by yourself. You told Dr Walton that since you have been in custody there have been around five altercations with prisoners and prison officers. In more recent times you have apparently obtained work in the industrial section of the prison.
Correspondence from you
89 Exhibited upon your plea are two letters: one addressed to the victim in this matter, and one to this court. The letter to the victim was read aloud in her presence. The correspondence is dated 4 March, presumably 2018. Whether the sentiments expressed are genuine is difficult to determine, especially in light of recent psychiatric reports indicating that, despite you acknowledging responsibility for the offending, there seemed to be a lack of emotional depth to these statements. Dr Glowinski noted that there appeared to be a pattern during his interview of you blaming other people and circumstances for your behaviour, and regarding your behavioural responses to your thoughts of being threatened as being beyond your control.
90 If, however, time shows that what those letters demonstrate is indeed the beginning of a process through which you are able to truly accept responsibility, understand the wrongfulness of your conduct, and most importantly, change, then there is perhaps cause for some element of hope.
91 Your correspondence to this court demonstrates you seeking to justify what in effect was a late plea. When you were questioned by Dr Walton and the proposition was put to you that proceeding to trial when you acknowledged your wrongdoing would have imposed significant undue stress upon the victim, you responded by saying it was a strategy to consolidate the charges, hopefully with some constraints upon disposition. This is largely inconsistent with the correspondence which was tendered.
Reports
92 I have received a report dated 13 March 2018 from Dr Lester Walton. You saw Dr Walton for the purposes of assessment and report on 5 March this year.
93 Dr Walton says you are a man of normal intelligence and that you remain cognitively intact. You have no deluded ideas and he found no evidence of psychosis. He says there is an overall picture of a recurring mood disturbance, particularly depression and aggressivity, with elements of failure to establish enduring intimate relationships, recurring interpersonal conflict, a disturbed sense of self, and insightlessness. He says the picture is probably best captured by a diagnosis of borderline personality disorder.
94 Dr Walton does, however, say that whilst he has described you as lacking insight in the aftermath of your offending, it does seem that you have been able to reflect upon it, and he believes that you are substantially correct in identifying your primary motivation towards harming the victim as displacing hurt upon the victim. He says your activities are overwhelmingly simply aggressive in nature, and aggressive sexuality simply formed part of that. He says it is not his impression that you require violence as a necessary part of foreplay to become aroused and that the pain you inflicted upon the victim was in the form of irrational punishment.
95 Dr Walton opines that your psychiatric condition involves a fundamental underdevelopment of a sense of self, that you are incapacitated particularly as regards victim empathy and that you have a compromised capacity for appropriate remorse. He says it is not that you are wilfully psychopathic, but you simply lack emotional resources. He says your personality traits are now fairly fixed. He said he would see your personality disturbance as centrally relevant to the offending and your ongoing personality difficulties leading you into recurring conflict in a prison context, and in that sense adding to its onerousness.
96 As you are aware, I ordered a further psychiatric report from Forensicare. I received a report from Dr Remy Glowinski dated 28 March of this year. He saw you by video link for the purpose of the assessment on 13 February. He says your presentation was notable for your matter-of-fact manner and speech, even when discussing matters which might be expected to have an associate degree of emotional arousal. He says you were well spoken and seemingly intelligent.
97 Dr Glowinski says that your affect came across as shallow and unreactive, and that there was no evidence of formal thought disorder. You acknowledged to Dr Glowinski that you intentionally keep having yourself put into management by the swallowing of razor blades and assaulting staff. You said that this was a circumstance in which you spent most of your time in New South Wales, as you wanted to be away from other people and in management, which you regard as safe.
98 As regards the offending, Dr Glowinski opines that it appears from the summary that you are aware of the wrongfulness of your actions, that you took various measures to avoid detection such as placing the victim in the boot of the car, crossing into New South Wales, and describing a plan of going into hiding.
99 He says that it is his impression that your sense of persecution is not related to an enduring psychotic illness, but a manifestation of a severe personality disorder with anti-social and paranoid elements. He says your expressions of remorse as regards the offending appear superficial and lacking emotional quality and depth. He says that while there may not have been much planning in the initial phases, subsequent offending involved a degree of planning and attempts to avoid detection.
100 He says that your description of your thinking and behaviour during the offending provides no reason to think that you were under the influence of any psychotic or other significant psychiatric illness. He says he cannot see any connection between psychiatric illness and the offending behaviours, and says that, while there is a possibility of a covert acquired brain injury, he could not see how that condition could have contributed to your offending.
101 As regards your situation in custody, he says that you have mild anxiety disorder but not a severe or significant depressive condition. He says there is no reason to think that your long-established pattern of violent behaviour is dissipated. He says you require psychological intervention aimed at addressing both violent and sexual aspects of your offending.
102 I received a further addendum report dated 11 April 2018, which was provided by Dr Walton subsequent to him receiving Dr Glowinski’s report. He says he agrees with Dr Glowinski that you suffer from a severe personality disorder rather than a psychotic illness. And while Dr Walton emphasises a disturbance to your core sense of self and identity, he does not quibble with Dr Glowinski’s emphasis on a paranoid and anti-social personality traits. He says this is a matter of emphasis in relation to clinical profile. He concurs that you have limited capacity for expressing remorse
Verdins
103 It is not put upon your plea that Verdins has application given the assessment of a severe personality disorder. The principles do not apply for such disorder, as was confirmed in DPP v O’Neill (2015) 47 VR 395.
104 There is really no evidence before the Court as to how your borderline personality disorder affected your conduct, except that you had built up emotional commitment which was not reciprocated and that, ultimately, you have acted with a significant degree of vengeance in the context of you being a person with a severe personality disorder. Context is always relevant in assessments including moral culpability.
105 Exhibit 13 is a bundle of certificates which you obtained in custody. It is notable that you would not appear to have completed a sex offender program in New South Wales.
106 I note that in May last year you requested Corrections consider you placing on offending behaviour programs, but it was indicated to you that you were not eligible due to still being on remand in Victoria.
107 In January you requested to participate specifically in a sex offender program. You were advised to contact SOATS directly and discuss it with your case manager. I think the efforts you have made in this regard demonstrate some commitment to rehabilitation
108 Also tendered upon your plea was a report dated 11 October 2013 from Danielle Hopkins, a clinical psychologist which was prepared for the purposes of your New South Wales sentencing. I am noting its contents for completeness.
109 Ms Hopkins saw you for the purposes of assessment and report in October 2013. At the time of your assessment you maintained your innocence as regards the offending in which the jury had returned verdicts of guilty. Ms Hopkins assessed you as being a moderately high risk of reoffending in the sexual domain, but she did note some protective factors, including the fact that you do not have prior convictions in relation to sexual offences. She also noted that you were at that time presenting as reasonably stable in terms of psychosocial functioning with medication, and abstinent from substance use. She noted that your anti-social qualities, unstable lifestyle, interpersonal concerns, impulsivity, and proneness towards violence, are all risk factors for recidivism.
110 It was Ms Hopkins’ opinion that the offences occurred due to your disregard of sexual boundaries. She recommended offence-specific treatment. Ms Hopkins further noted that you had reported two possible head injuries, and a belief on your part that this impacted your impulsivity and anger control. She recommended neurological testing.
References and testimonials
111 A number of references and testimonials were tendered upon your plea. Largely they have been prepared for your sentencing in New South Wales in 2013. Their weight is perhaps somewhat diminished by the fact that you were at that time denying any wrongdoing. You have of course now pleaded guilty and admitted the New South Wales offending of which you have been convicted.
112 Your adoptive parents note that you were treated for ADHD as a teenager and that you left school in year 9. The man that they knew is at significant odds with the man who committed these crimes. They clearly remain supportive of you and they have been visiting you in prison since 2011, both here and in New South Wales.
113 Josephine Yeats, a friend’s mother, speaks very positively about you but it is not clear that she is aware of the details of the offending
114 Josephine Alexander says she finds it difficult to relate these charges to the man she knows.
115 Steven Morgan says despite your offending he remains supportive, as does Ian Pollard.
116 Captain Michael Traynor, a justice of the peace, has known you and your family for 37 years. He speaks positively about your contributions to the community, including coaching rugby. He says in his experience you always demonstrate the utmost respect for women.
117 Katey Davies is your sister. She opines that you were simply not capable of this kind of behaviour, and in many respects her testimonial is of little assistance. I do, however, note that she indicates that she has unwavering support of you. Whether that remains the case some five years after the date of that correspondence is unclear.
118 John Hazelton has known you since you were adopted into the Wheeldon family when you were about one year old. He says he has always found you likeable and respectful.
119 Rhett Yeats has known you since you were a toddler. He says you have always been extremely affable, and it was a great shock to him and others that you are in your current judicial situation. He was of course referring to the sentencing in New South Wales in 2013.
120 Linda McMaachan, Mark Jordan and Terry Nutt express their ongoing support of you.
121 Exhibit 15 is a letter dated 22 March 2017 from Warrick Davidson from the prison fellowship organisation. He confirms your participation in programmes about change on the inside. He speaks positively as regards your participation.
122 Exhibit 18 confirms your engagement with the mobile forensic mental health service as at April this year, and that you had attended for some 18 sessions.
123 Exhibit 18 are records of small donations.
Prospects of rehabilitation
124 I turn to your prospects of rehabilitation. In my view your prospects of rehabilitation are guarded, in light of the nature of your offending, your lack of insight and what I regard as superficial remorse. On the positive side, you do not have a history of sexual offending. You have indicated a willingness to participate in programs. You have ongoing support in your life as is demonstrated by testimonials and correspondence. I have also had regard to the risk assessment, to which I have already referred. The reality is that unless and until you truly accept the wrongfulness of your conduct in which you have engaged, and you willingly participate in treatment, you will remain an ongoing risk to the community. I note again, Dr Glowinski’s opinion that there is no reason to think that a long pattern of violent behaviour has dissipated.
125 I accept for the purposes of sentencing that your plea is capable of demonstrating some remorse, albeit limited for the reasons I have already outlined. It is to be hoped that with the assistance of time you will come to be truly remorseful as regards your conduct, rather than the situation in which you now find yourself.
Mitigating factors
126 I take into account your plea of guilty, albeit that it was entered at a very late stage in these proceedings. The victim impact statement made clear the consequences of the timing of that plea: that is, the victim had been forced to look again at her statements, to in effect, relive what had occurred, in circumstances where, until the second day this matter was listed for trial, you had at all times indicated you were not guilty in relation to this offending.
127 Nevertheless, you have saved the community the time and expense of a trial, and, very importantly, saved the victim from further humiliation and distress which would have been caused by her being required to give evidence and be cross-examined in these proceedings. I am sentencing you on the basis that you are entitled to a discount for a plea of guilty.
128 General and specific deterrence are important sentencing considerations, and must be given weight in the sentence I will impose this day. I must seek to deter not only you, but others who would engage in like conduct. The court and the community simply cannot and will not tolerate offending which so seriously damages the lives of victims. Your sentence must manifest the community’s denunciation of your conduct and impose just punishment. As I have said, I must seek to deter you from future offending and in my view, I must protect the community in that regard.
Submissions
129 It is common ground that the only disposition open is an immediately servable term of imprisonment.
Representative charges
130 I turn to the charges. Charges 1, 2, 4 and 5, being the rape charges, are all representative charges. In relation to each charge I am required to sentence you on the basis of the conduct which founds the charge itself, but I may have regard to other occasions which you have admitted in coming to a view as to the gravity of the instant offence. That is, I may view the offence in the wider context disclosed by your admission of the other acts which are not the subject of the charge. The wider context is also relevant to any assessment of your prospects of rehabilitation, which are of course affected by duration and frequency of prior conduct. I emphasise, however, that I am sentencing you on the basis of the acts which found the charges to which you have pleaded.
Serious sexual offender provisions
131 It is common ground that in relation to Charges 1, 2, 4 and 5, you fall to be sentenced as a serious sexual offender. I am required to have regard to the provisions of Part 2A of the Sentencing Act, which requires that I regard the protection of the community as the principal purpose for which sentence is imposed. I may, in order to achieve that purpose, impose a longer sentence than that which is proportionate to the gravity of each offence considered in light of its objective circumstances. Any sentence imposed on these charges must be served cumulatively unless otherwise ordered.
132 I have determined that in this case it is not necessary nor appropriate, to achieve the protection of the community, to impose a sentence which is longer than that which is proportionate to the gravity of each relevant offence considered in light of its objective circumstances. The prosecution did not make submissions in this regard, and I have based my conclusions upon your plea, your lack of prior history for sexual offending and the attitude of the prosecution.
133 I direct it be noted in the records of the court that I have sentenced you as a serious sexual offender in relation to Charges 1, 2, 4 and 5.
Totality
134 Totality is a difficult issue in relation to this sentencing task, given the connection between the offending for which you will be sentenced this day and the offending for which you have already been sentenced in New South Wales. In effect this was ongoing offending, but it was as a result of you crossing into New South Wales that the offending had to be dealt with in different jurisdictions at different times
135 Totality is a significant matter in the sentence I must impose this day given the charges that were dealt with in New South Wales, those charges having occurred as I have said, as a continuation of the Victorian offending. You were sentenced in New South Wales in relation to two charges of indecent assault, three charges of aggravated sexual intercourse without consent, and one charge of detaining for advantage. As I have already noted, you were sentenced to be imprisoned for 11 years with a non-parole period of seven.
136 In Mill v R [1988] HCA 70; (1988) 166 CLR 59, the High Court approved what had been said in R v Todd [1982] 2 NSWLR 517.
“It would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character … Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner”.
The court said
"In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all the offences of armed robbery in one jurisdiction and had been sentenced at one time."
"the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries."
137 I have been informed in relation to this matter that you will have served the minimum term of the NSW sentence on 31 December of this year.
138 The correct approach is it seems to consider what would have been an appropriate total sentence, both head sentence and minimum term, for the offending in both New South Wales and Victoria, and then for this court to impose a sentence which is consistent with that determination: that is, the court may be placed in circumstances where it is necessary to impose a disproportionately lenient sentence in order to avoid a total sentence across both states which is disproportionate. Given the connection in time and circumstance as between the offending the application of the principles to this matter is clear. In particular as regards for example the false imprisonment, that was a continuing offence.
Interstate transfer of prisoners
139 It is common ground between the parties that the Prisoners Interstate Transfer Act 1983 effectively means that the New South Wales sentence is treated in Victoria as a Victorian sentence to be completed under the law of Victoria and any sentence imposed upon you by a Victorian Court can be ordered to be served cumulatively or concurrently with the previously passed interstate sentence.
140 Would you stand please.
141
In relation to the matters before this court, you are convicted and sentenced as follows:
SENTENCE
Charge 1 rape - 6 years.
Charge 2 rape - 6 years.
Charge 3 false imprisonment - 4 years.
Charge 4 rape - 6 years.
Charge 5 rape - 6 years.
Charge 6 Intentionally cause injury - 2 years.
Charge 7 theft – 6 months.
I direct that
2 years of the sentence upon charge 1;
2 years of the sentence upon charge 2;
1 year of the sentence upon charge 3;
2 years of the sentence upon charge 5;
4 months of the sentence upon charge 6
be served cumulatively with the sentence upon charge 4 and upon each other making
a total effective sentence of 13 years and 4 months. All other sentences are to be
served concurrently with each other.
Had I been called upon to sentence in relation to the NSW matters at the same time as the sentence I impose this day and having significant regard to totality principles I would have cumulated a further 6 years and 8 months, which would have resulted in a total sentence of 20 years.
Having regard to the fact that you have already been sentenced to 11 years in New South Wales, I needed to cumulate 9 years to achieve that notional maximum.
Returning to the sentence on the Victorian charges and noting that you still have a little over 4 years and 4 months head sentence on the NSW matters left to serve, I direct that 4 years and 4 months of the sentence that I impose this day be served concurrently with the NSW sentence and 9 years is ordered to be served cumulatively upon the NSW Sentence.
As is required I now set a new single non parole period of 14 years from the date of commencement of the NSW sentence or to make clear my intention and describe it in another way, 7 years and 144 days from today's date.
Sex Offender Registration
142 You have now been found guilty of four Class 3 offences pursuant to section 8 of the Sex Offenders Registration Act. Registration is not mandatory, and requires in order for me to make an order, that I be satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons or the community.
143 The prosecution submit in this regard that your offending was ongoing, sadistic, prolonged. It is the prosecution submission that although you have no prior convictions for sexual offending, your behaviour on this occasion compels the conclusion that you pose a risk to the sexual safety of one or more members of the community.
144 You did not make submissions in opposition to the making of the order.
145 I have had regard to the test as set out in the recent Court of Appeal decision of Sayer v R (2018) VSCA 177. I have acted on the basis that I must be satisfied beyond reasonable doubt in relation to the risk and that it must be real rather than fanciful. The task is not easy given that you have been in custody nearly 7 years post the commission of these offences. You have not completed a sexual offender program.
146 Ms Hopkins, whose report I have already referred to, indicated that in her view at the time of her 2013 assessment, you were a moderately high risk of reoffending in the sexual domain.
147 Dr Glowinski opined that there is no reason to think that your long pattern of violent offending has dissipated and what is clear to the court is that the reality is that the pattern of violence has included significant sexual violence in Victoria and New South Wales.
148 It is in my view also relevant that you suffer from a severe personality disorder which is the context in which your offending occurred. That will likely be enduring.
149 Given your offending was prolonged and planned at least to some extent, as indicated during the course of these reasons, in my view it remains largely unexplained. I have come to the view that the risks are both grave and real.
150 I have of course had regard to the necessity to balance the serious consequences to you in submitting to the registration scheme and the serious limits it will place upon your personal autonomy.
151 Having weighed the test as I am required to do having regard to the purposes of the act I have determined that the relevant risk you pose significantly outweighs the serious consequences for you of registration. I have determined to make an order.
152 It is common ground that if you are ordered to comply with the provisions of the Act, the reporting period is life.
Section 464ZF
153 The Crown make application pursuant to s464ZF of the Crimes Act for an intimate forensic sample to be taken from you. I am satisfied it is in the interests of justice, having regard to the seriousness of your offending, and I make the order noting you do not oppose it.
154 I order that an intimate forensic sample be taken from you. I inform you that police may use reasonable force to enable that procedure to be conducted.
155 Finally the prosecution seek a disposal order which I make in the terms of the draft.
156 Mr Wheeldon, would you have a seat for a moment, please.
157 Counsel, it is not easy in terms of the non-parole period. I want you to check that I have achieved what I intended. I intended to leave the Bench and give you 15 minutes or so, if that is convenient or a longer period if you would seek a longer period. I want to make sure that both the cumulations and what I am intending is achieved.
158 MR SONNET: Yes, I understand that, Your Honour.
159 HER HONOUR: What time do you think would be convenient to come back Mr Sonnett?
160 MR SONNET: Say quarter past?
161 HER HONOUR: Certainly. Thank you. I will stand down until then. I will just have Mr Wheeldon removed for now, please. Thank you. He can go downstairs.
162 (At this stage the accused left the court.)
HER HONOUR: I say for those present, these are simply technical aspects. Nothing is going to change. It is just making sure that we have achieved it. Thank you.
(Short adjournment.)
HER HONOUR: Thank you. Mr Sonnet, can I start with you?
MR SONNET: Yes. We have done the checking actually together, Your Honour. All the figures seem to work well. Everything seems to be perfect. The only thing that we would ask, just for avoidance of doubt, is for your Honour to include it in the sentencing remarks or the record of orders, is the commencement date of the sentence for the New South Wales, because they do not use PSD.
HER HONOUR: It is in the sentencing remarks, I think.
MR SONNET: Perhaps I missed it.
HER HONOUR: Just let me - sorry, just excuse me. I will just. The sentences were ordered to commence on 1 January 2012.
MR SONNET: Yes.
HER HONOUR: Yes.
MR SONNET: Perhaps if that could translate also across into the records of - records of the order as well?
HER HONOUR: I wish that CLMS had that capacity. I will simply put it as a note.
MR SONNET: I am sure Your Honour will do your best, yes, yes.
HER HONOUR: A note. That can be achieved. Ms Parnell, your client needs to sign the acknowledgement in relation to registration. If you would accompany my associate, please?
MS PARNELL: Yes, of course, your Honour. Counsel, is there anything further I need to do in relation to this matter?
MR SONNET: I do not believe so, your Honour.
MS PARNELL: No, your Honour.
HER HONOUR: Thank you. I thank you for your assistance. I am going to stand down. My tipstaff needs to load this up into the media portal, which will take a couple of minutes. I remind the media, which they are of course aware, that they may not publish any information which identifies or leads to the identification of the victim in relation to this matter. Yes, very well. I will just stand down while Mr Tipstaff loads them into the portal. Thank you.
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