Director of Public Prosecutions v Wynne-Jenkins

[2014] VCC 1570

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT WODONGA
CRIMINAL JURISDICTION

CR 14-00649

DIRECTOR OF PUBLIC PROSECUTIONS

V

ADAM WYNNE-JENKINS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Wodonga
DATE OF HEARING:	17 September 2014
DATE OF SENTENCE:	17 September 2014
CASE MAY BE CITED AS:	DPP v Wynne-Jenkins
MEDIUM NEUTRAL CITATION:	[2014] VCC 1570

REASONS FOR SENTENCE

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Subject: Criminal Law - sentence   

Catchwords:   Pleas of guilty to one charge of indecent act with child under 16, one charge of using a carriage service to groom a child  - breach of trust – mitigating factors include Verdins principles, remorse, delay, excellent prospects for rehabilitation, low risk of re-offending.

Cases Cited:R v Verdins (2007) 16 VR 269; 169 A Crim R 581

Sentence: CCO (2 years)

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APPEARANCES:	Counsel	Solicitors
OPP	Adam Wynne-Jenkins	OPP
Defendant	Ms N. Karapanagiotidis	Mario Vaccaro

HER HONOUR:

1Adam Robert Wynne-Jenkins, you have pleaded guilty to one charge of committing an indecent act with a child under 16 and one charge of using a carriage service to groom a child for sexual activity.  The maximum penalty for each of these charges is ten years' imprisonment but in this case for reasons which I shall explain, a prison sentence is not necessary.  In early 2013, you met the complainant who was then aged 14 through her parents, with whom you made friends.  You were then aged 34 and you knew how old she was.  Through your business as a tour operator, you were involved in the complainant's 14th birthday party, which took the form of a tour provided by your business on 9 March 2013.

2About a week before that, you and the complainant had started talking, as she later put it when she described your actions to the police.  You communicated with her via Facebook and she told you she had feelings for you.  You reciprocated with messages of a sexual nature, telling the complainant you loved her and indicating to her the types of sexual activity you would like her to engage in with you.  You played a game on Facebook called, "Truth or Dare", which involves sending messages discussing sexual experience.  You told her not to tell anyone about this relationship as it could get you into trouble.

3On 24 March you met the complainant at a barbecue she attended with her family.  You were drinking but you were not drunk.  The complainant had been provided with alcohol but she was not drunk either.  On two occasions that evening, you deliberately went to parts of the house where you were alone together, and on one occasion you held the complainant's hand and hugged her.  Later, you kissed her in a sexual manner.  That evening after she had returned home, the two of you conversed via Facebook discussing the contact that you had had at the barbecue.  The following day, an unknown person delivered an envelope containing copies of some of the Facebook messages to the complainant's mother.

4Soon afterwards, the complainant reported the matter to the police and you were interviewed a few weeks later.  Recently, the complainant has provided a victim impact statement in which she described how the offending affected her.  She was bullied at school and seems to have been subjected to cruel gossip by some of her peers.  She became isolated and very unhappy and for a long time thought that what had happened was her fault.  She states that a teenager should never have to go through what she went through.

5After you were charged, negotiations took place over several months and you indicated your plea of guilty at the committal mention in April this year.  That is an early plea, and you are entitled to a discount on your sentence for having avoided the expense and inconvenience of a trial and importantly for obviating the need for the complainant and her family to have to give evidence.  The plea is also an indication of your remorse, which you have expressed elsewhere as well, and I take that into account.

6There has been a considerable although not unusual delay and I take into account that you have had the uncertainty of the outcome and the anxiety associated with it hanging over your head for that period of time.  As to your personal background, you are now aged 35 years, a single man living with your father.  You did well at school and completed a post-secondary diploma in the field in which you later established your business, which you are still running.  You were married for 16 years and have four children from that marriage which ended in 2012.  At around that time, your business encountered difficulties and it was unclear whether it would survive.  You began drinking heavily using cannabis and in retrospect you have concluded you were an alcoholic at that time.  You had problems with personal relationships at that time and you consider now that you were not coping.

7On 26 March, you consumed a large amount of tablets and alcohol, intending to take your life and you were taken to hospital.  You were admitted to the psychiatric ward and remained there for two weeks.  A hospital report which appears to be in the form of a discharge summary states that on admission you had three to four months of depressive symptoms with a number of psychosocial stressors leading to the current crisis.  At the time of discharge, it was noted that you were very agreeable to ongoing mental health contact and indeed you began alcohol counselling at a very intense level, which is still continuing.

8Your doctor organised a mental health plan, and as a result you have been seeing a counsellor regularly and that is also continuing.  Recently, you were assessed by Mr Cummins, a forensic psychologist whose opinion is that at the time of the offending you were suffering from an adjustment disorder with depressed mood as well as alcohol and cannabis dependence.  Mr Cummins considered that you also had likely been suffering from a persistent depressive disorder for some years before the offending.  However, you told Mr Cummins that you knew you were doing wrong and that this reflected your very poor judgement as well as emotional confusion and vulnerability.

9Mr Cummins reported that you were highly embarrassed by your offending and apologetic and remorseful.  He said you acknowledged that you had breached the complainant's trust in you and that of your parents.  It is an accepted principle of law that a person who suffered from a disorder at the time of the offending may have a reduced degree of moral culpability.  In your case, the disorders identified and the circumstances in which they occurred lead me to conclude that the sentence I impose should be moderated to a slight degree.  I also take into account Mr Cummins' view that imprisonment would likely exacerbate your recovery from these disorders. 

10Importantly, you appear to have insight into the gravity of what you did by taking full responsibility for it.  You have taken the opportunity afforded by the delay to attend to your problems through intense counselling.  You have not drunk alcohol since your admission to hospital.  I have read a large number of references from family members, friends, and people who have worked with you and they all speak of your otherwise good character, your sound work ethic, your committed contributions to the community over many years and your devotion to your children whom you regularly see.

11It is unusual for a person with such a record of community contributions as yours to come before the courts.  And that reflects as one of your friends put it, the fall from grace that you have brought upon yourself.  You have a reputation for having long been an active member of historical groups and related organisations, responsible for much in the way of innovation and creativity in connection with that work in your home town.  You have no previous convictions and Mr Cummins considers you are at low risk of reoffending.  Your prospects for rehabilitation are very good.

12For all the reasons I have set out, there is a reduced need for specific deterrence to be applied in your case.  The need for general deterrence is always a primary concern in cases such as this because of the abhorrent nature of sexual crimes against children, for whom parliament has provided protection by means of severe sentencing provisions.

13The community rightly expects that such an offender will be duly punished, but with the proviso that such punishment must be just and appropriate in all the circumstances.  The charges in this case are serious and you committed a serious breach of trust with consequence suffering for the complainant.  However, I agree with the submissions of both your counsel and the prosecution that a gaol term is not necessary in this case.  As well as the mitigating factors I have already set out, I must consider whether the sentencing principles are met by means other than prison and I am satisfied that they are. 

14You have been assessed as suitable for a community corrections order and I understand that you have agreed to be bound by its conditions and carry out the obligations under it.  It covers both charges and convictions will be recorded.  Would you stand now please, Mr Wynne-Jenkins, I will explain the rest of the order to you.  It will commence today and last for two years.  You will be under supervision and you will be required to perform 40 hours of unpaid community work.  That is a limited amount given that you have already taken up further community work of your own volition.

15You must submit for assessment and treatment for abuse of drugs and alcohol and you must take part in the sex offender program. You must undergo mental health assessment and treatment as directed. You must attend the community corrections office at the address noted on the order by 4 pm on 17 September. You will be given that order to sign in a moment. The prosecution has applied for a forensic sample of saliva to be obtained under s.464(zf) of the Crimes Act and I am afraid I neglected to hear what your instructions were.

16MS KARAPANAGIOTIDIS:  It is not opposed, Your Honour.

17HER HONOUR:  Not opposed.  I make that order and simply need to say to you, Mr Wynne-Jenkins, that the police have the power to use reasonable force to obtain that sample but I trust that will not be necessary.  Under the Sex Offenders' Registration Act and you must report your details to the police every year for 15 years.  And you will be given a form to sign in that regard shortly as well.  Just take a seat for the moment, please.

18It is pointed out to me Mr Wynne-Jenkins that I told you you need to report by 4pm today.  That is not correct.  It is within two working days, which would be the 19th.  And while that is being attended to, are there any matters I have omitted, Mr Moore?

19MR MOORE:  No, Your Honour.

20MS KARAPANAGIOTIDIS:  Your Honour, may my instructor approach Mr Wynne-Jenkins just while he's signing that document please?

21HER HONOUR:  Certainly.  I understand there are some media representatives in court who may be wanting a copy of the sentencing remarks.  They will be available in about ten minutes.

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