DPP v Wesley Ellis
[2016] VCC 1246
•23 August 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00602
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WESLEY ELLIS |
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| JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | 3 August 2016 | |
| DATE OF SENTENCE: | 23 August 2016 | |
| CASE MAY BE CITED AS: | DPP v Wesley ELLIS | |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1246 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – single charge of sexual penetration of a 16 or 17 year old child under care, supervision or authority– course of conduct charge - school teacher – Verdins principles enlivened– very good prospects for rehabilitation – exceptional circumstances for family hardship not reached - sentenced to 3 years and 9 months with a NPP of 22 months.
Cases Cited:Markovic v The Queen (2010) 30 VR 589; El-Hage v The Queen [2012] VSCA 309 Poursanidis v The Queen [2016] VSCA 164; R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Nibbs | Office of Public Prosecutions |
| For the Accused | Mr I. Hill QC with Mr D. Sexton | Tony Hargreaves & Co |
HIS HONOUR:
Wesley Ellis, you have pleaded guilty to one charge of sexual penetration of a 16 or 17 year old child who was under your care, supervision or authority, contrary to s. 48(1) of the Crimes Act 1958 (Vic) which carries a maximum penalty of 10 years' imprisonment. This is a "course of conduct" charge, between the dates of 25 October 2015 and 23 November 2015.You were born on 26 October 1978 and you are currently 37 years of age. The offending conduct commenced the day before your 37th birthday.
CIRCUMSTANCES OF OFFENDING
A prosecution opening was tendered on the plea. It is an agreed summary. Your offending conduct can be summarised as follows: You were a Year 11 teacher at a suburban state high school. The victim in this matter was one of your Year 11 students. She was 16 years old, and to be precise, 16 years and nine months. Her father was suffering from a terminal illness, and she spent time caring for him whilst balancing her studies. She relied on you a great deal, confiding in you in relation to what was happening with her father. You gave her your mobile number and told her to call you 24 hours a day. She gave you her number too. Between May and November 2015 there were numerous electronic and phone messages exchanged between you and the victim. An emotional relationship developed which commenced with holding hands, to a pat on the back, to a high five. The victim initiated the first hug. Your contact developed into kissing in August 2015, and then to genital fondling in the school drama room (which is an uncharged act). You would often meet up during school hours in the drama room during spare periods and talk and kiss. You would talk to her about marital problems you were experiencing, along with issues with your parents and sister.
In the one-month period between 25 October 2015 and 23 November 2015 you arranged dinner dates at various locations around Southbank and the Melbourne CBD areas, and you would also arrange rooms at various high-end Melbourne hotels where you would engage in sexual intercourse with the victim. You would also arrange to pick her up and park your car in secluded car parks. You would then engage in sexual intercourse in your car. There are 12 particularised incidents which make up the "course of conduct" single charge which you have pleaded guilty to. The details of these occasions are contained in the agreed prosecution summary. The sexual intercourse was usually preceded by digital penetration (which is uncharged), before penile/vaginal penetration. You used a condom although you did not ejaculate on any of these occasions.
On the final occasion you were in your car at the Melbourne Airport with the victim early in the morning where you had sex. You were spoken to by members of the Australian Federal Police. Both you and the victim denied that she was aged 16 and that you were her teacher. The AFP referred the matter to the Victoria Police.
You were interviewed by police on 23 November 2015. During the interview you made full admissions. You took responsibility for the sex taking place. You admitted to knowing that you should not have entered into anything in the first place and that you should not have let it get to that stage. You admitted to developing strong feelings for the victim. You stated that it was your fault and that you had "crossed the line".
Victim impact statement
The victim in this matter has not provided a Victim Impact Statement.
The Prosecution tendered a Victim Impact Statement prepared by the victim’s sister. She tells of the struggle and stress that her family has been under since the discovery of your offending. There has been a great deal of strain placed on family relationships and trust of their sister and daughter. The writer is concerned about her sister’s emotional state and well-being along with her commitment to her final year studies. She notes that her sister is receiving counselling and support at her school. This has all occurred in the context of their father suffering from a terminal illness.
GRAVITY OF OFFENDING
There are a number of features to this offending which make it a serious example of this offence:
a.As it is implicit in the elements of the charge that the offending constitutes a breach of trust, this cannot of itself be treated as an aggravating factor. I must, however, still make an assessment of the level of that breach of trust. In your case I judge it to be fairly high.
b.As the victim’s teacher, you occupied a significant position of authority and trust in the community with respect to your students. The community is entitled to have confidence in the very significant trust placed in our teachers with our children.
c.You also knew that the victim was relying heavily upon you for welfare support in relation to her terminally ill father. She was emotionally fragile. Adolescent students are vulnerable and impressionable vis-à-vis adult figures of authority such as teachers. The victim in this case was especially vulnerable.
d.There was a significant age difference, or difference in age, between the two of you. You were a mature man, over 20 years her senior.
e.You knew that you were acting in breach of this trust, that you were violating your professional teacher-pupil boundaries, and that you were engaging in wrongful and indeed, criminal conduct. The VARE evidence from the victim indicates that this was the subject of a discussion between the both of you. She said you knew of the consequences, including gaol; that you had done your research but chose to disregard it.
f.Although the offending extended for a relatively modest period of time, it was sustained. The charged offence covers a period of approximately 1 month. This was preceded by a significant period of emotional and physical contact. You are not to be punished for the conduct which precedes the charged period, but it does serve to contextualize the nature and extent of your wrongdoing which falls within the charged offence. You had ample opportunity, over a period of time, and in between each of the 12 charged occasions, to reflect upon your conduct and desist, yet you did not.
g.Your offending involved multiple acts of sexual penetration - involving twelve separate and distinct occasions of sexual intercourse.
h.Your offending involved a high degree of planning, such as the arrangement of dinner dates and various high-end Melbourne Hotels. You purchased jewellery for the victim to further your relationship with her.
It is to be remembered that the purpose of the offence for which you are to be sentenced is to protect adolescents in the care of adults, and to punish persons in positions of authority who exploit their vulnerability. That is why you are being punished. I accept, however, that you did not set out to callously sexually target the victim in a predatory way. Rather, in violation of your professional boundaries, you allowed a grossly inappropriate and unlawful sexual relationship to develop with the victim. You allowed your needs, which I will come to in a minute, to override your obligations to your adolescent student.
Reasons of offending and Verdins moral culpability
10.In relation to the underlying reasons for offending, reliance was placed by your counsel on documentary evidence from Dr Mathew Barth, Mr Patrick Newton and Dr Danny Sullivan. Their evidence was not challenged by the prosecution.
11.Dr Sullivan said the offending was not reflective of any concerning sexual psychopathology (e.g. sexual deviance). I accept that.
12.Reliance in particular was placed upon the following opinion of Dr Danny Sullivan, and I read this opinion from paragraphs 56 and 57 of the report tendered on the plea:
The conduct as alleged appears to have developed from Mr Ellis’ welfare role in circumstances in which he had limited access to supervision and was emotionally vulnerable. Mr Ellis has transgressed the role boundaries of this position, due to his emotional neediness, and perhaps the flattery of being needed by the victim. Despite an intellectual awareness of the wrongfulness of developing an intimate relationship, Mr Ellis has, over time, developed emotional bonds with the victim, and the relationship progressed to sexual intercourse. [56]
At the time of the alleged offending, Mr Ellis was predisposed to the offending behaviour by emotional vulnerabilities, which although falling short of an overt personality disorder, are nevertheless of clinical and explanatory significance. These predispose him to mood disorder: at the time of the offending and since, he would have satisfied a diagnosis of depressive disorder. In my opinion, depression was causally associated in part with the alleged offending, in that it is likely to have impaired his judgment and made him more emotionally needy, and partially impaired his capacity to think clearly, or make calm and rational decisions. There is no evidence of disinhibition or impairment of his capacity to appreciate the wrongfulness of the conduct as alleged, nor is the intent of the offending obscured. [57]
13.Your depression seems to have been related to a number of factors including marital problems, being unsuccessful in promotion at the school, and low self-esteem, all against the background of a traumatic childhood family accident, which is detailed in the reports.
14.It was submitted by your counsel that the existence at the relevant time of depression, and its impact upon your emotional state in particular, enlivened the first Verdins principle, with the consequence that there must be some moderation to the sentencing objectives of deterrence (in particular general deterrence), and denunciation. The prosecution did not challenge this evidence, and indeed accepted that the first Verdins principle was enlivened, but made submissions that it was not a weighty consideration in this case.
15.After anxious consideration, I have found that the first Verdins principle is enlivened on the basis of the evidence tendered, in particular that of Dr Sullivan. In short, I accept your condition made you more emotionally needy and vulnerable, and that this clouded your judgment to a degree when engaging in this offending, which involved the development of an emotional relationship. The weight to be accorded to Verdins will depend upon where it lies upon the spectrum: at one end, a person’s mental condition might fall just short of legal mental impairment, and, at the other, the Verdins principle might barely be engaged. How much weight to be accorded to it depends upon the severity of the mental condition and the strength of any realistic causal link between the condition and the offending. While I have accepted your mental state influenced your offending, in my view, Verdins is engaged only to a limited degree, for the following reasons:
a.Dr Sullivan himself is somewhat cautious when describing the extent to which your depression is related to your offending. He said that the depression was causally associated in part with the alleged offending, and partially impaired your thinking. It is an important qualification as to the strength of the causal link (which Dr Sullivan found to exist) between your condition and the offending. Your counsel accepted, fairly and properly, that this is an indication that the application of Verdins in your case was towards the lower end of the spectrum.
b.Your condition was not severe – it was depression which was likely to have been mild to moderate, according to Dr Sullivan. You were otherwise functioning at a relatively high level in society, performing, as you did, your role as full-time teacher at a secondary college. Your offending was also ongoing and was the result of a degree of planning and implementation by you, which sheds further light upon your capacity to function.
c.Your depression and emotionally fragile state of mind might have more powerfully explained a spontaneous or isolated act of stupidity. By way of contrast, and as your counsel accepted, that your offending was ongoing and repetitive tends to weaken the strength of the connection between your depression and the offending, or its significance as an explanation for your offending.
16.I have concluded that your condition somewhat reduces your moral culpability, resulting in a modest moderation to the weight to be given to specific, and in particular, general deterrence and denunciation.
Family Hardship
17.Your counsel submitted that there are a number of powerful matters which, in combination, amount to exceptional circumstances, such as to warrant mercy on the basis of family hardship. In summary they are: first, your son, who was born in September 2012, suffers from Autism Spectrum Disorder, with resulting behavioural issues and treatment needs; second, your wife is extremely psychologically fragile. In the absence of her husband, with no family in Australia and English as her second language, your wife would become the sole carer for your young autistic son. In the week before the plea, your wife has endured a traumatic miscarriage; third, both of your parents are medically unwell (in particular, Mrs Ellis suffers from deforming rheumatoid arthritis), and Mrs Ellis in particular is highly dependent upon you for daily care. Due to their conditions, both of your parents would be unable to fulfil any role in relation to the day-to-day care of your son.
18.The authorities make clear that "exceptional circumstances" is a high threshold to satisfy. The authorities talk of such cases being "rare".[1] This reflects not only the inevitability of adverse impact on family, but also the fact that any discounting of sentence on the ground of third party hardship creates difficulties of unequal treatment of offenders.[2] In R v Esposito [2009] VSCA 277 Nettle JA (as he then was) said that the situation must be so highly exceptional that it would be, in effect, inhuman to not apply the principal. While each case must be judged on its own facts, the case of El-Hage[3], which was raised by your counsel on the plea in support of the proposition that a combination of circumstances might amount to exceptional circumstances, is illustrative of the grave circumstances generally required to jump the high hurdle of exceptional circumstances. There the offender’s wife’s severe mental illness (she had become suicidal) meant that their two sons (one of whom was also suicidal) were effectively left without any parental care. [4]
[1] Markovic v The Queen (2010) 30 VR 589 at [77]
[2] Markovic v The Queen (2010) 30 VR 589; El-Hage v The Queen [2012] VSCA 309 at [1]
[3] El-Hage v The Queen [2012] VSCA 309
[4] See also Markovic v The Queen (2010) 30 VR 589 at [77]
19.It is no doubt a significant matter, and one which must be very concerning, that your son suffers from Autism Spectrum Disorder. He has, however, been assessed by the specialist paediatric consultant physician Dr Jarman as having mild Autism Spectrum Disorder in association with developmental delays. The specialist in question conducted the relevant tests before reaching this conclusion. Your son’s general practitioner noted in his report that your son had severe autism, but does not explain what he meant by this. Your counsel acknowledged that perhaps the more reliable diagnosis was that of the consultant paediatrician. I accept the evidence of the specialist paediatrician. I am also told that your son will attend normal day care centres for children.
20.Importantly, your son has the ongoing effective care of his mother, your wife. She is currently in good overall health, according to the material tendered on your behalf. Your wife is emotionally fragile but she does not suffer from any mental disability, let alone a severe one. The recent miscarriage has made her more emotionally vulnerable. Despite the challenges she has faced, "she continues to contain her mental state, despite her current destabilised emotions" according to Ms Wendy Northy, psychologist. To her great credit, she is described by Ms Northy as an impressively mature, intelligent and emotionally resilient person. English may be your wife’s second language but it has been the language of your household since she came to Australia over ten years ago. Her level of communication has allowed her to undertake a pastry course at an educational institution. She functions in society at a reasonable level.
21.As a child with Autism Spectrum Disorder your son is more fragile emotionally than other children of his age. He will need to see a speech therapist and occupational therapist (both once every two weeks) to assist him with speech, language, socialisation, play and behaviour. He will see his consultant paediatrician every six months for review. While your wife will be challenged, I am not persuaded that she will be unable to adequately meet your son’s needs, including managing his medical and therapeutic commitments and strategies.
22.The evidence does not show that your family unit is at risk of disintegrating, or that your son is in jeopardy of being placed in State care upon your imprisonment.
23.Turning to your mother, you have obviously been an important support to your mother. But in your absence, your mother will have the ongoing care and support of your father – who, despite some medical issues, continues to run his architectural practice. I appreciate that this may render it difficult for your parents to provide significant support to your wife and your son. But, as I have said, your son does have the ongoing effective parental care of your wife.
24.There will inevitably be some financial hardship to the family, but financial hardship to a family is a sad but unremarkable consequence of a parent being incarcerated.
25.On the evidence presented to me, I do not think that your son’s disabilities, your wife’s emotional vulnerabilities and challenges, or your mother’s health issues place your case in the rare category of exceptional circumstances.
OTHER PERSONAL AND MITIGATING CIRCUMSTANCES
Personal Background & Character References
26.Mr Ellis, you have one older sister who is a professional. Your father is an architect, and your mother was a psychologist. You initially attended private school in the southern suburbs. Your sister was involved in a car accident when you were in Year 9, and two of her friends were killed. Your sister was driving but was cleared of any wrongdoing. Siblings of the two friends who died also went to the same school. This created problems for you at school, and you were the target of threats from them. Your place at the school became untenable so your family moved to the northern suburbs in 1993 and you attended another school. You obtained your VCE in 1996.
27.You eventually completed Bachelor of Arts with Honours at the University of Melbourne, majoring in history. Your Honours thesis was about slavery in colonial Morocco and you travelled there as part of your studies. You later returned there and met your wife. You married her in June 2006, in Morocco. You then completed a Diploma of Education in 2006 followed later by a Masters of Education in Student Wellbeing in 2010. After qualifying as a teacher your first job was at the school where the victim attends. You started there in 2007 and left after your offending was discovered.
28.You have since gained work through your father’s architecture firm, and have commenced an online architecture degree through Curtin University.
29.There were a total of some 33 character references tendered on your behalf at the plea hearing, including one each from your mother, father and sister. There are also references from some of your ex-teaching colleagues. I have read each of these references carefully. The overwhelming themes are that you are genuinely remorseful and take full responsibility for your offending. You are a much-loved and supported son, sibling, husband, colleague and friend to many, who regard your conduct as completely aberrant in terms of your general character. You were a dedicated and highly skilled teacher. You are hardworking. You have provided considerable charitable assistance to the community, including through the provision of clothing to homeless and unemployed people, and through a scholarship fund for architecture students.
Admissions and Guilty Plea
30.When interviewed by police, you admitted to the allegations put to you, I have already referred to these. You pleaded guilty at the earliest possible opportunity at a further committal mention hearing, and the matter proceeded by way of straight hand-up brief. This obviated the need of the victim to give evidence and the trauma of being cross-examined. You are entitled to the full utilitarian benefit of the plea.
Remorse
31.I accept that you are genuinely remorseful, as evidenced by your admissions to the police, your plea, and the material (including the many references) tendered on the plea. Patrick Newton, psychologist, states that through counselling you have developed insight into the way in which you allowed your needs for affection and nurturance to override your obligations to your student. He says that you have come to understand the likely effects of your actions upon the victim and their likely ongoing ramifications for her. This, he says, has formed the basis of remorse for your conduct. As I said, I accept that you are genuinely remorseful.
No criminal history, good character and prospects of rehabilitation
32.You have no previous convictions or findings of guilt. You have no criminal history.
33.Dr Danny Sullivan found no evidence of paedophilia, no indications that the attraction to the victim in this case was specifically due to her age, and no indication of any other sexual deviance. Mr Patrick Newton conducted a risk assessment of sexual recidivism on you. He concluded that your overall risk of sexual re-offending would now properly be rated as falling in the low to moderate risk range, and that with continued treatment, further reductions should be possible over the medium term.
34.In light of these matters, your good character and your work ethic, I assess your prospects of rehabilitation as very good.
Verdins prison hardship and deterioration; Markovic hardship on offender
35.According to Mr Patrick Newton, there is a genuine risk that your depression could deteriorate in the time following sentencing. Dr Sullivan opines that in the event of imprisonment, incarceration will weigh more heavily upon you, due to your mood disorder and the likely worsening of this due to separation from your family, and in particular your son.
36.Even though I have found that exceptional circumstances do not exist so as to enliven family hardship, I take into account your anguish at being unable to care for your family members as a result of your imprisonment.
37.The existence of your depressive disorder, and its likely deterioration following imprisonment, enlivens the fifth and sixth Verdins principles such as to mitigate punishment. I make allowance for both.
CURRENT SENTENCING PRACTICES
38.I have had regard to current sentencing practices for this offence, insofar as they can be identified. Some cases and statistics were referred to me during the plea hearing, but both counsel at the plea submitted there were relatively few cases to guide me. It is almost always difficult to usefully compare sentences imposed in other cases, as no two cases are truly alike. In any event, other sentences are not precedents to be applied or distinguished. I have principally relied upon the particular circumstances of your case, and relevant sentencing principles, to arrive at the appropriate sentence for you.
APPLICATION OF RELEVANT SENTENCING PRINCIPLES
39.Pursuant to s.5(2F) of the Sentencing Act, the court must impose a sentence that reflects the totality of the offending that constitutes the course of conduct, and must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence (here it being 10 years' imprisonment). The principles of sentencing for a "course of conduct" offence are similar to those involved in sentencing for "rolled up counts"[5] Orthodox sentencing principles apply, so that the maximum sentence “remains a ‘yardstick’, by which the gravity of the offending is to be assessed, even though the offence itself is charged in 'course of conduct’ terms.” [6]
[5] Poursanidis v The Queen [2016] VSCA 164 at footnote [2].
[6] Poursanidis v The Queen [2016] VSCA 164 at [11].
40.The totality of the offending that constitutes the course of conduct here covers 12 separate instances of sexual intercourse over a four-week period.
41.While I accept that specific deterrence has only a limited role to play here, general deterrence and the need for the court to express its denunciation of this offending conduct is of considerable importance in the sentencing disposition, even allowing for some moderation because of the application of the Verdins principles. The sentence which I impose must be significant enough to deter others – particularly teachers - from engaging in similar offending.
42.Your counsel realistically accepted that the conduct to which you have pleaded guilty represents criminality which warrants an immediate term of imprisonment. Your counsel submitted that the applicable sentencing purposes, including that of punishment, can be appropriately met by virtue of a short term of imprisonment followed by a Community Correction Order (CCO). The prosecution submitted at the plea such a disposition was outside of the permissible sentencing range since it only allowed for up to two years' imprisonment. I indicated at the plea that I would need some time to consider the matter but in the meantime ordered that you be assessed for a Community Correction Order in combination with a term of imprisonment. You have been assessed as suitable.
43.Your counsel referred to the proposition stated in the Court of Appeal decision of Boulton, that even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration.[7] True enough, but the Court in Boulton[8] and subsequent cases equally recognise that there will be cases where the sentencing court concludes that the sentencing purposes of just punishment, denunciation and deterrence cannot be sufficiently served by the making of a CCO (or a Community Correction Order), even with onerous conditions, and even in combination with a short term of imprisonment.
[7] See [141]
[8] For example see [140]
44.I have concluded that having regard to your personal circumstances and the gravity of the offending, and the requirement that I must impose a sentence which reflects the totality of your offending covering, as it does, 12 separate episodes of sexual penetration, that a term of imprisonment with a non-parole period is required.
45.While the mitigating factors are relevant to every component of the sentence I impose, I will fix a shorter non-parole period than I might otherwise have set, in light of your positive prospects of rehabilitation and your personal factors. The community requires less in the way of protection by way of a lengthy period of incarceration without the possibility of parole.
SENTENCE
46. Mr Ellis, would you please stand.
47. On Charge 1, being the only charge that you face, for sexual penetration of a 16 or 17 year old child under your care, supervision or authority, you are convicted and sentenced to three years and nine months' imprisonment.
48. I fix a non-parole period of 22 months' imprisonment. So you must serve 22 months before becoming eligible for parole. You may be seated.
Sex Offender Registry
49.This crime is a Class 1 offence pursuant to s.7 of the Sex Offenders Registration Act 2004 (Vic). You will be required to be subject to reporting conditions for a period of 15 years.
50.I will now ask that you sign an acknowledgement that you have received information regarding your obligations under the Sex Offenders Registration Act. My associate will bring the document to you.
Section 464ZF Order
51. The prosecution have made application for a forensic sample. This was not opposed by you. I make the order in the terms sought based on the seriousness of your offending. It will be for a saliva sample, and I must advise you that the authorities may use reasonable force in order to obtain the sample.
Section 6AAA
52. Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I indicate that had you not pleaded guilty, I would have sentenced you to a total effective sentence of five years and three months' imprisonment, with a non-parole period of three years and six months.
53. There is no PSD is there, to be declared?
MR NIBBS: No, Your Honour.
HIS HONOUR: All right. Nothing else, counsel?
COUNSEL: No thank you, Your Honour.
HIS HONOUR: Yes, if the prisoner could be taken away, please. All right, we will adjourn the court please.
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