Director of Public Prosecutions v Wilson (a pseudonym)

[2023] VCC 83

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT WARRNAMBOOL

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL WILSON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Warrnambool
DATE OF HEARING:	24 January 2023
DATE OF SENTENCE:	3 February 2023
CASE MAY BE CITED AS:	DPP v Wilson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 83

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited: Crimes Act 1958 (Vic); Sexual Offenders Registration Act 2004 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v Tullipan (a pseudonym) [2021] VSCA 191; Pickford (a pseudonym) v The Queen [2019] VSCA 195; Crawford (a pseudonym) v The Queen[2018] VSCA 113; McCray (a pseudonym) v The Queen[2017] VSCA 340; Harmon (a pseudonym) v The Queen[2017] VSCA 169

Sentence:Nine years and nine months imprisonment; non parole period of six years; Sex Offender Registration for life

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie	Ms C. Dunn Office of Public Prosecutions
For the Accused	Mr A. Cannon	Ms E. Turnbull Emma Turnbull Lawyers

HIS HONOUR:

1Michael Wilson,[1] you have pleaded guilty to the following charges which carry the following maximum penalties: Charge 1, indecent act with or in the presence of a child under the age of 16 contrary to s47 of the Crimes Act 1958 as it then was. The maximum penalty is 10 years' imprisonment. I note this is a representative charge. Charge 2, incest contrary to s44 of the Crimes Act as it then was. This carries a maximum penalty of 25 years' imprisonment, and it is a course of conduct charge. Charge 3 is indecent act with a child of the age of 16 or 17 years under care, supervision or authority contrary to s49(1) of the Crimes Act as it then was.  This carries a maximum of five years' imprisonment.  It is a representative charge and it also invokes, if a period of imprisonment is imposed on Charges 1 and 2, the serious sexual offender provisions.

[1] A pseudonym.

2Your offending attracts the operation of the Sexual Offenders Registration Act.[2]  As a consequence of your guilty pleas to the offending, you will be registered and required to comply with mandatory reporting conditions for life.

[2] 2004 (Vic).

3You have no prior criminal history or subsequent offending.

Circumstances of Offending

4The Crown tendered the summary of prosecution opening as Exhibit A.  A summary of your offending is as follows:

(a)You were aged between 41 and 46 at the time of your offending;

(b)The victim of your offending is your biological daughter.  She was aged between 13 and 18 years at the time of your offending.  She is now aged in her late twenties.  I just note when I say 'between the age of 13 and 18 years', according to the indictment, the indictment on Charge 3 charges between 7 November 2009 and 6 November 2011, which is  before her 18th birthday.  Now, back to the sentencing remarks;

(c)Charge 1 is a representative charge of indecent act with/in the presence of a child under 16, which spans from 7 November 2006 to 6 November 2009 when the victim was aged 13 to 15 years;

(d)The acts occurred every few months.  You would touch the complainant's breasts and groin area and you would request for her to touch your penis.  It usually occurred when your wife was staying in overnight in a hospital to receive ophthalmological treatment.  You would ask the victim to strip off and sleep in your bed during the night;

(e)Charge 2 is a course of conduct charge spanning 7 November 2006 to 6 November 2011 when the complainant was aged between 13 and 17 years;

(f)Again, acts occurred every few months when you penetrated the victim's vagina with your tongue and her mouth with your penis.  On two occasions when the victim had turned 16, you penetrated her vagina with your penis;

(g)On one occasion, you ejaculated in the victim's mouth;

(h)On the two occasions of penis/vagina intercourse, you did not wear a condom.  Your counsel instructed that you had had a vasectomy years earlier;

(i)Charge 3 is a representative charge spanning 7 November 2009 to 6 November 2011 when the victim was aged 16 to 17 years.  Again, the frequency of your offending was every few months when the victim masturbated your penis.  You ejaculated on her hand on most occasions;

(j)During the latter part of the offending period, you offered the victim $20 on a couple of occasions to participate in sexual activity;

(k)On one occasion, the victim asked you why you did these things to her, and you told her that she had ‘started it’;

(l)The victim made a complaint to police in 2020.  You were interviewed on 2 September 2020 and made admissions to the offending;

(m)You have spent 43 days in custody, excluding today, by way of
pre-sentence detention.  I will declare your pre-sentence detention to be time reckoned as already served on your sentence; and

(n)I note the plea was not entered at the very earliest stage.  You were committed for trial on a straight hand-up brief and pleaded not guilty, but plea negotiations commenced before that time and concluded in 2022.  I do consider that your plea has utilitarian benefit.

Objective Gravity and Moral Culpability

5I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability.

6The law says that a representative charge is as follows:

A representative charge does not increase the maximum sentence, nor does it permit a disproportionate sentence to be imposed.  But all other things being equal, a representative charge will generally result in a heavier sentence than a charge relating to an isolated incident.  This is because it removes a mitigating factor from the offender because they can no longer claim that the offending was an isolated incident, and it puts the offence into context.

It does not mean [that you are] sentenced for uncharged acts, but rather that those acts are 'directly and highly relevant to the objective gravity of the particular offence' for which they are being sentenced.  The gravity of the offending is heightened because the conduct in question is not isolated and because the impact on the victim is likely to be much greater.[3]

[3] JCV Sentencing Manual 2.4.4

7Then, in relation to a course of conduct charge, the law provides that I must impose 'a sentence that reflects that totality of the offending that constitutes the course of conduct', subject to the requirement that the sentence not exceed the maximum penalty of 25 years.  The legal commentary on course of conduct charges in the Judicial College Sentencing Manual notes that:

As a result, sentences for course of conduct charges are likely to be higher than for equivalent conduct prosecuted as a single incident on a 'first occasion' basis.

8The objective gravity of your offending is obvious.  The crime of incest is abhorred by the community.  Incest is a repugnant offence that strikes at the core of the family relationship and involves a fundamental breach of trust.  Incest stands in total conflict with and abrogation of your responsibilities as a parent to protect and nurture your daughter.  This was your own biological daughter that you exploited and abused.  Moreover, your conduct involves degrees of manipulation through the couple of instances of offering money and telling the victim that 'she started it'.

9The criminal law prohibits sexual offending, and specifically sexual offending against children, with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity.  There is, and can be, no question or issue about consent.  The prohibition and the maximum penalty for its contravention is intended to deter others who may consider engaging in sexual activity with a child.

10The absolute prohibition on sexual activity with a child under the age of 16 presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm which is long-lasting and serious and manifests itself in both physical and psychological forms.  Therefore, the harm to your victim is presumed.

11I received a victim impact statement from the victim.  She did not want the victim impact statement read aloud in court, and I will respect her desire for privacy.  It is sufficient to say that the harm that you caused to your daughter was real, sustained and significant.

12Your criminal conduct must be met by principles of deterrence, denunciation and just punishment.

13You are to be sentenced as a serious sexual offender on Charge 3.  Assuming that sentences of imprisonment are imposed on Charges 1 and 2 (and I consider that imprisonment is the only sentencing option available), the law presumes then that the sentence Charge 3 will be served cumulatively.[4]  Furthermore, when you are sentenced as a sexual serious offender, the law requires that the protection of the community to become the principal sentencing objective.[5]  The Crown does not seek the imposition of a disproportionate sentence on Charge 3, and I do not intend to impose a disproportionate sentence.

[4] s6E Sentencing Act 1991 (Vic).

[5] s6D(A).

Personal Circumstances

14You are now 57 years old, being born in June 1965.

15You were born in New South Wales.  You never met your biological father, and you were raised by your mother.  To this day, you do not know any details about your father.

16You have two elder sisters, followed by three half-sisters to your first stepfather and a further two half-sisters to your second stepfather.

17During your childhood, your family lived in New South Wales, ACT and Victoria, moving at least eight to nine times.  You report being left largely to your own devices and that your mother was closer with your sisters.

18You were exposed to family violence as a child perpetrated by your stepfather against your mother and against your younger half-sister.  Your younger
half-sister also disclosed to you that she was sexually abused by one of her fathers as a child.

19You left school at age 15.  You report that you did not have much encouragement from your family to apply yourself to your schoolwork and that the priorities revolved around the farm work and doing other chores around the place.

20Immediately upon leaving school, you commenced work at a gypsum mine.  You then worked at a motel your parents operated for approximately a year.

21After obtaining your licence, you worked on grain silos as well as undertaking local farm work.  You sustained a significant back injury in 1987 whilst working in a sawmill, and you have suffered residual back issues ever since.

22Throughout your adult life, you have continued to work in largely manual jobs and in your later years working in a bottle shop, aged care nursing and periods of working as a farmhand.

23You met your wife of 30 years in 1992, and you were married in 1993.  You have been her full-time carer for the last 10 years due to her developing medical blindness.

24In 2001, you had a near-death experience when you fell 80 feet from a tree.  You spent a week in ICU.

25Shortly after this incident, your wife left the marriage.  You reconciled with your wife approximately a year later, and at the time she was heavily pregnant with her daughter from another partner.  You raised this child as your own.

26You reported having used cannabis on a recreational basis as a teenager and young adult.  Following the brief separation with your wife, you became a heavy cannabis user.  Upon your wife returning to the marriage and upon becoming her carer, you eventually ceased all usage.

27As I say, your wife has suffered progressive eyesight degeneration over the years and is now legally blind.  I received medical notes in relation to your wife's condition.  As I have stated, for years now, you have been principally occupied as her primary caregiver.

28I accept that you are consumed by concern and anxiety for your wife and her care and well-being whilst you are imprisoned.  This will weigh heavily upon you.

29I accept that you were forthcoming in telling your family and friends of your offending.  Your revelation was prompted by a text from your daughter who said, 'We need to tell mum'.  Within minutes, you had made a revelation to your wife, and within an hour or two, you self-reported the matter to the police.

30I received character references from your wife, your other children and friends.  It is apparent that, even in the knowledge of this heinous offending, you have the support of family and friends.  This will be important for your rehabilitation upon your release.

Sentencing Submissions

31Ms Cannon, who appeared on your behalf, submitted that the following factors should operate to mitigate your sentence:

(a)Your plea of guilty was made at a relatively early stage and was resolved during the COVID-19 pandemic.  It has significant utilitarian benefit and facilitates the course of justice.  The principles enunciated by the Court of Appeal in Worboyes[6] are applicable;

(b)There is evidence of remorse by your early plea of guilty and through the confessions made in your record of interview;

(c)You can draw on your prior good character with no prior or subsequent offences;

(d)You feel anxiety for your wife's welfare and the hardship she will face in your absence;

(e)The protection of the community will be best served by virtue of the fact that you will be registered for life under the Sex Offender Registration Act.[7]

[6] Worboyes v The Queen [2021] VSCA 169.

[7] 2004 (Vic).

32Mr Pirrie, who appeared for the Crown, submitted that the only appropriate sentence is a term of imprisonment with a head sentence and non-parole period.  Whilst the Crown submits that there ought be some cumulation on Charges 1 and 3, it accepts that your circumstances warrant some leniency in fixing a non-parole period.

Analysis

33The complexity of sentencing on a course of conduct charge of incest was recently recognised and discussed in the Court of Appeal in the case of Tullipan.[8]  I have read and had regard to the principles set out in that case.  I have also had regard to the sentence imposed in that case, noting that it was considered one of the gravest examples of an incest course of conduct charge.

[8] DPP v Tullipan (a pseudonym) [2021] VSCA 191.

34I have also read the Court of Appeal decisions in Pickford,[9] Crawford,[10] McCray[11] and Harmon.[12]  It is important to remember that often the sentences for course of conduct incest charges in those cases were fixed within a framework of sentences involving other sexual offences and may have to take into account other sentencing factors.

[9] Pickford (a pseudonym) v The Queen [2019] VSCA 195.

[10] Crawford (a pseudonym) v The Queen[2018] VSCA 113.

[11] McCray (a pseudonym) v The Queen[2017] VSCA 340.

[12] Harmon (a pseudonym) v The Queen[2017] VSCA 169.

35

I have had regard to some sentences for single-instance charges of incest.  In its submissions, the Crown submitted that the median sentence for a

single-instance charge of incest is five years.  As a single unadorned statement, this does not particularly inform the sentencing consideration in this case.  However, the court in Tullipan noted that the sentence for a course of conduct charge of incest will usually be significantly higher than the sentence imposed for a single instance charge (such as that in Dalgleish).

36Each case turns largely on its own facts.  Nevertheless, after reading all of the cases I have referred to, I take into account the following circumstances about your offending on the charge of incest:

(a)The victim was your biological child;

(b)She was aged 13 to 17 years at time of your offending;

(c)The overall duration of your offending was approximately five years;

(d)The type of conduct involved penetration by tongue/vagina, penis/mouth (including an instance of ejaculating in her mouth), and penis/vagina (without a condom, but without a risk of pregnancy);

(e)The frequency of acts was alleged to have occurred every few months except for the penis/vagina penetrations, which occurred twice after the victim turned 16;

(f)Your actions involved exploitation and manipulation in that you timed your activity for when your wife was away seeking medical attention, and on two occasions, you bribed your daughter;

(g)You did not exert overt physical violence to compel participation; and

(h)You stopped your offending when your daughter was able to stand up for herself.

37As I have said, Charge 1 is a representative charge of touching the victim's breasts and groin whilst she touched your penis.  It is informed by the circumstances that the act occurred over a three-year period from when the victim was aged 13 to 15 and occurred every few months when her mother was staying in Geelong.

38Charge 3 is the representative charge of the victim masturbating your penis while her mother was away.  It is informed by the circumstances that the act occurred over a two-year period when the complainant was aged 16 to 17 and occurred every few months.

39I accept that the plea of guilty in this case has a utilitarian benefit.  I also accept that the plea was made during COVID times, and therefore I have regard to the mitigation which must be afforded to the plea according to the principles enunciated in Worboyes.

40Moreover, I conclude that your plea of guilty in this case is attended by insight into your wrongdoing and remorse.  I find this from your immediate acknowledgement and revelation in response to the victim's text in 2020 and from the references provided.

41In all of the circumstances, I consider that your plea facilitates the course of justice.  I accept that your concern before and slight delay in pleading guilty was not attributable to any prevarication on your part.

42You have no prior convictions or subsequent matters.  You have the benefit of a number of supportive character references written in the knowledge of your egregious offending, and it appears you will have prosocial support available to you after your release from prison.  Importantly in this respect, you have the support of your wife, who acknowledges the good work and care you have given her as her eyesight has failed.

43I consider your prospects for rehabilitation upon your release are probably very good.  You have a solid work history and you have demonstrated your good behaviour since your offending ceased about 11 or 12 years ago.  You have a number of prosocial supports available to you.  It is unlikely that you will have the opportunity to offend again.  In any event, the community will be afforded some protection by your mandatory registration for life and reporting and other requirements of the Sex Offenders Registration Act.

44I accept that you will experience some hardship in prison as the guilt and anxiety over not being there to support your wife will weigh on you.

45Of course, none of these factors personal to you can outweigh the dominant sentencing principles that I mentioned earlier:  deterrence, denunciation and just punishment.  On the third charge, I must regard the protection of the community as the principal sentencing consideration.

46I shall also take into account the circumstances of the offending in that on occasions, the various acts of penetration and indecent acts outlined were occurring within the same period of activity.

47I must also have regard to the principle of totality and impose an overall sentence which is not crushing.

48All of these objective factors require the imposition of periods of imprisonment.  Given the factors personal to you, I intend to give you the opportunity to serve a reasonable portion of your sentence on parole if parole is granted.

Orders

49Accordingly, I make the following orders, Mr Wilson.  On Charge 1, the charge of indecent act, you are convicted and sentenced to two years' imprisonment; on Charge 2, the charge of incest, being a course of conduct act, you are convicted and sentenced to eight years and six months' imprisonment; on Charge 3, the charge of indecent act, you are convicted and sentenced to 20 months' imprisonment.

50I order that six months of the charge on Charge 1 be made cumulative on the base sentence and Charge 3.  I order that nine months of the sentence on Charge 3 be made cumulative on the base sentence and Charge 1.

51That leads, in my calculation, to a total effective sentence of nine years and nine months.  I order that you serve a non-parole period of six years before you are eligible for parole.

52I declare the period of 43 days' pre-sentence detention, not including today, reckoned as already served.

53As a consequence of your conviction on these offences, you will be registered for life on the Sex Offence Register.  There are a number of onerous conditions that must be met, and there is a deal of paperwork that will be sent to you for your acknowledgment.

54The 6AAA declaration is that but for the plea of guilty, I would have sentenced you to a term of 11 years with eight years to serve.

55Mr Pirrie, is there anything else from the Crown's position?  I cannot hear you, Mr Pirrie.

56MR PIRRIE:  Sorry, Your Honour, for that.  Can I just check with Your Honour that Charge 2 is obviously the base and is - - -

57HIS HONOUR:  Yes, eight years, six months.

58MR PIRRIE:  Eight years.

59HIS HONOUR:  Add six months and then add nine months.

60MR PIRRIE:  Nine months, yes, correct, all right, yes.

61HIS HONOUR:  So nine years, nine months.  Six years to serve.

62MR PIRRIE:  Thank you, Your Honour.

63HIS HONOUR:  Forty-three days' PSD.  Mr Chrisant, anything from your point of view?

64MR CHRISANT:  Nothing further, Your Honour.

65HIS HONOUR:  Thank you.  Mr Chrisant, do you want the opportunity to – I can leave the link open and remove the Crown and police from the court.  I would myself leave, and you can speak to Mr Wilson, or do you want to do that at another time?

66MR CHRISANT:  If I could, briefly, Your Honour, I think that would be valuable, thank you, Your Honour.

67HIS HONOUR:  All right, thank you.  That being the case, I will adjourn now.

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