Director of Public Prosecutions v Wilkerson (a pseudonym) (Sentence)
[2021] VCC 215
•4 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RONALD WILKERSON (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 February 2021 | |
DATE OF SENTENCE: | 4 March 2021 | |
CASE MAY BE CITED AS: | DPP v Wilkerson (a pseudonym) (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 215 | |
REASONS FOR SENTENCE
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Subject: Criminal law – Sentence
Catchwords: Two charges of incest – historical offences against daughter – serious examples of offences – fundamental breach of trust and disparity in age – advanced age and ill health of offender – good character -- delay
Legislation Cited: Crimes Act 1958, s52(1); Sentencing Act 1991;
Sex Offenders Registration Act 2004
Cases Cited:
Sentence: Total effective sentence of six years and six months’ imprisonment, with a non-parole period of three years and six months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. B. Goding (plea) | Office of Public Prosecutions |
| Ms G. Mazzone (sentence) | Victoria | |
For the Accused | Ms A. Dixon (plea and | Martin Middleton Oates Lawyers |
HER HONOUR:
1Ronald Wilkerson[1], you have pleaded guilty to two charges of incest contrary to s.52(1) of the Crimes Act 1958 (Vic). The maximum penalty for this offence is 20 years’ imprisonment.
[1] To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of a pseudonym
2The victim of your offending was your daughter who was born in 1965 and was the third child born to you and your then wife. At the time of the offending against her, the victim was 13 and 15 years old.
3You were born in 1941. At the time of the offending you were between 36 and 39 years of age. You are now 79 years old and have no criminal history.
Summary of offending
4The circumstances of your offending are described in the prosecution plea opening dated 23 January 2021. I will briefly summarise your offending.
5Following the birth of your fifth child in 1970, your relationship with your wife came to an end, and you separated in 1971. The two of you split custody of the five children. Two daughters continued to live with their mother while the victim and the two boys remained with you.
6Between 27 April 1978 and 26 April 1979, you were living with the three children in a home in Warrnambool. You were 36 to 37 years of age at that time. The victim was 13 years old. On a date in this period, you were lying on your back on a couch in the lounge room. You told the victim to take off her pants and to sit on your face. She did so, and you licked her vagina. This is the context in which your offending then occurred.
7You moved to your bedroom. Your daughter lay on the bed and you told her you would put your penis in her vagina. You told her she would bleed a little and that it would hurt, but only for the first time. She said she did not want to do this, but you replied, 'Daddy will look after you. It will be alright'. She repeated that she did not want to do it, but you again told her it would be alright and that you would not hurt her.
8Then, having spat on your fingers and used your saliva to wet her vagina, you penetrated your daughter’s vagina with your penis. She cried out from pain although she tried not to make any noise. You thrust your penis slowly at first, but then faster. This is the conduct that constitutes the first charge of incest.
9After a couple of minutes, you ejaculated inside her vagina and withdrew your penis. You then rubbed your face against hers and whispered 'Daddy loves you' in her ear. Your daughter lay on the bed, crying. You told her to clean herself up.
10Later, between 27 April 1980 and 28 February 1981, you were living with your new wife, in Warrnambool. By this time, you were aged between 38 and 39 and the victim was 15 years old.
11On a date during this period, you drove your daughter to a car park and told her to get into the back of the car. After arguing, you pushed her towards the back of the car and climbed in with her. You told her that this was 'what she wanted and needed'. She kept saying it was not. Ignoring her, you pulled down her pants and penetrated her vagina with your penis. This is the conduct that constitutes the second charge of incest.
12In the prosecution summary, you are described as 'aggressive and authoritative' throughout the second incident. After you withdrew your penis, your daughter fled the car, returning to the street in which you lived but hid in the yard of another property as she had nowhere else to go.
13The next morning, she returned home. She was confronted by your then wife who slapped her and called her 'a slut'.
14You did not wear a condom on either occasion of sexual penetration.
15These are the separate incidents that give rise to the two charges of incest to which you have pleaded guilty. However, these offences occur in the context of one further act of incest involving penile-vaginal penetration perpetrated by you against your daughter at sometime between these two offences, however no charge arises in relation to that incident.
16In the days following the offence in the car park, your daughter left her home and travelled to South Australia to live with her mother. She then had limited and infrequent contact with you over the following years. The victim’s last interaction with you was at her 50th birthday. On that occasion, as you were about to leave, you rubbed your face against hers and yelled in her ear, 'Daddy loves you', the same words you used at the time of the first offence.
17On 3 June 2015, the victim emailed you about your behaviour on that visit. She said that you provided her daughter, with 'a watered-down version' of your offending against her. You replied to the email, writing:
“You said you had forgiven me for my past indiscretions, but obviously not, you said you wanted to move on with your life, obviously not yet. All I can say is how sorry I am, that I seem to have hurt you again. My attempts to reach out with many visits since your brother’s death have meant nothing to you and to turn around and throw this all back at me is just your way of playing mind games.'
18The victim ceased all contact with you after that email exchange.
19In a pretext call made by the victim to you on 10 August 2018, you said that you told your granddaughter there was a time in your life where you 'went nuts – went bad if you like' and that you had 'taken advantage' of the victim. However, you told the victim that, 'you’re the one that’s made this whole thing a life adventure for you. You’ve not moved on from it, sweetheart'. You said that 'I’ve admitted my faults and everything else. I’ve asked you to forgive me, you don’t want to, you like to live in the dark', and 'I have requested and asked you to forgive me. You don’t want to because you like the status'.
20You were arrested and interviewed by police on 26 February 2020. During that interview, you admitted to having sexual intercourse with your daughter on three occasions, stating:
'I fell in love with her, seeing her as my ex-wife….it was just…my state of mind that had developed because my first wife had left me for another man. And I think I became very depressed and lonely and took advantage of the situation I was in at the time.'
Victim impact
21Your criminal offending has had a profoundly traumatic and life-long impact on the victim. I have read her victim impact statement closely and taken it into account in sentencing you.
22The victim speaks of the loss of trust in a parent whose role it was to love and nurture her. Due to the breach of that trust, she says she never feels safe and suffers from anxiety. She says that your offending destroyed her feeling of self-worth, impacting on her ability to earn, to thrive and to develop as an adult. The victim says it also impacted on her ability to parent and to express unconditional love to her two children.
23A letter from her treating doctor attached to the victim statement, dated 21 January 2021, states that the victim has been diagnosed with PTSD with associated anxiety at times of stress.
Gravity of offending
24I will now deal with the objective gravity of your crimes.
25The offending could only be described as very serious instances of sexual abuse perpetrated against your daughter. This is so for a number of reasons.
26Your crimes were a profound breach of the fundamental relationship of trust that every child is entitled to from their parent; the obligation of a parent to nurture, protect and guide their child. In offending against your daughter in this way, you demonstrated a lack of any moral compass: with your need for sexual gratification overriding your most fundamental obligation to protect and care for her. The first offending was all the more serious given her age: at 13 years of age she was on the threshold of adolescence. You were 23 years older which is a significant age disparity. You sexually exploited your own child, taking advantage of her vulnerability, and on the first occasion, did so in her home, where she was entitled to feel safe.
27Despite a break of around two years between the first and second instance of offending during which you had had ample opportunity to reflect on the seriousness of your abuse, you reoffended against your daughter when she was 15 years old. As such, the offending occurred over a significant period of the victim’s teenage years; a time that is critical to her physical, sexual and psychological development and wellbeing. This is one aspect that makes your moral culpability for the second instance of sexual perpetration even greater.
28Further, the two incidents of sexual abuse were not isolated. The two offences occur in the context of another instance of penile-vaginal penetration perpetrated against her in the intervening years.
29You did not wear a condom on either occasion, which placed your daughter at risk of disease. However, she was aware that your vasectomy meant she was not at risk of becoming pregnant.
30The act of sexual penetration is rightly described as an act of violence, particularly when perpetrated against a child. On both occasions, you persisted with your offending, ignoring your daughter’s protests and on the first occasion, despite her crying in pain. On the second occasion, despite the opportunity to desist from further offending, you resumed offending in a manner that was both aggressive and forceful. At the time, through the lens of her youth, she believed she was being punished by you for something she had done wrong. She had done nothing to deserve this abuse at your hands. As I stated, your offending has profoundly impacted on almost every aspect of your daughter’s life.
31You have pleaded guilty to very serious sexual offending involving a gross breach of trust. I find that your moral culpability for your offending is high.
Background and personal history
32I turn now to your background and personal history.
33You were born in South Australia in 1941. You had two older brothers and a twin brother. You were all raised by your mother, assisted by her family, following your father’s death when you were two years old.
34You wore splints from a young age until you were 12 having been born with a foot abnormality. An operation on your foot left you with nerve damage, which stunted the growth of that foot. Other children bullied you at school as a result.
35You were educated at primary and secondary schools in Adelaide and completed secondary school until you left school, aged 15 or 16 to enter a trade.
36You met your first wife when you were twenty. You had five children together between the years of 1962 and 1970. In around 1965 you moved with your wife and first born to Melbourne where you worked for the railways and studied to be a station master. The family relocated to Western Victoria when you were posted to a local railway station.
37Difficulties arose when your family's wife and siblings moved into the home and you and the family then relocated to Queensland. You worked for a couple of seasons cutting sugar cane. You relocated again to Adelaide, living in public housing, so your wife could be close to her family. You took a job as a driver for a company that took tourist groups to Alice Springs twice a week.
38During this period of absence, you returned from a long-haul trip to find that your wife had left you, taking the two youngest girls. The remaining children had been removed and placed in foster care. It was only after seeking court orders that the three children were returned to you after
8-10 months. You then relocated with them to Victoria, eventually settling in Warrnambool. You report that this was a very dark time for you emotionally, where you struggled with the loss of your wife.39You subsequently met and married your second wife, but that relationship was short-lived. You married your third wife, in 1982, a relationship that lasted 30 years.
40In 1973, you were ordained a pastor and moved to Queensland to work in this capacity. In 2013 you were involved in establishing a local Men’s Shed, being conferred life membership of that organisation in 2016. You also have been recognised for volunteering with Queensland police.
41In 2014 you moved to live in an aged care facility in Queensland and have remained in that facility to date.
Matters relevant in mitigation of sentence
42Having assessed the objective gravity of your offending, I now turn to other matters that are also relevant in mitigation of your sentence.
Guilty plea and remorse
43You entered your plea of guilty at the earliest opportunity. I accept that there is significant utilitarian or practical value in your early plea, particularly in a case such as this. You not only saved the community the cost and time associated with a contested trial, but importantly, saved the victim and other witnesses the stress and distress often associated with a trial.
44Your guilty plea has heightened utilitarian value given the current delay in trials brought about by the coronavirus pandemic.
45You cooperated with authorities from the outset and were charged on summons. You did not require extradition.
46You are entitled to a significant sentencing discount for your plea of guilty.
47However, the degree to which your plea of guilty is indicative of genuine remorse is, in my view, more complicated.
48On the one hand, your counsel, Ms Dixon, correctly pointed out that in the context of a backlog of trials, you could have chosen to delay this matter for an extended period by pleading not guilty. At your age and stage of life, this would have meant spending more time in care rather than facing the prospect of living out many years of your later years serving a sentence in custody. I accept the submission that, seen in this context, your plea is an indication of remorse that saved the victim any further uncertainty.
49On the other hand, comments made by you during the pre-text call with the victim and during your record of interview display a callous disregard for the impact of your offending on the victim, and wrongly seek to blame her for 'not moving on' with her life. During the record of interview, despite making admissions to three instances of sexual penetration, you tell the police that 'this is all about victim’s compensation'. In the pretext call, you tell the victim that she’s 'gotta to put these things to bed' and that she has turned the offending into 'a life adventure [and] not moved on from it'. You also said that she was 'wallowing in this thing' and was 'making a mountain out of a mole[hill]'.
50In my view, you are yet to fully appreciate and accept the seriousness of your offending against your daughter, the trauma and anguish it has caused her and to express fulsome and unconditional remorse for your conduct. However, in reaching this conclusion, I repeat that your plea of guilty, particularly in the context in which it was entered, entitles you to a significant sentencing discount for its utility.
Delay
51I now turn to the question of delay.
52The fact that you fall to be sentenced decades after the offending is also important. Firstly, it is significant that the maximum penalty applicable to you is 20 years which is lower than the current maximum penalty of 25 years for the crime of incest.
53Secondly, it is significant that forty years have elapsed since the offending for which you are to be sentenced. The delay means that you have been able to demonstrate the capacity to lead an otherwise blameless life in the forty years since this offending
54Since this offending, you have lived in various locations, worked in different capacities, contributed to the community, and importantly committed no other offences. As I stated at the outset, you have no prior criminal history and are to be sentenced as a person of otherwise good character, all matters relevant in sentencing you.
Age and ill-health
55Your advanced age is also a significant matter. At the age of 79 years, it is the case that each year you spend in custody will represent a substantial proportion of your remaining years. The sentence of imprisonment I impose today will carry with it a real prospect that you may die in gaol, which is a significant burden of imprisonment for someone of your age.
56Related to your age is the fact that you also suffer from poor health. I have read closely the letters from your treating doctor, dated 5 August and 27 October 2020, and 11 February 2021. You have chronic back pain, cervical spinal degeneration, ischaemic heart disease, hypertension, and gastro-oesophageal reflux disease. You also have Type 2 Diabetes which is managed by medication and insulin, although you are at risk of complications from that disease. You have a previous history of deep vein thrombosis and are on long term prophylaxis. You are prescribed multiple medications for the management of your health.
57On 7 October 2020 you were admitted to Gold Coast University Hospital suffering a heart attack and had a cardiac stent inserted. Your medication was increased to manage future risk, but your doctor says that you remain at risk of further cardiac events.
58Your doctor highlights the significant discomfort caused by your back and elbow pain. You have previously been under the care of a Persistent Pain Clinic in Brisbane and currently see a private pain specialist. You had spinal fusion surgery in the past but suffer from neuropathy in your lower limbs. You recently had CT guided radio-frequency treatment to help alleviate some of your pain and your dosage of opioid analgesics has been increased to provide relief.
59I accept that your chronic pain and general poor health will have an impact on your experience of prison. In addition, I recognise that the risk of contracting COVID-19, given your age and pre-existing illnesses, will be a real and added source of anxiety for you in the custodial setting. These matters combined mean that any sentence of imprisonment will, for you, bring an added burden not necessarily experienced by others.
60I have moderated each component of the sentence which I will impose upon you, given your age and ill-health and the sentencing considerations to which I have referred. I will impose a shorter non-parole period than I otherwise would have been inclined to impose, so as to give you the possibility of living out the last years of your life in the community.
Risk of reoffending and the need for community protection
61I find that a combination of factors means that you do not present as a risk of reoffending or require me to factor in the need for community protection in sentencing you. First, your age and ill-health, including chronic pain, eliminates the opportunities for you to offend. Secondly, you had no priors and have not offended in 40 or more years over the intervening period. You are to be sentenced as a person of otherwise good character whose rehabilitation can be measured over that lengthy period of time.
62The prosecution conceded that specific deterrence and community protection could be appropriately moderated given these factors.
63In my view, specific deterrence and community safety have little, if any, role to play in sentencing you.
General deterrence, denunciation and just punishment
64The community rightly abhors the crime of incest. In sentencing you, the paramount sentencing considerations are those of general deterrence, denunciation and just punishment.
65In sentencing you, I must send a clear message to those who may be minded to sexually offend against their children that they can only expect a significant sentence of imprisonment to follow. As this case so telling demonstrates, the harm caused by childhood sexual abuse is almost invariably profound, and lifelong. My sentence must denounce such conduct in unequivocal terms. The objective seriousness of your offending requires that I impose a substantial sentence of imprisonment on you and your advanced age cannot justify the imposition of an inappropriately low sentence.
66In sentencing you, I am also required to have regard to current sentencing practices. The relevant practices are those that currently applied rather than those applied by the courts at the time of the offending. However, the operation of s.5(2)(b) of the Sentencing Act 1991 requires some qualification in the present context. The sentencing principle of equal justice also requires that I take into account the sentencing practices at the time of your offending to arrive at a sentence that is just in the circumstances.
67In this case, despite their endeavours, neither counsel was able to point to relevantly analogous or similar cases from the time of your offending. Counsel did however accept as a broad proposition that sentencing practices were lower than they are today. However, I also note the observations made by the Court of Appeal and the High Court in case of Dalgliesh, about the adequacy of current sentencing practices.
68Sentencing practices, both current and past, are but one factor to be considered and are not a determinative or controlling sentencing factors in my sentence. As I noted earlier, current sentencing practices must also be considered in the light of the maximum penalty applicable for incest at the time of your offence, being 20 years, and not current maximum penalty of 25 years’ imprisonment.
69Balancing these various considerations to which I have referred, I now sentence you as follows.
70Mr Wilkerson, if you could please stand.
71On charge 1, I convict and sentence you to five years’ imprisonment.
72On charge 2, I convict and sentence you to six years’ imprisonment.
73I have determined it is appropriate in your case to reflect the objective gravity of the offending in the individual sentences imposed on each charge because to do otherwise would force artificial moderation which is undesirable in terms of general deterrence. The totality principle must be applied however, and to do so, I have determined that this is best achieved by imposing orders for concurrency which, but for the totality principle, would otherwise not be ordered.
74I direct that the sentence of 6 years imposed on charge 2 is the base sentence. This is the more serious of the two offences and attracts the longest term of imprisonment. I direct that six months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2.
75This means that I sentence you to a total effective sentence of six years and six months' imprisonment.
76I set a non-parole period of three years’ and six months. This means you will become eligible to apply for parole after serving this non-parole period.
77Pursuant to s.6AAA of the Sentencing Act 1991 I indicate that had you pleaded not guilty to these offences but been found guilty following a trial, the sentence I would have imposed would have been a term of eight years, six months' imprisonment and a non-parole period of four years, six months' imprisonment.
78Mr Wilkerson, your offending attracts the provisions of the Sex Offender Registration Act 2004 and you are required to comply with the reporting obligations under that Act for life. You must remain in court to receive a document which details your obligations under that Act.
79Mr Wilkerson, please have a seat.
80I will ask my associate to approach you client with the relevant documents. While he is doing that I will indicate that I have arranged for all the medical material to be provided to Corrections and I will note as a custody management matter those matters and request that he be immediately assessed upon admission for pain management and any other medical conditions that require assessment.
81MS DIXON: Thank you, Your Honour. If I can just request, Your Honour, after Your Honour leaves the Bench just a few minutes before Mr Wilkerson - thank you, Your Honour.
82HER HONOUR: I thank counsel. The court will now adjourn and I give permission to Ms Dixon to approach Mr Wilkerson before he is removed, thank you.
83MS DIXON: Thank you ,Your Honour, may it please the court.
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