Director of Public Prosecutions v Wilkinson

[2017] VCC 1560

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00872

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAWN WILKINSON

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 October 2017
CASE MAY BE CITED AS:	DPP v Wilkinson
MEDIUM NEUTRAL CITATION:	[2017] VCC 1560

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. Moore
For the Accused	Mr J. McLoughlin

HIS HONOUR: 

1Shane Wilkinson, you have pleaded guilty to one charge of persistent sexual abuse of a child under 16, one charge of possession of child pornography and two charges of persistent contravention of notices and orders.  You have admitted your criminal history which contains the relevant matter of a without conviction undertaking in the Benalla Children's Court on 2 June 2015, indecent act with a child under 16, a different person to the one who is involved in your offending here.  The victim in this case and her mother have declined to make victim impact statements. 

2The facts of the matter are set out in Exhibit 1, the summary of prosecution opening.  Any reader of these reasons can refer to that exhibit to place the sentence in its full factual context.  Briefly stated, you had a sexual relationship with the victim when you were 20 years of age and she was 13.  It is apparent that at the later stages of this relationship, the victim's mother was aware of the relationship and did not report it.  Her father, who was not living with the family, found out about it after reading some text messages and contacted the police and that is how the matter came to their notice.

3On an examination of the phone and text messages, it is clear that they are of a serious sexual nature.  These messages were located on your mobile phone.  On 20 September 2016, a safety notice was served on you and an interim intervention order was served on you on 27/09/2016.  The conditions of such orders included that you not have contact with the victim.  You breached these orders by further text messaging and speaking to the victim on
20 November 2016.  You in fact met her in Benalla.

4When asked about this in the record of interview as is set out in paragraph 53 of the prosecution opening, you said you considered the complainant your girlfriend and wanted to be with her.  You made admissions to continuously breaching the intervention order.  You told police you were not supposed to see the complainant and understood the conditions of the order.  You stated you did not care because you and the complainant wanted to be together and you would continue to see her.  You also said that your friend had been used by you to pass on messages to the complainant and for him to give her his phone so they could talk.

5As the prosecutor has pointed out again this morning, this is a serious example of this type of offending.  There is a significant age gap of around seven years between you and the victim.  There was presumption of harm to the victim and the contents of the messages and photos are of a serious nature. 

6The matter resolved at a committal mention stage on 4 May 2017. You are to be registered under the Sex Offenders Registration Act for a period of life and I will make a s.464ZF(2) order at the end of these reasons.

7On your behalf, Mr McLoughlin in mitigation relied upon the following factors:  (1), your early plea of guilty which I accept was early, it is an acceptance of responsibility by you of your behaviour and has saved the court the time and expense of a jury trial and it has saved the complainant from giving evidence in front of a jury.  In my view, a plea of guilty in these types of matters cannot be overestimated.  These are the sort of matters in which accused should be encouraged to plead guilty by obtaining an observable discount for their behaviour, not a token one.

8(2), Mr McLoughlin submitted you had made full admissions to the police. 

9(3), He relied on your age - you are a young offender, and indeed in the report of Dr Gee, you are described as an immature person.

10(4), He submitted you have good prospects of rehabilitation and he relied on your good work record and at the time of the plea, you were working with your father.  It has now been pointed out to me that that is no longer the case.  He had submitted a work reference from Nicky and Andrew Bough which says that you're a good worker, and a number of certificates and other matters setting out courses that you have undertaken. 

11(5), He told me of your personal circumstances which are also set out in the two psychological reports that were tendered to me. 

12You were born in Wangaratta.  You grew up with your family.  There are two younger siblings.  Your father was working in Melbourne as a cleaner.  Your mother and the kids moved to Werribee where you went to school.  When you were about nine, your father left the relationship.  It is said in the report of Dr Turnbull, you had a dysfunctional lifestyle from there on in although you were reasonably well behaved at school.  You completed Grade 10 halfway through to halfway through Grade 11 then you learned shearing with your grandfather.  Your personal circumstances are more fully set out in those reports.

13(6), Mr McLoughlin relied on the support that you have from your family and again this morning has indicated the number of family members who are present.

14(7), He referred me to both the tendered psychological reports.  The first one, as I have said, is from Dr Leon Turnbull, which unfortunately was deficient in certain aspects, but he concluded that you had not succumbed to any diagnosable psychiatric illness, and he said you had no specific paedophilia interests.

15More importantly, a report was obtained from Dr Gee, who is a Forensicare psychologist, and a man very well-qualified to give evidence in respect of these types of matters, and also about the position of offenders in the penal system. 

16In addition, he also gave evidence upon the plea.  He said in paragraph 11 you did not currently present with an enduring psychotic illness.  He referred to your past abuse of alcohol, said you demonstrated features of a borderline personality disorder with egotistic and sadistic features. 

17He said it highlighted an emerging disturbance in personality function.  He said that your history of abhorrent behaviour does not currently meet, nor has it seemingly ever fulfilled the criteria for a paedophilic disorder.

18He said you present with a desire to avoid sexually abhorrent behaviour, but lack the requisite skills and competencies to meet your needs in a more adaptive, pro-social and meaningful way.  He said you were an unsophisticated, highly-distorted, adolescent.  You appear to lack insight into the needs of others.

19He said that in relation to risk, you are a moderate risk of reoffending sexually in the future.  He said you:

"…would benefit from a disposal that would afford you an opportunity to access supports and intervention services needed to enhance your mental wellbeing and avert the possibility of future aberrant behaviour; many of which he will struggle to secure within a custodial environment as a sentenced prisoner".

20He said:

"If it were the case that Mr Wilkinson was afforded the opportunity to access suitably tailored psychological intervention in a timely manner, he would present a good prognosis for rehabilitation."

21At paragraph 20 he said, in relation to the impact of imprisonment:

"…acknowledging that imprisonment often results in considerable distress for the average offender, Mr Wilkinson's impaired mental functioning would likely see incarceration weighing more heavily on him than that of a person of normal mental health".

22In his report in the part headed "Recommendations" in paragraph 24, he said that:

"It is recommended that consideration be given to addressing the below mentioned areas of psychological criminogenic need, as without an integrate and holistic approach to service provision, it would be unlikely that the goal of desistence from offending will be achieved".

23He said you require a suitably tailored, group-based sexual offender intervention program, like that runs through Corrections Victoria.

24In his evidence before me, he said that he had seen you for roughly four hours, and in fact had seen you briefly on the morning of 16 August 2017 when he gave evidence.  He said you are not emotionally at the age of a 20-year-old or a 21-year-old (p.31).  He said "he is functioning more as a late adolescent at this point in time."

25He referred to your use of alcohol at p.33, and asked whether he would categorize your conduct as predatory, at p.34 he said no.  He said you were deemed to be in an avoidant passive pathway, "whereas he is an individual who would prefer not to commit offences.  He just does not have the skills to keep himself out of it because he is immature."

26In relation to the impact of imprisonment, he said at p.35:

"It would be unlikely meet many of the psychological needs that he requires out there…. As a sentenced prisoner, he is going to struggle to have his psychological needs met inside."

27At p.36 he said:

"He is immature. He is going to struggle inside.  He is very naïve when it comes to the criminal justice system.  He is vulnerable in a prison system full stop."

28In relation to a sex offender's program on a community corrections order, he said that that was possible.  He said that you need to do a program. 

29At p.40 in cross-examination from Mr Moore, he said:

"In my view, he is actually immature.  He has not learnt how to get them in a functional adult relationship yet."

30He said:

"I am not of the view at this point in time that his behaviour is locked into a deviance where he is seeking out vulnerable children to have sexual encounters with, I do not believe that."

31There were questions about what is called "sexual texting", which form the basis of the charges referrable to that, and his evidence certainly surprised me as to the attitude of young people towards that, but he made it clear that it is a very undesirable pattern in society for young people to be engaged in such behaviour.

32Mr McLoughlin submitted that I could consider a non-custodial community corrections order.  I then asked for an extended presentence report, which I received.  The report is dated 22 October 2017.  I have to say, it is not as extended as I hoped it would be, but it is what it is.

33It sets out your risk need profile, and it is recommended that you be placed on a community corrections order, with conditions of alcohol dependence, mental health programs to reduce offending, and there was some issue about a work condition, because at the time of speaking to the writers of that report, you were still at Merton with your father.  I have now been told you are in Benalla with your grandparents, and in a different job.

34In sentencing you, I have to consider a number of factors.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community to seek to ensure as far as possible offenders are rehabilitated into society.  I express my denunciation of your behaviour. 

35The purposes for which a court may impose sentence are:  punishment; general deterrence, that is to impose a sentence that will deter others from committing like offences; specific deterrence, which is relevant to you because you have a prior conviction for a similar matter; general rehabilitation; denunciation, and; protection of the community.

36In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.

37I have taken into account all of the submissions made, both by the prosecutor and your counsel.  This has not been an easy sentencing case for me to decide, but for a number of reasons, I have decided to place you on a community corrections order.

38First, the plea of guilty, it is an early plea, and as I have said you cannot place enough value on a plea of guilty in these types of cases.  And secondly, I was very impressed by the evidence and report of Dr Gee.  And he has convinced me of a number of things.  That you are an immature person, that you need assistance, and that it is unlikely that if you were put into custody, you would obtain the total assistance that you need to help you cope with your life, particularly in relation to sexual relationships. 

39You are otherwise, apart from this type of offending, of good behaviour.  You have a good work record, you have family support.  You used to drink a lot, and apparently you do not anymore, so they are all factors I take into account.  But do not think that because I am placing you on this type of order that it is not considered by me as a serious matter.  You know what you were doing was wrong, you breached orders knowingly, you engaged in serious sexual texting with a young girl, who was 13.  You just ignored orders that were made.

40Weighing up all those matters, as I said it has been a decision that I have thought long and hard about.  I am going to place you on a community corrections order for a period of three years, with conditions that you do 200 hours community work in the first two years, with conditions that you have treatment and assessment for alcohol dependence, mental health, and programs to reduce reoffending, and in particular, assessment for the sex offenders program.  There will be a supervision order, and there will be a special condition that you not contact, see, have anything to do, with the complainant until she reaches the age of consent. 

41I make an order under s.464ZF for the taking of a forensic sample.  I consider the seriousness of the offending and make the order having considered that and the fact that it is not opposed.  If when police - and I think you have to report to Bendigo Police Station.  If you do not do that and decide not to undertake the forensic procedure, police can use reasonable force to enable that procedure to be undertaken.

42Do I have to do a s.6AAA?

43MR MOORE:  No.

44HIS HONOUR:  Sorry Mr Moore?

45MR MOORE:  No Your Honour.

46HIS HONOUR:  No?

47MR McLOUGHLIN:  No, because I think - you are not imposing a sentence of imprisonment, Your Honour.  I think that that is Benalla police, rather than Bendigo.

48HIS HONOUR:  Benalla police, sorry yes, all right.  Sorry, did I say Bendigo?

49MR McLOUGHLIN:  Yes.

50HIS HONOUR:  All right, I know I have the order here somewhere.  Are there any other matters that I need to attend to?

51MR McLOUGHLIN:  My learned friend's instructor reminds me that there may be some presentence detention.

52HIS HONOUR:  Well I do not have to declare that, as he is not doing a sentence.

53MR McLOUGHLIN:  No, I think that is right, yes Your Honour.

54HIS HONOUR:  You would agree with that, Mr Moore?

55MR MOORE:  I do, Your Honour.

56HIS HONOUR:  Thank you.  If we cannot find the order here, you will get your instructor to fax one to my associate, Mr Moore?

57MR MOORE:  Yes Your Honour, she is at the Bar table, so she can do that.

58HIS HONOUR:  Yes, she is, thank you.  Sorry, I did not see you there.  I will sign that order.  You are on the Sex Offenders Register for life.  You will be asked to accept service of documents in respect of that.  It is a matter for you whether you accept them, but Mr McLoughlin will take them up to you.  There we go.  All that material will be produced, just take a seat for a moment. 

59MR McLOUGHLIN:  No, no, sorry, it is Wangaratta for the community corrections.

60HIS HONOUR:  He will have to report to Wangaratta.

61MR McLOUGHLIN:  That is where the CCO report was done I think, Your Honour.

62HIS HONOUR:  Sorry, sir why are you standing up there?

63VOICE:  I have had back surgery, I cannot sit for extended periods, sorry. 

64HIS HONOUR:  All right, well perhaps if you just go to the other side of the court please.

65VOICE:  Yes, sorry.

66HIS HONOUR:  Wangaratta, yes.  Mr Moore, if you want me to turn you off, I am happy to do so and let your instructor stay here.

67MR MOORE:  I would be grateful for that.  Thanks very much for accommodating me, Your Honour.

68HIS HONOUR:  No, it is fine.  Thank you Mr Moore.

69MR MOORE:  Thank you Your Honour.

70HIS HONOUR:  Turn Mr Moore off.  I assume, Madam Instructor, you are happy to do that?

71PROSECUTION INSTRUCTOR:  Yes Your Honour.

72HIS HONOUR: Thank you. Mr McLoughlin, you can explain to your client the onerous obligations under the Sex Offenders Registration Act, and the failure to comply with them.

73MR McLOUGHLIN:  I can Your Honour.  Yes.

74HIS HONOUR:  Which would breach the CCO.

75MR McLOUGHLIN:  Yes.

76HIS HONOUR:  It is a common breach of a CCO.

77MR McLOUGHLIN:  Yes, I will go through that in some detail, Your Honour.

78HIS HONOUR:  All right.  Thank you, take that up to your client thanks,
Mr McLoughlin.

79MR McLOUGHLIN:  Yes.  Thank you Your Honour, those documents have been signed. 

80HIS HONOUR:  Mr Wilkinson, can you stand up please, sir?  You have signed the community corrections order saying you understand the effect and conditions of the order and consent to it being made, is that correct?

81OFFENDER:  Yes.

82HIS HONOUR:  Now, let me make it clear to you that if in any way you breach the order, you will be brought back to court, and the court will then look at another sentencing outcome, which may well be imprisonment, do you understand that?

83OFFENDER:  Yes.

84HIS HONOUR: That is in any way. So turn up to appointments that are made, undertake community work, comply with lawful directions from Corrections. Comply with your obligations under the Sex Offenders Registration Act, and comply with the order in respect of the complainant. Do you understand all of that?

85OFFENDER:  Yes.

86HIS HONOUR:  All right.  If you breach it in any way, you are then charged with a breaching offence, which in itself carries a penalty of three months, and you will be dealt with all these other offences in addition.  If you do it before 22 May, it will be before me, if you do it after, it will be before someone else next year.  Thank you.  I shall come back at 11.

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