Director of Public Prosecutions v Wise
[2017] VCC 470
•12 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY WISE |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2017 | |
DATE OF SENTENCE: | 12 April 2017 | |
CASE MAY BE CITED AS: | DPP v Wise | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 470 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offence
Catchwords: Indecent Assault – these offences committed during an intense period of offending over three years against multiple victims followed by a period of 26 years of no offending
Legislation Cited: Jury Directions Act 2015 (Vic)
Cases Cited: R v Clarkson (2011) 32 VR 361, Adamson v R [2015] VSCA 194, DPP v Toomey [2006] VSCA 90, Bauer (a pseudonym) v R [2015] VSCA 55, HMcL v R (2000) 174 ALR 1, Gordon v The Queen [2013] VSCA 343,
Sentence: TES 17 months imprisonment wholly suspended for two years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | OPP |
| For the Accused | Mr C. Metcalfe for plea Ms D. Caruso for sentence | Chester Metcalfe & Co |
HER HONOUR:
1 At the outset of these remarks, I advise that I will be using a pseudonym for the complainant, in order to protect his identity as required by law. He will be known as Gary Woodley[1].
[1] A pseudonym
2 Bradley Wise, you have pleaded guilty to four charges of indecent assault committed against Gary Woodley between 1988 and 1989, when he was aged 12 to 13 years. You were aged 16 to 17 years. Indecent assault was an offence with a maximum penalty of 5 years’ imprisonment at the relevant time.
3 I sentence you on the basis of the prosecution opening[2], an agreed summary which was read out in court. In brief, you were a Year 11 student at the same school as Gary Woodley, and you were his basketball coach. You committed the offences against him over three separate occasions.
[2] Exhibit A
4 On the first occasion, when you were in a spa after a training session, you picked him up and put him on your lap, undoing his shorts. You were tickling his ribs as you did this, telling him, “It’s all right”. It was not all right, as you then deliberately touched his penis (Charge 1).
5 On the second occasion, you and Gary were alone in the showers following training after everyone else had left. You were both wearing shorts. You began "mucking around", putting Gary’s head under the showerhead, and then you grabbed his shoulders and pushed him into a corner. You grabbed Gary in a bear hug, pinning him to the wall, and rubbed the front of his body, including his penis (Charge 2). You then rubbed your erect penis against his body (Charge 3). Gary was scared and said “ouch”, and you stopped what you were doing and let him go. You told him that you were just ‘mucking around’ and that you would not hurt him.
6 On the third occasion, about 3 to 4 weeks later, Gary was at your home alone with you and you were ‘play wrestling’ together. You suggested you both move to your mother’s bed, and you continued to wrestle, but it got rough, with you sitting on Gary, pinning him to the bed. You pulled his shorts aside and exposed his penis. This is not the subject of a charge but provides the context for the offending which then took place. Gary began crying and asked to call his mother to be taken home; although you initially apologised and again said you were just ‘mucking around’, you refused to let him call his mother, and got him an icy pole. When Gary again asked to call his mother you became angry and pinned him to the bed again with your knees on his forearms and rubbed your buttocks hard against his face (Charge 4).
7 Although you were still a child, aged less than 18, you were five years older than Gary, and were in a position of trust and authority, at least in Gary’s eyes, as his basketball coach and as an older student, as well as being physically stronger. I find that your actions towards Gary were manipulative, telling him it was all right, that you were just ‘mucking around’ and would not hurt him, and giving him an icy pole instead of allowing him to call his mother when he was clearly scared and upset by your actions. Your actions were also bullying, but went beyond that to being sexual.
8 As I will shortly outline, you were offending against many other boys who you were coaching during this period of your life, and the similarities between the accounts of what you did to them are striking - apart from the acts themselves, you engaged in manipulation and bullying, and having them at your house. Through your counsel, you have said that you do not recall the offending against Gary Woodley, the victim for whom I am sentencing you. Given you offended against 16 children in total, it is possible that you do not recall them all. However, in the context of the pattern of offending you were engaged in at the time, I do not accept that at the time you really thought that what you were doing was ‘just mucking around’.
9 In order to pass a just sentence, I must assess the seriousness of your offending against Gary by considering the nature and extent of the offending conduct, its frequency and duration, and the circumstances in which it occurred. I have gone through the details of the circumstances.
10 The charges relate to three occasions over a period of about four weeks, unlike the offending against most of your other victims which were mostly one-off occasions for each. Although the nature of the offending was less serious than other acts that were treated as indecent assaults at that time by law, the offending against Gary was persistent during the times that you had access to him, for your sexual gratification, including not stopping your behaviour when Gary clearly wanted you to desist. I find that the offending period stopped when Gary changed schools, and I am satisfied that this move was felt necessary by him because of your attacks on him.
11 I accept the prosecution submission that the offending for which I am sentencing you is not at the lowest end of the range of seriousness because of the breach of trust, the persistence, the bullying and manipulation, and the profound impact on Gary, as well as the fact that the offences were part of a three year pattern of conduct. That does not mean that you are being sentenced twice for the other offending; the pattern of conduct is a circumstance in which the offences against Gary occurred.
12 I received a statement from Gary as to the impact your crimes have had on him.[3] These are matters which I very much take into account in deciding the appropriate sentence. When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them, harm which can be long term and serious and both physical and psychological[4], and which includes future harm.[5] Almost all of these aspects apply to Gary.
[3] Exhibit B
[4]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[5]Adamson v R [2015] VSCA 194 at [56]
13 Not only did his education suffer, as he ultimately left school early, being unable to concentrate or absorb information, but he has struggled with all aspects of his life, he felt the abuse was life-changing. He has suffered sleeplessness, panic attacks, anger, fear, depression and anxiety; he has been unable to trust others, or work to his full capacity; all his close relationships have been affected, and he fears for his own children’s safety.
14 I have some things to say to Gary, who was in court at the plea hearing, but unable to attend via video link today. To Gary: nothing that I say can give you back your childhood, or your life. I know you are struggling with the effects of this abuse and that this struggle continues. All I can do is impose a sentence in accordance with the law, that recognises the impact on you, denounces the sexual abuse perpetrated on you, and provides what the law demands as just punishment. The law requires me to take into account things that are in the offender’s favour as part of the sentencing decision, and sometimes it might seem to a victim that the whole focus is on the offender. But the effect on you, Gary, is a very important factor for me to consider. From my experience as a judge, I am aware that speaking about these things that you kept to yourself for so long is very, very hard. I acknowledge your bravery and spirit for coming forward and seeing this process through. I know that you wonder whether you will ever be free of the thoughts of the abuse. But with this case behind you after today, I do wish you well for the future.
15 Returning to you Mr Wise, I will now turn to the matters that the law requires that I take into account.
16 The first of these matters is the fact that you pleaded guilty and did so at the earliest opportunity. I accept that this shows that you accepted responsibility for your offending, and demonstrates a level of remorse for the impact of what you did on Gary, particularly as you say you have no recollection of the events. Your plea of guilty has not only saved the community the time and cost of a trial, but importantly, it has saved Gary from the ordeal of giving evidence. Further, the time saved could be considerable, as the trial may have been lengthy, if, as suggested by your counsel, it had involved the introduction of evidence of your other offending by way of tendency or coincidence reasoning. As a result of your plea of guilty, the sentence I will impose is less than would have been imposed had you been found guilty by a jury after a trial, as required by law in your circumstances.
17 Next, I take into account that when you committed the offending, you had not been convicted of any other offence. That usually means that you are to be sentenced as a person who was of good character until you began committing the offences against Gary. However, from your criminal history, it is apparent that you began offending in late 1987. So the offences against Gary were committed after you had begun offending, although you had not yet appeared in court and been convicted. As a result, the benefit of not having a previous conviction is considerably reduced, but still to be take into account to an extent, but I do not sentence you as a person of good character at the time you offended against Gary.
18 Next, as I have said, although you are five years older than Gary, you were still a child under the law, as you were aged 16 to 17 during the offending against him. That means that my sentence must reflect the fact that had you been dealt with by a court then, it would have been the Children’s Court, which has a sentencing regime with a primary focus of rehabilitation, different to the sentencing regime for adults. I do note that all your court appearances have been in the adult jurisdiction, either the Magistrates’ Court or the County Court.
19 Next, I take into account that you are being dealt with about 28 years after the offences took place. The law recognises that it is a common occurrence for victims of sexual offending, especially children, to find it difficult to tell anyone, and some never do.[6] However, I do take the passage of time into account in my sentence of you, subject to the remarks which follow.
[6] Section 52 Jury Directions Act 2015
20 It is necessary for me to have regard to the other offending you were engaged in around the time of the offences for which I am sentencing you.
21 Between September 1987 and December 1989, you committed nine indecent assaults. It can be seen that this period includes the time of the offending against Gary. The victims were five boys aged 11 to 13, and one aged 15. You were aged 16 to 18 years. Five of the victims were known to you through your involvement in basketball. You were arrested in 2010 and sentenced in the County Court in May 2012 to a total term of imprisonment of 24 months wholly suspended for 24 months.[7]
[7] Part of Exhibit C: Criminal History, Prosecution Opening dated 28 May 2012, and sentencing remarks of His Honour Judge Maidment [2012] VCC 790
22 You next offended against a female, a girl aged 11, on one occasion in 1989 when you were aged 17 to 18. Again, it can be seen that the offence is included in the period of offending against seven boys.[8] In June 2012, you were convicted of one charge of indecent assault against the girl and sentenced in the Magistrates’ Court to five months’ imprisonment wholly suspended for 24 months.[9]
[8] Six victims in the period 1987-1989; Gary Woodley in 1988-1989
[9] Part of Exhibit C: Criminal History, Certified Extract of Heidelberg Magistrates’ Court dated 28 June 2012, Charge sheet and summons dated 9 June 2011,and Summary of Charges with a process date of 24 May 2011
23 You next offended between April and June 1990, committing nine indecent assaults. The victims were six boys aged 9 to 11, and one aged 14. You were aged 18 years. All of the victims were known to you through your involvement in basketball, and you were living with the family of two of the victims at the time. You were convicted and sentenced in the Magistrates’ Court in March 1991 to a term of imprisonment of 12 months wholly suspended for 12 months on one charge, and on all other charges, convicted and released on a community based order for 12 months.[10] This was your first appearance in court, although you had been offending for almost three years. The offending against the previous eight victims did not come to light at that time.
[10] Part of Exhibit C: Criminal History, Summary and Result of Charge for hearing date 21 March 1991, and charges
24 Your last offences were committed in September 1990. In May 1992, you were convicted and sentenced in the County Court for two charges of indecent assault committed against an 11 year old boy, and received a total term of imprisonment of 18 months wholly suspended for 24 months.[11] You were aged 19 at the time of those offences.
[11] Part of Exhibit C: Criminal History, Result of Charge and Antecedent Form, Return of Prisoners for County Court of Victoria dated 19 May 1992, Particulars of Offence, and sentencing remarks of His Honour Judge Hart (unreported, County Court of Victoria, 19 May 1992)
25 In those circumstances, while it is relevant to consider that you could have been dealt with under a different regime in the Children’s Court had the charges relating to Gary come to court shortly after they were committed, or you could have had the opportunity of receiving some concurrency in your sentences if the charges relating to Gary had been dealt with at the same time as other offences committed in that period at your court cases in May and June 2012, the reality is that by the age of 19, you had sexually offended against fourteen boys and one girl, putting Gary to one side.
26 I agree with the sentencing remarks of His Honour Judge Maidment as to your offending,[12] who did not know about all of the offences of which I am aware. In May 2012, he said,
“…each of these offences were perpetrated against much younger boys than yourself, in circumstances where I think it is fair to say you were exercising your greater strength and your greater age in a bullying and controlling way…at that time of your life you were acting as a school yard bully and that conduct has had its consequences.”
[12] Part of Exhibit C: Criminal History, Prosecution Opening dated 28 May 2012, and sentencing remarks of His Honour Judge Maidment [2012] VCC 790
27 Because of your significant record of offending between 1987 and 1990, when there was no rehabilitation, the passage of time to today’s sentence has its impact as a mitigating factor slightly reduced. However, your rehabilitation has been significant since then, and you have not appeared in court again for any offences committed after September 1990 of this kind, or at all. I will come back to your rehabilitation later.
28 Before I do, I turn to consider how it was that you carried on in such a way in that three year period. I have had the benefit of reading the sentencing remarks of His Honour Judge Hart, who was sentencing you in 1992 for offending against one boy only, and who was aware of your offences committed against seven victims in the months just before the offences for which he was sentencing you, and aware of your 1991 court appearance for those. He had before him the evidence[13] of a Dr Paull, a psychiatrist who you consulted weekly from February 1991, attended gradually less frequently throughout your 12 months’ community based order received in 1991, and who you were still seeing monthly at the time of the court appearance in 1992.
[13] It is not clear whether this was in the form of a report or viva voce evidence given on the plea
29 In summary, that evidence was that in 1987, the year you began your offending, your mother was diagnosed with breast cancer, and based on a family history of breast cancer, it was thought that she could die within months. You were aged about 16. She did not die in that short timeframe, but eventually, the cancer spread to her liver and brain, and she died in November 1989 when you were aged about 19, after a harrowing three year period for your family, including a frightening time when she was irrational shortly before her death. Shortly before your mother’s illness was diagnosed, you began to experience sexual attraction to boys. Although His Honour Judge Hart described this attraction as being to “boys of your own age”[14], we now know that the majority were five to nine years younger than you, and a female victim was involved.
[14] Part of Exhibit C: Criminal History, Result of Charge and Antecedent Form, Return of Prisoners for County Court of Victoria dated 19 May 1992, Particulars of Offence, and sentencing remarks of His Honour Judge Hart (unreported, County Court of Victoria, 19 May 1992)
30 Despite this qualification, the material before the court in 1992 from Dr Paull provides the explanation that the combination of the absence of parental assistance to deal with your questions as to your sexual orientation because of the necessary concentration on your mother’s situation, and the stresses, isolation and solitude you felt during her illness, played a part in your offending behaviour.
31 I accept this explanation, particularly as the time period of your offending matches the period of the diagnosis, illness and time after the death of your mother, and also because of the fact that you have not offended since. It seems that the sexual confusion you felt then was ameliorated, and you have been in age-appropriate heterosexual relationships over the intervening years of your adult life.
32 I emphasise that such an explanation does not provide an excuse for your offending, but does provide the background and context in which to assess your moral culpability, and your subsequent rehabilitation. Because of your youth, and the upheaval in your life, your moral culpability for this offending is lowered slightly.
33 As to your rehabilitation, as I have said, you have not appeared in court again for any offences committed after September 1990, of a sexual kind or at all. You were then aged 19 and you are now aged 45 years. You have had a solid work history, although you have had to leave some jobs when your employers discovered your criminal history. The last job you had to leave was because of the involvement of one of your victims in notifying your employer and confronting you, such that you have applied for and obtained intervention orders against that victim. In keeping with your solid work history, you have now obtained new employment and began that job this week.
34 I have also received a report of Ms Elizabeth Warren, forensic psychologist, which was provided to His Honour Judge Maidment in 2012.[15] She provides information as to your background since 1992, with your father remarrying in 1996, and you enjoying a good relationship with your stepmother and stepsiblings. You also have an older sister. Your father is now unwell and you assist your stepmother in his care when needed. She wrote a letter of support[16] for you in this regard and generally, having known you for the last 20 years or more.
[15] Marked as Exhibit 2 in the plea hearing before me
[16] Exhibit 3
35 I put to one side your assertion to Ms Warren that you did not physically hurt any of your victims; it is clear that there was an exercise of your greater strength and greater age, and, so far as Gary Woodley is concerned, he did suffer from that. Ms Warren formed the opinions in 2012 that you showed no clinical features suggesting that you were then a risk of re-offending, and that you had a level of discomfort, shame and regret about your offending in the past. I note that you have avoided relationships that could have led to you having children, due to a fear that discovery of your criminal history would lead to you “losing” any such children.
36 For completeness, I note two matters that are referred to in Ms Warren’s report: that you were regularly smoking cannabis between the ages of 16 to 17, and that you were subjected to an act of sexual penetration by an adult when aged 14. Neither of these matters were put forward by Ms Warren as having contributed to your offending, and your counsel did not do so either in the case before me, and so I do not treat them as such.
37 On balance, I consider that your rehabilitation has been successful over the last 26 years, and while you remain a risk of sexual re-offending because of your history, it is a very low risk.
38 Apart from those matters personal to you to which I have referred, I must also take into account deterrence, especially general deterrence which is of the utmost importance in cases involving sexual offending against children. That means that by my sentence of you the court must seek to deter others from committing sexual offences against children. I recognise that in this case that purpose has less significance because you were not yet an adult in the eyes of the law. Further, as you have not committed a sexual offence since 1990, I do not consider that specific deterrence has a role to play in my sentence in seeking to deter you from reoffending in any sexual way.
39 It is clear that you are to be sentenced for offences committed in 1988 to 1989. I have considered the authorities in respect of regard to be had by me to sentences imposed at the time of the offending, but that is only one aspect to which regard may be had. The prosecutor submitted that as to current sentencing practices, you are in a category of your own, because of the unusual features in your case – an intense period of similar offending over three years when you were yourself a child and young adult, followed by a period of 26 years with no offending – and also because of the sentences passed on you in 1992 and 2012. In each instance, the same factors were operating in mitigation of similar offending, and in each instance, you were sentenced to a term of imprisonment that was wholly suspended.
40 I have also had regard to the clear statements of the Court of Appeal[17] that the lapse of time since the commission of the offences is not unusual, and that
“it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour through the sentences imposed on perpetrators”.
[17]DPP v Toomey [2006] VSCA 90, [14], [17]
41 Further, the Court of Appeal[18] has said that
“The rehabilitation of victims of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently, the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.”
[18] Ibid
42 That is very much the situation in your case. You have rehabilitated as an offender, but Gary Woodley as the victim is still very much in recovery.
43 I propose to sentence you in accordance with the applicable principles. These include a starting point[19] of imposing proper and proportionate[20] sentences individually on each charge, taking into account the factors in mitigation, including that you were under 18 when you committed the offences, before turning to concurrency and cumulation and, ultimately, totality[21].
[19]Bauer (a pseudonym) v R [2015] VSCA 55, [194]
[20] As the prisoner is a ‘serious sex offender’, a disproportionate sentence may be imposed.
[21] Totality is qualified by the ‘serious sex offender’ regime – see HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
44 Because of your status as a serious sex offender due to your criminal history, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offence. However, the prosecution do not seek that, and I do not intend to do that.
45 It is also necessary for any sentences of imprisonment I impose today to be cumulative on each other unless I order otherwise, because of your status as a serious sex offender.
46 I have had regard to the serious sex offender sentencing regime and recognise that it places limits on the application of the principle of totality.[22] Despite this, I have still considered the need for today’s sentence to reflect to an extent the totality of your offending at the relevant time. That is, in respect of Gary, four charges of indecent assault; and in respect of other offending around that time for which you have already been sentenced, 21 charges of indecent assault against 15 other victims, but it is reflected to a limited extent.
[22]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
47 I have decided that I will order that there be other than the total cumulation required by the serious sex offender regime, because of the multiple constraints on me of:
· sentencing a person who was a child at the relevant time;
· previous sentences passed on you for similar offending during the same timeframe;
· totality; and
· the factors mitigating the seriousness of your offending.
48 Yes, would you stand up please, Mr Wise. You are convicted and sentenced as follows:
49 On Charge 1 – nine months’ imprisonment;
50 On Charge 2 – 12 months’ imprisonment;
51 On Charge 3 – 12 months’ imprisonment;
52 On Charge 4 - 14 months’ imprisonment.
53 I make the following orders for cumulation in the usual terms rather than in the terms required by the wording of s.6E Sentencing Act to make them easier to understand.
54 The sentence on Charge 4 of 14 months is the base sentence. I direct that one month of the sentence imposed on Charge 1, and two months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 4 and on each other. The sentence on Charge 3 is wholly concurrent.
55 That makes a total effective sentence of 17 months’ imprisonment. I direct the whole of that sentence be suspended for a period of two years.
56 The purpose of imposing a term of imprisonment is to act as a deterrent to others who would think to commit this type of offence. The purpose of suspending that term of imprisonment is to recognise the circumstances that exist in your case, and to recognise that you have achieved rehabilitation over the last 26 years since this offending.
57 You have been on suspended sentences before, but I must advise you that within the next two years, you must not commit another offence punishable by imprisonment or you will be almost certain to serve the sentence of imprisonment of 17 months which I have imposed today. If you do breach your suspended sentence by committing any other serious offence, not only a sexual offence, you will come back before me and I can tell you that you will almost certainly be required to serve that period of time. So, do you understand the consequences of breaching that suspended sentence?
58 OFFENDER: Yes.
59 HER HONOUR: In the event that it is necessary to re-visit the sentence, I note that you have served no days in custody.
60 I declare that in respect of all charges, you have been sentenced as a serious sex offender and direct that this be entered into the records of the court.
61 Finally, the sentence that I would have imposed if you had not pleaded guilty is two years six months’ imprisonment wholly suspended for three years.
62 Yes, thank you, Mr Wise. You can step out of the dock.
63 Are there any other orders?
64 MS DUCKETT: There are no other orders required, Your Honour.
65 HER HONOUR: Yes, thank you. All right, well here is hoping that a court does not see you again, Mr Wise.
66 OFFENDER: Yes.
67 HER HONOUR: Yes, thank you. We will adjourn until 10.30.
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