Director of Public Prosecutions v Wilkinson

[2014] VCC 206

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

AT LATROBE VALLEY

CRIMINAL DIVISION

Case No.

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE ANDREW WILKINSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 February 2014
CASE MAY BE CITED AS:	DPP v Wilkinson
MEDIUM NEUTRAL CITATION:	[2014] VCC 206

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:     
Cases Cited:            
Sentence:                 

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APPEARANCES:	Counsel	Solicitors
For the DPP	MR D Gray	Mr C. Hyland Solicitor for Public Prosecutions
For the Accused	Mr R Davis

HIS HONOUR:

1       Shane Andrew Wilkinson, you have pleaded guilty to one charge of indecent act with a child under 16 and one charge of sexual penetration of a child under 16.  Those crimes carry maximum penalties of ten years' imprisonment. 

2       You pleaded guilty at the earliest reasonable opportunity and I accept that that plea is accompanied by appropriate remorse.  You must also get the utilitarian benefit of that plea.

3       Charge 1, indeed, is based entirely upon an admission made by yourself and it seems clear to me that had you not been so cooperative in your record of interview, that the odds are this matter would never have been proceeded with.

4       You have no prior convictions and you have no matters pending.  You are now 27 years of age.

5       There has been a very significant delay in the matter.  As I understand it, the offending took place in July of 2011.  You were then sacked from your employment some time after that but you were not even interviewed in relation to this matter until December of 2012 and you now plead guilty before me.  That is a very significant delay indeed.

6       Firstly, because of the nature of the offending, you will be subject to the sex offenders register and I advise you that the reporting condition will be for 15 years. 

7       The circumstances of the offending were that back in 2011, you were the night manager of McDonald's restaurant in Traralgon.  After completing work on 17 July 2011, you attended a friend's home to have a drink.  The complainant in the matter was also at that address and was drinking.  He was 15 years and eight months of age.  He had drunk quite a lot and indeed you at one stage took alcohol off him saying he had had enough to drink.  I accept that you did not purchase alcohol for him. 

8       In any event, you and the others went for a drive in a car.  You were in the back seat of the vehicle with the complainant, being driven around by a designated driver. 

9       During the course of the trip, these are based upon mainly your admissions, in the back of the vehicle you started kissing the complainant.  You then helped him undo his pants after which you started to masturbate him and you then had oral sex with him.  The masturbation is the indecent act and the oral penetration is Charge 2.

10      The designated driver looked in the rear view mirror and observed part at least of what was taking place.  He stopped and exited. 

11      Shortly after that the complainant ejaculated.  He shortly after that vomited in the vehicle due to his level of intoxication and was taken home.

12      You, the next day, having spoken to the designated driver, rang the complainant and told him what had happened in the vehicle.  The complainant had no recollection of the incident due to his level of intoxication and said that he was embarrassed by the incident.  I note that the complainant has never made a statement and there is no victim impact statement that has been provided.

13      You indicated to had psychologist that you spoke to that you yourself had very little memory of the incident.  I am a bit concerned that some of your memory may have come from what you were told by the designated driver but be that as it may, there is no dispute that this is what occurred and it has got to be regarded as serious offending.

14      It is trite to say that offending against children, albeit an age of 15 years and eight months, calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.

15      A custodial sentence is often the consequence of a matter such as this.  I look to the matters personal to you.

16      Tendered on your behalf was a report from Dr Simon Kennedy, a psychologist.  That report will remain on the court file. 

17      It seems to me that his conclusions adequately address the issues.  He said that you have had problems with self esteem and low levels of depression since childhood.  He said that that had possibly been influenced by your awareness of being bisexual from age 15 years onwards.  You have had few sexual relationships.  He assessed you as being at low moderate risk for re‑offending despite the nature of the offence. 

18      He indicated that the incident was affected significantly by your alcohol abuse and there is no evidence to suggest that you are in any way predatory and you are definitely not paedophilic. 

19      He suggests that one of the reasons for the offending is that it is due to a lack of confidence on your part in being involved with individuals of your own age.  He points out that you have made appropriate changes to lifestyle since and had, at the time of the report, remained employed.

20      You had been dismissed from McDonald's about six months after the incident.  Why it took that long, I do not know, but that was the position that you had held since you left school and you clearly are a person who has worked and is capable of working.

21      Subsequently, you had a job as a kitchen hand in an aged care facility but I understand that because of an injury, that has become somewhat more problematic. 

22      Mr Kennedy points out that you have no antisocial personality traits and he confirms that your remorse is established.  He does say that you need some further insight and the disposition that I am going to give will provide that by way of the sex offenders program.

23      I have had you assessed for such a program and they have assessed you as being a low risk of re‑offending and suitable.

24      You are in stable accommodation and the prospects for your rehabilitation, with the assistance of Corrections, are good.  I think in your particular situation, the risk of re‑offending in this way, if you are careful about your drinking, is very low indeed and I obviously take into account the professional assessments of that which says it is low.

25      Bearing in mind your full and frank admissions, your remorse, the plea of guilty as well as the extensive delay and your previous lack of prior convictions and nothing pending, I think that a Community Corrections order is within the range that can be applied in your particular situation.  It will be with conviction, which is a punishment in itself and obviously it will be of a significant duration with work hours.  The sex offenders program is the community protection that will be given.  One can only hope that all this works out, in the long run, for you.

26      Accordingly, taking all those matters into account, if you agree, you will be released on a Community Corrections order for a period of three years.  It will be with conviction.  There will be 300 work hours.  There will be mental health assessment and treatment and undergoing programs or courses aimed at addressing factors relating to the offending, which will be the sex offenders course.  I also say that any of the treatment hours which you undergo, can be set off, as allowed by the Act, against the work hours.  I will not designate a set amount of hours that can be completed by treatment but simply say that all the treatment can be set off against it because I do not know how many hours of treatment there will be.

27      Any other orders I have to make, other than getting him to sign it? 

28      MR DAVIS:  No, Your Honour.

29      MR GRAY:  No, thank you, Your Honour.

30      HIS HONOUR:  That order is made.

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