Director of Public Prosecutions v Wilson (a pseudonym)
[2022] VCC 1593
| IN THE COUNTY COURT OF VICTORIA AT Wodonga CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HEATH WILSON (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 1 September 2022 | |
DATE OF SENTENCE: | 16 September 2022 | |
CASE MAY BE CITED AS: | DPP v Wilson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1593 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Incest; Production of child abuse material
Legislation Cited:
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins [2007]
VSCA 102; Bugmy v The Queen [2013] HCA 37; Brown v The
Queen [2019] VSCA 286
Sentence: 7 years 3 months imprisonment with 5 year minimum
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr T. McCulloch | SLKQ Lawyers |
HIS HONOUR:
The offending
1On 1 July 2022 you, Heath Wilson[1], pleaded guilty to an indictment containing two charges, one of sexual penetration of a stepchild and one of involving a child in the production of child abuse material. The maximum penalties for these offences are as follows:
Charge 1 - Sexual penetration of a stepchild contrary to s 50D(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016 – imprisonment for up to 25 years:
Charge 2 – Involving a child in the production of child abuse material contrary to s 51B(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016 – imprisonment for up to 10 years.
[1]A pseudonym.
2The details of your offending are set out in the summary of plea opening, which was tendered during your plea hearing heard on 1 September 2022.[2] In short, at the time of your offending you were aged between 46 and 47 and living with your partner and her four children, including her second eldest daughter who was your primary victim.
[2]Exhibit A
3At the time of your offending, between November 2018 and March 2020, whilst at the family home you pushed your victim on to a bed, pulled down her pants and underwear and inserted your finger into your victim’s anus. Your victim was aged between 10 and 12 at the time. As a consequence of your digital penetration of your victim’s anus, she felt pain and tried to push you away and used her legs to try and kick your hand away causing you to remove your finger.
4Your further offending occurred on a separate occasion, again in the family home, between November 2019 and March 2020 when the same victim was laying down in her bedroom when you entered and pulled down her pants and underwear to expose her bottom. Your victim tried to move away but you took a photograph with your phone showing her exposed buttocks. Your victim asked you to delete it and you said you would.
5In mid-April 2020 your victim’s mother, your then partner, found an image depicting your victim’s buttocks with her underwear, which had the day of the week printed on them, pulled over the right cheek of her buttock. She confronted you about this image, but you denied any knowledge of the image.
6You were arrested two days later and you denied any offending against your victim to police. A forensic analysis of your mobile phone later revealed the image which is the subject of Charge 2.
7You have admitted a criminal record dated 17 August 2022. Your prior convictions date from February 2012 and record numerous crimes of violence, including some four contraventions of family violence intervention orders.
8The standard sentence scheme is set out in s 5A of the Sentencing Act 1991. I must take into account the standard sentence which is prescribed as 10 years imprisonment as one of the factors relevant to your sentencing in respect of Charge 1.
9Further, the prosecutor tendered into evidence and read to the court a victim impact statement made by your former partner and mother of your primary victim on 3 August 2022. That statement provides some insight into the emotional nightmare your offending has created for those who were close to you, and in the case of your primary victim, under your care at the time of your offending.
10The statement contains the following haunting passage:
“I worry about my daughter and how this is affecting her and will affect her the rest of her life. Will she turn to drugs or alcohol? Self-harm? Is she depressed, will she get depressed? Will she ever trust an adult again? Will she ever trust a man again or be able to form a relationship and have a family of her own? Does she hate me? Have I lost her trust?”[3]
[3]Exhibit B
Your personal circumstances
11Mr McCulloch of counsel, who appeared on your behalf at your plea hearing, tendered into evidence an outline of submissions dated 23 August 2022.[4] He additionally tendered a report from Carla Ferrari, forensic psychologist, dated 8 August 2022.[5]
[4]Exhibit 1
[5]Exhibit 2
12You are 50 years of age, having been born in New Zealand. Ms Ferrari records that you were the fourth child in a blended sibship of 14 and there were particularly traumatic aspects to your childhood and early adult life. I note that your parents separated when you were three years of age and your mother re-partnered to a man who is described as being extremely abusive and involved in the criminal underworld. You described to Ms Ferrari physical and sexual abuse by your stepfather and others when you were aged between six and 12.
13Ms Ferrari also records a history of you requiring hospitalisation for several months at the age of seven following a scalding incident.
14Your education was significantly impacted by the traumas in your home life and you ceased attending school at the age of 12. Ms Ferrari records that you commenced a carpentry apprenticeship but did not complete this after becoming involved in drug use and criminal offending.
15In Australia you have worked in various labouring job but apparently you have experienced length periods of unemployment which is attributed to mental health issues.
16Ms Ferrari records that since being in custody you have undertaken an English course and one in maths, and you are due to commence traffic management shortly.
17Ms Ferrari recorded you as father some eight children from different relationships. These children all reside in New Zealand. You were in an intermittent relationship with the mother of your victim during the period 2012 to 2020, although it is clear that issues concerning alcohol and drug use, together with financial difficulties, contributed to a decline in the relationship even prior to your present offending. Unsurprisingly as recorded by Ms Ferrari, the mother of your victim does not wish you to maintain contact with any of her four children.
18You have received treatment and evaluation for mental health issues whilst in custody. You reported to Dr Ferrari several episodes of substance induced psychosis from approximately 2012. Ms Ferrari reports a history of cannabis use from the age of 11 to 12 and excessive use of alcohol from the age of 16. She also notes a significant usage of further illicit drugs including cocaine, methylamphetamine and GHB.
19Ms Ferrari also notes an extensive criminal history in New Zealand dating back to your youth. She records the history as involving violent offending resulting in several custodial sentences.
20Ms Ferrari identifies numerous diagnostic criteria relevant to your psychological state. These include PTSD, major depressive disorder, complex post traumatic stress disorder and various disorders relating to the abuse of alcohol and the use of illicit drugs. She opines that your chronic history of substance abuse from the age of 12 has likely to have been deleterious to your emotional development resulting in a fixed pattern of what is described as “repetitive, impulsive, unpredictable behaviour.”[6] She further opines that your untreated mental health condition:
“... has played a significant underlying role in his offending, as well as having perpetuated his substance use as a method of coping. He is a highly traumatized individual with severe maladjustment as a result of his unresolved trauma history, which has adversely affected his entire life trajectory.”[7]
[6]Exhibit 2, p 14 [121]
[7]Exhibit 2, p 14 [123]
21Ms Ferrari notes your untreated mental health issues and chronic substance abuse and considers that you are to be regarded as a moderate to high risk of general recidivism unless these factors are addressed. Nevertheless I note she considers you to be at a low-moderate risk of future sexual re-offending according to the results of testing undertaken by her.
“Mr Wilson does not display any evidence of sexual deviation or other risk factors which would elevate his risk of recidivism, specifically for any future sexual offending.”[8]
[8]Exhibit 2, p 14 [122]
Sentencing considerations
22Sexual offending against children must inevitably result in a lengthy term of imprisonment. The particular relationship between yourself as the stepfather of your primary victim necessarily leads to a conclusion that your offending involves a significant breach of trust.
23I accept the submission from Mr McCulloch that the nature of your offending on Charge 1 did not involve a risk of pregnancy, nor was it offending which involved a prolonged course of conduct. There was no enduring physical injury caused to your primary victim, nor overt violence or coercion used to commit the offence or to avoid detection. Nevertheless your offending in my assessment must fall at least close to mid-range offending and it does involve significant moral culpability evidenced by your denial of your offending to your then partner and to the police.
24Your plea of guilty is not one which was offered at the earliest opportunity and it is not appropriate to find that you are remorseful for your offending. I do accept however that your plea of guilty and your stated reasons, albeit after your primary victim was cross-examined at the special hearing, do provide some evidence of concern for your victim. You must be given credit for the utilitarian benefit of your guilty pleas. I also accept that a guilty plea during the Covid-19 pandemic should attract a more pronounced amelioration of sentence than at another time.[9]
[9]Worboyes v The Queen [2021] VSCA 169 at [39]
25I further accept the submission made by Mr McCulloch that you face the prospect of deportation at the conclusion of your custodial sentence.
26I also accept that your mental health issues, coupled with the prospect of deportation enlivens principles 5 and 6 as set out in R v Verdins.[10] I further accept that the submission made by Mr McCulloch relevant to the application of the principles in Bugmy v The Queen[11] would lessen your moral culpability over that of an offender whose formative years had not been marred in the manner of your own.
[10][2007] VSCA 102
[11][2013] HCA 37
27I further take into account the fact that you have been remanded in custody since April 2020 in circumstances where Covid-19 restrictions were in place. The lengthy period on remand is not submitted to be due to any delay occasioned by prosecution authorities. Nevertheless it is a factor to be considered in the overall sentencing exercise.
28I also accept the principle that in formulating an appropriate sentence in respect of Charge 1, where the standard sentence scheme is mandated, that I should take this factor into account as a “guide post” but as one factor to be considered in the overall sentencing exercise.[12]
[12]Brown v The Queen [2019] VSCA 286
29Consideration must also be given to your offending in relation to Charge 2. This involved separate circumstances and again breached a relationship of trust which had then existed between yourself and your stepdaughter.
30Your offending is aggravated by the fact that your victim viewed the pornographic image on your phone and asked you to delete it. The production of child pornography must again attract condign punishment. The severe penalties imposed by Parliament reflect the seriousness with which this type of offending must properly be regarded. Without persons such as yourself producing this material, the evil industry surrounding child pornography could not survive. I do accept that you are to be sentenced only in relation to a single image and there is no evidence suggesting its publication on social media or dissemination by other means. I accept that whilst all child pornography is serious offending, your particular offending is at the lower range.
31The sentencing guidelines of just punishment, specific deterrence, community protection and denunciation of your conduct must be given prominence in the sentencing exercise. I do accept that your longstanding drug use and mental health issues, probably resulting from your dysfunctional and abusive childhood, lessen the importance of general deterrence.
32I must consider current sentencing practises as one of the matters relevant to the sentence I impose upon you. In relation to Charge 1, the very clear pronouncement from the Court of Appeal in DPP v Dalgleish[13] and Grantley v The Queen[14] indicate that current sentencing practises at that time had devalued the objective gravity of the offence of incest involving what was described as an egregious breach of trust and consequences for victims.
[13][2016] VSCA 148
[14][2018] VSCA 112
33I have also been assisted by the comments of the Court of Appeal in McPherson v The Queen[15] where the court reduced a sentence of nine years to six and a half years for a single count of incest. The offending in that case involved a single act of digital penetration of the victim’s vagina. Central to the court’s reasoning in that case was that the sentencing judge had failed to give appropriate weight to the offender’s mental health condition and the principle of parsimony.
[15][2021] VSCA 53
34Finally, I note the numerous decisions of judges of this court provided to me in the course of the plea hearing. A consideration of “current sentencing practices” is one of the factors to be taken into account in imposing a just sentence in a particular offender. I have considered those authorities. It is unnecessary, and in my view unhelpful, to seek to distinguish the totality of the sentences imposed in each case.
35I therefore propose to sentence you as follows:
36On Charge 1, you are convicted and sentenced to a term of imprisonment of six years and six months. This the base sentence.
37On Charge 2, you are convicted and sentenced to a term of imprisonment of one year and six months.
38I direct that nine months of that term of imprisonment be cumulated upon the base sentence.
39The total effective sentence is seven years and three months’ imprisonment.
40I direct that you serve a minimum of five years’ imprisonment before becoming eligible for parole.
41I further declare that you have served 885 days in pre-sentence detention and I direct that that be deducted administratively.
42You have been convicted of one Class 1 offence and one Class 2 offence. Under the provisions of the Sex Offenders Registration Act 2004 you are required to comply with he reporting obligations of that Act for the remainder of your life.
43Pursuant to 6AAA of the Sentencing Act but for your plea of guilty, the sentence that would have been imposed would have been nine and a half years’ imprisonment with an eligibility for parole after serving seven years of that sentence.
44Disposal Order – Pursuant to s 78(1) of the Confiscation Act 1997 the property referred to in the schedule
1. Exhibit 2 – Girl’s Underwear – with words ‘Monday’
2. Exhibit 3 – Girl’s Underwear – with words ‘Tuesday’
3. Exhibit 4 – Girl’s Underwear – with words “Friday”
4. Exhibit 5 – Girl’s Underwear – with words “Saturday”
5. Exhibit 6 – Girl’s Underwear – with words ‘Sunday”.
be forfeited to the Chief Commissioner of Police and held by him until 28 days from this date or at the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
45Forfeiture Order – Pursuant to s 33(1) of the Confiscation Act 1997 the property referred to in the schedule, being 1 x Oppo brand red coloured mobile phone, be forfeited to the Minister.
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