Director of Public Prosecutions v Wise, Bradley
[2012] VCC 790
•31 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION CR-11-00598
CR-11-00882
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY WISE |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2012 | |
DATE OF SENTENCE: | 31 May 2012 | |
CASE MAY BE CITED AS: | DPP v Wise, Bradley | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 790 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Alberts | |
| For the Accused | Mr J. Lavery |
HIS HONOUR:
1 Bradley John Wise, you have pleaded guilty to two indictments. The first, which I shall call A, contains five charges of indecent assault on a person under the age of 16 years and the second contains four charges each of indecent assault upon a person under the age of 16 years.
2 The prosecution has tendered a summary of prosecution opening on plea which is marked Exhibit A in these proceedings and I incorporate that document into my reasons for sentence in its entirety. It has been read out in court, I am not going to read it again.
3 Suffice it to say that each of these offences was 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. I do not think it is too unkind a description to suggest that at that time of your life you were acting towards those children as a school yard bully and that conduct has had its consequences.
4 I have now had the opportunity of reading the victim impact statements. I have read a number of victim impact statements in different cases and these are as detailed and as heart rending as any that I have read over the years in setting out the consequences to these people, their emotional development. The harm that it has done to them, at least in their perception, has stayed with them up until today, even though they are now in their mid‑30s, and you, as a more mature individual, I think appreciate that.
5 The report of the psychologist, Ms Warren, supports the view that you have come to realise just how harmful that kind of conduct is. I accept that you are genuinely remorseful now for what you have done all those years ago. I am not going to go into the detail of what these various victims have said in their victim impact statements but I think from what you told Ms Warren that you have some idea of what they are still going through. The harm you did is very significant and ordinarily it would result in a term of immediate imprisonment. It seems to me that your counsel is probably right in dwelling upon the events that were happening concurrently in your life, with your mother being in the throes of terminal cancer and I suspect that that caused a degree of emotional difficulty to you which resulted in you becoming somewhat disorientated and having difficulty in coping with your own developing sexuality at that time. Unfortunately you dealt with it in an aggressive way towards others. I think the fact that that conduct persisted, not just at one basketball club but, it seems, at another, shows that whatever was happening in your life was pretty significant. It is noteworthy that you have not offended since 1992 when you were last before this court and have led what seems to be a perfectly decent, blameless life with an excellent work record. It seems that you have good prospects for the future.
6 The delay is significant. I have no doubt that in the back of your mind you always feared that there might be a knock on the door and that somebody from your past would complain about this course of conduct for which had remained unpunished until complaint was made a few years ago. You have, I am sure, had that in the back of your mind for a very long time and it would have played on your mind. It has had the effect of allowing you to demonstrate that you can lead a decent life and you clearly have, as we lawyers say, rehabilitated yourself in that period. It does not seem to me likely that you will reoffend and I think the need for individual deterrence in your case in the sentencing process is a lot less significant than the need for deterring others from committing offences of that kind.
7 Ordinarily, in my view, that would have required you to serve an immediate custodial sentence. The only reason I am not going to do that today is that I accept a lot of these offences were committed whilst you were still under the age of 18. It is not quite clear exactly how many were committed whilst you were technically an adult and I do not think it is necessary for me to determine it. In those circumstances I think that is a special feature of this case that does militate in favour of a wholly suspended sentence.
8 The other factor which I think militates strongly in favour of suspending sentence is there has been a significant delay which the courts have said is to be regarded as a strong mitigating factor and I think to send a person of your age to prison after you have rehabilitated yourself would be unjust in all the circumstances. That is not to play down the seriousness of your offending or in any way to ignore the harm that your conduct has undoubtedly done to the five victims in this case.
9 I treat you as a person who has pleaded guilty at an early stage. You deserve full credit for your plea of guilty and that is another factor which supports the proposition that you are genuinely remorseful, genuinely sorry for what you have done and are genuinely appreciative of the kind of harm that you may have done to your victims. I acknowledge the fact that although some of the victims did have to give evidence at a committal proceeding, you have not required them to give evidence at trial and have generally sought to behave in a way which facilitates the administration of justice.
10 You are to be sentenced as a serious sex offender, although the prosecution has not asked me to pass a sentence that would be disproportionate to that which would otherwise be appropriate in your case. The law requires me to look to imposing sentences for each offence to run cumulatively. It seems to me that there is a need for some degree of cumulation, although I do not think it is necessary, despite the terms of the Act for the protection of the public, to impose total cumulation in relation to all the sentences that I am about to pass.
11 There has been no application for you to be placed on the sex offender's register and to the extent that I have a discretion in the matter, in the absence of that application I would exercise my discretion not to place you on the sex offender's register. I think after all this time and with the fact that you have since 1992 led a blameless life (20 years), has earned you the right to say that you have put all this behind you and genuinely rehabilitated yourself. Therefore, I think the protection of the public and the other considerations that are relevant do not require me to place you on the sex offender's register. You have got a job and I think, again, it would be very unfortunate to interrupt your working life by imposing an immediate custodial sentence at this time.
12 In all of those circumstances, whilst it is necessary for me to impose a sentence which reflects the denunciation of this court for conduct of the kind in which you engaged, and to punish you, the courts have said that a suspended sentence is to be regarded as a term of imprisonment, even a wholly suspended sentence, and is to be regarded as punishment. There is a stigma attached to being sentenced to a term of imprisonment and when a sentence is suspended, there is always that prospect you may be required to serve it if you commit any other offence that is punishable by imprisonment in the period of the suspension. You appreciate that, don't you?
13 So I think in all the circumstances, and having regard to the effect of a number of Court of Appeal decisions, that I am entitled to regard the imposition of a sentence of imprisonment, even if it is wholly suspended, as adequate punishment for you in these circumstances. Therefore I feel entitled, notwithstanding the need to impose a sentence that deters others, in exercising my discretion in favour of suspending the sentence. I also have to have regard to passing a sentence that facilitates your rehabilitation. As I have said, in a sense that has already been done and I think, again, an immediate sentence certainly would put you back a ways in that regard.
14 If you would stand up, please. In respect to each of the offences on the two indictments to which I have referred, I convict you. On indictment A, on charge 1, I sentence you to imprisonment for six months; on charge 2, to imprisonment for nine months; on charge 3, to imprisonment for nine months; on charge 4, to imprisonment for nine months; on charge 5, to imprisonment for three months. On indictment B, to which I have referred, on charge 1, I sentence you to imprisonment for 12 months; on charge 2, I sentence you to imprisonment for six months; on charge 3, I sentence you to imprisonment for 12 months; and on charge 4, I sentence you to imprisonment for 12 months.
15 In relation to those sentences, I treat the charge indictment B1 as the base sentence. I order that two months of the sentences on charges A2, A3, A5, B2, B3 and B4 be served cumulatively upon one another and upon the sentence that I passed on charge B1. By my calculations that makes a total of 24 months' imprisonment. Perhaps counsel would check that to make sure I have got that right. I order that that sentence be wholly suspended for a period of two years.
16 I have already indicated to you that you will not have to serve that sentence or any of it if you are of good behaviour over the next two years and do not commit any other offences punishable by imprisonment. If you do, then likely you will come back before me and I can assure you that I will not take a merciful view. If you come back before somebody else, I doubt whether they will either and the likelihood is you will be required to serve, not only the whole of the period of the sentence that I pass, but any other sentence that may be imposed for the sentence which puts you in breach.
17 I have to make sure that you understand all that and you do?
18 PRISONER: Yes, Your Honour.
19 HIS HONOUR: Very well. But for your plea of guilty I would have sentenced you to a total effective sentence of 36 months' imprisonment. I would, I think, nevertheless have suspended that sentence also.
20 I was asked to make orders that you undergo a forensic procedure for the taking of a scraping from your mouth and I understand you consent to doing that.
21 PRISONER: Yes.
22 HIS HONOUR: I have to tell you, though, that at the time of the request for you to provide a scraping from your mouth, if you fail to do that or refuse to provide the sample, an authorised member of the police force may then use reasonable force to enable that procedure to take place. I am sure you will not put yourself in that position.
23 The order will require you to attend the officer‑in‑charge of a particular police station during the period of four weeks commencing 28 days after this sentence or once any instituted conviction appeal is finally determined and so on and so forth, it is all on the order, but I need to know which police station would be the one that is most convenient for you to attend. Can you take some instructions on that, Mr Lavery?
24 MR LAVERY: Yes. Perhaps if my learned instructor could approach and provide that on a piece of paper to be handed to Your Honour, would that be satisfactory?
25 HIS HONOUR: Yes.
26 (Instructions taken.)
27 MR LAVERY: Could I hand that up to Your Honour.
28 HIS HONOUR: Yes, certainly.
29 MR LAVERY: I hope Your Honour can read it. My instructor's writing is almost as bad as mine.
30 HIS HONOUR: The form is supposed to say where that is. I am not sure I can include that from the information that I have but I think I can simply repeat the word that is written on the paper.
31 MR LAVERY: Yes, Your Honour.
32 HIS HONOUR: You can take a seat for the moment whilst the orders are being written into the system, Mr Wise.
33 Is there anything else, gentlemen, that I have omitted?
34 COUNSEL: No, Your Honour.
35 HIS HONOUR: This is going to take some time, I think, so I will leave the bench and the order can be prepared in my absence. You can leave the dock now, Mr Wise.
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