R v Walker
[2005] VSCA 179
•21 July 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 288 of 2003
| THE QUEEN |
| v. |
| PAUL HAROLD WALKER |
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JUDGES: | CHARLES, VINCENT and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 July 2005 | |
DATE OF JUDGMENT: | 21 July 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 179 | |
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Criminal law - Sentence - Sexual penetration of child under the age of 16 - Whether offender proved to have "groomed" victim - Guilty plea - Irrelevant prior convictions - Whether sentence of 4 years manifestly excessive - Further offences of trafficking in, cultivating, and supplying marijuana to a child - Totality - Total effective sentence of six years and one month, non-parole period of two years and six months not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G.M. Horgan, S.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr P.F. Tehan, Q.C. | Christopher Traill |
CHARLES, J.A.:
The appellant pleaded guilty in the Supreme Court at Melbourne on 7 September 2004 to a presentment alleging one count of taking part in an act of sexual penetration with a child under the age of 16. On 9 September 2004, before the same judge, the appellant also pleaded guilty to a second presentment alleging two counts of trafficking in a drug of dependence, the first between 17 December 1989 and 3 April 2002 and the second between 20 May and 24 June 2003, two counts of cultivation of a narcotic plant, the first between 1 January 1995 and 4 April 2002, and one count of supplying a drug of dependence to a child. The appellant admitted two previous dispositions from two appearances in 1959 and 1972, which are not relevant to the matter now before the Court.
On 21 October the appellant was sentenced by the judge to a total effective sentence of six years and one month's imprisonment, and his Honour fixed a non-parole period of two years and six months. On 15 April 2005 the appellant was granted leave to appeal against sentence under s.582 of the Crimes Act 1958.
The appellant now appeals on the grounds, first, that the judge erred in finding that the appellant had "groomed" the complainant; secondly, that the judge erred in failing to give the appellant the full benefit of the matters in mitigation of penalty in fixing the head term; thirdly, that the sentence on count 1 is manifestly excessive, and failed to reflect the appellant's plea of guilty, the facts relevant to the count, the appellant's age and his poor health, and his lack of prior convictions for sexual offences; and fourthly, that the total effective sentence is manifestly excessive.
The circumstances of the offending were as follows. In early 2002, the appellant, then being aged 68, was living by himself in rented premises in East Kew. He claimed to be a self-taught healer and that he was operating a business providing basic chiropractic, acupressure, massage and stress counselling services from his premises. The complainant, AB, was then 15 years old. She and her family had lived in the same street as the appellant and had known him for a number of years. Occasionally, AB and her sister would visit the appellant and AB described their relationship as quite close. Early in 2002 the complainant was having problems in her family life, with her parents often arguing, leading them to be temporarily separated. In January 2002 AB had a fight with her parents and walked up the street crying. The appellant asked her what was wrong and, after talking with her, took her to dinner at a restaurant in the city, during which he gave her some champagne. The relationship between the appellant and AB continued to develop. After ascertaining that AB had smoked marijuana, the appellant began to supply cannabis to AB, which he would usually give her without charge, although on one or two occasions he sold her marijuana for $15 per gram. He also showed AB some marijuana plants which he grew in his back yard. Over this period AB went to the appellant's house approximately ten times. On one occasion she sprained her ankle after a fall, and the appellant offered to treat her ankle by massaging it. On four or five occasions the appellant gave AB ankle massages, during which they discussed her personal life.
On about 28 February 2002 the appellant saw AB running down the street. He warned her not to run and offered to look at her ankle again. Inside the appellant's house he asked AB to remove her tracksuit and singlet top, which she did. He then began to massage AB's shoulders, and with AB's permission removed her bra. Using oil, the appellant then massaged AB's back and thighs, saying that this was part of his usual practice. Before commencing the massage the appellant said he extracted a "pledge of integrity before God" from AB. The appellant then lifted AB's underpants and moved his fingers around her vagina and touched her clitoris and the area around her clitoris for about one minute. He then returned to massaging AB's back for a few minutes. AB later said she felt "dirty" and confused by the incident and was unsure whether the touching of her in this manner was part of a masseur's practice. She did not say anything to the appellant because she was shocked. After the appellant asked her if she wanted him to continue massaging her she said "no", and he then asked her not to say anything about the incident. After the appellant wiped the oil from AB's body, she declined his offer of a bath and got dressed and left the premises.
Upon returning home, AB unsuccessfully attempted to contact her mother and then rang her boyfriend and told him what had happened. He came to her house and, after talking, they went to the appellant's house. AB said that because she was angry and knew that the appellant had "stuff there that was illegal", she broke in through a window and stole an amount of cannabis, which she then hid in a cupboard in her bedroom. That evening, AB told her mother that the appellant had touched her vagina.
Shortly afterwards, AB's father discovered two plastic bags containing cannabis in AB's bedroom. He took the cannabis to Kew police station, which led to the police interviewing AB, during which she admitted to breaking in and stealing the cannabis from the appellant's house. She claimed that this was in retaliation for her being sexually assaulted beforehand, but she was charged with burglary and possessing cannabis, and on 6 September 2002 received a six months' good behaviour bond without conviction at the Children's Court.
These events led to a search of the appellant's premises on 4 April 2002. There the police found various amounts of cannabis and a small covered heated mat and lamp set up in the rear showroom of the house, which was being used in an attempt to grow two cannabis seedlings. The police found a plastic bag containing cannabis and $420 in cash. Handwritten logs found in the appellant's bedside table recorded his cannabis sales dating back to December 1989, and revealed sales of 48,521 grams of cannabis in a period of nearly three years. The appellant claimed that he began to sell cannabis when he injured his back at work in order to supplement his WorkCare payments.
On 24 June 2003, police went to the appellant's premises to serve some documents. When invited into his house the detectives asked the appellant if he was still selling cannabis, and he admitted that he was. He produced a plastic bag containing cannabis and was arrested by the police for possession of the drug. Upon a search of his premises, the police then found two hydroponic setups in his laundry and back shed, both in operation at the time. He was searched, and police found a bag containing cannabis and $365 in cash on his person. Police seized a total of 568 grams of dried cannabis, numerous cuttings and marijuana plants, and notepaper recording cannabis sales between October 2002 and 16 February 2003.
The maximum penalties for the offences involved were as follows: for an act of sexual penetration with a child under the age of 16 years, 10 years', and for trafficking in a drug of dependence, cultivation of a narcotic plant, and supplying a drug of dependence to a child, in each case 15 years' imprisonment.
The sentence imposed by the judge was constructed as follows. The judge ordered the appellant to be imprisoned for four years on the count of taking part in an act of sexual penetration with a child under the age of 16, this becoming the base sentence. On the second presentment, on the first count of trafficking in a drug of dependence, the appellant was sentenced to two years' imprisonment, 15 months to be served concurrently with the base sentence. On the second count of trafficking in a drug of dependence, he was sentenced to one year's imprisonment, eight months to be served concurrently with the base sentence. On the first count of cultivation of a narcotic plant, he was sentenced to two years' imprisonment, 18 months to be served concurrently. On the second count of cultivation, he was sentenced to one year's imprisonment, eight months to be served concurrently. On the count of supplying a drug of dependence to a child, he was sentenced to six months' imprisonment, four months to be served concurrently. The result was the total effective sentence of six years and one month's imprisonment.
Mr Tehan argued under ground 1 that the judge erred in finding that the appellant had groomed the complainant. He submitted that "grooming" had not been raised by the prosecutor when opening the facts to the trial judge. He put it that the agreed facts showed that the appellant had administered legitimate massage therapy to the complainant on eight occasions, and that it was not reasonably open to the judge to find beyond reasonable doubt that AB had been groomed, contending that it was more likely that this was a case of an opportunistic incident of infatuation. Mr Tehan argued that "grooming" meant that the appellant, with premeditation, had, in effect, prepared the victim so as to ensure that she would not reject his later advances. He argued, relying on R. v. Storey[1], that since this was clearly a matter of aggravation, the allegation had to be proved beyond reasonable doubt. The judge had not referred to Storey, but Mr Tehan accepted that his Honour would certainly have been well aware of that decision.
[1][1998] 1 V.R. 359.
Mr Horgan in this Court submitted that the allegation of "grooming" meant that the appellant had engaged in some preparation to ensure that when he later made advances to the victim she would accept them, a submission which accords substantially with that of Mr Tehan. He argued that the facts established that the victim had previously been to the appellant's house on up to ten occasions, frequently for massage and once possibly for a full body massage. The appellant had for a number of years (at least twelve) trafficked in marijuana, and had given and sold marijuana to AB (and a friend of hers). He, a man of 68, had taken AB to dinner at a restaurant in the city, where he had given her champagne. He had discussed personal matters with her, such as whether she should be on the pill, and the use of condoms. Mr Horgan submitted that in so doing the appellant had gone well beyond the bounds of legitimate interest. Then, under the pretext of looking at and massaging AB's ankle, he persuaded her to undress completely.
In arriving at the conclusion of grooming, the judge was plainly entitled to take into account the contents of the appellant's record of interview. His Honour did not accept a number of matters asserted by the appellant, especially where his version conflicted with that sworn to by the victim. His Honour said that what he referred to in that context -
"includes your saying that she lied in many respects to the police. That she was a person who was without inhibitions in your presence. That at the time of the last massage, she complained of a spinal problem; that you gave her a detailed preview of what you planned to do, that at the time of the last massage, she had on neither pants nor bra and that after you massaged her, she said it felt good so you did it again.
What you said was a mixture of false denials, of minimising your culpability and of inappropriate justification. There are many indications that over a period of some weeks at a time when she was particularly vulnerable, you groomed your victim. You then took advantage of the trust she had come to place in you for your own gratification."
Having carefully read the whole of the appellant's record of interview, I think the judge was perfectly entitled to prefer the victim's version. Much of what was said by the appellant was indeed highly improbable and strained one's credulity to the ultimate.
It is true that the prosecutor did not open the allegation of grooming at the plea. The issue was, however, raised during argument, the prosecutor submitting that the inference of grooming was properly open. In my view this was a question of fact, and the conclusion of grooming was an inference which the judge was entitled to draw from the evidence of the relationship between the appellant and AB. The judge dealt with the matter at some length during his reasons, and I see no error in his Honour's conclusions on this aspect.
Secondly, it was argued that the judge erred in failing to give the appellant the full benefit of the matters in mitigation of penalty in fixing the head term of four years on the count of sexual penetration of a child. It was put that the sentence was very stern, bearing in mind the appellant's age, his plea of guilty, his poor health, his very hard-working background, the fact that he had little in the way of prior convictions, and that the offence had been of short duration and without actual penetration of the victim's vagina. Mr Tehan reminded the Court that the offender may have to serve every day of the head term and put it that due regard should be paid to all matters in mitigation in fixing the head term. He submitted that the non-parole period appeared to be disproportionate to the head term and argued that the judge had failed to have due regard to mitigatory matters in fixing the head term and had only done so in fixing the non-parole period. In making these submissions, Mr Tehan conceded that the sentences on the drug offences were within range, although he suggested, rather faintly, that the orders for cumulation were excessive.
The judge expressly took into account the age of the appellant, his ill health and the delay in proceeding against him. I would accept that the sentence imposed on the count of sexual penetration was stern, the act having been of brief duration, and there having been no penetration of the vaginal canal. But it is quite plain that AB was in a most vulnerable state at the time, as the appellant was well aware, and the victim impact statement shows that she has been seriously damaged by what happened. The appellant's actions constituted an unwarranted invasion of the genitalia of a 15-year-old girl by a much older man, in the context of a relationship of some duration in the course of which the victim had come to trust the appellant, a trust which the appellant abused.
During argument on the plea, the judge referred to four decisions which his Honour thought relevant to the sentence to be imposed on count 1. In light of this, we invited counsel to make available to the Court any previous decisions which they considered likely to assist in establishing the appropriate sentencing range. A large number of cases were provided to the Court, but in my view, as is usually the case in sentencing, prior authority is of comparatively little assistance, having regard to the inevitable differences in the circumstances of the offences and the offenders involved. In the present case, reference to these decisions did no more than reinforce my view that the sentence on count 1 was at or near the top of the appropriate range in all the circumstances. I do not accept, however, that the sentence on this count was manifestly excessive.
The next ground complains that the sentence on this count failed to reflect the appellant's plea of guilty, his age, his poor health, and his lack of prior convictions for sexual offences. For the reasons already given, I do not agree.
Finally, Mr Tehan contended that the whole sentence, including the non-parole period, was manifestly excessive, arguing that the plea of guilty was significant, and the appellant had always pleaded guilty to the drug offences. He argued that there should have been less cumulation on the sentences imposed for the drug offences, and that, in the result, the total effective sentence and non-parole period were both manifestly excessive. I did not understand this ground to be separately pursued in oral argument.
It is, I think, clear that the judge took into account all the matters argued on behalf of the appellant. The orders for cumulation were, I think, within the range properly open, and his Honour took into account all relevant matters of mitigation when constructing the sentence. The matters in mitigation are all, in my view, reflected in the comparatively low non-parole period fixed.
I add the following. One of the appellant's submissions was that the overall sentence offended the principle of totality. In my view the judge, a most experienced criminal lawyer, plainly took totality into account in constructing the sentence, for the following reasons. The evidence showed that the appellant had engaged in very substantial trafficking of marijuana, dating from April 2002 back to 17 December 1989 (a period for which the appellant's handwritten records were found in his bedside table), and which revealed sales of 48,521 grams of cannabis. The appellant said that he had made $150 to $200 per week from selling cannabis. He admitted selling cannabis to the complainant at a time when she was 15 years old. On his own admission he had been selling cannabis for a period in excess of twelve years, making a substantial weekly profit. On this basis, his profit from trafficking marijuana would have been well over $100,000.
This Court, on re-sentencing, is entitled[2] to substitute a more severe sentence on individual counts, a proposition accepted by Mr Tehan during argument. In my view, the sentences imposed by the judge on the counts of trafficking in marijuana and supplying marijuana to a child were very low indeed, indeed so low that they can only be explained on the basis that the judge had the notion of totality at the forefront of his intentions in fixing the head sentence. Had I been minded to accept the submission that there was sentencing error, either in the finding of "grooming", or as to there being manifest excess in the sentence imposed on the first count, I should have felt obliged to increase substantially the sentences imposed at least on counts 1, 3 and 4 of the second presentment, leading to a total effective sentence at least that imposed by the sentencing judge. The non-parole period is, I think, merciful.
[2]Crimes Act 1958, s.568(4).
I would dismiss the appeal.
VINCENT, J.A.:
I agree.
ASHLEY, J.A.:
I agree.
CHARLES, J.A.:
The Court's order is that the appeal is dismissed.
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