Director of Public Prosecutions v Wilkinson

[2019] VCC 914

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-00573

DIRECTOR OF PUBLIC PROSECUTIONS

v

TROY WILKINSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	20 June 2019
DATE OF SENTENCE:	20 June 2019
CASE MAY BE CITED AS:	DPP v Wilkinson
MEDIUM NEUTRAL CITATION:	[2019] VCC 914

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Gray	Office of Public Prosecutions
For the Accused	Mr Davis	Leonard & Associates Pty Ltd

HIS HONOUR:

1Troy Wilkinson, you have pleaded guilty to one charge sexual penetration of a child under the age of 16, one charge of involving a child in the production of child abuse material and one charge of knowingly possess child abuse material.  Those crimes carry maximum penalties of 15 years, 10 years and 10 years respectively. 

2You are now 28 years of age.  You were 26 years of age at the time of the offending.  You pleaded guilty at the earliest opportunity and I accept that that plea of guilty is accompanied by appropriate remorse.  You must also of course get the utilitarian benefit of that plea of guilty, having avoided the need for a trial or anything of that nature. 

3There was a significant delay between you being interviewed and you being charged, whilst as not to be attributed to anybody or anything in particular, it is of significance in this sentencing process; justice delayed is often justice denied.

4Importantly, in these circumstances, you have no matters pending and you have no prior convictions of any description.  The first thing is because of the nature of the offending, you will be placed on the sex offenders register. I must advise that the reporting conditions will be for life.  I will just ask you to sign an acknowledgement of this.  Mr Davis, if you would not mind accompanying my associate to the dock?  Yes, thanks, Mr Davis.

5Next, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order, having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you. 

6The circumstances of the offending are that you were 26 years of age and the offending occurred in December 2017.  At that time, the complainant was 15 years and, on my calculations, just slightly over 10 months.  Accordingly, the offending occurred within about six weeks to eight weeks of it not being an offence at all.

7The complainant at that stage resided with her mother and stepfather, and you resided with your parents in Cowes.  You friended each other on Facebook and the pair of you then met in Wonthaggi Plaza.  On meeting at the Plaza you got to know each other.  And on 14 September 2017, after meeting again, you each accepted that you were 'dating'.  It seems clear from the VARE as well as the material put on your behalf that each of you regarded this as a relationship.

8Once the two of you began 'dating', you would meet up more regularly to kiss and cuddle.  You and the complainant regularly communicated via Facebook, Snapchat, text messages and the telephone.  The text messages were often sexual in nature and obviously, because you pleaded guilty for starters, you knew that the complainant was 15 years of age, albeit approaching 16.  She saved your phone number in her contacts under 'Bubbly'.  You would buy her presents, including bath bombs, necklaces and lollies.  As I understand it from the material, she provided you with presents, including a teddy bear. 

9In any event, the actual charge of sexual penetration occurred sometime between 23 December and 31 December 2013.  The two of you met at Wonthaggi Plaza.  You went together in your car and were discussing having sex.  You asked her if she wanted to have sex with you and eventually the pair of you decided that you should not have sex.

10In the Crown opening, it says the complainant then changed her mind and told you that she wanted to have sex and you said, 'Are you sure?'  You and her then got in the back seat of the car.  Her pants were shifted down a short distance, as well as yours.  You then put a condom on and put your penis into her vagina for a short time.  It is most accurately described in the VARE, which your counsel very sensibly pointed out to me during the course of the plea.

11In that VARE, she said - and this probably in other material as well - 'We just did it once, and he didn't want to do it but I kind of wanted it'.  'Yep, tell me about that time?'  'He just didn't want to.  Yep, but I did'.  'He kept asking, yeah, like, he kept - he at first, he was like, "No, no", and then he asked - like, I was like, "But I want to", and he said, "Are you sure", and made, made it clear what I was doing.  Then we did it but not for long.  It was pretty much in and out'.

12She said, 'And then we just stopped'.  'What was he doing at that time?'  'He was just hugging me, he was just hugging me and then said, "I can't do this anymore", so he just stopped.'  She said that she was just lying there.  It was of extremely short duration and whilst offending of this nature can sometimes be very serious indeed, it is clear in the circumstances, here as it is become clear through your personal circumstances, that whilst the offence itself is inherently serious, this is far from being the worst example of it.

13What occurred after that is of more concern, from my position.  In any event, the complainant's mother found a photo and it ultimately ended up in you being interviewed and then, quite some time down the track, charged. 

14The Charge 2, the production of child abuse material, quite clearly, that was done in consensual way but it involves photos of you and her with naked torsos, you with your hand over her breast, intimately kissing, you asked to send naked photos and she sent one of her in the bath.  There was also one where she was in a sexual pose in a bra. 

15The possess child abuse material is a limited number of images which involve her and which are far from the worst examples of that that I have had described to me.  You were clearly aware of her age and, in those circumstances, to be seeking photographic material and the risk that can rise from that being transferred is pretty clear.

16The situation is that in the normal course of events, this would call for the application of general and specific deterrence, as well as denunciation and appropriate punishment.  In this situation, I do not think that a right-minded member of the community would regard severe punishment as being required. I sentence with a sense of sadness rather than a sense of any anger. 

17The materials provided by your counsel clearly point out that the principles arising in Verdins apply here.  Your moral culpability is lower than would be the case for others.  General deterrence must be sensibly reduced.  The report of Mr Kennedy, which was tendered on your behalf, says that your risk of reoffending is low and that would be my assessment of it as well.  So specific deterrence play little part in this sentencing process.

18Tendered on your behalf were a report from Mr Kennedy, a psychologist, a report from Mr Plu, a treating psychologist, as well as references from friends, including a former police officer who is quite well known to me, and it was clear that from that material, at the age of 28, you have got a mental age of probably around about 16.  Mr Kennedy says your mental age was congruent with hers and you are described in those reports as basically being a kid.

19You went to special schools, you have been diagnosed with an intellectual disability, though there is no certificate.  On one assessment, you function in the bottom 1 per cent of the population.  You have been diagnosed with mild autism.  As again, your counsel pointed out, autism does give you the capacity to remember numbers very clearly and can interfere a little with the overall general assessment in intelligence. 

20So I am prepared to sentence on the basis that you do function in the bottom 1 per cent and you have the usual problems with autism of not reading signs and social signs correctly and needing assistance; it is all those matters which give rise to Verdins and significantly reduce your culpability in these circumstances.

21Since the offending has taken place, you have been receiving counselling - I have read the report from Mr Plu - and you are clearly learning from that.  You have very strong family support.  You are largely dependent upon your family for your everyday needs.  When you ultimately left school, having, as I said, been engaged in special school, you worked at the RSL in Wonthaggi for about 10 years till a change of ownership removed you from that position. 

22Clearly, your autistic disability would have assisted you in maintaining that work because of the memory aspects of it, and it is obvious from that that you do have the desire, at least, to be a worthwhile member of your community.  The prospects of your rehabilitation should be very good, in my view, and the risk of you reoffending is clearly low.

23There are no victim impact statements which have been provided; I simply make that point that they are not here, because I do not refer to any.  The references again point out what your general nature is like. 

24In all those circumstances, your counsel submitted that an adjourned disposition would be appropriate.  However, in my view, when you add up the totality of the offending, whilst I am not concerned about Charges 1 or Charge 3, necessarily, Charge 2, I think does take it out of the range of an adjourned disposition.

25Accordingly, I do propose to place you on a community corrections order.  You are not in the situation where a justice plan is appropriate.  The risk of you reoffending, I think, is low.  And accordingly, I do not think there is any of the problems that would be offered by Corrections of being of much assistance, and they are probably better off, those resources being utilised on others.

26However, in these circumstances there must be a display by the court of the seriousness of this.  You were clearly, by reason of some of the Googling that you were doing, aware of her age, aware of the wrongs of it, and there has to be a denunciation to an extent of that awareness and continued wrongdoing. 

27In all those circumstances, I am prepared to place you on a community corrections order.  Bearing in mind the nature of the offending and your age, chronological age, at least, you will have to be with conviction.  I direct that you perform 150 work hours and that the order exists for a period of two years, commencing tomorrow.

28As has been discussed with your counsel, you will be reporting to, if you agree, you will be reporting to Wonthaggi Corrections in the next day or so and a redacted copy of your psychological report can be given to them by your family so that they are well aware of your personal difficulties when assessments are made as to where you could do those work hours. 

29I make it clear that it would be my desire that whilst you have to do them as a form of punishment, that they be done in as least a vulnerable set of circumstances as can be organised.  What you will also understand, I am sure, Mr Davis will explain to you, was that as soon as those work hours are complete, the community corrections order is complete as well.  In that situation, do I do a 6AAA?  I do not think I do, do I?

30MR GRAY:  I believe you do, Your Honour.

31HIS HONOUR:  Yes, all right.  Based on the plea of not guilty, I would have put him in a community corrections order with 250 work hours.  No other orders, gents?

32MR GRAY:  Yes, Your Honour, there were some disposal orders sought for the mobile phone, which was ‑ ‑ ‑

33HIS HONOUR:  I have made that, I believe.

34MR GRAY:  You have made that?

35HIS HONOUR:  Yes.

36MR GRAY:  Thank you, Your Honour.

37HIS HONOUR:  Four six four, I have made.

38MR GRAY:  Yes, and the sex registration order?

39HIS HONOUR:  That has been done.  There is not an order but yes, that has been done.

40MR GRAY:  Thank you, Your Honour.

41HIS HONOUR:  Yes, all right.  So if you just want to sign that CCO for me?  Yes, if you would not mind again going down with him, Mr Davis?  All right, that order has been made.  Just stand up for me for a moment, if you would, Mr Wilkinson?  You have been put onto a community corrections order.  There is 150 work hours that have got to do, you can work out how that is done, weekends.  You are unemployed, you may be able to do work during the week.  And I am operating on the basis, as I know, whether they will be able to place you in a situation where you can be doing something useful, all right?

42What you have got to understand is if you reoffended in this way or anything like this way over the next couple of years and get brought back before me, all right, on a breach of this, I have to work on the basis that you paid not attention to all this, all right?  and if you come back you will be in serious trouble.

43OFFENDER:  Yes, Your Honour.

44HIS HONOUR:  Fair enough?  All right.  Yes, thanks for that, Mr Davis, I appreciate it; Mr Gray. 

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