Director of Public Prosecutions v Whitaker (a pseudonym)

[2016] VCC 2042

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

AT GEELONG       
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOUGLAS WHITAKER (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	22 December 2016
CASE MAY BE CITED AS:	DPP v Whitaker (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 2042

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr E. Thompson
For the Accused	Mr A. Paull

Pages 1 - 10

 

 

HIS HONOUR:      

1Douglas Whitaker,[1] you are to be sentenced for one charge of sexual penetration of a 16-year-old child under your care, supervision or authority and one charge of indecent act with such a child.  Maximum sentences are prospectively ten and five years' imprisonment.

[1] Douglas Whitaker is a pseudonym.

2You pleaded guilty before me on 23 November.  When interviewed by police on 27 June 2015 you made full admissions.  There was a committal hearing on 27 April this year.  The complainant, Leah Howard,[2] did not give evidence.    The defence has never challenged her account of the sexual offending.  The challenge has been directed at the element of the care, supervision and authority.  In that way, the matter was listed for trial before me on 23 November. 

[2] Leah Howard is a pseudonym.

3It was a four charge indictment.  The matter was stood down to continue negotiations already in train and it was resolved.  This two charge indictment was filed over and, as stated, you pleaded guilty including to the element of care, supervision or authority.    In the course of this, the complainant was not required to view her pre-recorded account of the offending.  She had expressed reluctance to do so.  She has not been cross-examined. 

4You receive the benefit of your plea of guilty and what I see to be a high level of co-operation from an early time.  Your position and timing of your plea should be considered in the context of that history of proceedings.  You have facilitated the interests of justice.  I also accept that you are remorseful and expressed that at an early time.

5At your plea hearing on 20 December, Ms Flynn for the Crown tendered a written summary of prosecution opening and the victim impact statements of Leah Howard and her father, Dustin Howard.[3]

[3] Dustin Howard is a pseudonym.

6Mr Higham for you tendered the forensic psychological report of Dr Rachel McKenzie, dated 15 December 2016,  and letters of work and character reference.

7The circumstances of your offending are described in the tendered Crown opening which is Exhibit A.  My own summary may therefore be relatively short.  It is also informed by matters put on your behalf and stated in police interview,  not challenged by the Crown. 

8In June 2015 you had been working for your brother in law, Dustin Howard, for several years.  He is your wife's brother.  The business, centred at Geelong, imports and sells laser levels.  For some time you had been working in the Perth office.  On the weekend of Friday, 26 June, you had come to Geelong and were to travel to Warrnambool to visit family.  Dustin Howard, a single parent, has four children, Leah, then 16,  is the eldest.  You were close to her and her family.  You were going to take Leah and her younger sister to Warrnambool.  However, this does not seem to have been a regular thing. 

9You were invited to have a drink and to stay overnight at the Howard home in Bell Post Hill.  People seemed to have drunk well into the night.  You were joined by a friend of Mr Howard.  Leah was allowed to drink alcohol with the adults after a time.  She became affected, as did you.  At about 3 am on 27 June her father sent her to bed.  You volunteered to help her.  You undressed her and got into bed with her.  You kissed and fondled her,   and stroked her clitoris and then penetrated her vagina with your penis.  This is Charge 1, sexual penetration.  You stated partial penetration to police.  However, medical examination revealed bruising to the girl's hymen.   It was unprotected sex and you did not ejaculate. 

10You left and returned to where Leah 's father and his friend were.  You stated in the interview that this sexual conduct began spontaneously in the bedroom.  You will be sentenced on that basis. 

11Shortly after Mr Howard and his friend went to bed.   You returned to Leah 's room.  You got into her bed, continued to kiss her and again fondled and kissed her breasts.  This is Charge 2, indecent act.  Leah Howard asked you to stop and you did so.  I find beyond reasonable doubt that you returned to her room for the purpose of sexual conduct.  I see the two episodes, as to a significant extent, separate events.  I accept that you were intoxicated.

12At about midday, Leah's younger brother rang his father who returned home.  She was distressed and, in answer to his questions, she told her father you had touched her.  Confronted by him you admitted digital penetration of her in an attempt to have sexual intercourse.  You were interviewed and charged.

13The tendered victim impact statements emphatically state the very considerable effects of what you have done.  Leah Howard has felt betrayed and has felt great distress.  It has affected her family life, schooling and her part-time work, social life and the way she dresses has changed.  She did not return to school for the second half-year.  She did return for Year 12; but there were still difficulties.  There were some occasions of self-harm.  She has felt fear, depression and vulnerability.  Sleep is affected. She has had nightmares.  Her self-image and body image have been affected.  

14I am not complete. 

15Her father has suffered emotional impact and there are problems with sleep, anxiety and loss of confidence.  Family and work life has been affected.  He has lost trust.  His diabetes condition has been harmed by stress.  There has been serious financial impact upon his business.  He feels a great sense of your betrayal as a member of the family and given your knowledge of the difficulties his family has confronted over time.  Mr Howard's wife suffers,  in what seems a very debilitating way, poor mental health.  Mr Howard also expresses relief and appreciation for the fact of your guilty plea.   Again I am not complete. 

16Your offences have caused considerable and ongoing impact affecting Leah Howard and also her father.  This must be taken into account in my sentencing of you. 

17You are a 51-year-old man with no prior criminal history.  Mr Higham gave a detailed narrative of your life and circumstances.  You were born and raised in the Warrnambool area.  You have an older brother who lives in Tasmania and whom you do not see.  Your childhood was neither stable nor nurturing.  Your parents separated when you were seven.  Your father had no contact with the family thereafter.  You have reconnected with them in adulthood but only in sporadic and unsatisfying way.  Your mother remarried a man called Whitaker,  who adopted both children.  You did not have a good relationship with him.  Your mother separated again in your teenage years.  She repartnered and,  not long after, they left you in the  home to move elsewhere.  They paid the rent. You were 16 and still going to school.  Your mother has now been in dementia care for several years. 

18You have a tendency to panic attacks thought to be born of an incident at seven when you were locked under the house.  At school you completed Year 12. You have worked consistently since.  Main employments have been as a milk tanker driver and then in administration for a large dairy product company;  then, in 2009, in the Howard family business.  You began in sales and it appears that over time became more senior.  You were terminated on the day of this offending.

19In childhood, at about ten you became involved in a sexual relationship with an older boy aged 15 or 16.  It ran for about two years.  It stopped when you became less sexually naïve.  You met your first wife at school in your very early teen age.  You married at 19.  You had two children, now 30 and 27. 

20Mr Higham told me and you told forensic psychologist Dr McKenzie of an episode of voyeurism in your mid-twenties.  You masturbated when viewing your wife's mid-teenage niece as she showered.  Nothing came of it at the time and you thought yourself undetected. When your marriage ended years later, the girl's mother told your wife and there was some counselling, partly directed at the sexual matter.

21You met your second wife Melanie Howard[4] in 2004 and married in 2005.  You moved from Warrnambool to Geelong in 2009.  Your marriage has ended because of these offences. 

[4] Melanie Howard is a pseudonym.

22You became close to the extended Howard family who were welcoming to you.  Mr Higham suggested that you received warmth and support not given by your own family. 

23As earlier suggested, Leah Howard’s mother suffered over a number of years serious mental health problems.  There was an early diagnosis of bipolar disorder and several admissions into care.  Dustin Howard was separated for several years and raising his four children, 16 and younger, by himself when you did these things.

24Mr Higham pointed to aspects of Dr McKenzie's testing, conclusions and report.  You do not suffer paraphilia.  What seems extensive testing and  application of assessment models presents you as of low risk to reoffend.  I accept that Dr McKenzie's opinions arise out of such appropriate rigorous assessment.  Dr McKenzie also diagnoses panic disorder and specific phobia, the fear of enclosed spaces.  These, she states, may impact upon how you will cope in prison.

25Your offending was serious in a number of ways. Your victim was vulnerable.  It happened in her home.  It was a betrayal of her trust and that of her family.  You knew Leah Howard and her family well,  including the challenges they had faced.  That family treated you well.  Your intoxication may provide some explanation for what you did.  It does not provide mitigation or excuse.  There has been significant impact.

26Such circumstances make relevant sentencing considerations of deterrence, particularly general deterrence, your moral culpability, condemnation of what you did and the need for proportionate punishment.  That must include a period of imprisonment. 

27There are also mitigating factors.  They include the following.

(1) Your plea of guilty and co-operation.  As I have said, I find that you are remorseful. 

(2) Your previous good character.  I bear in mind the episode of voyeurism raised,  now 25 years ago.  However, I accept Mr Higham's submission that you should be seen as without prior offending.

(3) I also accept that there has already been some punishment of you.  You have lost your marriage, the friendship and support of the Howard family and your reputation.

(4) I find genuine prospects for rehabilitation, particularly if assisted by taking part in an appropriate sex offender program. 

(5) Your psychological conditions risk making prison more difficult for you and their exacerbation. 

28These matters should go to moderate your sentence.  I have decided to impose imprisonment but in combination with a community corrections order.  That order should contain both punitive and rehabilitative conditions.  The Crown does not argue against this.  Such an order also entails moderation of the imprisonment component. 

29The report of community corrections officer Claudia Stagliano finds you suitable.

30Stand up please.  I sentence you as follows.  On Charge 1, sexual penetration of a 16-year-old girl you are sentenced to 12 months' imprisonment. 

31On Charge 2,  an indecent act with a such a child, you are sentenced to four months' imprisonment. 

32I direct that two months of Charge 2 be served cumulatively on the sentence of Charge 1. 

33That is a total effective sentence of 14 months' imprisonment. 

34On both charges, I also convict and impose a community corrections order of two years' duration.  The usual terms apply.  The additional conditions are that you perform 300 hours of unpaid work over two years be under supervision; that s.48B you participate in programs directed at the specific offending.  My expectation is that will be a sex offenders program of the type recommended in Ms Stagliano's report.  Now, take a seat please. 

35We will prepare that document now or do you want to do the sex offender's registration first? 

36Mr Thompson there is an application for a forensic sample; is there?

37MR THOMPSON:  Yes, Your Honour.

38HIS HONOUR:  If you hand that up now. 

39MR THOMPSON:  Yes, Your Honour.

40HIS HONOUR:  What's your client's position on that?

41MR PAULL:  That's by consent, Your Honour.  

42MR THOMPSON:  Your Honour, with respect to the community corrections order, are any of the 300 hours referable to the courses?

43HIS HONOUR:  I will - that kind of happens, I haven't reflected on it.  I think this is a case which rehabilitation of  sort of offending is important so I direct that 50 hours of the program work will be set against the 300 hours. 

44MR THOMPSON:  As Your Honour pleases.

45HIS HONOUR:  That needs to be included Fran.  The reasons why I am granting the application - I will go back.  I am about to sign an order that you supply a sample of your saliva.  It will be arranged in prison.  It is done by putting a cotton swab inside your mouth.  I have not seen it but it doesn't sound difficult.  If you co-operate in that, that is the end of it.  If you do not, a sample of blood may be taken by injection and reasonable force used.  The reason why I am granting it both the seriousness and the type of offending that has been committed here.  Such a sample, if it does find its way onto the database, will be of potentially significant investigative benefit if in fact you offend again.  I note that the order is not opposed. 

46I will sign that now.  We will do that now, I think.  Did you hear that there is 50 hours set against the 300 hours?  Yes, you'll have to put that in.  If you just get give me a look at the Sex Offenders Registration document.  There is the sample order. 

47Now, I am about to have served on you a document which is a notice of your obligations under the sex Offenders Registration Act. It is mandatory, compulsory that I make the order that you be registered under that legislation.  Amongst other things, you will have to report to the appropriate people for 15 years.  The first document you will see sets out what your obligations are.  The second document requests your acknowledgement of receiving the first.  You can sign on that acknowledgement if you wish. You are not obliged to but I will have those documents taken down to you now by my staff. 

48I just direct this to the people who will take him into custody shortly.  As I read out the psychologists points of panic disorder and the fear of enclosed spaces and that may create some difficulty for him.  I will provide to you a copy of that report if that could be passed on to the people who have care of him.

49PRISON OFFICER:  Yes, Your Honour.

50HIS HONOUR:  I will mark the relevant paragraphs.  Can that happen fairly soon?  Perhaps that can happen after the Corrections Order is printed out.

51MR PAULL:  Your Honour, I have a copy that can be provided.

52HIS HONOUR:  Thank you.  If you hand that up to me I can mark the relevant paragraph.  It's quite a long report. There are no medication in this case, are there, Mr Paull?

53MR PAULL:  I don't believe so.

54HIS HONOUR:  No medication?

55OFFENDER:  I'm just currently taking Valium to help me sleep.

56HIS HONOUR:  Do you have that with you?

57OFFENDER:  Yes.

58HIS HONOUR:  There's a protocol for that, isn't there?

59OFFENDER:  Yes, Your Honour.

60HIS HONOUR:  The relevant paragraph is 81.  I will just mark it.  If that can be taken down to the - Ernie, I will get you to do that.  If you could give that to the custody officer.  Stand up please, Mr Whitaker.  I am imposing a community corrections order which will start upon your release from prison.  It will run for two years from that date.  These are the usual terms:  That you don't commit another offence for which you could be imprisoned during that time.  That you comply with the regulation that prohibits you from attending any program or appointment affected by alcohol or drugs or in possession of illegal drugs.  You must report to and receive visits from the Community Corrections.  You must report to the relevant Community Corrections Centre at Warrnambool within two days of the order starting.  You must let Community Corrections know within two days of a change of address or job.  You must not leave Victoria without getting their permission to do so.  You must obey all lawful instructions and directions by Community Corrections. 

61The additional conditions are that you perform 300 hours of underpaid community work over the two years.  I order that 50 hours of treatment and rehabilitation of satisfactory undertaking can be set off against that 300 hours.  That you be under supervision and that you participate in programs or courses that address factors relating to the offending as directed.  Now, do you understand that?

62OFFENDER:  Yes, Your Honour.

63HIS HONOUR:  Do you agree to it?

64OFFENDER:  Yes, Your Honour.

65HIS HONOUR:  I will get you to sign that and then I will sign it.  That can be taken down.  Is there anything else I need to do?

66MR THOMPSON:  No, Your Honour.

67HIS HONOUR:  Mr Whitaker can be taken into custody. 

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