Director of Public Prosecutions v Wolfe (a pseudonym)
[2019] VCC 507
•11 April 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYAN WOLFE (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE WRAIGHT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Trial: 5 – 13 February 2019 Plea: 10 April 2019 |
| DATE OF SENTENCE: | 11 April 2019 |
| CASE MAY BE CITED AS: | DPP v Wolfe (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 507 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of not guilty - sexual penetration of a child under 16 - committing an indecent act with or in the presence of a child - sexual offences of a child under care, supervision or authority - victim was a 13 year old girl - victim was the daughter of the offender’s partner - breach of trust
Legislation Cited: Crimes Act 1958 (Vic), Crimes (Sexual Offences) Amendment Act 1991 (Vic), Sex Offenders Registration Act 2004 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:Cheung v The Queen [2001] HCA 67; 209 CLR 1, DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148, Clarkson v The Queen; E J A v The Queen [2011] VSCA 157; 32 VR 361,
Sentence: Total effective sentence of 8 years and 4 months imprisonment, non-parole period of 5 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. D. O’Doherty (Trial) Ms J. Piggott (Sentence) | Office of Public Prosecutions Office of Public Prosecutions |
| For the Accused | Ms J. Clark | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Ryan Alistair Wolfe[1], you have been found guilty of the following charges:
[1] Ryan Alistair Wolfe is a pseudonym
2Two charges of sexual penetration of a child under 16, Charges 1 and 2, contrary to s.45(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Amendment Act 1991, which carries a maximum penalty of 15 years' imprisonment.
3Two charges of committing an indecent act with or in the presence of a 16 or 17 year old child under care, supervision or authority, Charges 3 and 4. Contrary to s.49(1) of the Crimes Act as amended by the Crimes (Sexual Offences) Amendment Act 1991, which carries a maximum penalty of five years' imprisonment; and
4Nine charges of sexual penetration of a 16 or 17 year old child, under care, supervision or authority, Charges 4, 6, 7, 8, 9, 10, 11, 12 and 13, contrary to s.48(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Amendment Act 1991 which carries a maximum penalty of ten years' imprisonment.
5You have also admitted your prior criminal record.
Circumstances of the offences
6Turning to the circumstances of the offences. In sentencing you on the trial indictment, I am bound by the principles in the case of Cheung v The Queen[2], as such I must interpret the facts in a way that is consistent with the jury's verdict.
[2] [2001] 209 CLR 1.
7The jury rejected your evidence in which you denied sexually assaulting the victim. You fall to be sentenced therefore upon the account given by the victim in relation to each charge the jury has found you guilty of.
8The offending can be categorised into four separate incidents and may be summarised as follows:
9In 2013 you, Ryan Alistair Wolfe, met Sylvia Ostrowska[3] working as a masseur in Yea. You became friends and had an intimate relationship for a short period of time. The victim in this matter is the daughter of Sylvia Ostrowska.
[3] Sylvia Ostrowska is a pseudonym name
10In about May 2014, Sylvia Ostrowska and the victim moved into your house 22 Market Street[4], Yea. At first Sylvia Ostrowska and the victim shared a bedroom then the victim moved into a room of her own. Sometime after Sylvia Ostrowska moved in you commenced a relationship with another woman who moved into the house sharing a bedroom with you.
[4] 22 Market Street is an anonymised address
11The victim started year 7 at Yea High School in 2014. From about June to December 2014, Sylvia Ostrowska was travelling to Seymour each day to attend a course, she also spent a month in Maidstone in Melbourne looking after her mother who was unwell. While she was staying in Maidstone the victim stayed in Yea with you. The charges on the indictment were presented at trial grouped into four separate incidents as follows:
Incident 1 – at 22 Market Street, Yea
12On an occasion after your new partner had moved in with you, you were at home at 22 Market Street with the victim, no-one else was home. The victim was 13 years old. She was sitting on the couch reading a book and you sat next to her. You had her lay down and then pulled her leggings down, you touched her breasts with one hand, firstly over her bra and then under after you took it off.
13Your other hand touched her inner thigh, this act was relied on by the prosecution as context of other misconduct evidence. You pulled down her underwear and rubbed your hand on her vagina, you then put your finger inside her vagina, it was uncomfortable but she did not say anything and you continued with your finger inside her vagina until a neighbour, Hollie Day[5], knocked at the door. You stopped what you were doing, got up and answered the door. That is Charge 1, sexual penetration of a child under 16.
[5] Hollie Day is a pseudonym name
Incident 2 – collecting wood
14On another occasion during the winter of 2014 or 2015, the victim went with you to collect firewood from an abandoned property. You chopped the wood and the victim loaded your trailer, as you were driving back you stopped your vehicle and told the victim to get in the back. You opened the back door, grabbed her hand and laid her down on the back seat. You lifted up her top exposing her breasts and tried to kiss her. You pulled her pants off one leg and pulled down your own pants. You then put your penis into her vagina and moved it in and out slowly, that is Charge 2, sexual penetration of a child under 16.
15Your phone vibrated in your pants and you stopped. The victim saw your penis and stated that "it had foreskin on it". This became a subject of some debate at trial. She also saw that you threw away a condom. You both got dressed and drove off. You let the victim drive for a short way before driving back to 22 Market Street. You told the victim not to tell anyone.
16In 2015, Sylvia Ostrowska and the victim moved out of 22 Market Street and into an address in Footscray. Sylvia Ostrowska stayed friends with you and you would also sometimes contact the victim on her phone. The Ostrowskas later moved to a town in Northern Victoria in December 2016.
Incident 3 – Moama Speedway
17On an occasion in early 2017, you spoke to Sylvia Ostrowska on the phone. You wanted to take the victim to the Moama Speedway. Sylvia Ostrowska gave you permission to take the victim with you to the speedway, you booked a motel room and told Sylvia Ostrowska it had two beds. You picked the victim up from her home on 25 March 2017. She had packed a bag to stay overnight. You stopped once along the way to enable you to go to the toilet, when you came back to the car you started to kiss the victim, undid her bra and began to play with her breasts. You then clipped her bra back up. That is Charge 3, indecent act with a child 16 or 17 years under care, supervision or authority.
18You reached into the backseat and showed the victim a metallic and black vibrator, you put it away and told her to put it in her bag. You continued to drive to Echuca and checked into the Rivergum Motor Inn at 3.52 pm. The room had a single and a double bed. You turned on the television, came over to the victim and tried to undress her. You tried to get her to lay down but she did not want to. You told the victim she had to suck your penis and at first she said no. You showed her a video on your phone for her to copy, you then put her penis into the victim's mouth holding the back of her head. When she stopped moving her head you would nudge it so she was moving it up and down. That is Charge 4, sexual penetration of a child 16 or 17 years under care, supervision or authority.
19After that you had the complainant stand up and you undressed her. You then laid her down on the bed and laid on her so your penis was near her mouth and your mouth was near her vagina. You then started to lick her vagina. You were licking and sucking her vagina and that is Charge 5, indecent act with a child, with a 16 or 17 year old child under, care, supervision or authority.
20You then moved position and put your penis inside her vagina. You had sexual intercourse with her in different positions, you did not use a condom as she was on the pill. You withdrew your penis and ejaculated, she saw you had a scar from your bellybutton down that is Charge 6, sexual penetration of a 16 or 17 year old child, under care, supervision or authority.
21The victim got dressed as you had a shower. You went to Charcoal Chicken, then to the Moama Speedway. After the speedway you bought alcohol from Coles and you both returned to the hotel. Back at the hotel room you gave the victim a pre-mixed alcoholic drink, then a second. She refused a third bottle. You phoned Sylvia Ostrowska to tell her the victim had enjoyed the speedway, the victim also spoke to her mother and said the same.
22You told the victim to lie on the bed and you undressed her. You brought out the vibrator she had seen earlier, you kissed her and kissed her breasts, you turned the vibrator on so it was vibrating, you put it inside the victim's vagina and moved it in and out, and that is Charge 7, sexual penetration of a 16 or 17 year old child, under care, supervision or authority.
23You then removed the vibrator and put your penis inside her vagina. You had sexual intercourse with her moving your penis in and out of your vagina. The victim needed to urinate so you stopped. She went and had a shower, that is Charge 8, sexual penetration of a 16 or 17 year old child, under care, supervision or authority.
24You asked if she wanted to do it again but she said no, you said okay, however you grabbed the back of her head and lent her head towards your penis. You put your penis inside her mouth, you stopped as the victim said she was tired and that is Charge 9, sexual penetration of a 16 or 17 year old child, under care, supervision or authority.
25The next morning when the victim woke up you told her not to bother getting changed. You pulled her onto the double bed, you put your penis into her vagina and had sexual intercourse with her by using your penis in and out, you did not ejaculate and that is Charge 10, sexual penetration of a 16 or 17 year old child, under care, supervision or authority.
26You drove the victim back to her home. The victim had the vibrator but kept it hidden in her wardrobe at home. You later asked her if she had used it.
Incident 4 – Echuca to see movie
27About a week before Mother's Day in 2017, you phoned Sylvia Ostrowska, you asked if you could take the victim to Echuca again this time to go to the movies. She gave her permission for the victim to go, the trip was planned for the Saturday night before Mother's Day 13 May 2017.
28You picked the victim up from her home, she had a packed bag to stay overnight. You drove to Echuca and checked into the Rivergum Motor Inn again at 4.48 pm.
29The room had a single and a double bed. You phoned Sylvia Ostrowska to let her know you had arrived and everything was all right. After the movie you went back to the hotel room and the victim rang her mother. You climbed onto the victim's single bed and pulled down her pants and underwear, your clothes were already off. You laid on top of the victim, you put your penis into her vagina and moved it in and out, and that is Charge 11, sexual penetration of a 16 or 17 year old child, under care, supervision or authority.
30You told the victim to stand up and you walked her over to your double bed. You laid her down, put your penis into her vagina and moved it back and forth, after you pulled your penis out you went to have a smoke and the victim got into her pyjamas. And that is Charge 12, sexual penetration of a 16 or 17 year old child, under care, supervision or authority.
31The next morning the victim went to the toilet, then came out to get her towel. You grabbed her hands and led her towards the bed. You took her clothes off, laid her on the bed and put your penis into her vagina. You had sexual intercourse with her again, it did not go as long as the other times as the victim was upset and in tears. She then went and had a shower and that is Charge 13, sexual penetration of a 16 or 17 year old child under care, supervision or authority.
32You drove the victim home without stopping as she just wanted to get home. When she arrived home Sylvia Ostrowska observed that the victim was upset and her eyes were puffy and red.
Disclosure
33Before the September 2017 school holidays you phoned Sylvia Ostrowska to ask if the victim could stay with you and your partner during the holidays. As it got closer she did not want to go.
34On 21 September 2017, the victim told her mother did she not want to stay if your partner's grand- daughter was not there, asked what was wrong, the victim said she was not supposed to tell anybody. She went to her bedroom and came back with the vibrator and showed it to Ms Ostrowska. She said that you got it for her. Sylvia Ostrowska called her friend Katie Marshall[6] who came to the house. The victim told her mother and Ms Marshall what had happened with you. She said, amongst other things, that you had sex with her and that it happened at the motel when you went to the speedway and the movies. She said the first time was when her mother had been away at her mother's and you had put your hands down her pants, another time was when you were chopping wood and you had sex with her.
[6] Katie Marshall is a pseudonym name
35Ms Marshall called the Swan Hill Police who attended at the house that night, the victim participated in a VARE the next day, 22 September 2017.
Arrest and interview
36On 19 January 2018 you were arrested at the Shepparton Police Station by appointment - sorry, you attended at the Shepparton Police Station by appointment. You were arrested and participated in a record of interview. During the interview you denied all of the sexual allegations, however as you admitted at your trial, other than the first incident you agreed that the activities relevant to the incidents 2, 3 and 4 occurred in the way described by the complainant.
Objective seriousness of the offences
37It is trite to say that sexual offending against young people under the care of adults are serious offences. The victims are vulnerable and reliant on adults to guide them and care for them. In relation to the four incidents here, the victim was under your care and supervision while she was away from her mother. It was in those circumstances that you took advantage of her vulnerability.
38The seriousness of your offending is also recognised by the maximum penalties imposed. In relation to Charges 1 and 2, the maximum penalty is 15 years as a consequence of the jury finding that the feature of aggravation of the victim being under your care, supervision or authority was proven to the requisite standard.
39Charges 4 and 6 to 13, carry a maximum penalty of ten years' imprisonment, and Charges 3 and 5 carry a maximum penalty of five years' imprisonment. I acknowledge that the concept of care, supervision or authority is a separate feature of aggravation.
40In relation to Charges 1 and 2, and an element of the remaining charges on the indictment, that as said it should be noted that you admitted at trial that in relation to all charges that the victim was under your care, supervision or authority at the relevant times, however you denied any sexual misconduct.
41In this instance the victim was a young woman who of low average intellectual functioning was assessed by the psychologist for the purposes of involving an intermediary at the special hearing. I accept that there is insufficient evidence before me to be satisfied that you were aware of the degree of the victim's intellectual functioning. Nonetheless the evidence establishes that you played a supervisory role once the victim and her mother moved into your home in 2014. The victim and her mother were in your home for a number of months and you were well aware of the victim's behavioural problems including the difficulties she had with her mother.
42Indeed you acknowledge in your record of interview that you played some role in the discipline of the victim. [7] Thus you were more than just a bystander with houseguests and in my view the aspect of care, supervision and authority in relation to all charges must be viewed in this context.
[7] See qq 67-76.
43It is clear that your offending represents a breach of trust in relation to both the mother of the victim and the victim herself. Her mother trusted you to be alone with her daughter in your home in relation to Charges 1 and 2, and trusted you to take her away overnight on occasions. As already noted children are entitled to feel safe when clearly under the care and supervision of an adult as the victim was in relation to all charges.
44Ms Clark who appeared on your behalf at trial and on the plea submitted that there was no gratuitous violence or force used in relation to the offending. While that is the case in relation to most of the charges, it should be observed that in relation to Charge 9, after the victim had told you that she did not want to engage in further sexual activity, you grabbed the back of her and directed it towards your penis before putting your penis in her mouth.
45I also note that in relation to Charge 4 that while your penis was in the victim's mouth and she stopped moving her head, you would nudge it so that she would move it up and down.
46Nonetheless it is well recognised that sexual penetration of a child is a serious and violent act, even in circumstances where it is said there were no overt acts of violence or force.
47As was noted in the Director of Public Prosecutions v Dalgliesh (a Pseudonym)[8],
Such arguments rest on a serious misconception about the nature of sexual abuse of a child. The crime of incest involves sexual penetration of a child which is by its very nature an act of violence. The Sentencing Advisory Council make this point strongly in its recent report on sentencing of offenders for sexual penetration with a child under 12.
"[I]t is concerning that the courts do not sufficiently recognise or articulate the inherent violence involved in a sexual penetration of a young child regardless of whether such acts are accompanied by additional non-sexual violence."
Moreover as this court explained in Clarkson v The Queen, the absolute prohibition on sexual activity with a child is founded on a presumption of harm. The significance of the violence and harm which such conduct entails cannot be overstated.
[8] [2016] VSCA 148 at [46]
48Ms Piggott who appeared on behalf of the Director of Public Prosecutions at the plea, submitted that your conduct represents very serious offending. She highlighted the fact that but for the sighting of a condom packet by the victim in relation to Charge 2, you did not use a condom on the other occasions where penetration took place. Ms Piggott also noted that in relation to Charge 2, you told the victim not to tell anyone about what had occurred.
49Further, I note the timeframe over which these offences occurred, the first two incidents in 2014 to 2015 and then the second two incidents in March and May of 2017, thus the offending was not isolated and you took advantage of your position on a number of separate occasions
Victim impact statements
50Two victim impact statements were tendered on the plea, the first was from the victim in this matter, understanding she notes that after the incidents occurred she did not know what to do or how to react. She states that she didn't sleep well due to reliving the events that took place. She also notes that the offending affected her schooling causing her to lose concentration and ultimately having to repeat year 11.
51She notes that she is now more reserved and guarded in relation to her emotions. She states that physical contact with family members has ceased and she dislikes being touched or being affectionate.
52The second victim impact statement was from the victim's mother, Sylvia Ostrowska. She notes that she was shocked after the disclosure of the offences which was self-evident from her evidence at trial. Following the disclosure of the offences she moved out of the area where she and her family lived. The relationship with her daughter, the victim, has become strained and consistent with the comments of the victim Ms Ostrowska states that any physical affection between her and daughter has become difficult.
Personal Circumstances
53Turning to your personal circumstances. You are now 60 years of age, you were born in Mt Gambier and never knew you biological father as your mother and he separated before you were born. Your mother formed a new relationship and you grew up with your step-father. He passed away in 1994. You spent your early years in a small town in Victoria south of Hamilton. Your mother is an elderly woman who lives in Mt Gambier, before you were remanded in custody you spoke with her on a weekly basis and have spoken with her a couple of times since being in custody.
54You have four step siblings however after your step-father passed away you have had no ongoing contact with them. You were educated in schools in the Hamilton area, you left school mid-way through form 4 in order to gain employment. After your step-father was injured and could not work for an extended period of time. You were employed in a number of casual jobs in shearing sheds and when seasonal you would cart hay.
55Your first full-time employment was as a labourer in a meat works in Portland. Your family was then living in Portland. After a couple of years working in that employment your family moved to South Australia in about 1979 where you obtained casual work in a timber mill. In 1981 you had a son with your then partner.
56You were living in South Australia during the period of the Ash Wednesday bushfires in which 14 people died in your community. You were a volunteer on that day working on a fire truck. As a result of those fires the house you were renting was burnt to the ground and you were left only with the clothes you were wearing. As a result you also lost your employment on the farm where you were working as it too was damaged in the fire. Further, your relationship with your then partner broke down.
57You returned to Portland and worked in the meatworks again followed by another job working as a fencing contractor. In the late 1980s you moved to Cairns and worked there in a number of labouring jobs until 2010. Whilst living in Cairns you entered in your second significant relationship and ultimately that partner returned with you to Victoria in 2010, where you settled in Yea.
58From then until the trial in this matter you worked part time on a farm performing general maintenance work. The part-time work had also been supplemented by a disability pension.
59You commenced a relationship with Elizabeth Law[9] in 2014 which continues. She is 59 years of age, and suffers a number of health issues. She relied heavily on you to assist her with her mobility and her personal care. It was submitted on the plea, that the fact that you are now custody has created a significant burden on Ms Law and indeed it has created a further psychological burden on you as you are greatly concerned about her wellbeing while you are unable to assist her.
[9] Elizabeth Law is a pseudonym name
60In relation to your own medical issues you have a number of significant matters that have troubled you for a long time. Predominantly you have suffered from various abdominal conditions. In 1978 you had your first abdominal surgery and had some of your bowel and intestine removed. In 1981, 1985 and 1996 you had further surgery in relation to various issues including a strangulated bowel and bowel obstructions.
61In the 1990s you were also diagnosed with Chron's colitis which resulted in pain, diarrhoea, weight loss and vomiting. Throughout 2018 you have been treated by gastroenterologist Dr Mark Ward who has come to the conclusion that you do not now suffer from Chron's Colitis, however what you do suffer from as a result of his observations is probable chronic pancreatitis. It seems from the most recent of his reports, that with medication you are able to manage that pain and the various symptoms resulting from your condition with medications.
62I was told that since being on remand you are receiving most of your medications, however the pain killers are unable to be provided when required and as such you suffer periods of pain while awaiting the provision of that medication. Further, some medication that assists you in controlling your diarrhoea has been unable to be provided and as such at times this results in embarrassing and distressing circumstances while sharing cells with others.
63Since being on remand you have engaged yourself in as many activities as you can. While this is your first time in custody and you find it to be a stressful experience, you have completed a number of courses and you have enrolled in a number of future courses in order to keep yourself occupied. Certificates were tendered in relation to the courses you have completed.
Sentencing considerations
64In cases such as this general deterrence, just punishment and denunciation of your conduct are paramount sentencing considerations. While you do not have a significant prior history you do have two previous convictions for sexual offending in 1987 and 1990. Both those matters resulted in relatively minor sentences including a fine of $500, in relation to the sexual penetration charges, in 1987.
65While these offences occurred many years ago, in my view specific deterrence still has some role to play. As noted above your offending was serious offending which has left a profound and long term effect on the victim. It also has had a negative effect on the relationship that the victim has with her mother. You ran a trial, and denied the offences. It is self-evident that you have demonstrated no remorse for your conduct.
66It was submitted that your prospects of rehabilitation should be assessed as good, I accept that submission. You are 60 years of age facing your first time in custody which has been a difficult experience for you and it was submitted it will have a great deterrent effect for a man in your circumstances. You are already engaging in courses and programs in the prison environment demonstrating your willingness to engage in rehabilitation.
67You continue to enjoy support in the community from your partner and friends. I accept the submission that custody will have a significant deterrent effect on you and that because of the chronic health difficulties you face that prison will be more burdensome. As such I accept in all the circumstances your prospects of rehabilitation are very good.
68As you are being convicted of two or more sexual offences each of which you will be sentenced to a term imprisonment, you fall to be sentenced as a serious sexual offender pursuant to Part 2A of the Sentencing Act 1991.
69Section 6D of the Sentencing Act 1991 provides that when sentencing you as a Serious Sexual Offender, I must have regard to the protection of the community as the principal purpose for which the sentence is imposed.
70In my view protection of the community is able to be achieved by the sentence that I will impose. Further, the prosecution does not contend for a disproportional sentence.
Sentence
71Mr Wolfe, please stand. Ryan Wolfe, in relation to Charge 1, sexual penetration of a child under 16, you are convicted and sentenced to three years' imprisonment.
72In relation to Charge 2, sexual penetration of a child under 16, you are convicted and sentenced to four years' imprisonment, this will be the base charge.
73In relation to Charge 3, indecent act with a 16 or 17 year old child under care, supervision or authority, you are convicted and sentenced to eight months' imprisonment.
74In relation to Charge 5, indecent act with a 16 or 17 year old child, under care, supervision or authority, you are convicted and sentenced to 12 months' imprisonment.
75In relation to Charges 4, 6, 7, 8, 9, 10, 11, 12 and 13, sexual penetration of a 16 or 17 year old child, under care supervision or authority, you are convicted and sentenced to three years' imprisonment on each charge.
76I direct that eight months of the sentence on charges 6, 10 and 11 and four months on the sentence on Charges 1, 4, 7, 8, 9, 12 and 13 be cumulative on each other and on Charge 2, that makes for a total effective sentence of eight years and four months' imprisonment. I direct that you serve five years' imprisonment before becoming eligible for parole.
77Further, as you have been convicted of four class 1 offences, you will be required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for the remainder of your life.
78Pursuant to s.18 of the Sentencing Act 1991, I declare that 56 days be reckoned as a period of imprisonment already served under the sentence I have imposed, that does not include today.
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