Director of Public Prosecutions v Wicks

[2020] VCC 1360

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02464

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHARLES GEOFFREY WICKS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2020
DATE OF SENTENCE:	31 August 2020
CASE MAY BE CITED AS:	DPP v Wicks
MEDIUM NEUTRAL CITATION:	[2020] VCC 1360

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 A. Grant	Office of Public Prosecutions
For the Accused	Mr I. Hill QC, with Ms L. Thies	Galbally & O’Bryan

HIS HONOUR: 

1You, Charles Geoffrey Wicks, have pleaded guilty to two charges of sexual assault.  That crime carries a maximum penalty of 10 years' imprisonment.  You are now 22 years of age.  You were around 19 years of age at the time of the offending.  You pleaded guilty to a separate indictment and you must get the benefit of that. 

2Firstly, there is the utilitarian benefit of savings to the community, and secondly, the plea of guilty I am obliged to regard as indicating some degree of remorse, even though I note in this particular situation, a contested committal was conducted and the plea of guilty came relatively late. 

3Be that as it may, you are a young offender.  You were clearly a young offender at the time of this occurring and as I indicated during the course of the plea, had I been considering a custodial penalty at that time, it would have been a YTC.

4The circumstances are that the lapse of time since, and I take that delay into account, has removed that option and accordingly, I am not going to incarcerate which I have made pretty clear. 

5You are in a situation where you have no prior convictions.  This offending took place in the week of 22 to 28 October 2017.  I have sentenced you previously in May of 2018 for penetration of a girl under the age of 16.  That offending had taken place back in December of 2016 and had been reported to police in May of 2017. 

6You, upon being interviewed by police and making full admissions in that matter, were then admitted to hospital for a month apparently, because of the shock to your system.  You were then released from hospital and I am told were originally charged with this matter on 3 October 2017.  This offending occurred something like two or three weeks later, and accordingly, you were on bail at the time.

7The consequences of such offending must have been very clear in your mind, and yet this took place.  It is also of some concern that this offending took place on the very week, whether before or afterwards, we will never know, of your commencing your counselling with a Mr Burroughs, who I will refer to again shortly. 

8When his superior, a Mr Barth, asked you in February of 2018 about sexual offending or sexual experience.  You made no mention of this, albeit only five months later.  Those matters are of concern to me, however, whilst they certainly are of concern, they do not change the ultimate disposition.

9A summary of the offending is that in, as I have said, October of 2017, the complainant, who was well known to you, was staying at her family's holiday home in rural Victoria. Her younger brother was also staying with her.  He was nine years of age. 

10At this stage, I will indicate that I intend to annexe the Crown opening to these, my sentencing remarks, subject obviously to anonymisation.

11The families had apparently been close friends over an extended period of time.  The victim was studying VCE exams which were scheduled to commence the following week, 1 November, 2017.  She and her younger brother went to a local café where they bumped into you, and you were with a friend.  She effectively invited you and your friend around to her house to play cards with her younger brother and just to generally socialise.  She was aware of you previously having tried to kiss her and make advances, but regarded yourselves as friends. 

12She, that is the victim, went to the bathroom.  Upon returning from the bathroom when you and your friend were there with the brother, you were standing halfway up the stairs blocking her, that she could not pass.  As she attempted to go past you, you kissed her and pushed her back up the stairs into a bedroom containing a single bed, which was at the top of the stairs. 

13Once inside the bedroom, you pushed her onto the single bed and then placed your hand down her exercise pants and touched her on the outside of her vagina.  You were wearing a watch which was scratching her skin.  She told you it was hurting, and attempted to push your hand away.  You responded by telling her that it was going to make her like you.  She said, 'No' and 'Stop' and was concerned her little brother was downstairs. 

14You again told her you wanted to make her like you and you also concerningly told her that your friend would keep her brother downstairs.  Clearly there was an element was premeditation involved in this.

15In any event, you kissed her and told her you wanted to go into the other bedroom which contained a double bed.  You left the single bed, and you went into the other bedroom.  That original matter I just described is Charge 1 of sexual assault, which if it can be said to be more serious, I would regard as the more serious of the two assaults that took place. 

16The next one is part effectively of the overall same situation.  In that bedroom, you lay on top of her and you were touching her vagina through her clothing.  Her brother walked in and she told him to get out because she did not want him to see what was happening. 

17In any event, she was ultimately able to get off the bed and went to the bathroom.  There she noticed that there was blood in her underpants and in the toilet bowl and she had a bruise on her groin.

18You had already gone downstairs when she came out of the bathroom and she went down and told you and your friend to leave and you did.  She told her brother not to say anything to her mother or father because she was scared and embarrassed.  Later that night, she received a Snapchat message from you saying how good it was.  She then blocked you from contacting her again.

19The offending was disclosed in 2018 after an extended period of time, totally understandable in these situations, given the concerns that she obviously would have had with the shame and embarrassment and the difficulties of making such a revelation between families who knew each other.  She eventually told a boyfriend and told her mother and the mother reported to police. 

20Statements were ultimately made in September of 2018.  You were interviewed in December of 2018 and as was obviously your right, made a no-comment record of interview.  I only put that in there to show continuity of how all this came about. 

21Clearly there is a significant, albeit very understandable delay between the actual offending and you being charged by police.  Various statements were taken afterwards.  They are referred to the Crown opening and I do not need to take what I think any further.

22The offending is clearly serious.  I have already indicated what the result may well have been of this had it been brought on before me at a much earlier period of time.  I trust that you do understand the significance of what you have done to this young woman and to her family and the ongoing difficulties and trauma that causes. 

23You will not be placed on the Sex Offender's Register because there is no application made to do it.  This offending took place as I have indicated, whilst you were on bail and in a very short period of time after finding out the trouble you were already in. 

24The victim's impact statement was read out by the learned prosecutor and her mother who courageously read her impact statement out herself.   They are very eloquent and describe very clearly the consequences that offending such as this brings to the innocent victim.

25I am going to quote from these to a level that I often would not quote, because I think they indicate as I said very eloquently why the usual result of such offending is incarceration.  The victim, and I will refer to her as per anonymisation purposes said this:

'The emotional impact this incident has caused had a lot to do with my relationships.  Not only those around me, but my relationship with myself.  The person was a very close family friend and therefore my trust in my family and extended family is shattered.  I do not trust anyone, and felt as if they had not protected me.  I have broken relationships with many of my family members now which will never return to the way they were before the incident.  The time it took me before I could actually tell someone about the crime was due to this lack of trust I had and the feeling that they would be on his side, and not listen, as I was unimportant.  This ability to trust people affects my everyday life and will continue to do for the rest of my life.  I can't be alone for the fear of being violated again, but I do not like to be with people I do not feel safe around, therefore limiting me in many ways. 

'I do not feel that I am in control of my own life.  I felt I was weak, that I was  just a puppet there for others to use as they pleased.  This greatly affected my self-worth and I started to develop symptoms that correlate with this type of trauma.  I started to expect the worst outcome and felt that anyone new was out to get me.  I was always on high alert and remained on high alert.  I couldn't sleep through the night without waking up screaming or crying or shaking from the flashback or a dream it would happen again.  I spent countless days and nights checking the doors were locked, jamming a chair against my door or listening for any sound that could resemble someone trying to hurt me.  I had suicidal thoughts most days and panic attacks where I felt as if the incident was constantly suffocating me and my ability to function in everyday life.  This placed a massive strain on my relationship with my boyfriend.  He found it hard to understand why I was acting the way I did until I told him what happened, and even then he constantly made it a big part of our relationship.  We have had to work very hard to get through, including the whole court process.'  'I felt that my safety had been completely robbed and was not safe in any social environment, unless I knew that whoever I was with was strong and could protect me.  If I was left alone at my family home, whether it was night or day, I ended up locking myself in the bathroom and shutting the blinds until someone returned as I felt that it was the hardest room to break into.  This feeling has not subsided and in certain social situations this feeling remains strong.'

26She indicates her determination to, as best she can, recover from all that.  She said further, and I will quote, having mentioned financial consequences to her: 

'The physical impacts of this incident refers to the short term injuries of bruising and abrasions of the skin, whereas the long term physical impacts have become much more of a hardship in dealing with the incident.  I experienced physical symptoms, nightmares, flashbacks, difficulty breathing, constant tiredness and my ability to concentrate and focus on things was compromised and remains so on occasions.  I stopped exercising for a long time.  I did not have the motivation to, and constantly felt unwell and nauseous.  This caused me to put on weight and I fell into a cycle of taking sick days and staying in bed.  I have continued to work hard to fight this, as I am naturally a very active person, and I am beginning to get back into a better routine of exercising and eating better.  I spent a lot of time working on my strength as I believe if I become stronger I can defend myself.  The place of the crime is our family holiday house, however I will not go back there, as it's very overwhelming and upsetting there so the family often holidays there without me.'

27That is the effect your offending has had on this young woman and from sitting on this Bench for a long period of time, I can indicate that is a very common dreadful effect that such offending has caused.  I do not know whether she has been able to receive any psychological counselling. 

28There are certainly a number of the symptoms of post-traumatic stress involved there and it is a very unsettling and very difficult condition indeed, if that be the case.  I can simply hope that in the future she feels able to use what resources are available to her to get what treatment can in some ways be given to her. 

29Offending such as this does not only affect the victim.  It can destroy families, it can destroy relationships, particularly within rural communities.  Her mother's victim impact statement clearly brings that out.  She said again:

'In shock, I listened with sadness and helplessness to what had happened to [the complainant].  To hear my brave daughter tell me how she had been hurt and betrayed by someone she trusted was brutal.  I remember my beautiful, kind, gentle, smart and optimistic daughter trying to tell me the story of what happened, in between running to the toilet, throwing up and breathing like she was nearly drowning.  Watching [the complainant] try to survive her recalling of what happened was like torture.  It took hours because she was so distressed and was physically sick several times throughout.'

30She went on to say:

'Trying to hold the line and keeping the family together while listening to anger, blame, judgments, mistrust and sadness eventually has seeped into my own confidence and usual outlook and energy has been pretty damaged.'

31Later on she said:

'The place it happened was our beach home for family holidays, a family sanctuary, just to be ourselves.  We have worked hard to find a little space on the beach.  We shared this place with this person, included and welcomed him and now she can't go there.  We haven't stayed there since and it's something else that has been taken away. I feel very uncomfortable being there.  I feel like it's empty without [the complainant].  She used to surf and swim with her brothers and just hang around at the beach.  It was a special quiet place.  It doesn't feel like that now.  I don't know what we will do.  We included this person in our lives, largely because he grew up with my kids and I felt great empathy for him and his family, with the loss of his lovely mother when he was a child.  She died of cancer.  My daughter was mirroring our family values of compassion and inclusion and then to be treated with such disrespect and brutality' –

32I interpolate, as is so often the case:

'I feel huge guilt and grief about this, it eats away at me at times.  I have had my own counselling to try and come to terms with this. [The complainant’s] three brothers all need counselling and are trying to manage their own feelings of confusion, betrayal and anger.  Relationships have changed and this has been a fracturing in the family, which is very difficult to heal.'

33She said finally,

'One of the kindest people I know has been incredibly hurt and has had a hell of a time trying to survive it and get back.' 

34As I have indicated, that is what this sort of offending achieves and that is what attracts, in the normal course of events, a custodial sentence.  The offending is clearly serious and calls for the application of general deterrence, despite your age at the time and in your situation, despite your various powerful efforts at rehabilitation since, I think requires an element of specific deterrence as well. 

35The breach of trust is enormous and ongoing.  Denunciation has to play a part, as well as appropriate punishment.  On the material before me I think that public or community protection does not play such a great part, but then again, that is what I thought the first time I sentenced you.  Delay, I have already indicated, is very significant, and I then have to look at matters personal to you. 

36Back in May of 2018 I placed you on a community corrections order and you have successfully completed it.  That is not written submission from your counsel.  I do have material which has been tendered from the Office of Corrections saying that you did complete it.  Shortly after or shortly before this offending took place, you had commenced treatment with a Mr Burroughs, a psychologist, insofar as your sexual difficulties and sexual misunderstandings were concerned. 

37You have now attended something in excess, as I understand it, of 45 appointments on that program.  That has been partially of your own volition and partially to comply with the community corrections order.  It is clear that in the two years of that order, you complied with the directions of Corrections and have done your best to rehabilitate. 

38I have a number of references before me in terms of relating to this offence.  I have got some doubts again about the concept of how genuine the remorse has been in the past.  They seem to some extent, to be a cut and paste of what I was shown the first time, but be that as it may, I am not going to start an unnecessary argument with your counsel, and I have already indicated you do get the benefit of that remorse.

39The matters most important are that subsequent to this offending occurring, you have now formed a relationship and your emotional difficulties were described in my earlier sentencing remarks.  That relationship clearly appears to be one of stability.  You are now living together.  There is a reference from her and I have read that. 

40Importantly again, you are now some few months from the end of an apprenticeship as being a chef.  I have a reference from your employer who clearly regards you highly.  You have been able to maintain that apprenticeship and maintain that work despite having these matters, as well as the others in a sense, hanging over your head for some period of time.  You clearly have accommodation and have family support.  You continue to reside in that rural town. 

41As I understand it, you are close to your grandparents and they are nearby as well.  You do not have the sometimes problematic aspects of drug or alcohol abuse and when I take all those matters into account, together with the other material that has been provided to me, I think the prospects of your ultimate rehabilitation will hopefully be good. 

42You have clearly put in a massive effort in terms of rehabilitation since or shortly prior to the time that I sentenced you and there must be a benefit for that.  I can see, as do the Crown and your counsel submits, an active custodial sentence would have to be in adult prison and would serve, in these circumstances, no useful purpose, and accordingly, having discussed it with your counsel, I propose to put you on a CCO if you agree, on Charge 2, and a adjourned undertaking on Charge 1.

43Before I give the details of each of those orders, I looked at the prospects of you reoffending.  As I have said, hopefully, that those prospects will be low in terms of the rehabilitation that you have done, but there are matters of concern to me here. 

44This offending took place in the face of a massive breach of trust, in the face of a certain element at least, of premeditation, saying that your friend was going to keep the little brother out of the way.  You initially, as I understand it, denied this offending for some extended period of time, at least in terms of consent, and it occurred within a short period of time of the earlier matters. 

45In those circumstances, whilst I am very hopeful of your not reoffending, I intend to impose a adjourned undertaking which will include the condition that you continue to receive such treatment and assistance from Dr Burroughs as he deems necessary, and obviously you are to be of good behaviour.  That adjourned undertaking will be for a very significant period of time; that will be for four years. 

46On Charge 2, it will be a community corrections order with conviction.  I will give you the maximum available hours for that as a punishment, even though, as I have indicated to Mr Grant for the Crown, I regard this charge as less serious than the first, and that will be for a period of two years.

47When that 300 hours is completed, that CCO obviously will cease.  The condition of treatment is included within the adjourned undertaking.

48I am simply making it very clear to you, and to all those who know you and certainly to your victim and her mother, that if you breach this adjourned undertaking or the community corrections order for that matter, with offending of a sexual nature, I will clearly listen to any submissions that have been put on your behalf, but the odds are very, very high that I will gaol you. 

49You have listened, I trust, hopefully have read and again have listened to me reading out the victim impact statements.  What they have described are the consequences of your actions, Mr Wicks - nobody else - and I trust that you understand that.  If you do not, and you offend in this way against somebody else, whatever the sentence might be on that other offending, you will be serious bother before me, and I make it clear so Mr Hill does not become too anxious, I am not prejudging the matter, I am just giving you indications as to how I see it.

50Having done that, does anyone want to say anything about a 6AAA?  I have got to do one, don't I?  Not on the adjourned undertaking I do not, but Charge 2, I do.

51MR HILL:  Yes, Your Honour.

52HIS HONOUR:  Yes.  What I will say is this; but for your plea of guilty on Charge 2, I would have sentenced you to a community corrections order with far more significant conditions; that is all I can say, and for probably a longer period of time.  That satisfies the legislation Mr Grant, I think, doesn't it?  Is he still there?

53MR GRANT:  Sorry, Your Honour, I was muted.  Yes.  Yes Your Honour, thank you.

54HIS HONOUR:  And there is no other order I need to make?

55MR GRANT:  No thank you, Your Honour.

56HIS HONOUR:  All right.  Now, as I understand it, and I have done this before, the community corrections order I can take the agreement to that orally and I can take the agreement to the undertaking orally from the accused?

57MR GRANT:  Yes sir.

58HIS HONOUR:  I am advised that that is under the new protocols, and all this legislation that has been put through in recent time.  I understand that is the situation.  There seems to be no dispute about that. 

59MR GRANT:  No, Your Honour.

60HIS HONOUR:  So Mr Wicks you can hear me?  Can you unmute Mr Wicks. 

61ASSOCIATE:  I have unmuted him, Your Honour.  Someone keeps muting him.

62HIS HONOUR:  Hey?

63ASSOCIATE:  I have unmuted him? 

64HIS HONOUR:  You can hear me Mr Wicks?

65ACCUSED:  Yes. 

66HIS HONOUR:  All right.  I have already had you on one community corrections order and to your credit, you have been able to complete it.  I advise you again that you are going to be on a community corrections order.  The condition will be of 300 work hours.  You understand that when that is completed, the community corrections order will thereby cease. 

67If you breach that community corrections order by non-compliance or by offending, you will be brought back before me.  I have already made it very clear to you what the consequences would probably if you were brought back for any form of sexual offending.  Do you agree to undertake that order?

68ACCUSED:  Yes, Your Honour.

69HIS HONOUR:  All right.  Insofar as the adjourned undertaking is concerned, and you have heard what I have got to say about that.  That will be with conviction.  It will be for a period of four years.  It will include a condition that you continue treatment with Mr Burroughs or as he directs, or whatever period of time he sees fit.  If you breach that undertaking by offending, particularly of this nature, again I have made it very clear what the consequences may well be for you.  Again, do you follow that?

70ACCUSED:  Yes, Your Honour.

71HIS HONOUR:  Do you agree to enter that undertaking?

72ACCUSED:  Yes, Your Honour. 

73HIS HONOUR:  All right, we will enter that in the records of the court.  All right, those documents will be forwarded to - what I will do is rather than have 500 copies of it being sent out, I will send one to the Crown, I will send one to your instructor, Mr Hill and they can make sure that a copy is sent to the accused. 

74MR HILL:  That will be done, Your Honour.

75HIS HONOUR:  That can be done?

76MR GRANT:  Thank Your Honour.

77HIS HONOUR:  No other matters, nothing else I have to deal with?

78MR GRANT:  Your Honour, I wonder if Your Honour's associate could send us a copy of Your Honour's sentencing remarks in relation to the previous matter so that we can then forward to the complainant and her mother, Your Honour.

79HIS HONOUR:  Yes, she will do that today. 

80MR GRANT:  Yes, thanks Your Honour.

81HIS HONOUR:  That can be sent with the order?  They will be sent separately.  I will make sure those sentencing remarks go to you today.  The only thing I am a tiny bit concerned about is whether they are - I am pretty sure they are anonymised Mr Grant. 

82ASSOCIATE:  I don't think they are.

83HIS HONOUR:  Sorry, just give me one second.  Yes, they are anonymised.  That's okay.  No, the only thing that will not be sent to you today, I am assuming obviously you have got a copy of it, Mr Hill or your instructors have.

84MR HILL:  I don't think we do Your Honour, so could we ask just for completeness sake that your associate send us a copy.

85HIS HONOUR:  Yes, yes I can do that.  They are both being done now. 

86MR GRANT:  Thank Your Honour.

87HIS HONOUR:  Mr Winneke, before a higher duty overtook him Mr Hill, I think.  All right?  There is no other orders I have to make, nothing else I need to do?

88MR HILL:  We have nothing Your Honour.

89MR GRANT:  No, thank Your Honour.

90HIS HONOUR:  Thanks for that.  Could I thank counsel for their assistance with all this, of the brevity and sensible matters placed in your submissions were also of great assistance, and could I thank the victim and her mother for the very sensible and very appropriate way in which they have conducted themselves throughout this entire really very, very trying situation for them.  All right, I will just simply, half past ten tomorrow. 

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