Director of Public Prosecutions v Wilford

[2015] VCC 854

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN WILFORD[1]

[1] A pseudonym

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 June 2015
CASE MAY BE CITED AS:	DPP v Wilford
MEDIUM NEUTRAL CITATION:	[2015] VCC 854

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 M. Perry	Office of Public Prosecutions
For the Offender	Ms M. Karapanagiotidis

©The Crown in right of the State of Victoria.

This work is copyright. No part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission of the Authorised Officer.

HER HONOUR:

1Nathan Wilford[2], you have pleaded guilty before me to one charge of persistent sexual abuse of a child under the age of 16.  The victim in this matter is your daughter.  She was born on 9 May 2000.  She is now 15 years of age.  The conduct charged in support of the indictment occurred between 15 April and 3 September 2013 when you daughter was aged 13.

[2] A pseudonym

2During term two of school in 2013 when your daughter was at home you told her you would not take her virginity, removed her jeans and underwear and ordered her also to open her legs.  You then inserted your fingers in her vagina and moved them up and down.  Your daughter told police that it hurt her and it felt like getting a cut.  You then left and had a shower.

3On another occasion in the time period outlined you were at home with your daughter as she was getting changed in her bedroom.  You entered the room, grabbed her and touched her breast, rubbing and squeezing them under her clothes.  You told her on that occasion that she was to wear a dress with nothing beneath it so that you could touch her when you wished.

4Between April and September 2013 you and your daughter were walking home from the local shop one evening when it was dark.  You pushed her into a bush on Point Nepean Road and told her to perform oral sex upon you or she would not be allowed to go to a friend's house or "do anything".  You pulled down your pants and forced your daughter's mouth onto your penis after which you told her not tell her mother or anybody or she "would get into trouble".  You ejaculated onto shrubbery in the area. 

5Your daughter made a complaint and you attended Frankston police station on 6 September 2013 and denied all allegations put to you.  Then on 9 September 2013 you presented at the Frankston Hospital Emergency Department stating that you felt depressed and suicidal and told the clinician that you had been fondling your daughter's breasts on and off for the past two years, that it was wrong but that you could not stop.  On that occasion you blamed your daughter for wearing skimpy clothing and that you believed she had complained to police because she had been refused permission to go out with a boy.  You stated that you only touched your daughter's breasts and repeated this assertion in an interview with a Forensicare psychologist on 21 October 2013.

6As a result of these actions coming to light an intervention order was taken out against you by your daughter and your wife and you moved out of the family home into premises with a friend around the corner from where you had been living.

7This matter has had a somewhat protracted history. You conducted a contested committal which took place on 24 November 2014.  The final directions hearing took place on 6 February 2015.  There had been, I am instructed, about a week of discussions between your legal practitioners and the prosecution in order to settle the matter.  Eventually you refused a plea offer involving a plea to oral, digital and penile penetration. 

8The matter was then set down for trial on 10 March 2015.  Pre-trial argument then took place over a day and a half where the question of admissions to practitioners at the Frankston Hospital Emergency Department and Forensicare took place.  The ruling was not in your favour.  Thereafter plea negotiations took place and the matter was settled in the current terms.

9Whilst it was mentioned on the plea opening that the complainant alleges that you had been sexually offending against her since she was eight years old, this is an aggravating feature and according to the dictates of Storey's case, I cannot have regard to it unless I am satisfied of it beyond reasonable doubt. The Crown indicated it did not intend to pursue proof of that matter to the requisite standard.  Therefore I do not take it into account and in sentencing you I note that I am obliged, at law, to consider only the three incidents referred to in the prosecution opening which are said to underline the charge on the indictment.

10I now turn to your personal circumstances.  You are 46 years age.  You are the eldest of ten children born to your father and your mother.  Many of them were, in fact, half siblings.  It appears you grew up in an extremely dysfunctional family.  Your father was a violent alcoholic who viciously attacked everyone in the family, it would seem, according to the psychological report of Warren Simmons dated 28 April 2015 which was tendered on the plea, except you.  You were encouraged, once you had achieved some physical stature in your early teens to then physically take on your father, which you did for a number of years.  It appears, perversely, this made your father proud of you.

11When you were 12 or 13 you and a younger brother were babysitting at a friend's house when you were sexually assaulted by the father of the child you were babysitting.  It appears your brother was more extensively sexually abused than you but this was a significant matter, it would appear, in the opinion of Mr Simmons and remained undisclosed by you until these proceedings.

12Thereafter the reports speaks of your educational history, which was very unsatisfactory.  It would seem, according to Mr Simmons' opinion, that you were suffering attention deficit hyperactivity disorder which was undiagnosed and untreated.  You were moved up every year at school although you never effectively learned to read or write.  This was something you taught yourself when you were 24.  You were expelled at the beginning of Year 8 after throwing a chair and never returned to education again.

13You had some years of positive work history.  You worked as a landscape gardener, had short term jobs in fast food stores, undertook a year of a bricklaying apprentice and then was employed renovating houses with your brother in law.  You worked in a liquor warehouse driving a forklift for several years and became a qualified fencer when you were aged 24 and worked from then until 2007 as a fencer/roof tiler or as a metal roofer.

14You moved between trades and apparently your last position was in a recycle centre as a bobcat operator for 12 months which you left because of work pain and were then on Workcover payments for two years.  You were placed on sickness benefits and are currently on a disability support pension. 

15Apparently when you were 12 you were introduced by cannabis use by an older sister.  A friend of your father's twice gave you cocaine and at the age of 14 you commenced a long term abuse of amphetamines.  It seems that you have also used and abused alcohol including for insomnia.  Apparently since you were sexually abused you have had difficulty getting to sleep and staying to sleep.  This is a problem that has plagued you for many years.

16You did tell Mr Simmons that in your mid-20's you stopped drinking because you realised you were becoming like your father but continued with your drug abuse.  You have apparently undertaken a number of residential rehabilitation programs.

17You have had a fairly involved relationship history.  You have two older sons in their 20's from an early relationship you formed when you were 16.  You then formed a relationship with a woman which lasted several years but she then died of a heroin overdose.  You had then a relationship with another young woman who also used drugs and she eventually suicided.  You met your wife when you were 28 and you were together for 16 years and there were four children born of that family.

18You were described by Mr Simmons as a man who had grown up in a violent household leading to aggression developing in yourself.  As I have said your behaviour at school suggested to Mr Simmons an ADHD or similar disorder.  You do not, however, present as someone of limited intellectual difficulties.  Your employment history was described as erratic and unstable although "subsequently settling into a pattern of working in three different roles.  That of plasterer, a roof tiler and metal roofer.  However he has not worked since around the age of 40".  It was also noted in Mr Simmons report, in my view, significantly that you have experienced high libido since you were a child, engaging in masturbation well before you developed puberty in your adolescent years. 

19Since your offending was detected and you were moved from home you have undergone fairly regularly psychological attendance upon Positive Psychology, an organisation where, it appears, you were directed by your solicitor. I received a report from Mr Ari Patrecus, a senior consulting psychologist, who notes that you had attended upon him since about 21 May 2014 on a fairly regular basis.  Interestingly both he and Mr Simmons believe you have an undiagnosed bipolar effective disorder and some features of an anti-social personality disorder.

20What is of interest to this court is that whilst I have received two fairly detailed psychological reports, neither of them contain any record of discussion by you with them of the sexual offending against your daughter.  The Static-99 testing employed by Mr Simmons indicated that you were of low risk in the future, it would appear, mainly because the offending you did undertake was against your own daughter.  It would appear that protective concerns this court might have relate to your family rather than the community at large.

21It means, however, that I am unable to understand the nature of your offending.  I do take into account that you are a man with a number of serious difficulties, which I have mentioned.  The concentration difficulty, the violent and difficult background that you endured, the untreated sexual abuse, the untreated bipolar effective disorder.  It is difficult beyond looking at the plea of guilty to discern very much in the way of remorse in you.  However, Mr Wilford, you have specifically not discussed this offending or sought to explore why you would abuse your daughter in a way that represents an absolute and fundamental breach of trust.  Which it is clear, from the victim impact statement, has resulted in a situation where she is now actively suicidal.

22I do refer now to the victim impact statement.  This was made by her mother, your former wife.  As a result of your offending your family has had to move away from the area they are familiar with, away from close family, have had to completely re-settle and deal with the impact of this appalling offending upon your daughter.  Your former wife details her enormous distress.  It does not appear that she is seeking any support for herself.  She speaks of her life being "it's like my whole life is down.  I feel sorry for my children, especially Jennifer[3]".  She said, "Since I have found about what happened I have trouble sleeping and eating.  All I do is sit in my bed and cry most of the night".  She said that your daughter is not happy in the new school she is attending.  That she has lost good friends.  She said,

"Since the offending happened it seems that Jennifer has no interest in her own future.  Since she told about everything that has happened to her, she has lost so much weight and can't sleep properly.  She doesn't eat well anymore and I'm worried she might have an eating disorder.   She is scared to talk to people including counsellors because she doesn't want to remember or talk about everything that happened to her.  The only thing she wants is to kill herself".

[3] A pseudonym

23I hope that is something that you will give some thought to whilst you are spending time in gaol after I have imposed the sentence upon you.  She continues, "I have to be very strong for my family and make sure that no-one will harm them or hurt them anymore".  It appears, fortunately, that your children's mother is a strong woman who intends to...

"...make sure that I always be there by my children.  To be strong and make them happy again, to protect them.  I will do my best to give them a good life.  It really affected me so much and the bad memories will never be erased for the rest of my life." 

24Sadly the sort of issues that mentioned in that victim impact statement are entirely all too common in this court where a child has been sexually abused by a parent and where the whole family is affected in the devastating way that your family has clearly been affected by your actions.

25However the fact of the matter is that you have pleaded guilty albeit at a late stage and I must take into account that the indictment that you pleaded guilty to contained very different charges than that presented on trial and that previous plea efforts had been made on your behalf and that they broke down over the inclusion of a charge of penile penetration which has now been withdrawn.  I accept that these are mitigating factors in your favour.

26In sentencing you I do take into account your plea of guilty.  I take into account the very different indictment to which you now plead.  I take into account your difficult childhood and your psychological difficulties.  I accept that Verdins has application in this case to some limited extent in relation to limbs 6 and 7 which refer to a situation of added difficulty of a service of a sentence of imprisonment compared to the normal prisoner, which I also accept has application in your case because of you psychological difficulties. 

27I take into account that you are considered to be a low risk of re-offending, that by your plea you have saved your daughter the trauma of giving evidence and being cross-examined in a trial and you have saved the community the expense of a trial in this matter.

28I take into account the fact that when in gaol you will also have very little in the way of visits.  I accept your counsel's submissions to me in relation to that given the fact that you appear to have limited family contact now.  It would appear the intervention order taken out by your former wife is one which will last for the foreseeable future so that your capacity to have visits from them is entirely negated and your capacity in the future to have contact with them will be severely curtailed to say the least.

29At the end of the day, however, you have committed the most appalling offending.  To force your penis into your daughter's mouth is an act of degradation and breach of fundamental familial responsibility such that only a term of imprisonment to be immediately served is appropriate.  Equally appalling, in my view, is the digital penetration that you practised upon her and I find that the circumstances surrounding that both acts to also be of a degrading nature and indicated a view of your daughter as some sort of sexual object who was to be available when you wish.  I refer specifically your direction to your daughter to wear a dress without any under clothing which accompanied the indecent assault you visited upon her. 

30Additionally I find that your actions in threatening your daughter before placing your penis in her mouth, taking her to the shops with you (and I note the statement of her mother to the effect that you often took your daughter out by yourself), attacking her in the dark, pushing her into a bush and threatening her with consequences should she reveal your sexual actions upon her to be utterly condemned.  Jennifer is your daughter, Mr Wilford, not some sexual object available for your pleasure. 

31It was not submitted that I should deal with you in any other way than by service of a sentence of imprisonment.  I regard your actions in relation to your daughter involved, as they do, two counts of penetration.  One involved her vagina, the other involving forced oral sex as being serious abuses inflicted upon her.  The sentence I impose upon you will reflect that.  In my view, however, the mitigating circumstances argued on your behalf will result in a less than minimal term.

32The charge of persistent sexual abuse of a child you are sentenced to five and a half years imprisonment.  You will serve a minimum term of three years.

33Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of seven and a half years and order that you serve a minimum term of five and a half years.  Have a seat, thank you.

34Yes thank you.  I just need to fill in - have you got the s.464ZF forms?

35MR PERRY:  I believe they may have been forwarded, Your Honour.

36HER HONOUR:  All right, they were emailed through.  I am granting police the power to obtain an intimate sample from you which will either be a swabbing of your mouth for saliva or the obtaining of a blood sample.  I need to inform you that should you resist police in taking that sample they are entitled to use reasonable force in order to obtain it.  Yes thank you.

37You are also, as a result of this offending, to be placed upon the Sex Offender's Register for life.  Your counsel will explain the obligations upon you pursuant to that.

38MS KARAPANAGIOTIDIS:  Your Honour, may I just enquire is it possible to have that he's on Seroquel medication noted on the prison warrant or ‑ ‑ ‑ 

39HER HONOUR:  I will.  I also note, and I should have noted during the plea, that as a result of your attendance upon psychologists you have been prescribed the very substantial medication, Seroquel, which has apparently had a most beneficial effect upon the anxiety and concentration difficulties that you have and in particular upon your insomnia.  I note this is a high dose of this drug and that you are currently seeking to reduce it but at the present time this has not occurred.

40MR PERRY:  I think Mr Wilford will need to sign that order, Your Honour.

41HER HONOUR:  Yes he does need to sign it.  Thank you, Mr Perry.

42MS KARAPANAGIOTIDIS:  May I approach my client?

43HER HONOUR:  Yes certainly.  Yes thank you. 

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