Director of Public Prosecutions v Wilson
[2021] VCC 1352
•16 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00110
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL MORRIS WILSON |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 September 2021 | |
DATE OF SENTENCE: | 16 September 2021 | |
CASE MAY BE CITED AS: | DPP v Wilson | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1352 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Indecent assault
Legislation Cited: Sentencing Act 1991;
Cases Cited:R v Mangelen (2009) 23 VR 692; Worboyes v The Queen [2021] VSCA 169
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Tatas | Office of Public Prosecutions |
| For the Offender | Mr R. de Kretser | Slades & Parsons |
HER HONOUR:
1Michael Morris Wilson, you have pleaded guilty on indictment to two charges of indecent assault pursuant to section 39 of the Crimes Act 1958. In both instances the victim of your crime was Rosemary Dawson[1].
[1]A pseudonym.
2The maximum penalty applicable in respect of indecent assault is 10 years' imprisonment.
3The circumstances of your offending are set out in a document dated 13 August 2021 entitled 'Summary of Prosecution Opening for Plea'. This document was tendered and has been marked as Exhibit 1 on the plea.
4Your offending occurred sometime between 2000 and 2005. At that time, you were aged between 45 and 50 years of age and had worked as a naturopath for more than 20 years. You were working at your own practice, Melbourne Complimentary Medicine, High Street, Prahran. Ms Dawson was aged between 26 and 32 years of age. She attended for treatment for chronic fatigue symptoms.
5On the first occasion that Ms Dawson attended your practice you did a live blood analysis by pricking her finger and putting blood on a slide. You then asked Ms Dawson to take off her clothes except for her underwear and to lay on the massage table in the middle of the room. Ms Dawson did as you asked and you walked in and out of the room while she was undressing. There was no towel or blanket for her to cover herself and she lay on the table in her bra and underpants.
6You commenced to do some fast adjustments, moving Ms Dawson’s neck and shoulders around, and then lowered your hands and rubbed the side of her rib cage on both sides to the left and right of her breasts in a manner that she thought was unusual. You then started to massage the top of her chest and pectoral muscles above the bra and a little bit into the bra. You then reached into the cup of her bra over Ms Dawson’s right breast and touched her nipple between two of your fingers in a flicking action. You then repeated the same action to Ms Dawson’s left breast and performed the same flicking action on her left nipple. It is the touching of Ms Dawson’s breasts in this manner that is the basis of Charge 1.
7After the massage you told Ms Dawson she could get dressed. Notwithstanding her shock and disbelief about what had happened, Ms Dawson made another appointment to see you. The second appointment proceeded without incident. On each of these occasions Ms Dawson had noticed an improvement in her symptoms. Ms Dawson booked a third appointment, which took place within three weeks of the first appointment.
8On the day of this third appointment Ms Dawson’s symptoms were extreme and she was feeling very unwell. You again told her to get undressed and lay on the massage table, which she did. You commenced to massage her around her shoulders and pectoral muscles as you had in the first treatment session. You again put your hands inside Ms Dawson’s bra and flicked each nipple quickly which made Ms Dawson freeze and become fearful.
9You continued to massage Ms Dawson and do adjustments before asking her to roll and lay on her back. You massaged Ms Dawson’s inner thigh and then reached inside her underwear and rubbed her vagina twice. You then moved to the opposite side of the table and massaged Ms Dawson’s other leg and inner thigh. Again you placed your hand inside her underwear and rubbed her vagina twice. At this stage Ms Dawson said to you 'Is this really necessary?' And tried to move off the table. You did not respond. It is the rubbing of Ms Dawson’s vagina in these circumstances that is the basis for Charge 2.
10After this had occurred you stepped away from the massage table, picked up some lip balm and walked back to Ms Dawson. Ms Dawson started to get dressed. You then stood about a metre away from her you put your index finger into the lip balm and raised it to your mouth. Whilst doing this you stared at the complainant. You then raised your middle and index fingers to your nose and deliberately smelt them. You then rubbed your lips with your fingers before putting both fingers in your mouth. You did this while staring at Ms Dawson. You then turned around and walked out of the room. Ms Dawson finished getting dressed and left your practice without paying for the session.
Arrest and procedural history
11Ms Dawson initially complained to Prahran police in 2008, however no formal report was taken at this time. This lack of action by the police was devastating to Ms Dawson as she felt her story was not heard, she had not been validated and she was not believed. This lack of action has had the added consequence of Ms Dawson having to retell her story a decade later. The trauma it has caused resurfaced when she had to speak about it again both in court and in the provision of her victim impact statement. In August 2018, Ms Dawson again approached the police and made a complaint, this time action was taken and she later returned to the police and made a statement. I note Ms Dawson’s first statement was dated 14 March 2019. As a result Mr Wilson, you were arrested by appointment at Emerald police station on 17 May 2019. During your record of interview you denied all allegations and told police that you had no recollection of Ms Dawson.
12You were eventually charged on 6 July 2020 and appeared at a filing hearing at Melbourne Magistrates Court on 25 July of that year. A contested committal proceeded over four days from 18 to 22 January 2021. Several witnesses were cross-examined at this time including Ms Dawson. I note that there was considerable negotiation from midway through the committal and after a number of procedural adjournments this matter finally resolved on 8 April 2021. At this time you entered your plea of guilty and were formally arraigned.
Nature and gravity of offending
13Mr Wilson, your offending occurred in the context of a practitioner/patient relationship. Your counsel has accepted that, as a result of this relationship, your offending involved a breach of trust upon a vulnerable victim. This is an entirely appropriate concession as these factors are aggravating and make your offending more serious. Further, your counsel has accepted that Charge 2 is a more serious example of indecent assault as a result of the area of body touched, the length of the touching, the impact of the touching and the actions that occurred after the assault. I agree with the characterisation of the offending in this way. Indecent assault is a serious offence and necessarily involves an invasion of the sexual privacy and dignity of a victim.
Victim Impact Statement
14Ms Dawson courageously read her victim impact statement to the court. She spoke of the direct violation she felt and of her profound and lasting hurt in circumstances where she attended your practice to be healed. At the time of your offending, Ms Dawson was both vulnerable and weakened by her ill-health. She was suffering a baffling and debilitating disease that had isolated her and robbed her of her self-confidence. She put her faith in you for treatment and in return you abused her. Ms Dawson described her humiliation, shame and feelings of guilt, and how the violation of her trust has had flow-on effects in her relationships with others, including her mother and fellow students. The delay in this matter has meant that the court can see first-hand how the trauma you caused to Ms Dawson has been long-lasting and pervasive.
15I hope, Ms Dawson, that through this process you are able to move forward in your healing and that there will be some closure for you in this process. Your voice has been heard by the court and there will certainly be accountability and consequences for the person who has caused this harm to you.
Prior convictions and subsequent offending
16Mr Wilson, through your counsel you admitted one prior conviction from 1973. Given the age of this matter and the fact that it related to dishonesty offending, it has no relevance to sentencing in relation to the charges now before this court.
17Relevantly, you have subsequent convictions which followed a 27-day trial in the year 2008. On 2 May 2008 you were convicted of 22 counts of indecent assault, 11 counts of rape, one count of sexual penetration of a child under 16 and one count of indecent act in the presence of or with a child under 16. These charges related to 13 female complainants, two of whom were children. The offences were committed between 1 January 1987 and 24 August 2006. At this time you were aged between 31 and 51 years. All offences, except for one, occurred in the course of your practice as a naturopath and all of the complainants were your patients. A plea in mitigation took place on 28 October 2008 and you were sentenced to a total of 16 years' imprisonment with a non-parole period of 12 years. You were sentenced as a serious sexual offender in respect of all counts apart from Counts 1 and 3.
18An appeal against conviction and sentence was lodged on your behalf and heard in the Court of Appeal on 15 March 2011. On 27 October 2011, the Court of Appeal delivered their judgment which resulted in the convictions for six charges of indecent assault, ten charges of rape and one charge of indecent act with a child under 16 being quashed. A retrial was ordered in relation to these charges, however, the Office of Public Prosecutions subsequently discontinued. The effect of your appeal was you were convicted of 16 counts of indecent assault, one count of rape and one count of sexual penetration of a child under 16. These offences occurred over a 16 year period from 27 September 1990 to 24 August 2006. In relation to all but Charges 3 and 6 you were sentenced as a serious sexual offender.
19The offending currently before the court occurred over a period of weeks some time in between 2000 and 2005. It is offending of a very similar nature to that dealt with in the earlier proceedings. In these circumstances, the issue of totality is extremely important in the sentencing process. In the decision of R v Mangelen (2009) 23 VR 692, at paragraphs [28]-[29], the Court of Appeal explained the history of the totality principle and its extension to sentencing on separate occasions:
'Historically, the principle of totality had been applied in circumstances where an offender fell to be sentenced for multiple offences to ensure that the aggregation of the sentences was a just and appropriate measure of the offender’s criminality. The ambit of the principle was extended to apply where the offences upon which the offender must be sentenced overlap with or will be cumulative upon an existing custodial sentence. In both of these situations, the principle requires the court to consider the total criminality involved in all of the offences for which the offender is to be sentenced and the offences for which the offender is currently serving a sentence. The court must evaluate the overall criminality involved in all of the offences so as to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of the sentences to be and which have been imposed. If the total sentence is an unjust or inappropriate measure of the total criminality involved, the sentence which the offender is required to serve will be moderated so that the aggregate of sentences imposed by reason of cumulation is not greater than any sentence required to fulfil the totality principle. The principle is to be applied to both the fixing of the head sentence and the non-parole period.'
20When consideration is given to the offending dealt with in 2008, several counts disclose instances of offending of a similar character and comparable gravity. I note that terms of imprisonment ranging from 6 to 12 months were imposed in relation to those offences, and cumulation ranging from 2 to 6 months was ordered by the court. Applying the principle of totality, I intend to impose a sentence of a similar length for the offending now before me. Just as the delay in this case has had a negative impact on Ms Dawson, it has also had a negative impact upon you. The result is that you now, some 10 to 13 years later, fall to be sentenced in relation to offences that should have been dealt with in either 2008 or a time proximate. Had the offending been dealt with at that time, it is my view it would have added a matter of some months to the overall total sentence.
Delay and rehabilitation
21There are other aspects of the delay which are mitigatory in your case. You have lost the benefit of having this matter dealt with when you were younger and in better health. The delay has also allowed you to demonstrate that you have an ability to foster rehabilitation. This has been shown in the enormous amount of courses you undertook whilst in custody and also the fact that you were given a position of trust as a peer listener whilst incarcerated. You have also demonstrated by your conduct since your release that you are unlikely to reoffend. In circumstances where you have not offended for approximately 15 years, the court can accept that you are a low risk of re-offending. In addition, the uncertainty and pressure of this matter has been hanging over your head since you were arrested and interviewed in May 2019. Significantly, this was at a time when your health had rapidly declined and you were diagnosed with serious medical conditions. It would have been a very stressful time for you not knowing what your future would hold in terms of both your liberty and your health. I take these factors into account in your favour.
Physical ill-health
22On the plea a number of medical reports were tendered on your behalf. These were marked as Exhibits B, C and E. Your counsel also noted that it was apparent from the Sentence/Remand History tendered, that you became unwell in prison during 2010 whilst serving the 2008 sentence. It appears from the medical material that you were diagnosed in November 2019 with Castleman’s disease, a rare disease affecting the lymph nodes. This disease is inoperable for you and the major treatment has been several bouts of chemotherapy which leave you depleted and unwell. In March of 2020 you were commenced on a drug tocilizumab. This drug is very expensive and not currently on the PBS. The cost of supply of this medication has been met by Monash Health and the drug company Roche. It has been something of a 'miracle drug' for you and seems to have stabilised your condition, and to date you have been able to avoid further kidney damage and dialysis.
23I note you have also been diagnosed with renal AA amyloidosis. This has caused severe and irreversible kidney damage and your kidney function at present is extremely poor. This condition was caused by the Castleman’s disease. Your doctor, Dr Sally McDonald, has also opined that you suffer from chronic pain, general fatigue and weakness, depression, severe dry eye syndrome and sarcopaenia. I accept that you are suffering rare and serious medical issues that require significant ongoing medical treatment.
24The principles in relation to ill-health and its impact on sentencing are well-established. Physical ill-health or disability may be relevant in two ways: first, where imprisonment will be a greater burden because of the offender’s health; and secondly, where there is a serious risk of imprisonment having a grave effect on the offender’s health. It is clear in light of the medical evidence produced on your behalf that a return to prison would be a greater burden on you than someone in good health. However, in this case there has been no evidence from Justice Health as to how they might deal with your medical situation in custody. Whether your condition would be at serious risk of decline would largely be dependent on you receiving timely and appropriate medical care, and the ongoing supply of the drug tocilizumab. Your treating practitioners were unable to say whether this drug would be available to you through St Vincent’s Hospital. I accept that it would be far better that your complicated health conditions continue to be treated in the community by your current treating team who have a thorough understanding of your situation and who have treated you for several years.
Plea of guilty
25It is clear that this matter resolved after a contested committal. I note, Mr Wilson, that you were originally charged with offending against three complainants. In relation to Ms Dawson there were originally seven charges. The resolution of this matter has involved the prosecution discontinuing against two complainants totally and accepting a plea of guilty to two lesser charges involving Ms Dawson. Whether or not this can be considered a plea at the earliest opportunity, it is in my view a very valuable plea of guilty. It has significant utilitarian value, perhaps most significantly in that it has spared Ms Dawson the trauma of having to give her evidence for a second time. It is hoped that the entry of your pleas also provides Ms Dawson with validation, vindication and some closure.
26The utilitarian value attaching to your plea is also apparent as it has spared the court the time and expense of what would have been a lengthy and complex trial. I note that the Court of Appeal have recently said in the case of Worboyes v The Queen [2021] VSCA 169 at [39], that:
'…a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.'
27I see no reason why this should not have application in your case and, accordingly, I propose to allow a significant discount for your plea.
Background
28You are currently 66 years of age. You had a difficult childhood which was marred by instability and tragedy. You are the middle child of three, and your parents separated when you were very young. You had no relationship with your biological mother and in fact believed your stepmother to be your real mother until your late teens. Your father was a salesman and the family moved around country Victoria as a result of his constant job changes. Your father had a significant problem with alcohol which caused further issues for you at a young age.
29When you were in your mid-20s your stepmother died in front of you and some years later your father committed suicide. More recently, when you were due for release from custody, your biological mother passed away and shortly after your sister also died. Whether or not you had a close relationship with your mother and sister, I do accept that their passing in the circumstances where you were in custody would have been extremely difficult for you. Within four months of your release your stepfather also passed away.
30Despite your unsettled upbringing you were able to complete Year 12 at Waverley High School and went on to become highly qualified as a naturopath. For many years you worked in your own business providing significant relief and treatment to many patients.
31It is apparent that in your younger days you excelled at sport, competing in squash at an elite level. You also participated in ballroom dancing. Given your current state of health, you are no longer able to undertake any meaningful physical activity and this has contributed to your isolation and depression. I am told that you presently live in shared rental accommodation in the outer eastern suburbs of Melbourne. You have no significant assets and a limited disposable income. You live a very modest lifestyle. Your two main supports in the community are your long-term friend Ms Portia Reading and your brother. Ms Reading provided a testimonial to the court and I have taken the contents of this into account. It appears, notwithstanding your significant limitations, you also provide support to Ms Reading.
Sentencing principles
32I consider that the relevant sentencing principles that must be applied in this case are general deterrence, denunciation and just punishment. I do accept that specific deterrence plays little or no role in the sentencing matrix, given your age, state of health, the significant term of imprisonment you have served, and your demonstration of rehabilitation since the subject offending. I accept, in circumstances where it has been 15 years since you offended, that you can be considered a low risk of reoffending.
33Accordingly, I intend to convict you of each offence and sentence you to a period of imprisonment.
34Pursuant to Part 2 of the Sentencing Act 1991, I declare that you will be sentenced as a serious sexual offender in relation to each charge. In circumstances where the prosecution submit that a suspended sentence or indeed a community correction order is within range, I infer that they do not seek a disproportionate sentence within the meaning of s6D(b) of the Sentencing Act. I note that s6E applies and that every term of imprisonment imposed by a court on a serious sexual offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any sentence of imprisonment imposed on that offender, whether before or at the same time as that term. That section must, however, give way to some extent to the principle of totality.
35After consideration of all of the above matters, including the oral and written submissions of both the defence and the prosecution, the victim impact statement from Ms Dawson, and all of the tendered material, I have come to the view that the only sentence that can be imposed for the serious offending before the court is one of imprisonment.
36Mr Wilson, I do not require you to stand, given your situation but I make the following orders:
37In relation to Charge 1 you are convicted and sentenced to four months' imprisonment.
38In relation to Charge 2 you are convicted and sentenced to six months' imprisonment.
39I direct that two months of the term imposed on Charge 1 be cumulative upon the sentence imposed on Charge 2, thereby making a total effective sentence of eight months' imprisonment.
40Given your plea of guilty, your significant health conditions, the delay in this case, the concession as to penalty made by the prosecution and issues of totality, I have come to the view that it is appropriate to wholly suspend this sentence for a period of 12 months.
41Pursuant to s6AAA of the Sentencing Act 1991 I declare, save for your pleas of guilty, I would have sentence you to a period of 16 months' imprisonment to be served immediately.
42I note that Her Honour Judge Gaynor placed you on the sex offender register for life in 2008 and I understand that this order remains in place. In these circumstances the prosecution did not make such an application and I see no utility in making such an order.
43Mr Wilson, I should explain to you in relation to a suspended sentence what that means is that the eight months' imprisonment I have imposed is not to be served by you immediately. It is suspended for a period of 12 months. If you commit another offence punishable by imprisonment within that 12 months you will breach that suspended sentence and then it will come back to court and you will need to show exceptional circumstances as to why you should not serve the eight months' imprisonment. So it does not mean that you serve any time and provided you stay out of trouble you may never serve the eight months, do you understand?
44OFFENDER: Yes, Your Honour.
45HER HONOUR: All right. Are there any other matters, Mr de Kretser, Ms Tatas?
46MS TATAS: Nothing from me, Your Honour.
47MR de KRETSER: No, Your Honour.
48HER HONOUR: All right. All right, thank you. Thank you to the parties for your submissions and your assistance on the plea.
49MS TATAS: As the court pleases.
50MR de KRETSER: As Your Honour pleases.
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