Director of Public Prosecutions v Williamson

[2016] VCC 886

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMMANUEL WILLIAMSON[1]

[1] Is a pseudonym

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2016
DATE OF SENTENCE:	23 June 2016
CASE MAY BE CITED AS:	DPP v Williamson
MEDIUM NEUTRAL CITATION:	[2016] VCC 886

REASONS FOR SENTENCE
---

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

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Cecil	OPP
For the Accused	Mr R. McCloskey	VLA

HIS HONOUR: 

1Emmanuel Williamson[2], on 22 June 2016, you pleaded guilty to the following charges.

[2] Is a pseudonym

2Charge 1, an indecent act with a child under 16 years, the maximum penalty for that is ten years' imprisonment.

3Charge 2, sexual penetration of a child under 16 years, the maximum penalty for that charge is ten years' imprisonment.

4Charge 3, sexual penetration of a child under 16 years, the maximum penalty is ten years' imprisonment.

5Charge 4, an indecent act with a child under 16 years, the maximum penalty for that is ten years' imprisonment.

6Charge 5, sexual penetration of a child under 16 years, the maximum penalty for that is ten years' imprisonment.

7Charge 6, sexual penetration of a child under 16 years, the maximum penalty for that is ten years.

8Charge 7, failing to comply with the reporting conditions of the Sex Offenders Registration order, the maximum penalty for that is five years' imprisonment.

9You have also pleaded guilty to two summary charges.

10Charge 7, contravene the family violence order, the maximum penalty for that is two years’ imprisonment.

11Charge 8, contravention of a family violence order, the maximum penalty is two years' imprisonment.

12After you were arraigned and pleaded guilty to the foregoing charges, you admitted the breach of a CCO imposed on you by this court on 1 September 2015.  The relevant charges of the breach from that indictment are Charges 1, 2, 3 and 5.  There were three charges of failing to report on the sex offender register and one charge of indecent act with a child under 16 years.

CIRCUMSTANCES OF OFFENDING

13You were released from prison on 25 September 2015. The background of your offending is as follows. 

14At the time of the offending you were 20 years old.  You went home and resided at your father, Kev Williamson[3], and your stepmother, Sherry Pressley’s[4] residence.

[3] Is a pseudonym

[4] Is a pseudonym

15Your father has three children to a previous relationship, the first is you, the second is Ash Williamson[5] who was born in 1998, and the third is Candyce Williamson[6] who was born in 2000.  Your stepmother, Sherry Pressley, has three children from a previous relationship, Sophie Pressley[7] who was born in 1999, Elyse Pressley[8] who is the complainant in this matter, born in 2001; and Reagan Pressley[9] who was born in 2005.  Kev Williamson and Sherry Pressley also have two children of their own, Ellis Williamson[10] and Reuben Williamson[11].

[5] Is a pseudonym

[6] Is a pseudonym

[7] Is a pseudonym

[8] Is a pseudonym

[9] Is a pseudonym

[10] Is a pseudonym

[11] Is a pseudonym

16Elyse Pressley, the complainant in this matter, was born in 2001.  At the time of the offending she was 14 years old and residing at your father and stepmother’s property, with her parents and siblings. 

17By way of background, you were currently on a Sex Offenders Registry in New South Wales and you had been so since July 2013.  On 12 September 2013, you became a registered sex offender in Victoria.  One of your obligations was to reside at an address known to police and which was not your father and stepmothers residence.

18You were also a respondent in a current intervention order, where the protected persons are your younger siblings, including Elyse.  You were not to contact or communicate with those protected persons, or approach or remain within five metres of the protected persons, or go or remain within 200 metres of your father and stepmother’s residence. 

19Since January 2013, DHHS Child Protection Unit had received five different intake reports where information had been received that you were having sexual relations with the complainant in this case.  On 5 November 2015, an interstate DHHS child intake report was received by the local DHHS Child Protection Office.  The notification stated that the complainant in this case was having sex with her older stepbrother, which was you. 

20On 10 December 2015, police investigators applied for, and were granted, an evidence warrant under s.465 of the Crimes Act for your father and stepmother’s residence.  On the following day the warrant was executed at that residence, and upon entering that premises you were located sleeping with the complainant in the double bed of a bedroom in the house. 

21The residence was searched and located in the same bedroom were items including packets of condoms, a used condom, and what appeared to be “love letters”.  That is, letters written by you to Elyse.

22Both you and the complainant were taken to the local police station at that time.  A VARE interview was conducted with the complainant, she confirmed that there had been a sexual relationship taking place with you.  You also took part in two records of interview with the police on 16 December 2015.  You admitted committing sexual acts on the complainant in this case.  You admitted you had sexual relations with your stepsister a month before you went to gaol in May of 2015 for other sexual offending. 

CHARGE 1

23In the record of interview, by way of admission you stated as follows:

24"And then after that, you know, I woke up, all that sort of stuff, nothing.  You know, nothing happened, and then the night that - like the night after, all that sort of stuff went - went in there, watched some movies again, you know, and then it must’ve clicked in her head, you know, that, “Oh, yeah, he wants me”,  all this sort of stuff.  Only 'cause I slept in her bed, you know?  Watched movies, fell asleep, and that's when, you know - that's when the - the sexual things happened.  If that -".

25And then the policeman injects "All right", and you say "--- makes sense".  Then the policeman says "Explain the sexual things to me, mate" and you reply "That's what I mean, I'm lying there, all that, watching the movies, you know, then she, you know, rolls over, kisses me on the lips, touches me on the dick, all that sort of stuff". The policeman says "Yep” and then you say “---you know what I mean, like".  Policeman’s question, "So how many times did you do this before you went to gaol?", and you reply "Three or four times maybe".  Policeman’s question "Right, how far did it go?", "Depends on which occasion, like -" is your answer.  Policeman's question "Well, tell me the three or four occasions, what you remember from the first one to the last".  Your answer "Fucking hell, like, twice, like, she kept, you know, rolling over, kissing me on the lips, grabbing me on the dick, all that, while I’m trying to watch TV".  "Yep" says the policeman. Your reply "And then I roll over, kiss her back. That was the first time, I think". 

CHARGE 2

26The record of interview goes on and by way of admission you stated as follows:

27The policeman states "Yep", and you reply "The second time, what happened -  must – like, the same thing, watching movies all that, rolled over, kissed me on the lips, grabbed me on the dick and I rolled over, you know?".  Policeman says "Yep", you say "Yeah, I'm trying to think, you know… sitting in the cells for that long", and the policeman says "All right", you say "My - my brain's froze, you know?  Like ", then the policeman "So all right, so the second time, yeah, similar sort of thing?"  You say "Yeah. And, like, you know, my fingers explored a bit, you know, all that sort of shit", policeman’s question "What are you saying, your fingers went where?", your answer "In her vagina while she had hold of my dick".  Question "Yeah", your answer "Which was the wrong thing to do, but I'm here now so I might as well own up". 

CHARGE 3

28The record of interview continues, policeman in response to something you said says "Yep", and then you go on "And then the other - do you agree that the time, I can't even fucking - yeah, it's only – and then the other time, yeah, and she grabbed me on the dick, all that sort of shit, same", policeman "Yep", you reply "Scenario, watching movies". Policeman "Yep", you reply "And then she, you know, grabbed hold of my dick and tried, you know, pulling the bucker over to put it in her vagina, all that sort of stuff". Policeman "Yep", and you replied "And then I went to put it in there and I'm like 'Nah, fuck that,' and then I put on protection and still done it, 'cause I'm a dickhead, but", and the policeman says "All right", and you replied "And that's exactly what happened, you know?".

CHARGE 4

29These admissions took place in the first record of interview.  You stated that you had been released from gaol in September 2015, and you were visiting the family at your father and stepfather’s residence.  You and the complainant were watching movies in her bed.  She then grabbed you on the penis and started kissing you whilst she was holding onto your penis.  This is an indecent act with a child under 16.

CHARGE 5

30You further stated that about a week after your release from gaol, the complainant started doing it again, that is, grabbing you on the penis and kissing.  You said that you took your penis out of your pants, she moved her pants to one side, and you placed your penis into her vagina, you used a condom for protection on that occasion.  This is sexual penetration of a child under 16.

CHARGE 6

31You also stated that you put your fingers into the complainant's vagina on two separate occasions.  That is sexual penetration of a child under 16. 

32In the sexual penetration cases where you were using your penis, you have used a condom. 

33As was noted earlier, you are the respondent in current intervention orders where one of the protected persons was the complainant and the other younger siblings.  Parts to the condition of that order were not to contact or communicate with the protected persons or approach or remain within five metres of the protected persons, and not go or remain within 200 metres of your father and stepmother’s residence.

SUMMARY CHARGE 7

34Under the Sex Offender Registry obligations, you were required to report your mobile phone number.  The police have a record of that.  The phone number revealed that you had contacted a stepsister, Sophie Pressley, on a number of occasions.  Child protection workers received information from the mother of the children, Sherry Pressley, that the phone had been used by Elyse Pressley, the complainant in this case.  The police have obtained the phone records and have established that you and Elyse Pressley have effectively communicated some 200 times between 2 November 2015 and 20 November 2015.  You were arrested in respect of that matter at the address of a protected person, or your father and stepmother’s residence.

SUMMARY CHARGE 8

35On 27 November 2015, child protection worker Taegan Norton[12] attended at your father and stepmother’s residence, where she observed and spoke with you.  The complainant, Elyse Pressley, was also present at the home.  When you were questioned about this you said that "You were told by police that you were allowed at the house, and that you stay at the house on weekends".  DHHS reported the breach of the intervention order to the local police. 

[12] Is a pseudonym

CHARGE 7

36You, as I said before, were put on the sex offender register for life. You informed the police of your residential address, this was not your father and stepmother’s residence. Under the Sex Offenders Register obligations, you have to give 24 hours’ notice to the police of any change of your address.  On 11 December 2015, you were located asleep at your father and stepmother’s residential address, and you were staying there on a semi-permanent basis.  You did not report that change of address to the police, which is the breach of the reporting conditions under the sex offenders register order.

37There is no victim impact statement from the complainant in this case.  The contravention of the community corrections order set out in the CCO report dated 14 June 2016 fully sets out the breaches in respect of that charge, and I will sentence you separately on that.

PERSONAL CIRCUMSTANCES

38You were born on 13 February 1995 and you are now 21 years old.  You have two direct siblings, 17 and 15 respectively.  You have lived with your father some of the time.  Your father has attended the plea hearing, and also this sentencing hearing today.  Your father lives on a small farm with his new partner and her children, and now their own children.  One of those children was the victim of your offending on the indictment.  You were meant to be living at a neighbouring farm after you were released from prison, which was 25 September 2015.  You were originally born in Griffith, and led your early life in New South Wales.  When you were eight, you moved to regional Victoria with your family.  Your parents separated, and you lived with your mother for a short time, and then moved back to live with your father.  These moves meant that your education was fractured.

39After finishing school at Year 10 you returned to a country town in Victoria where you had previously lived.  You met a person I will refer to as "CH" on Facebook, and had an 18-month relationship with her.  That relationship had two results for you.  One was a son, the other was a court case for sexual penetration of a child between 14 and 16 years old.  You were placed on probation.  This happened in July 2013.  You have returned to regional Victoria and have two prior court appearances for driving, burglary and intentionally cause injury matters, and you also have the matter now that you face for the breach of the intervention order.

40You have previously been incarcerated in December 2014 and September 2015.  It was on your release from prison in late September 2015 that you offended further here.  The first three charges on the indictment were offences committed prior to the total of your sentence for the 1 September 2015 matters.  You have been in custody since your arrest in December 2015.  The total of your presentence detention is 194 days. 

SENTENCING CONSIDERATIONS

41The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community.  In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for them, your personal circumstances and those of your victim.  I am required to balance those interests with the interests of the community in denouncing your criminal conduct with the interests of community in seeking to ensure as far as possible, you, as an offender are rehabilitated and reintegrated into society.

42You have pleaded guilty to these charges.  The plea was indicated at an early stage.  Your plea has the utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates public confidence in the legal process set up to protect the community.

43You have, by your plea, relieved your victim in this case, your stepsister, from giving evidence against you.  It facilitates some closure for her as a victim of your offending.  You plea also is a clear acknowledgement by you that you accept your responsibility for your criminal behaviour in this case.  Your plea also recognises that you are willing to facilitate the course of justice in the community. I will also accept that your plea to these charges indicates and demonstrates some remorse on your part.  Your answers to the record of interview confirm that.

44Under the serious offender provisions of the Sentencing Act, for your conviction sentence to a term of imprisonment in respect of Charge 1, I am required on the sexual offences charges thereafter, to regard the protection of the community from you as a principle purpose for which the sentence is to be imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered under s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offences.  This means that the sentencing task in respect of Charges 2 to 6 on the indictment is to be undertaken on the basis that the protection of the community from you is the principle purpose for which that sentence is imposed. 

45To achieve that purpose, a sentence may be imposed longer than that which is proportionate to the gravity of the offence, considered in the light of the objective circumstances. 

46Section 6E of the Sentencing Act also requires that unless I otherwise direct, with respect to Charges 2 to 6 on the indictment, the sentences I impose are to be served cumulatively. I note here that the Crown have not called for a disproportionate sentence for all of the cumulation contemplated under either s.6D or s.6E of the Sentencing Act, allowing for the matters I have already outlined.  In my view, it is appropriate to impose only that degree of cumulation, to which I subsequently refer, reflecting as it does the several episodes of your offending.  To do otherwise may produce a sentence which is not appropriate and is unjust.  I previously refer to the impact of your plea of guilty, and I have taken that into account when arriving at your total sentence.

47You are a young offender, now 21 years of age.  The main sentencing consideration for young offenders is rehabilitation.  In your case, at a young age, your prospects of rehabilitation are limited.  You have, by your pattern of offending, shown that your last period of imprisonment did not deter you from continuing your sexual offending against your stepsister.  The sentencing process is also informed by current sentencing practices. I take into account the sentencing practices of similar offending, but of course your offending is different from other offenders, as they are from one another.

48Your prior criminal history has a number of sexual penetration of young females as offences.  The main offending in this case is the same offending against one of your stepsisters.  You have offended in circumstances where you have had two types of court orders prohibiting you from having contact with her, or offending in general.  I am referring to the intervention orders, and the community correction order that I imposed.  You have just ignored those court orders and offended against your stepsister.  That is an aggravating aspect of your offences after your release from prison in September 2015. 

49The principle of totality is relevant in this sentencing process in two ways.  Firstly, you are to be sentenced for the offences making up your contravention of the CCO, they are Charges 1, 2, 3 and 5 for your sentence on 1 September 2015. Secondly, you are to be sentenced for multiple offences committed at the same or similar time in this indictment. 

50The totality principle requires the court to consider the total criminality involved in all of the offences for which you are to be sentenced.  It requires just and appropriate concurrency to reflect your criminality as a whole.

51You have been examined by Mr Warren Simmons, psychologist.  He prepared a report dated 13 August 2015.  This same report was tendered at your plea on 1 September 2015 for your previous offending.  Your composites score of intelligence testing was 76, meaning that 95 per cent of people would do better than you on this test.  You are below average range of intellectual functioning.  Mr Simmons assesses you as a high risk of reoffending.  He was right about that.  He does not assess you as a paedophile, but is of the opinion you are attracted to young girls because they reflect your level of emotional intelligence and maturity. 

52I also have to be mindful of whether you are particularly impressionable, immature, and likely to be subjected to undesirable influences in adult prison.  You have already been in adult prison on this occasion for some 194 days. 

53The balance of considerations is between the prospect of rehabilitation of you as a young offender, and just punishment for an offender such as yourself, who has offended in a similar manner in the past in a persistent way.

54I also need to take into account the need to protect young and vulnerable people from sexual offenders like yourself.  This raises the issue of general and specific deterrence in this case.  I have taken those matters into account when fixing the whole of your sentence. 

55Finally, the overriding sentencing considerations are protection of the community, specific and general deterrence, and just punishment for your offending. 

56Would you stand please?

57On the indictment before the court on this occasion:  on Charge 1 you are convicted and sentenced to two months' imprisonment; on Charge 2, you are convicted and sentenced to six months' imprisonment; on Charge 3 you are convicted and sentenced to 18 months' imprisonment; on Charge 4 you are convicted and sentenced to three months' imprisonment; on Charge 5 you are convicted and sentenced to nine months' imprisonment; on Charge 6 you are convicted and sentenced to two years' imprisonment, that is the base sentence; and on Charge 7, you are convicted and sentenced to six months' imprisonment.

58On Summary Charge 7, you are convicted and sentenced to three months' imprisonment; on Summary Charge 8, you are convicted and sentenced to three months' imprisonment. 

59I order the cumulation in respect of those charges as follows:  that three months of the sentence in Charge 2; twelve months of the sentence in Charge 3; six months of the sentence in Charge 5; and three months of the sentence in Charge 7, be served cumulatively upon the sentence in Charge 6.  That makes a total sentence in respect of the indictment charges and the summary charges of four years' imprisonment. 

60On the breach of the CCO charge, I find:  one, that that is proven; two, I cancel the CCO order made on 1 September 2015 and in its place on Charges 1, 2, 3 and 5, you are convicted and sentenced to an aggregate sentence of six months' imprisonment on those charges. 

61That makes for the two indictments. The indictment here of the seven charges and the two summary charges, and the breach of the CCO from Bendigo, a total effective sentence of four years and six months.

62I fix a non-parole period in respect of both those sentences, the total collective sentence, of two years and six months. 

63I declare that you served 194 days presentence detention.

64Under s.6AAA relating to the indictment, but for your plea of guilty I would have sentenced you to six years with four years non-parole period.

65Was there any other orders I need?  There is a ‑ ‑ ‑

66MR CECIL:  Just the disposal.

67HIS HONOUR:  ‑ ‑ ‑ disposal order, yes, thank you.  I have signed those disposal orders.  So the total effect of today's sentencing process, Mr Williamson, is that you have four and half years on the top, as they say, the total effective sentence.  And your non-parole period is two years and six months on both of those.  You have served roughly six months of it.  You will not get parole unless you do the sex offenders course, or treatment program, within the prison system.  It is not for me advise you, but I am just letting you know.  You take up the opportunity to undergo that treatment course, and take everything they give you on board completely, otherwise you will be back to see me, or someone like me, many times.  Thank you.  Remove the prisoner.  Thanks for coming, Mr Williamson, safe trip back to Kerang.

68MR WILLIAMSON SENIOR:  A waste of time, do not want to listen?

69HIS HONOUR:  Yes.

70MR WILLIAMSON SENIOR:  Told him yesterday, the barrister, told him just before, no one wanted to know what I wanted to say.  It is all wrong.  No, I have had enough.  Do not want to listen to what I wanted to say.  (Indistinct words.)

71HIS HONOUR:  Thanks, Mr McCloskey.

72MR MCCLOSKEY:  Thank you, Sir.

‑ ‑ ‑