Director of Public Prosecutions v Wickliffe

[2018] VCC 1836

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00532

DIRECTOR OF PUBLIC PROSECUTIONS

v

DALE WICKLIFFE

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2018
DATE OF SENTENCE:	9 November 2018
CASE MAY BE CITED AS:	DPP v Wickliffe
MEDIUM NEUTRAL CITATION:	[2018] VCC

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sexual Penetration of child under the age of 16; Possession of child pornography; Transmission and distribution of child pornography; Four victims; Circumstances surrounding sexual penetration elevating seriousness of conduct; Early plea of guilty; Reasonable prospects of rehabilitation; CCO not appropriate.

Cases Cited:Boulton v The Queen [2014] VSCA 342, DPP v Borg [2016] VSCA 53.

Sentence:Total effective sentence of 4 years and 6 months imprisonment. Non-parole period of 2 years and 6 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Stefanovic	Office of Public Prosecutions
For the Accused	Mr J. Desmond	Rainer Martini & Associates

HIS HONOUR:

1Dale Wickliffe, you have pleaded guilty to four charges of possession of child pornography, one charge of sexual penetration of a child under the age of 16, one charge of distributing child abuse material and three charges of transmission of child pornography. The offending involves four male victims whose names I will anonymise for the purposes of these remarks.  Those victims were:

AB, who was born in December 2003 and was 13 years of age at the time of the offending;

CD, who was born in August 2000 and was 16 years of age at the time of the offending and lived in Illinois in the United States;

EF, who was born in June 2001 and was 16 years of age at the time of the offending;

GH who was born in September 1999 and was 17 years of age at the time of the offending.

2You were born on 31 October 1975 and were 41 years of age at the time of the offending.

3On the plea the prosecutor tendered a Summary of Prosecution Opening which sets out your offending in detail. What follows is a summary of what you did with respect to each victim.

AB

4As to AB, the first three charges relate to offending against him being; possession of child pornography between 1 June 2017 and 5 June 2017 [Charge 1]; sexual penetration of a child under the age of 16 on 12 July 2017 [Charge 2]; and distributing child abuse material between 11 July 2017 and
14 July 2017 [Charge 3].

5On 4 June 2017 you randomly contacted AB on Facebook and started to converse with him. AB used an alias. You forwarded AB a photo of yourself standing in a bedroom wearing only white underpants. You then forwarded to him a photo of your penis.

6During the course of your conversations with him, AB informed you that he was 13 years old. You asked AB for sex and wanted to know where he lived. During that conversation you persuaded AB to send a photo to you, depicting his genitals. That conduct forms part of Charge 1.

7You continued to attempt to organise to meet with AB in order to have sex with him. You persuaded AB to forward another photo of himself showing his face. Eventually you made an agreement with the victim to attend at his house the next day to engage in sex. AB was to let you know when the house was free.

8He forwarded another photo of his penis to you and that conduct also constitutes part of Charge 1.

9The following day you had further contact with AB who sent you his address. There was discussion about meeting up.  However, the complainant cancelled the arrangement claiming that he was going out.

10Over the next week or so you continued to communicate with AB. You described details of what you would like to do sexually with him and continued to talk about meeting up in order to engage in sex with him.

11On 12 July 2017 you made an arrangement with AB to attend at his home when his mother was out. That afternoon you knocked on the door of his home and when AB answered the door he indicated to you that he did not want to let you in. You begged him to come inside and eventually AB relented and let you in.

12Once inside you spoke for a short time with him before taking him to his bedroom and kissing him on the cheek. You then pulled down his shorts and performed oral sex on him for about ten seconds. It is that conduct which constitutes Charge 2 on the indictment, being sexual penetration of a child under the age of 16.

13You photographed the act of oral sex using your mobile phone. You later uploaded that photograph to Facebook and sent it to a third party.

14You then asked the victim to give you oral sex but he refused.

15You then removed his clothing and took photographs of his naked body. You later distributed those photographs to others using Facebook.

16Between 11 and 13 July 2017 you forwarded photos of AB to GH.  Those photos showed AB with an erection and you performing oral sex on him.

17On 12 July 2017 you forwarded similar pictures of AB to another person on Facebook.

18Between 12 July and 14 July 2017 you forwarded naked photos of GH and of an unknown male with erections, to AB.

19The conduct involving you distributing pornographic photographs of AB and of providing photographs of other young males to AB, constitutes the offending comprising Charge 3, distributing child abuse material between 11 July 2017 and 14 July 2017.

20You had further conversations with AB on Facebook asking for another chance to have sex with him. On 14 July 2017 AB asked you for a mobile phone. On 22 July 2017 you purchased a white Telstra mobile phone and SIM card which you posted to AB. You continued to speak with him over the internet over the following months and tried to persuade him to meet with you for further sex. The last communication you had with him was on 10 October 2017.

21On 21 August 2017 AB’s mother found the mobile phone that you had sent him. She contacted the police and when interviewed AB disclosed the online interaction he had had with you, although at that time he denied that he had met you.

22During the time you were communicating with AB you were also sending sexually explicit Facebook and Skype messages to the other three victims.

CD

23As to CD, on 10 November 2017 Victoria Police received information from Homeland Security in the United States of America to the effect that you had been conversing with a young male, CD, on Facebook. Authorities in the US had obtained access to CD’s Facebook account and identified him as a victim.

24Your offending against CD involves Charge 4, being transmission of child pornography, between 4 April 2017 and 13 April 2017, and Charge 5, being possession of child pornography on 13 April 2017.

25Between 1 April 2017 on 13 April 2017 you sent a photograph of GH to CD. That conduct constitutes Charge 4.

26Between 10 April 2017 and 3 June 2017 you engaged in sexually explicit discussion with CD using Facebook. CD told you he was 16 years of age. On 10 April 2017 you sent a photo of your penis to him and asked him to send a photo of himself to you.  On 13 April 2017 CD responded by sending you a photo of his own penis. That conduct constitutes Charge 5.

EF

27As to EF, Charges 6 and 7, being possession of child pornography between
12 April 2017 and 14 April 2017, and transmission of child pornography between 13 April 2017 and 15 April 2017, relate to the victim, EF, who was
15 years of age at the relevant time, although he apparently told you he was
16 years of age.

28You began communicating with EF on 10 April 2017 through Facebook Messenger. You sent him a photo of yourself, naked from the waist up, and later a photo of your groin area in white boxer shorts. In further communication of a sexual nature EF sent you a photo of himself, naked, but facing side on. You then sent a photo of your penis to him and asked him to masturbate. EF then sent a photo of his own erect penis to you. That conduct constitutes the possession of child pornography.

29During the course of your discussions with EF you spoke about catching up together and you suggested that you could pretend that he was your nephew if you were out in public and anyone asked you any questions. On or about
14 April 2017 you sent a photo of CD lying face down on a bed showing his bottom and then sent him a photo of CD’s penis. The sending of both those photographs constitutes the conduct comprising the transmission of child pornography.

GH

30As to GH, charges 8 and 9 involve possession of child pornography between 21 May 2017 and 23 May 2017, transmission of child pornography between
7 June 2017 and 9 June 2017.  GH was 17 years of age at the relevant time.

31You communicated with GH by messaging him on Facebook. The communication was sexual in nature. During the conversations GH referred to the fact that he attended school.

32You persuaded GH to send you a picture of himself naked but holding a towel over his genitals and then asked him for another picture with the towel removed. GH then sent you a photo of himself with an erection. These two photographs give rise to the possession of child pornography charge.

33Between 9 June 2017 you forwarded a photo of AB’s penis to GH.  You told him that the boy in the photo was 13 years of age. That conduct comprises
Charge 9, the transmission of child pornography.

Police Investigation

34Police executed a search warrant at your home on 28 November 2017 and seized several electronic items for analysis. You were then taken back to the Werribee police station and participated in a record of interview with police.

35You were initially guarded in your responses and minimized your offending. With respect to AB you indicated that, “we just shared pictures, that’s all”. You admitted sending a photo of yourself in underwear to him but denied ever going to visit him.

36You then made admissions to sending naked photos of AB to, “a few people”. You admitted sending AB a photograph of your own penis on 1 June 2017. You admitted speaking with him in a sexualised way. You then admitted attending at AB’s house and that photos were taken.  However, you denied engaging in oral sex with him. When confronted with the photographs you took of engaging in oral sex with him you said, “I don’t know what to say”. You later admitted engaging in oral sex with him. You also admitted to sending and receiving photographs and having sexual conversations with the other victims.

Victim Impact

37As to victim impact, none of the boys who were the subject of these charges provided victim impact statements.  However, AB’s mother did make a statement which was read in court and tendered as Exhibit B. According to his mother, AB’s behaviour has become very difficult to manage since the assault. He now feels unsafe in his own home and displays symptoms of anxiety which have been of great concern to his parents.

38AB’s mother states that she felt, “sickened and disgusted”, that someone could come into their home and assault their child in the way that happened on this occasion. His mother has been constantly worried about her son and this in turn has affected her ability to work and manage other aspects of her own life. Although her employer has been supportive, she states that she is still finding it difficult to deal with the impact of what you did to her son.

39Although the other boys, the subject of these charges, did not make victim impact statements, I infer that your exploitation of them in transmitting child pornography in which they feature, may well cause them distress and humiliation as they mature.

40The impact of this offending is an important consideration to be taken into account in the formulation of your sentence.

Personal Circumstances

41Turning to your personal circumstances, as I mentioned earlier, you were born on 31 October 1975 and you were 41 years of age during the timeframe of the offending. You are now 42 and you have no prior convictions.

42You were born and raised in a small town outside of Auckland in New Zealand. You are the youngest of six children. Your mother, now aged 67, worked in a nursery whilst your father worked as a truck driver. Your family was not particularly well off and only the most basic clothing and food were available to you as you grew up. You were close to your mother and reasonably close to your other siblings. They now live variously in New Zealand and in other parts of Australia.

43You struggled academically and apparently showed symptoms of Attention Deficit Hyperactivity Disorder, although you were never formally diagnosed with that condition. You have basic reading and writing skills. You left school at the age of 16 in the context of continuing behavioural problems. You started your working life fruit picking. You undertook a number of adult training courses and various labouring jobs.

44You migrated to Australia about ten years ago and initially went to live with a brother in Brisbane. You worked for a time there as a night cleaner and then enrolled with a casual employment agency with the result that you have, for the most part since coming to Australia, been in employment, mainly in the building industry.  Over the last 18 months you have been working as a crane operator with a company that installs reinforced concrete.

45Mr Desmond, who appeared on your behalf on the plea, indicated that when you were young you developed something of a pattern of binge drinking which caused some problems for you, but over the years that has moderated and is no longer a concern. He made the point that you have no drug or alcohol issues that require treatment.

Psychological Evidence

46Your counsel relied on a report from a consulting psychologist, Mr Warren Simmons, who assessed your psychological functioning.

47You presented to Mr Simmons as a slightly immature man who struggled to give insightful answers to your behaviour. He reviewed your personal history, noting that you had had relatively short relationships with both males and females and that you identified predominantly as bisexual, with a leaning towards sex with males.

48He records you as explaining that in the last five years you had been watching pornography every day and you believed that it had gotten out of hand over the last one to two years.

49As to the offending itself, you told Mr Simmons that you were pleading guilty and agreed that the summary of prosecution opening was essentially correct. You explained to Mr Simmons that you had been communicating with several people over Facebook, and had committed the offences in that context
Mr Simmons confronted you with the fact that at the time you met the main victim, AB, his age would have been quite apparent to you. You accepted that this was the case and that you should have left.

50In his report Mr Simmons states, at paragraph 27:

"Mr Wickliffe's current offence with a younger male appears to have occurred in the context of there being a pattern of ongoing discussions over the internet.  Mr Wickliffe's choice of the younger male seems to reflect his tentative exploration of his sexual interest and therefore, the victim in this matter was less challenging emotionally and confronting for Mr Wickliffe and certainly his engaging with [the victim] in some of the conversations may have led Mr Wickliffe to believe that he would be a willing partner. Nevertheless, Mr Wickliffe recognises that his behaviour was wrong”.

51Mr Simmons noted that you, may well still have some ambivalence about your sexual identity. He goes onto to state at paragraph 29:

"There was no clear evidence that Mr Wickliffe has a paedophilic interest or that he is attracted to under age males.  Rather, his choice of victim on this occasion appears to reflect his psycho-sexual immaturity, particularly in acknowledging his homosexual interest and concerns about engaging in behaviour with other males.  He was  tentative in this, particularly as he does not appear to have a great deal of confidence with previous sexual encounters.  At the present time there does not appear to be a great deal of evidence that Mr Wickliffe is a significant risk for further offences, providing he has been able to graduate to interactions with appropriate aged partners.  However, should this not occur and he wishes to pursue having sexual activity, then he may well tend to drift back towards younger males whom he finds emotionally less threatening".

52Three personal references were also relied upon that attest to your performance as a reliable and hard-working employee. The authors of those references make no reference to this offending, and that was explained on the understandable basis that you were not in a realistic position to disclose the nature of your offending because of your fear that it would result in the loss of your job.

Submissions as to Sentence

53An important aspect of your plea relied upon by Mr Desmond was the fact that you entered a plea at what he submitted was a very early stage in the proceeding. You were interviewed on 28 November 2017 and the brief in this matter was served on 9 January 2018. You entered pleas in respect of these matters at a further committal mention on 9 March 2018. Thereafter the matter proceeded by way of hand up brief and you have maintained your plea of guilty in this court.

54Allowing time for your legal practitioners to digest the materials and negotiate appropriate charges, I am prepared to treat your plea as having been entered at the earliest opportunity. That plea entitles you to a substantial discount in the sentence that would otherwise be imposed. That is so, it was argued, because your plea has facilitated the course of justice, it has saved the time and expense of a trial and, importantly, it has spared the complainants the trauma of having to go through the process of giving evidence. In his submissions Mr Desmond argued that your lack of prior convictions, otherwise good character and what he submitted was the short period of offending, your prospects for rehabilitation should be seen as being reasonable.

55As to the offending itself Mr Desmond acknowledged that the sentencing purposes of general deterrence, specific deterrence and denunciation require emphasis. However, he submitted that the sexual penetration charge should be viewed as falling at the lower end of the range for this type of offending. He argued that the penetration was confined to one isolated act of about ten seconds duration.

56As to the other offending he argued that the charges related to a limited number of photographs, perhaps 20 or so. They involved a small circle of people, perhaps five people or so, and that for the most part the photographs distributed were at the lower end of sexually explicit material.

57Relying on those matters Mr Desmond submitted that the appropriate disposition here was a Community Corrections Order and he relied in particular on what was said by the Victorian Court of Appeal in Boulton v The Queen [2014] VSCA 342 at [131], and in the approval of that principle in DPP v Borg [2016] VSCA 53 at [110]. In the alternative, he argued that a term of imprisonment could be imposed in combination with a lengthy Community Corrections Order.

Prosecution Submissions on Sentence

58Ms Brown, who appeared on behalf of the prosecution, submitted that the only appropriate disposition in this case was one of a term of imprisonment together with a non-parole period. She argued general deterrence was an extremely important sentencing consideration, having regard to the public interest in the need to protect children from sexual abuse.

59Ms Brown reminded me that you are to be sentenced in respect of charges 3
to 9 as a serious sexual offender, assuming you were to be imprisoned in respect of charges 1 and 2. That being so, the protection of the community becomes the paramount sentencing consideration. The criminal law, she argued, recognises that young people such as the complainants in this case, are ill-equipped to protect themselves from the predatory behaviour of adults, such as you.

60Ms Brown initially submitted, as I understood it, that there was no evidence of remorse but she accepted in discussion that it was open for me to infer some limited remorse given the manner in which you have approached these charges.

61As to the images you transmitted, Ms Brown made the point that once the images were uploaded onto the internet they could not be retrieved. She also noted with respect to the penetration charge that I should take into account the lead-up to that act, not as grooming as defined in the Criminal Code (Cth), but rather as contextualising how you came to be at the victim’s house in order to perform the act of penetration. She added that you were 41 years of age at the time and you were aware that the victim was 13. All of those matters were important to take into account in assessing the gravity of the offending.

Findings

62As to my findings, I am prepared to infer from your cooperation with the process, from your eventual admissions and from the comments you made to
Mr Simmons, that you do feel some remorse for what you did, particularly in respect of AB. You pleaded guilty at what I accept is effectively the earliest stage in these proceedings and you have taken responsibility for your offending. Those matters do merit a substantial discount in the sentence that would otherwise be imposed.

63That said, whilst your counsel properly recognised the seriousness of this offending,  I cannot accept his submission that the offending constituting Charge 2, the sexual penetration of AB, can be characterised as sitting at the lower end of that type of offending. The age difference, your persistence in persuading the complainant to meet with you, the fact that you brought to bear some pressure on him to engage in sex on the day of the meeting and your persistence after this incident to seek further sex, even to the point of providing a phone to the complainant, are all factors which place this offending in its proper context and, in my view, elevate its seriousness. So too does the impact this offending has had on AB and his parents.

64The distribution of the photograph of the act of sexual penetration and the other photos of AB, naked, comprising Charge 3, must be treated separately, but it is a related serious criminal act.

65Mr Simmons' comment that there is some risk that if you do not graduate to interactions, (or perhaps sustain interactions) with partners of appropriate age, you could drift back towards younger males who you find emotionally less threatening, qualifies your prospects for rehabilitation. Nevertheless, your lack of prior or subsequent convictions and Mr Simmons’ opinion that your offending is grounded in what he describes as ‘psycho-sexual immaturity’ and that there is no clear evidence of a ‘paedophilic interest’, suggests that your prospects should be assessed as reasonable.

66That said, I accept what was submitted by the prosecutor to the effect that young people such as the complainants in this case are ill-equipped to protect themselves from the predatory behaviour of adults such as you. The sentence imposed here must seek to protect minors from exploitation and abuse and must seek to deter others who might contemplate engaging in this sort of behaviour.  

67Section 5(4) of the Victorian Sentencing Act requires that I cannot impose a sentence of imprisonment unless I am satisfied that no other sentence is appropriate in all the circumstances of the case. I am so satisfied here.
Mr Wickliffe, would you stand, please?

In respect of Charge 1, possession of child pornography, you will be convicted and sentenced to four months imprisonment;

in respect of Charge 2, sexually penetrating of a child under 16, you will be convicted and sentenced to three years and 6 months' imprisonment;

on Charge 3, transmission of child pornography, you will be convicted and sentenced to 12 months' imprisonment;

Charge 4, transmission of child pornography, you will be convicted and sentenced to six months' imprisonment;

Charge 5, possession of child pornography, you will be convicted and sentenced to four months' imprisonment;

Charge 6, possession of child pornography, you will be convicted and sentenced  to four months' imprisonment;

Charge 7, transmission of child pornography, you will be convicted and sentenced to six months' imprisonment;

Charge 8, possession of child pornography, you will be convicted and sentenced to four months' imprisonment;

Charge 9, transmission of child pornography, you will be convicted and sentenced to six months' imprisonment.

68I will order that six months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 2.  I will further order that one month of charges 4 to 9 on the indictment be served cumulatively upon the sentence imposed on Charge 2, making a total effective sentence of four years and six months.

69I will fix a non-parole period of two years and six months.

70I will declare, pursuant to 6AAA of the Sentencing Act that but for your plea of guilty I would have sentenced you to a sentence of six years and three months with a non-parole period of four years.

71I will declare that in respect of charges 3 to 9 on the indictment, you have been sentenced as a serious sexual offender and direct that that declaration be noted in the records of the Court.

72I also note that having been convicted of one Class 1 offence and eight
Class 2 offences under the Sex Offenders Registration Act, I note that you will be required to report for the purposes of that legislation for life.

73You may be seated, Mr Wickliffe.

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