Director of Public Prosecutions v Wilkinson (a pseudonym)

[2019] VCC 303

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN WILKINSON (A PSEUDONYM)

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 March 2019
CASE MAY BE CITED AS:	DPP v Wilkinson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 303

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten	Office of Public Prosecutions
For the Accused	Mr P. Skehan	Kavanagh Lawyers

HIS HONOUR: 

1John Wilkinson[1], in May 2002 you went to your brother's house in Echuca.  He was in dispute with his son.  You went to help resolve matters.  You stayed overnight, sleeping in the bedroom of the victim, then aged 14. 

[1] This is a pseudonym name.

2In sharp contrast to what motivated you to be there, that is helping sort out relationships as part of a close family, something that has continued with you over the years as they went on - but in sharp contrast to that you comprehensively breached the trust of the victim, the trust she was entitled to have that she was safe having her uncle sleep in her bedroom, the sense of trust that she was entitled to have that she was safe in her own home and safe in her own bed. 

3You chose to put your perverse sexual gratification above her dignity and sense of safety.  You got into her bed in the early hours of the morning, removing her underwear and your own, and violated her by rubbing your erect penis between her buttock cheeks for some minutes.  You also groped her breasts.

4The prosecution ultimately laid an indictment with a single charge of an indecent act with a child under the age of 16.  Following a successful sentence indication application, you pleaded guilty to that single charge.  As was said during the sentence indication hearing, and necessarily it needs to be repeated here, your offending was a serious example of that offence.  It was vile conduct and you should be ashamed that you acted like you did to a child aged 14.  You were a 47-year-old adult who knew what you were doing was wrong and abhorrent. 

5The victim was able to speak of what you had done some months later to a school nurse.  The allegation became known to child protection authorities.  The victim's parents turned on her, supporting your false denials.  This has gravely affected the victim, as her victim impact statement made clear.  You knew your false denials were having a divisive impact on family relations, but you maintained them up until the first day of your trial, when the sentence indication was proposed and resolved the matter.

6The impact on the victim has been considerable.  The courts have in recent years learnt just how debilitating sexual abuse can be on victims.  It is, as is the case here, usually long-term and debilitating, as I have indicated.  The victim wrote and spoke in compelling terms.  She says she felt she was not good enough for anyone.  She could not trust males, especially in relationships, because she did not feel loved by them, "Because my uncle sexually abused me and took the greatest thing from me, being love".

7She said it destroyed her marriage because she did not know how to accept love.  There were days that she wanted to commit suicide because she felt alone.  That is a grave matter.  The nightmares were the worst, she said, and she would wake up crying and screaming.  She speaks also of the breakdown in her own family relationships.  What the courts know is that sexual abuse within families is destructive of important family relationships.  This is another example of that. 

8The victim writes at the conclusion of her victim impact statement something of what I take to be the vindication.  She says:  "I have a voice, I always speak the truth.  I am strong, brave and have courage.  I do deserve the best.  I'm not ashamed anymore.  I am free".

9As to your personal circumstances you are now 64.  You have not been in trouble with the law before or since.  You are entitled to call on your previous good character in seeking a merciful sentence.  You migrated with your family from Italy in your early teens.  You had no English and did your best at school.  You and your siblings had English lessons at home from a teacher at your school to try and get ahead.  You left school at 15 and have since had an impressive work history.

10In the main you worked in pizza shops, running your own business for over a decade, six days a week and long hours.  You moved from that to another pizza shop out of generosity.  That is to be closer to where your ailing father was.  You looked after him for many years.  Your efforts to assist your younger sister with the real difficulties that she faced with an ill child are commendable.  As I said earlier, both before and since your offending you have done much to support and foster close family relationships.

11You do have the benefit of a close family and that support.  It stands in contrast to where the victim was for many years.  This has continued, that is your commendable efforts to support particularly your younger sister.  That has continued as you have assisted your nephew, who was ill as an infant and now suffers from an intellectual disability.  You are an ongoing help to your sister and her grandchildren and you aided her through difficult times with the marriage breakdown.  You have been in a relationship since about 2006.  You help with a stepchild and step-grandchildren, in particular a young lad about three who you see, as I understand it, on a daily basis. 

12You worked for a decade or so in a commercial butcher's business, retiring only relatively recently when the business moved across town.  You live now a simple life, much of it involving assisting your family.

13A plea of guilty in this matter was of real value.  It enables a lesser sentence, or compels a lesser sentence, and importantly it allows for a sentence of a different kind.  The victim was relieved that her truthful account was now accepted.  I could see that as she listened to your plea of guilty.  As I have made clear, vindication is important in child sexual assault matters.  The victim impact statement in this case is evidence of that.

14I do not discern any remorse other than your acknowledgement now that you committed this abuse of your niece in the past, but I do not see you as a risk of reoffending into the future and I take well into account that this was your only criminal offence in your 64 years.  Thus the key sentencing purposes here denunciation of your abhorrent, opportunistic sexual offending and deterrence to others who may be minded to take an opportunity to sexually abuse a child. 

15Those that do enter that dark realm must be assured that the courts will deal with them sternly.  There must be punishment, but gaol as the punishment of last resort is not required in this case.  A community corrections order is a just and appropriate punishment and it still operates as a deterrent.  I consider in all the circumstances that the community corrections order sought by your counsel is what is required rather than a gaol term wholly suspended.  I factor into the equation your age in respect of the length of the community corrections order and the amount of unpaid work to be done.

16Before announcing the sentence I indicate, having considered the matter and the submissions made by your counsel and that of the prosecutor, I intend to make an order that you provide a forensic sample.  The offence here is serious and the granting of the application sought by the prosecution is not wholly about ongoing risk.  You will be required to provide a forensic sample; the circumstances of that will be explained to you shortly.

17I also note that due to the nature of your offending that you must - and it is a mandatory matter, I have no discretion, but you must register on the sex offenders register and remain on that register and compliant with all its conditions for eight years.  There will be documents produced shortly that will explain a little of your requirements and obligations.  Do not doubt that they are onerous and a breach of the sex offenders registration would be a very serious matter.

18Mr Wilkinson, can you please stand.

19For committing the crime of an indecent act on a child under the age of 16 you are convicted and placed on a community corrections order, the length of which is 20 months starting today.  The conditions of that order will be explained to you.  The one special condition that applies to you is that you must do 140 hours of unpaid community work within that 20-month period.  Had you pleaded not guilty to these offences I would have imposed a sentence of imprisonment.  It would have been two years and six months with a non-parole period of 16 months.  These matters are serious and your plea of guilty has relieved you of the risk of a significant time in prison.

20However, let me make it clear to you that should you breach the community corrections order that I have just imposed you will return back to me and the mercy shown to you here today will not be repeated.  The inevitable outcome in my view will be that you will be placed in prison.  Do you understand that?

21OFFENDER:  Yes, Your Honour.

22HIS HONOUR:  Thank you.  Take a seat while some documents are produced.  Where does he live, Mr - - -

23MR SKEHAN:  Keilor.  Sorry - - -

24HIS HONOUR:  Sunshine Community Corrections?  In respect of the forensic sample, Mr Wilkinson, what happens is that a window opens up in which you must get down to the police station that is in Keilor Downs and have the sample taken.  The window opens in 28 days and it is open for 28 days.  Do you follow that?

25OFFENDER:  Yes, Your Honour.

26HIS HONOUR:  Thank you.  About to have your lawyer give you two documents.  One will be the community corrections order.  It is for 20 months, as I explained.  The mandatory terms that apply to all community corrections orders are these:  you must not commit an offence for which you can be imprisoned during the time that the order is in force, so for the next 20 months you must continue to do what you have done all your life except for this offending, that is not commit any offence.  If you do you breach the order.  The other aspects that I must explain to you that are mandatory conditions are essentially about your cooperation. 

27You must comply with any obligation or requirement under the sentencing regulations.  I am told that means they will need to take a photograph of you so they know who you are.  Just cooperate.  You must report to and receive visits from the Office of Corrections, you must report to the community corrections centre there at Sunshine, the address is here, within two clear working days of today.  You must let them know at the community corrections office there within two clear working days if you change your job or your address.  You must not leave Victoria without getting permission to do so and you must obey all lawful instructions and directions from the Office of Corrections.

28They are the conditions that are mandatory and apply to everyone.  The special conditions applying to you are that you must perform 140 hours of unpaid community work over the 20 months.  If you sign that document, it brings the matters here to an end.  Also your lawyer will bring down to you a notice of reporting obligations pursuant to the Sex Offenders Registration Act.  What is requires is that I sign a document saying I have given you a document.  You must sign a document to say you have got the document.

29But it is the content of the document that you keep that is critical.  It will outline all the obligations upon you in respect of registering and then complying with the sex offenders register.  They are onerous.  They include all sorts of personal details.  They also include, and necessarily you will have to talk to them about, your involvement and contact with children.  You need to make that clear and you have to do that straight away given that you are in the company of children, your grandchildren or step-grandchildren, regularly.  Would you sign that document.

30Other than these matters that we have spoken about, is there anything else required?

31MR BATTEN:  Yes, would Your Honour warn Mr Wilkinson about the fact that reasonable force can be used if - - -

32HIS HONOUR:  Yes, of course.  Thank you.  I got distracted away to speak about the sex offenders register and the community corrections order.  I want to go back, Mr Wilkinson, just before your solicitor takes your attention away, pay attention to this, that when you go down to the police station to have the forensic sample taken, if you do not cooperate with them, they are entitled to use - that is the police down there are entitled to use reasonable force to secure the forensic sample.  The way through it is to cooperate.  Thank you.

33Is there anything else?

34MR BATTEN:  No, Your Honour.

35HIS HONOUR:  Thank you.  Once he has signed those documents he can leave the dock.

36The informant is here.  I am grateful for her involvement.  There is not much more that needs to be done here.  Mr Wilkinson will leave the dock soon.  If Ms Wilkinson[2] wishes to leave at any point then maybe now is the time.  Thank you.

[2] This is a pseudonym name

37You have signed that order, you will get a copy.  I note the acknowledgement is signed by Mr Wilkinson, that he has received the documents, the reporting obligations, the reporting period, and that will be forwarded to the Chief Commissioner.  Anything further? 

38COUNSEL:  No.

39HIS HONOUR:  I am grateful to counsel for their considerable assistance.  Thank you.

- - -