Director of Public Prosecutions v Wilkerson (a pseudonym)
[2023] VCC 2427
•21 December 2023
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES WILKERSON (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HAWKINS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2023 | |
DATE OF SENTENCE: | 21 December 2023 | |
CASE MAY BE CITED AS: | DPP v WILKERSON (A PSEUDONYM) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2427 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentencing.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; DPP v Dalgliesh (a pseudonym) [2016] VSCA 148; DPP v Dalgliesh (a pseudonym) [2017] HCA 41; DPP v Bowd [2019] VSCA 246; R v Verdins & Ors [2007] VSCA 102; Veen v The Queen (No.2) (1988) 164 CLR 465
Sentence: Total effective sentence is 14 years’ and two months imprisonment.
The accused is declared as a serious sex offender.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Crouch | Office of Public Prosecutions |
| For the Accused | Mr C. Pearson | James Dowsley & Associates |
HER HONOUR:
1James Wilkerson,[1] on 25 October 2023, you were found guilty by a jury of your peers of:
· Five charges of incest, which each carry a maximum penalty of 25 years' imprisonment;[2]
· Three charges of indecent act with a child under 16, which each carry a maximum penalty of 10 years' imprisonment;[3] and
· Four charges of sexual penetration of a child under 16, which by agreement with the Crown and Defence I will accord a maximum penalty of 10 years' imprisonment. Noting that it was not averred on the indictment that the victim was at the time of the offence aged between 12 and 16 and was under your care, supervision or authority, and accordingly, you fall to be sentenced under s45(2)(c), which carries a maximum of 10 years'.[4]
[1]A pseudonym.
[2]Crimes Act 1958 s 44(1) (‘Crimes Act’).
[3]Ibid s 47.
[4]Ibid s 45(2)(c).
2You have admitted your prior criminal history.[5]
[5]Exhibit A – Victorian Police Criminal Record.
Circumstances of Offending
3Mr Wilkerson, given the jury's finding of guilt, the evidence adduced at trial is the factual basis for sentencing. The following is a brief summary of your offending.
4Your offending occurred over a span of just under 10 years and involved two victims: the first, your daughter Tara Wilkerson ('Tara')[6] and the second, your friend's daughter, Sophie Scott (‘Sophie’).[7]
[6] A pseudonym.
[7] A pseudonym.
5You are now 56 years of age. At the time of the offending, you were between 38 and 49 years; Tara was between eight and 16 and Sophie was 13 years of age.
First victim – Tara Wilkerson
Charge 1 – Incest
6Tara was in about Grade 2 and aged around eight when you first offended against her some time in 2007. You and her mother had separated, and Tara remained in your care.
7You entered Tara’s room after she went to bed. You put your hand under the blanket and onto her thigh. Tara told you to stop because she felt uncomfortable, but you kept going. You then opened her legs. Tara tried to close her legs but she was not able to do so. You then touched her on her underwear, then under her underwear. You touched her on the clitoris and penetrated her vagina with your finger. Tara asked you to stop but you continued until she managed to close her legs. You then left the room.
Charge 2 – Incest
8The next morning, Tara woke up and you were sitting on her bed. She said good morning and realised that you were penetrating her vagina with your fingers. You stopped and went to work.
9After the first two incidents, you continued to penetrate Tara’s vagina on a weekly basis when her mother was not at the house. These are uncharged acts.
Charge 4 – Incest
10In 2008, you entered Tara’s room as she was going to sleep. You told Tara that you did something to her when she was a baby that would make her laugh. You then proceeded to demonstrate. You blew on and licked Tara’s vagina then penetrated her vagina with your tongue.
11You did this on three other occasions. These are uncharged acts. Tara told you that she did not like it and asked you to stop on the charged occasion, which you did.
Charge 5 – Incest
12In 2010 when Tara was in Grade 5 at school, you took Tara and her two brothers on a camping trip. You and one of your sons slept in swags and Tara slept in a tent with your other son, Jordan Wilkerson- Hayes.[8] When Jordan was asleep, you went into the tent and penetrated Tara’s vagina with your fingers.
Charge 6 – Indecent act with child under 16
[8]A pseudonym.
13Between 17 June and 31 December 2010, when Tara was around 12, you entered her room while naked when she was trying to sleep. You put your penis in her face and told her to suck on it. Tara said no numerous times. You left angrily when she refused to do as you said.
Charge 7 – Indecent act with a child under 16
14During the same time frame, on another occasion, Tara awoke to you trying to force her mouth open with your hands and attempting to put your penis inside her mouth. Tara told you 'no' and you left the room.
15Mr Wilkerson, there were a number of other occasions where you attempted to penetrate Tara’s mouth with your penis. They are uncharged acts.
Charge 8 – Indecent act with a child under 16
16Mr Wilkerson, on another occasion during this same timeframe, you entered Tara’s room around bedtime. Tara was wearing full length pyjamas. You were in boxer shorts and had been drinking. You told Tara to sit on you. She sat on your stomach. You moved Tara toward your penis. Tara sat on your penis which was erect at the time. You forced Tara to move on your penis then suggested you try it without clothes on. Tara said she did not want to, and you left the room.
Charge 9 – Incest
17In 2014 or 2015, when Tara was in Grade 9 or slightly older, you entered her room and showed her a large pink dildo. You told Tara to take off her underwear and then played with her vagina. You suggested that you do something different. You then used the dildo to touch Tara’s clitoris and then inserted it into her vagina. You told Tara that if she ever felt lonely, the dildo was in your bedroom for her to use. Tara said she did not want to. You took the dildo out and left the room.
18You described what you did to Tara in general terms as a 'tickle' and told her on several occasions that it was your shared secret and that it should stay between the two of you.
19Tara did not know that what you were doing to her was wrong initially. She recalls that when she was 13 and in Year 6, that Sophie, a family friend then aged eight, came to the house for a sleep over. Tara told Sophie that you did this 'tickling' thing to her where you put your fingers into her vagina.
20In 2017, when Sophie was 13, she made a recorded statement to police about you. She told police about the disclosure Tara had made to her.
21Your sexual abuse of Tara petered out in 2015 when she was in Year 10 and around 17. She started having boyfriends stay over and there was less opportunity for you to be alone with her.
Second victim – Sophie
22In late 2016, Sophie’s family stayed at your house while they moved between houses. One night when her mother was busy with the move, Sophie stayed over at your house by herself on a couch in the living room. She was around 13 years of age.
Charges 10 and 11 – Sexual penetration of a child under the age of 16
23Sophie woke up in the early morning to find you had pulled her shorts and underwear to the side. You inserted your fingers and then your tongue into her vagina.
24When you finished, you left and went to the bathroom. Sophie closed her legs, hoping it was over. She froze.
Charges 12 and 13 – Sexual penetration of a child under the age of 16
25You returned and again sexually penetrated Sophie’s vagina with your tongue and fingers.
26When Sophie’s mother returned to pick her up later that morning, she found her daughter outside the front of your house. When they left Sophie told her mother that you had touched her with your finger down below. She also disclosed the allegation to your son and to Tara.
27In the following days Sophie and her mother returned to your house to pick up some items they had left there. Your wife was angry and confronted Sophie and her mother about the so-called allegations, accusing Sophie of making them up and she told both of them never to come back to your house. Sophie was forced to 'apologise' to you for making up these allegations.
28Sophie reported your offending to police in early 2017.
29You denied all offending to both victims when interviewed in 2018.
Nature & Gravity of Offending
30Mr Wilkerson, Parliament has set a maximum penalty of 25 years' imprisonment for the offence of incest, a maximum of 10 years' imprisonment for the offence of sexual penetration of a child under 16, and a maximum of 10 years' imprisonment for the offence of indecent act with a child under 16, which reflects the inherently serious nature of such offending. I note the discussion regarding the inherent seriousness of and the inadequacy of historical sentencing practices for the offence of incest by the Court of Appeal and the High Court in DPP v Dalgliesh.[9]
[9]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148; DPP v Dalgliesh (a pseudonym) [2017] HCA 41.
31Mr Wilkerson, a jury of your peers, drawn from your community, found you guilty beyond reasonable doubt of all charges left to them.
32Yours is protracted, vile offending of the most egregious kind. It was destructive and highly damaging behaviour inflicted on two innocent children. Your actions have shattered your family and damaged your broader community.
33Your offending against your biological daughter Tara commenced when she was eight and continued for almost a decade. Tara depended upon you for her support and care after you separated from her mother. You persistently breached your position of trust as her father, and often as her sole caregiver, to perpetrate these depraved acts for your own sexual gratification. Tara was especially vulnerable after her mother left and commenced to live separately from you and the rest of the family. Initially, Tara was too young to understand that what you were doing was wrong. You described your sexual offending as 'a tickle' and told her not to tell anyone about it. You took advantage of her innocence and vulnerability to opportunistically commence your abuse. You wantonly continued offending when Tara’s mother's absence presented you with the opportunity. Tara did not understand what you were doing was wrong until she had sex education in her early high school years. The final charged act of incest occurred probably after this time and involved the use of a dildo when Tara was around 16, and I find that the most egregious example of your offending. The objective seriousness of your offending against Tara overall is very high.
34Your overall offending is further aggravated by the fact that you took advantage of a window of opportunity to abuse a second young girl, aged 13 who was sleeping over at your house for the night. Your offending against Sophie also involves a breach of trust. Your offending against Sophie is properly charged as four distinct offences but occurred over a relatively short time span on one occasion. While objectively serious offending, given the temporal connection of this offending I will accord a degree of concurrency in relation to these charges.
35Your offending against both victims did not involve penile penetration and therefore did not expose them to the consequential risk of pregnancy or sexually transmitted disease however your moral culpability remains very high given the persistent and repeated breach of trust involved.
36A victim impact statement was filed by Tara. She says that the offending has impacted every facet of her life. She has been diagnosed with anxiety, depression, and post traumatic stress disorder. Tara says the ramifications for her are lifelong and she does not know if she will ever be free of the impact that your offending has had on her.
37Tara says that she has a fear of talking to older men and finds it hard to open up, as growing up she never had anyone around that she could speak to. She feels emotionally, physically and geographically isolated because of your offending.
38Tara’s mother and her brothers have supported you throughout this trial. Tara’s relationship with them has fractured because of the fallout of your offending, and this affects how she goes about her day-to-day life. Tara fears confrontation with previously close family members, and she avoids going out in the local community.
39She has decided that when she buys a home it will be away from everyone she knows, as she seeks peace and the ability to live with anonymity and without fear or anxiety.
40Sophie read her victim impact statement out to the court. She described how you stole her youth and changed her life forever. In addition to the direct effects of your offending, she has also been isolated from the local community and has experienced abuse, ongoing online trolling, and harassment since you were charged. She has stopped engaging in local activities she previously enjoyed and has suffered various mental health challenges.
Personal Circumstances
41Mr Wilkerson, you are now aged 56 years of age and at the time of the offending you were aged between 38 and 49 years.
42You were born in Warragul and have two brothers.
43I am informed that you identify as a person with a connection to the Torres Strait Islands. Your wife is also from that region.
44Your father was a career RAAF member and your family moved frequently as a result. You lived with your parents in Malaysia and the Solomon Islands, before returning to Australia to live with relatives.
45A joint reference of your three sons was filed on your plea.[10] A further reference from your youngest son was filed after the plea.[11] Your sons say that they have looked up to you for their whole lives and continue to look up to you now. Your sons say they have benefitted from you having trained them in concreting and have all enjoyed a working relationship with you. You have been a loving and supportive father to the boys.
[10]Exhibit 3.
[11]Exhibit 5.
46Your partner Debra Hayes[12] and your friend Thomas Daniels[13] also submitted references on your plea.[14] Hayes says that you have always been an active participant in community events and go out of your way to help others. Daniels says that you have served as a father figure to him and have helped him a lot with learning a trade.
[12]A pseudonym.
[13]A pseudonym.
[14]Exhibits 2 and 4.
47You reported to psychologist Ian Mackinnon that as a child you were subjected to serious violence and abuse at the hands of your mother, and on a few occasions, you were removed from your mother's care by the authorities.[15] Your mother would hit you on the head with different objects, sometimes to the point that you were knocked unconscious. You also reported that your mother would sometimes lock you in a box or a freezer under the house.
[15]Report of Ian Mackinnon dated 3 December 2023.
48You told Mr Mackinnon that at the age of seven, while living in the Solomon Islands, your mother cut your penis off and it had to be surgically reattached.
49At the age of six, your mother left you in the care of three male teachers, who sexually abused you.
50You told Mr Mackinnon that your father was not abusive to you, but that he was aware of your mother's treatment of you and did not intervene.
51You and your father were not close, and you are unsure exactly when he passed away.
52Your mother is still alive and lives in Warragul, however you are not in contact. You do not have any contact with your brothers either. You report that, as a child, your older brother would help your mother to hold you down as she attempted to burn eczema off your skin with acid.
53You and your partner Debra have been together for approximately 40 years, although at times living separately, and you have five children together.
54You left school at the end of Year 10. School was not a positive experience for you, as you moved schools frequently and struggled to maintain friendships. You were anxious and uncomfortable around teachers, after your experience of sexual abuse. You struggled to concentrate on academic tasks.
55You have consistently maintained employment since leaving school and you have enjoyed a successful career as a concreter.
56You reported to Mr Mackinnon that you have always been a very involved member of your community. You have been a 're-enactor' with the Viking Club since 1992, and this is an activity you enjoy with your sons.
57You were also involved in your children's extra-curricular activities and instructed them in Tae kwon do and swimming.
58You started drinking heavily at the age of 35, when you became reacquainted with a childhood friend who recounted witnessing you experience abuse at the hands of your mother. Being confronted with this account of your childhood led to you drinking and smoking cannabis, heavily, for a number of years.
59You say that prior to being remanded you were only drinking moderately, mostly on weekends and after work.
60You reported to Mr Mackinnon that you have suffered multiple physical injuries over the course of your life. You report having broken hundreds of bones, having been stabbed, shot, impaled by a tree in a motorbike accident, and cut from ear to ear by a knife. You have also made a number of suicide attempts.
61You reported to Mr Mackinnon that you have been in 'a lot of fights, all over the place'. Mr Mackinnon noted in his report that you have a propensity for reacting very strongly to perceived threats and intimidation, and this has led you to become involved in violent confrontations on multiple occasions.
62Your psychological presentation is relevant to your background only, and your Counsel concedes that no Verdins or Bugmy type considerations are enlivened in your case.[16]
[16]Bugmy v The Queen (2013) 249 CLR 571; R v Verdins & Ors [2007] VSCA 102.
63You are currently prescribed an antidepressant and report that you have had several sessions with a psychologist.
64Based upon your self-report, Mr Mackinnon opined that you continue to suffer chronic Complex Post Traumatic Stress Disorder. He also described that you have a psychosexual pathology, as a likely product of childhood abuse that you suffered, that includes incestuous, paedophilic and hebephiliac impulses. That abuse has left you a highly damaged and disturbed individual, with your offences having possibly been driven by your own unconscious psychological conflict. Mr Mackinnon concluded that while you continue to deny having engaged in sexual activity with minors, you pose a significant ongoing risk of committing further similar sexual offences and to demonstrate a propensity for violence.
65Mr Mackinnon concluded that you would cope 'well enough' with a significant term of imprisonment. I note that counsel on your behalf reports that since you were remanded in custody, you have commenced as a peer listener to fellow prisoners identifying as from the Torres Strait Islander community.
66Mr Wilkerson, general deterrence is a significant sentencing factor when dealing with sexual offences against children. Mr Mackinnon assessed your functional intelligence and general cognitive functioning within the normal adult range and observed that you appeared to be in a relatively stable state of psychological health. He confirmed that you understand right from wrong. You have worked throughout your adult life and lived in an ordinary domestic setting. Accordingly, I consider that you are an appropriate vehicle for general deterrence.
67Mr Wilkerson, you have expressed no remorse for this offending. To the contrary, you arranged a situation where Sophie was confronted by your wife and accused of lying about what you had done to her. You ran a trial where both victims were cross examined, and you continue to deny the offending even after the jury's finding of guilt.
68Were it not for your refusal to accept that the allegations made against you have now been proven, your prospects of rehabilitation would be reasonable. You have always worked and contributed to your family and the community; you have stable accommodation and I accept you are not an entrenched criminal offender. I note that appropriate counselling will be available in custody if you are willing to engage. However, given your persistent denial of this offending, I must conclude that your prospects of rehabilitation are currently poor.
69While you have a criminal record dating back to 1991, it is principally drug related. You do not have priors for sexual offending but given that there are two victims here and because of the sustained nature of your offending against Tara, as well as your continued denial of it, I consider that specific deterrence also has particular significance in your case.
70Following your conviction on Charges 1 and 2 on this indictment you fall to be sentenced as a serious sexual offender on the balance of the charges, and this will be reflected in the court record.[17]
[17]In accordance with the provisions set out at Part 2A Sentencing Act 1991 (Vic).
71Given your high risk of reoffending and poor prospects of rehabilitation, you pose a significant danger to the community. Every term of imprisonment imposed by a court on a serious sexual offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively, or on top of, any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.[18] Protection of the community becomes the primary sentencing purpose,[19] however the prosecution do not seek that a disproportionate sentence be imposed on you in this case.[20] Community protection ought not be increased beyond what is proportionate to your crime merely to protect the community from the risk of any further offending by you.[21]
[18]Ibid s 6E.
[19]Ibid s 6D(a).
[20]Ibid s 6D(b).
[21]In accordance with the principles set out in Veen v The Queen (No.2) (1988) 164 CLR 465, [473].
72In conclusion, I must embark on the process of 'instinctive synthesis' which involves considering and balancing a range of matters such as the seriousness of your offending, your culpability for it, and your personal circumstances together with the sentencing purposes set out in s 5 of the Sentencing Act 1991 and the serious sexual offender provisions to which I have referred. I must have regard to current sentencing practices for the offences for which you have been found guilty and impose a sentence which is proportionate to the gravity of those offences, considering the circumstances. The sentence must be no more than is necessary to satisfy those various objectives of sentencing.
73In determining appropriate cumulation of individual sentences I take into account that you fall to be sentenced as a serious sex offender for Charges 4-13 inclusive. The Court of Appeal have also recognised that repeated offending over a period of time will become progressively more serious 'by virtue of the fact that he has had the opportunity, during the intervening period, to reflect on his conduct'.[22]I have regard to this in the extent of cumulation I accord in Charges 5-9 inclusive.
[22] DPP v Bowd [2019] VSCA 246, [28]–[29] (Maxwell P, T Forrest and Weinberg JJA).
Sentence
74James Wilkerson, I sentence you as follows:
75On Charge 1 of incest, I sentence you to a term of imprisonment of 6 years. That will be the base sentence;
76On Charge 2, a charge of incest, I sentence you to 6 years' imprisonment, 8 months of that term will be served cumulatively;
77On Charge 4, a charge of incest, I sentence you to 6 years' imprisonment, 14 months of that sentence will be cumulative upon the base;
78In respect of Charge 5, a charge of incest, I sentence you to 6 years' imprisonment; and 14 months of that sentence will be cumulative upon the base;
79In respect of Charge 6, a charge of indecent act with a child under 16 years, I sentence you to a term of 3 years' imprisonment, 7 months of that sentence will be cumulative upon the base;
80In respect of Charge 7, a charge of indecent act with a child under 16, I convict and sentence you to 3 years' imprisonment, and 7 months of that term will be served cumulatively upon the base;
81In respect of Charge 8, a charge of indecent act with a child under 16, I sentence you to 3 years' imprisonment, and 7 months of that term will be served cumulatively upon the base;
82In respect of Charge 9, a charge of incest, I convict and sentence you to 7 years' imprisonment, and 17 months of that term will be served cumulatively upon the base;
83In respect of Charge 10, a charge of sexual penetration of a child under 16, I convict and sentence you to 3 years' imprisonment, with 6 months of that term to be served cumulatively upon the base;
84In respect of Charge 11, sexual penetration of a child under 16, I sentence you to a term of 3 years and 6 months' imprisonment, with 6 months of that term to be served cumulatively upon the base;
85In respect of Charge 12, a charge of sexual penetration of a child under 16, I convict and sentence you to 3 years' imprisonment, with 6 months of that term to be served cumulatively upon the base; and finally
86In respect of Charge 13, a charge of sexual penetration of a child under 16, I convict and sentence you to 3 years and 6 months' imprisonment, with 6 months of that term to be served cumulatively upon the base.
87The total effective sentence therefore, if my maths are correct and I will invite counsel to advise me if my maths is incorrect, the total effective sentence is 14 years and 2 months.
88I set a non-parole period of 9 years and 5 months.
Pre-Sentence Detention
89I declare 57 days of pre-sentence detention.
Serious sex offender declaration
90Furthermore, you are declared to be a serious sex offender and this will be entered onto the Court record.
Sex Offence Registration
91Mr Wilkerson, you have been found guilty of two or more Class 1 offences, and therefore you will be subject to sex offender registration for life.
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