Director of Public Prosecutions v Willshire (a pseudonym)
[2018] VCC 1108
•20 July 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTION |
| v |
| RYAN WILLSHIRE (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 20 July 2018 | |
CASE MAY BE CITED AS: | DPP v Willshire (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1108 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr A Moore | Office of Public Prosecutions |
| For the Accused | Mr J Desmond with Mr A | |
HIS HONOUR:
1 You can stay seated, Mr Willshire[1], there's no need to stand up. The only thing I should have mentioned – at the time of this offending, of course, with Victim 1, suspended sentences were still available, but I wouldn't even consider that. So I just want that on transcript that it is not something that was ignored, I would not even consider it. So long as that is understood.
[1] Name is a pseudonym.
2 Ryan Willshire, on the 10 July of this year you were convicted by a jury after a short trial, of two charges of indecent act and one charge of attempted sexual penetration. Those crimes carry maximum penalties of ten years and five years respectively. On 19 July of this year, you pleaded guilty to one charge of sexual penetration that being a course of conduct charge, and one charge of indecent assault. Each of those crimes carries a maximum penalty of ten years imprisonment.
3 You are now 40 years of age. You obviously were convicted by a jury and pleaded not guilty in respect of the, what I will now refer to as the trial indictment. In the course of that trial, the victim was basically called a liar, and accordingly there is no benefit for you insofar as that is concerned. However in regard to the second indictment, you have pleaded guilty, and I think it is a situation where proper recognition should be given to that plea. As the prosecutor has pointed out, it was a relief, certainly for your nephew, Victim 1, not to have to give evidence again, and a great relief for your nephew, Victim 2, not to have to give evidence at all.
4 Often in these situations a simple acknowledgment of guilty is a helping factor to those who have been offended against. I can accept also in your situation that owning up to what you had done in this whole family structure, would have been a very difficult proposition indeed, and I do take that into account in terms of the remorse displayed by your plea of guilty. I would also indicate at this stage that I was aware, during the course of the trial, of your becoming distressed whilst Victim 1 was giving evidence, and I accept that that distress was genuine, and may well have played a part in your ultimate decision to plead. You obviously get the utilitarian benefit of those pleas of guilty. As I have said, this is a situation where I believe the plea is of real significance in the sentencing process.
5 You do have a significant number of prior convictions, and you have been to gaol before. You have been to gaol subsequently, but the situation is that those prior matters appear to be virtually all for dishonesty or driving type offences, and you have no prior convictions or findings of guilt for this sort of offending, albeit that you are now to be sentenced by me in relation to three victims.
6 Firstly, pursuant to 464Z of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes. That order having been made, I advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you. Because of the order in which I will sentence you, on the trial indictment, as opposed to the plea indictment, on each of the charges there you will be sentenced as a serious sex offender. I am aware that community protection becomes the principal sentencing purposes, that the sentences are to be cumulative unless otherwise ordered, and I will so otherwise order. And in this situation, the Crown do not seek a disproportionate sentence.
7 Also, because of the nature of the offending, you will be placed on the sex offenders register, and I must advise you that the reporting conditions on that will be for life. If you could – just ask you to sign the acknowledgment of that now. Mr Hands, if you wouldn’t mind going now with my associate please. Yes, thanks Mr Hands.
8 A summary of the offending is firstly insofar as the trial indictment is concerned. that involves your nephew, Victim 3. And I point out for the family members this is all anonymised later. The names are taken out. I just don't like doing that when I am talking. You were found guilty of one charge of attempted sexual penetration and two charges of committing indecent act. This offending occurred around 2008. Those charges arose from an incident that occurred at your home when the victim was 13 or 14 years of age. At that stage you were living in Traralgon with your parents, and he started living there as well when he was in Year 7.
9 One day his mother dropped him off at the home. You and he were in the bedroom watching bedroom TV. You put a pornographic movie on. He says he was shocked and confused. You then began asking to see his penis, and you then began masturbating. That gives rise to Charge 1. Eventually you pulled his pants down and you played with his penis and tried to put it into your mouth. That gives rise as to Charge 2 and 3. You repeatedly said, "Let me suck your dick", and he said no, and he wanted to go home. At least at that point of time you stopped and took him home. As I said, that was the result of a jury verdict.
10 Victim 3 has put in a victim impact statement, as has his father, and I make it clear that I am only working on the admissible parts of those statements. Victim 3 said, "Once the crime started" - and of course I'm sentencing you for one incident – "I began to stop caring about what happened to me. Didn't care about completing school, didn't care if I got into trouble with police, and didn't care about maintaining relationships with friends and family". He went on to describe the anger and the difficulties and depression that he's had ever since. He said, "I find that I worry a lot about the safety of my partner's children and my nieces, specifically that they may become the victim of the same crimes as me. I'm worried that if I have kids they will also be a victim of the same crime as me". He says that prior to this offending that he didn't have any contact with the police, but subsequently he has.
11 The plea indictment is one charge of sexual penetration, being course of conduct relating to your nephew, Victim 1. The age difference between you two is about six years. And I should have mentioned, between you and Victim 3, it was more like 16, as I recall. You are also pleading guilty to one charge of indecent assault, which is a representative charge relating to another nephew, Victim 2, and there is an age difference there of 14 years. I am aware that Victim 2 is deaf and has difficulty communicating other than by sign language.
12 In respect of Victim 1, the period specified for the course of conduct charge is over approximately four years. The charge covers repeated sexual acts which formed a course of conduct, which involved introducing your penis into his mouth, introducing his penis into your mouth, introducing your penis into his anus. The charge also concerns one occasion when you introduced his penis into your own anus. The course of conduct charge is for a single offence, and there is multiple incidents of that same offence. In this situation I find that the offending, other than the matter which was originally the one charge on the indictment, did occur on a regular basis, and occurred over that period of time.
13 Obviously I am not going to try and put a number on it, but it is certainly not a situation where it was isolated. At one stage in his evidence, he said at least once a month, could be more often, that type of thing. So in any event, it certainly was a regular occurrence over an extended period of time. I am aware that with a cause of conduct charge the maximum penalty remains the same, and I am also aware that by reason of the s.5(2) of the Sentencing Act, that I take into account the totality of the offending relating to that charge. I am also aware, as Mr Hands has pointed out, that the maximum penalty is still a yardstick when sentencing for such a matter, and this sentence still must fit within that regime.
14 In any event, that is the offence in regard to Victim 1. When he was in Grade 4, the family moved from Churchill to Sale, with his mother and his siblings. His father was in and out of gaol at that time, and his grandfather used to take him on prison visits. When he was in Year 7, he was expelled from school in Sale, and moved in with his grandparents. You also lived there. He lived there with you between the ages of 11 to 14. There was then a period of time in a unit in Traralgon, and following the flood, Yallourn North. After that, there was then a move back to Traralgon.
15 When he was 14, he ran away because he could not put up with the abuse anymore. Shortly before he left, you drove him to a secluded location and made him penetrate your anus with his penis, which is the matter I was referring to before. That was just about enough for him, and around the time he left. He had an argument with you about the sexual abuse. You broke down and apologised, saying the same thing had been done to you by a brother. With all these matters, when you were interviewed by police, you denied the allegations.
16 Insofar as Victim 2 is concerned, which I will deal with next, as I have indicated, he is deaf and relies on sign language. In 2009, when he was 16 years of age, he moved in with his grandparents and you lived there. The charge relates to two incidents where you fondled his penis as a prelude to sexual activity. That activity was not criminal because of his age and the absence of a relationship of care, supervision and authority between the two of you at the relevant times. Accordingly, that is – and again, as I think I have indicated a few times, very sensibly, resolved as a representative charge of indecent assault. That is a very brief summary of what occurred and what occurred over an extended period of time.
17 In my view, in terms of describing it, that does not do justice to the seriousness of the criminal activity you engaged in, and while I do not do this often, I think in this situation, just to bring home the seriousness of what occurred from the evidence of Victim 1 during the course of the trial. I point out also, of course, I am aware that there had been a discharged jury prior to your plea of guilty. He was talking about you anally penetrating him, and he said, "One time he ejaculated inside me and it was – it was the worst thing I've ever had, and um, yeah, it was – it was disgusting, and it was hard. Sorry, it was disgusting and sort of hard to deal with and always has been. I had to go to the toilet and like crap it all out and clean myself up and stuff like that. It was pretty bad". He went on to say it was the only time that it happened to him.
18 He was then asked by the prosecutor, in front of the jury, as to what his relationship was with you. He said, "He looked after me. We used to go – we used to do a lot of wood chopping together and stuff like that. He was – he was a champion woodchopper. Like never won world titles or anything, but he was on his way to doing stuff like that. He was pretty well regarded in like that sort of community. I don't know, he taught me a lot of stuff as well". Question: "You said you regarded him as one of your heroes", and he said, "Yeah, for sure". As I say, that offending that I have described was regular and occurred over a period of years.
19 The offending has to be, obviously, regarded as serious. It calls for the application of general deterrence. In your situation I would be surprised if specific deterrence is necessary. You would be fully aware that if were you ever convicted by a jury of, or found guilty of offending to this level against this many victims again, there would be a pretty strong chance you would not survive a gaol sentence, I would have thought. The breach of trust in all these is massive. One of the difficulties with looking at comparable cases are that those comparable cases, most of them relate to incest. I am fully aware that incest carries a maximum penalty of 25 years or 20 years at the time, and accordingly it can believe a bit misleading to look at the sort of sentences that have been imposed in those cases.
20 Obviously this offending calls for denunciation, an element of community protection - I do not think that is now as big an element as it could have been, and also proper punishment. The breach of trust is massive. It is a breach of your whole family's trust, and it is very much an extended family that you have throughout the Latrobe Valley and throughout the Strzeleckis. It is a well-known family, a family who has always done it hard, and has produced hard men. I know from my own knowledge that there has been a number of world champions at wood chopping in your family, particularly around about the time of the Second World War, as I recall, and your conduct just has shamed the entire family. I would have thought. It has also caused a situation where the family has been split, and make it clear that I am only taking into account the admissible parts of the record of interview, but obviously people have taken sides and whether that can ever be repaired, I do not know.
21 Your counsel has pointed out that your acknowledgment of your offending and your plea of guilty may be a start to trying to heal that, and for the family to try and regroup, if that is at all possible. I have no idea whether that can be achieved or not. A significant gaol sentence is inevitable, but I have got to be careful, as I said, this is not a case of incest, and in fact the maximum penalty for the course of conduct is in fact ten years.
22 In terms of matters personal to you, I have already indicated you were brought up, you went to school in Churchill. You left school at the age of about 13 and went and worked logging with the family, up in the Strzeleckis. You worked for a while in Western Australia. Your family, as I have indicated, are very much into wood chopping. You obviously competed and were very good at it, from what I can gather. You are in reasonably good health, apart from being overweight. You have children who you do maintain or endeavour to maintain contact with, and who you would like and get on well with. That poses some prospects for your future. You do have an intellectual deficit, which is referred to in the sentencing remarks of Judge Montgomery from the last time you were sentenced.
23 In your particular situation, I think that the risk of you reoffending is probably not high, and the prospects of your rehabilitation are really going to depend or be up to you. Since you have been incarcerated now since March, I think, of 2014, your mother and one of your brothers have passed away, and because of your incarceration you were unable to attend the funerals. I do not know what is going to be the situation in terms of where you are kept, but I accept that the gaol sentence will not be served in particularly pleasant circumstances. Other than that, there is really not a lot you can say. What you did was over an extended period of time, and obviously there has to be an appropriate punishment imposed.
24 In March of 2014, you were sentenced to be imprisoned for a period of eight years, with a minimum term of six, for dishonesty offending. You have now done a significant part of that sentence, and you have a release date of 11 February 2020, which means on that parole period, you still on my calculation, have something in the order of – around about 18 months before that parole would be completed. In the sentencing that I carry out, obviously I have to set a new non-parole period. It is a situation where, whilst I will be giving a new non-parole period, the real possibility here is, which a judge always has to sentence on in any event, is that you will do the lot because of the nature of this offending, and I am conscious of that in terms of imposing a sentence, particularly in relation to concepts of totality.
25 In this set of circumstances, because you pleaded not guilty, and because your ultimate plea of guilty was to different counts than the trial, s.6A is virtually meaningless, but in this situation, so it is understood by everybody what the benefits of your having finally owned up to all this have been, I will be giving an indicating as to what I would have sentenced in the event of an adverse verdict by a jury, regard to Victim 1 and Victim 2. I think – I will make it clear that I have taken into account all the victim impact statements, but I think that in terms of just one final aspect of this offending, is Victim 2, who said it was 15 or 16 when it happened.
26 It is quite clear that it has been a patriarchal family, and Victim 2 had this to say. "When this happened to me, it affected me emotionally by making me really depressed and upset, as well as not being able to control my anger". He goes on to say later, "I have had problems trusting people and being independent since this happened to me. When court started, I thought my pa didn't love me anymore". No decision of a court is ever going to appear sort of thing. As I tried to say, how the community regards sexual offending against children, those victim impact statements eloquently describe the embarrassment, the lack of trust. There is almost the inevitable consequences of the domination of a younger person, boy or girl, in this sort of way.
27 Accordingly, the sentence, as I say, bearing in mind that plea of guilty and bearing in mind the other factors in the maximum penalties. On the charge of sexual penetration course of conduct, five years. On the charge on the plea indictment of indecent assault, six months. I direct that three months of the six months be served cumulatively on the five years, which on that indictment gives an effective head sentence of five years and three months. On the indictment relating to Victim 3, on Charge 1, bearing in mind it is the same incident which obviously constrains. Charge 1, six months; Charge 2, sixth months; and Charge 3, 24 months.
28 I direct that Charge 1 and Charge 2, this being the serious sexual offending indictment, be served concurrently with each other, and with the sentence on Charge 3, giving an effective sentence on that indictment of 24 months. In all these circumstances, I direct that 15 months of that 24 months be served cumulatively upon the total effective sentence imposed on the plea indictment. On my calculation, that gives an effective head sentence of six and a half years. I direct that four years of that sentence be served cumulatively upon the sentence you are currently undergoing. On my understanding of the situation, that means you will now be undergoing a sentence of 12 years. I direct that there be a new minimum term set, that minimum term to commence from today, and I direct that that minimum term be one of four years imprisonment, and I make no declarations as to pre-sentence detention.
29 So does that make sense, gentlemen?
30 MR HANDS: Yes, Your Honour.
31 HIS HONOUR: All right. What I am going to do now, is just so that everybody understands the situation here, that – pursuant s.6AAA, though I say it's probably meaningless in this situation for a number of reasons, but for your pleas of guilty, you would have been sentenced to be imprisoned for a period of ten years with a minimum term of seven. Had these matters proceeded as trials with the charges that were on the actual indictments, which had been reduced, very sensibly again, as I might say, and this is not strictly speaking a 6AAA proclamation, but had you been convicted of the matters involving Victim 1 after a jury and in all those matters involving Victim 2, after a jury, the head sentence would have been more in the order of 12 years.
32 All right, is there any – are there any other orders that I have to make, or?
33 MR MOORE: No, Your Honour. That covers the matter.
34 HIS HONOUR: Yes. That cover the matter for you. Mr Hands?
35 MR HANDS: No, Your Honour.
36 HIS HONOUR: Yes, all right. Yes, thanks. Mr Willshire can go now. Thank you. I take it the mechanics of that sentence will be explained to him in terms of the benefit of the plea of guilty?
37 MR HANDS: Yes.
38 HIS HONOUR: Yes. All right.
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