DPP v Whiley

[2013] VCC 1683

IN THE COUNTY COURT OF VICTORIA  Revised

Not Restricted

Suitable for Publication

AT MELBOURNE CRIMINAL DIVISION

Case No. CR-12-02081

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN WHILEY

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATEOF HEARING:	7 August 2013
DATEOFSENTENCE:	22 August 2013
CASE MAY BE CITEDAS:	DPP v Whiley
MEDIUMNEUTRAL CITATION:	[2013] VCC 1683

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords: Pleaded guilty to sexual offences committed against six young people – serving suspended sentence for aggravated burglary and intentionally causing serious injury when committed these offences

Sentence:  Total effective sentence of 3 years 2 months’ imprisonment, with a minimum term of 2 years before becoming eligible for parole.

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APPEARANCES:Counsel  Solicitors

For the DPP  Mr A.K. McKenry                   DPP

For the Accused  Mr B.W. Johnston                  Haines & Polites

VICTORIAN GOVERNMENT REPORTING SERVICE

565 Lonsdale Street, Melbourne - Telephone: [phone]

HIS HONOUR:

1Nathan Whiley, you have pleaded guilty to sexual offences committed against six young people. There are four charges of committing an indecent act with a child under 16, which is an offence with a maximum penalty of 10 years’ imprisonment, one charge of sexual penetration of a child under 16, which also has a maximum penalty of 10 years’ imprisonment, and one charge of attempting to commit an indecent act with a child under 16, which has a maximum penalty of 5 years’ imprisonment. I will describe what you did in a moment.

2When you committed the sexual offences, you were under a suspended sentence. On 2 June 2011, you were in this court in front of another judge with charges of aggravated burglary and intentionally causing serious injury. That judge sentenced you to a total term of imprisonment of 30 months but suspended it for 30 months, on the condition that you not commit another offence during that time. So when you committed the sexual offences in November 2011 the following year, you also committed the offences of breaching a suspended sentence. I say offences because the legislation changed, and there needs to be two charges of breaching a suspended sentence. Through your barrister, you have pleaded guilty to those offences, and they have a maximum penalty of 3 months’ imprisonment.

3I better just check that, Mr McKenry that is correct?

4MR McKENRY: Correct Your Honour.

5HER HONOUR: Thank you.

The offences

6The sentence I am going to give you today is based on the opening which was read out in court by the prosecutor (Exhibit A). I will give a short description of what you did.  I will not refer to any person’s name.  All of the people involved,

including the people you offended against, will be referred to by their initials. I do that to keep the identity of the victims from being made public, which is a requirement of the law. I do not mean them any disrespect.

7One evening in November 2011, you went to a friend’s house, BC. BC’s sister was there, and at one stage you asked her for a cuddle. She hugged you, and you ran your hands across her buttocks before she told you to stop. You laughed and she went to her room. That is Charge 1 (indecent act). She was aged 12 and you were aged 27.

8On 23 March 2012, you went to a youth centre in Croydon with your friend BC, who was then aged 18. You were aged 28. You met up with three young men who I will refer to as BK, his brother KK, and their friend RC.

9I will just stop there for a moment.  Mr Whiley are you having a problem?

10OFFENDER:  No I was just - just bloody frustrated that's all.  If you know what I mean.

11HER HONOUR: I understand you do not want to hear about this, but it is necessary for me to - - -

12OFFENDER: I want to hear about it, but I don't want anyone else to hear about it if you know what I mean.

13HER HONOUR: Yes, that is all right, but it is just important that the court is open about the way in which it is dealing with this case.

14VOICE (from the body of the court):  (Indistinct) the dock (indistinct).

15HER HONOUR: Yes, all right so Mr Whiley you are going to be prepared to stay there while I go through this?

16OFFENDER: I've got really no choice do I?

17HER HONOUR:     All right, well I understand the situation, but you are quite

right, it is the situation that you have no choice, thank you.

18Returning to my sentencing remarks.

19You were with BC, BK, KK, RC. You all spent time together, travelling from place to place on bus and train, and you made KK sit on your lap or next to you. Eventually the group ended up at the house where you were living at. You all drank alcohol. KK was aged 14, and was the youngest in the group. He vomited as a result of drinking the alcohol. The group was in your room, and you insisted that KK sit on your bed with you while the others were on the floor while you all watched a DVD. During the night, you got KK to suck your penis (Charge 2 – sexual penetration of a child under 16). RC saw this happening, and the next morning you forcefully put to him that he had not seen anything.

20Four days later, on 30 March 2012, you met up with another friend of yours who was aged 14. This male introduced you to another 14 year old, who I will refer to as KW. You hugged KW and as you were hugging him, on one occasion you touched his buttocks and on a second occasion, you touched his genitals, over his clothing (Charge 3 – continuing conduct forming one charge of indecent act). KW felt uncomfortable about this and moved away from you.

21On 24 June 2012, you met a group of young men at Eastland, including a 13 year old boy who I will refer to as KS. You were still aged 28. Together the group travelled around on trains. While you were all waiting for one train, you grabbed KS and smacked his buttocks over his clothing (Charge 4 – indecent act). This did not happen just once but about seven times. Later, on the train, you made KS sit on your lap, and held him tightly, so that he had to ask you to let him go.

22In July 2012, you were staying at a house in Chadstone. A 12 year old boy who I will refer to as HR was also staying there, after he had run away from

where he had been living. You had already met him through your friend BC. After about a week of living there, you sat next to HR on the couch and grabbed his testicles over his clothes (Charge 5 - indecent act). He nudged you and swore at you, and you let go of him.

23In September, you were staying at the house in Chadstone again, and a 13 year old boy was also staying there. I will refer to him as JC. One night you went into his bedroom with a 19 year old female who was a friend of JC. You moved closer and closer to JC and then you lifted up his T-shirt and stroked his stomach in large circles, getting closer and closer to his genitals (Charge 6

– attempted indecent act). JC moved your hand away and the female kicked at you to stop you. You told them that as they were in your house, they would do what you say. After you began touching your own genitals, perhaps to scratch them, the female got you to leave the room by threatening to assault you.

24I have now finished Mr Whiley talking about the offences, and I will move on to some other things.

Impact on the victims

25I was given three statements about the effect of your offences. KK made a statement about how what you did made him feel, and his foster father made a statement too. KK is a teenager with mild cerebral palsy and a mild intellectual disability. He has had a tough start in life. He is not in the best position to cope emotionally with what happened, and he has been badly affected. You of all people should know what it is like to be different from other boys, and how hard it is to cope when bad things happen to you.

26KS also made a statement about how he felt. What you did has made his life hard because he feels unsafe and does not like to be alone even for a short time.

27I know that you now feel sorry for what you did to all these young people, and especially to KK, but it is important that they all know that I understand that they have suffered as a result of what you did to them, and that is information that I use in deciding what penalty I will give you.

Things in your favour

28There are a number of things that I take into account in your favour. The first of these is your plea of guilty. You have saved the community time and the cost of a trial, and most importantly, your victims have not had to give evidence. As they are all young people under 18, and some of them have their own problems to deal with, it is a very good thing that you have admitted that you did these things so that they do not have to come to court. Because of this, the sentence I will give you will be far less than if you had gone through a trial and been found guilty.

29Another thing in your favour is that you have said how sorry you are for what you did to these young people, both to the police and in a letter to the court. I have read the letter that you wrote, and your plea of guilty also shows how sorry you are.

30Owning up to what you did means you are taking responsibility for your actions. It is a good sign that you will be trying very hard not to do this sort of thing again. Your barrister told me that you are also agreeable to doing a course or program that will help you to understand why you did these things and help you not to do them again.

Personal circumstances

31You are now aged 29, and before you went into gaol, you were working in labouring jobs. Your parents separated when you were very young, and your father brought you up, with your brother and sister. He re-married and there is another brother younger than you.   You get on well with your stepmother,

although you have had your disagreements with her and your father over the years. There is no contact with your mother.

32You were very slow in your development as a child and it was discovered that you have a genetic disorder known as Klinefelter syndrome. You had learning problems and were bullied at school. You have had some episodes of depression. Unfortunately, none of your family lives in Victoria, and so you have become very isolated, living in boarding houses and mixing with people much younger than you. Even though you are a big man, the younger people tease you, including some of the people you were hanging around with when you committed these offences.

33You have been in gaol almost a year on these charges, and while you have been waiting for your case to be heard, you have done some courses, and got a job as a billet. After you finish your time in gaol, you hope to go to Tasmania and live with your father and stepmother, or at least near them, and get a job there.

Other orders

34The prosecution have asked me to make an order that the sample already taken from you by the police be kept and put on the database which holds all these results. You have agreed to this. I am satisfied that it is in the interests of justice, and so I will make the order.

35As a result of my sentence of you today, your details will go on another register, a list of people who have committed these types of sexual offences. There is one Class 1 offence and five Class 2 offences. After you are released from gaol, you will have 7 days to report your personal details. You will have to report as a registered sex offender for the rest of your life.

36Mr Whiley I am going to have handed to you some papers that tell you all about this.  If you have any questions you can ask your lawyer about it later.

37Mr Johnston would you accompany my associate to Mr Whiley, and I do not require Mr Whiley to sign the form.

38MR JOHNSTON: If Your Honour pleases. Your Honour may I take receipt of the documents after I've shown them to Mr Whiley, because I will be going and seeing him after this.

39HER HONOUR: Yes, so long as they're handed to him here in court.

40MR JOHNSTON: As Your Honour pleases.

41HER HONOUR:     Yes  thank  you,  you  can  take  a  seat  again Mr Whiley.

Mr Whiley, I have to say some things to the lawyers now, and I will come back to speak to you again in a few moments to tell you what your sentence will be.

Basis for sentencing

42I sentence Mr Whiley on the following bases:

43I considered whether the presence of others for the commission of the offences in Charges 2, 4 and 6 was an aggravating feature, but I am not satisfied that it is. I accept that it is instead demonstrative of Mr Whiley’s lack of sophistication and guile that he committed acts which he knew to be wrong in circumstances where he would clearly be detected. With the exception of Charge 2, and perhaps Charge 6, the acts constituting or surrounding the offences could be described as childish: hugging, sitting others on his lap, touching or grabbing others on their genitals or buttocks over clothing. That does not mean that I ignore the effect that those acts had on the victims, it is simply an assessment of the objective seriousness of the offending.

44I accept that the offending occurred in circumstances where the opportunities presented themselves, and was not as a result of predatory behaviour.

45I accept that as a result of there being no aggravating features, an analysis of the offending in each instance shows that it is towards the lower end of the

scale for the particular type of offence. However, although the maximum sentence for the indecent act Charges 1, 3, 4 and 5 is the same as that for Charge 2 of sexual penetration, I consider Charge 2 to be far more serious and to require a significantly higher sentence.

46I find that alcohol did play a part in Mr Whiley’s commission of Charge 2, and that consumption of alcohol by a person with Mr Whiley’s intellectual and social limitations is relevant in assessing his risk of re-offending. It seems from the sentencing remarks made at the time the suspended sentence was imposed, that alcohol may have played a part in those offences as well. Therefore, even though the offending breaching the suspended sentence is of a completely different character and level of seriousness, there is a need to adhere to the requirement for cumulation. However, given the factors in Mr Whiley’s favour, including having regard to the overall sentence to be imposed today, I find that it is appropriate to order that a substantial part of that restored sentence be concurrent with the sentence being imposed today.

47Mr Whiley’s criminal history before the imposition of the suspended sentence is of minor offending for which he was sentenced between 6 and 10 years ago, and there is no indication whether alcohol played a part or not.

48As to Mr Whiley’s risk of sexual re-offending, I find that difficult to assess. I note that he has had two age-appropriate relationships with women each lasting about two years, the second finishing when he was 27, the age at which this offending began. I was told that his partner in that relationship was an older woman, with children.

49At the time of the offending, Mr Whiley was socially isolated, which remains a problem, and he appears to have been unable to resist the opportunities for offending. If he continues to associate with vulnerable, disadvantaged or troubled young people, those opportunities may well arise again.

50While the protracted course of conduct Mr Whiley committed against a range

of young people is worrying enough, even though for Charges 1, 3-6, the offending is at the lower end of the range of sexual offending, Charge 2 is far more serious and of much more concern.

51Ultimately, I assess his risk as moderate. I am of the view that it is likely that Mr Whiley’s  risk will only be lowered if he successfully completes a sex offender program, but it would need to be one which is geared towards his particular limitations so as to ensure his comprehension and meaningful participation. Whether an individual program would be required, is a matter which should be carefully investigated by the corrections authorities. Further, as he has already served significant time in custody which will be deducted from his sentence, I strongly recommend that the corrections authorities consider his eligibility for such a program as soon as possible, in order that there is sufficient time for him to complete it.

52Both specific and general deterrence are important sentencing purposes here.

In this case, there  is  no  moderation  of  these  principles  arising  from Mr Whiley’s chromosomal disorder. The protection of the community is also important, and becomes of primary importance for Charge 3 and onwards, as Mr Whiley will be imprisoned in respect of Charges 1 and 2, and thus is to be sentenced as a serious sex offender for the balance of the charges.

53I accept that as Mr Whiley is in protective custody, his imprisonment is likely to continue to be more difficult than if he was in the mainstream prison population. It may also be that his intellectual and social limitations make his imprisonment more difficult than for someone without those limitations, and I take that into account as a possibility, but I also note that he has managed to work and undertake education while on remand.

Submissions

54The prosecutor submitted that an appropriate range for this offending including the breach of suspended sentence was 3-4 years’ imprisonment with

a minimum term of 18 months to 24 months. Where the serious sex offender provisions become relevant, a disproportionate sentence is not sought.

55Defence counsel conceded that imprisonment was the only appropriate sentence, but submitted that the range should be lower, there should be a high level of concurrency, and there should be a long parole period.

Sentence

56Mr Whiley would you stand up please and I will now tell you what the sentence will be.

57You are convicted and sentenced as follows:

·    Charge 1 – indecent act – 2 months’ imprisonment

·    Charge 2 – sexual penetration of a child under 16 – 24 months’ imprisonment

·    Charge 3 – indecent act – 3 months’ imprisonment

·    Charge 4 – indecent act – 5 months’ imprisonment

·    Charge 5 – indecent act – 5 months’ imprisonment

·    Charge    6    –    attempted    indecent    act    –    3    months’ imprisonment

58I order that the sentence of 30 months’ imprisonment imposed on 2 June 2011 be wholly restored.

59On Charge 1 of contravening a suspended sentence order, you are convicted and discharged. On charge 2 of contravening a suspended sentence order, you are convicted and sentenced to 14 days’ imprisonment.

60Charge 2 on the indictment of 24 months’ imprisonment is the base sentence.

I direct that one month of the sentences imposed on Charges 1 and 6, two months of the sentences imposed on Charges 3, 4 and 5, and six months of the restored suspended sentence imposed on 2 June 2011 are to be served cumulatively on the sentence imposed on Charge 2.  All other sentences are

concurrent. I have expressed these orders in this way rather than as required in the serious offender provisions of the Sentencing Act, in order to make it easier to understand them.

61That results in an effective sentence of 3 years 2 months’ imprisonment.

62       I direct that you serve a minimum term of 2 years before becoming eligible for parole.

63I declare that you have served 352 days in custody not including today and that these are to be deducted administratively from your sentence.

64I also direct that it be entered into the records of the court that I have sentenced you in respect of Charges 3 through to 6 as a serious sex offender within the meaning of the Sentencing Act.

65I have made the ancillary orders. Just pardon me a moment Mr Whiley, you can take a seat.

66I add that if you had not pleaded guilty, but had been found guilty after a trial, the sentence I would have imposed on all offences is 6 years’ imprisonment, with a minimum of 4 years.

67MR JOHNSTON: As Your Honour pleases.

68MR McKENRY: As Your Honour pleases.

69HER HONOUR: No questions arising?

70MR JOHNSTON: No Your Honour.

71HER HONOUR: Thank you very much. Could I just say that because it's a little complicated with the various orders I won't enter the orders into the record before the end of today. So if counsel reviews them and has any problems then please let my associate know.

72MR JOHNSTON: As Your Honour pleases.

73HER HONOUR: Yes, all right, thank you very much. I thank everyone for their attendance, and their behaviour in court, and Mr Whiley may now be removed, thank you. I will just stand down while the next matter is brought on, thank you.

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