R v Walker
[2004] VSC 412
•21 October 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1479 of 2004
| THE QUEEN |
| V |
| PAUL HAROLD WALKER |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7 and 9 September 2004 | |
DATE OF SENTENCE: | 21 October 2004 | |
CASE MAY BE CITED AS: | R v Paul Harold Walker | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 412 | |
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Criminal law – Sentencing – Sexual penetration of a child under 16 – Class 1 Registrable Offender pursuant to Sex Offenders Registration Act 2004 - Cultivating, trafficking and supply to a child of cannabis – Pleas of guilty - Breach of trust as a confidant and masseur – Total term of imprisonment of 6 years and 1 month – Non-parole period of 2 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Kelly | Office of Public Prosecutions |
| For the Accused | Mr P. Chadwick | C D Traill Lawyers |
HIS HONOUR:
Paul Walker. You have pleaded guilty, and are to be sentenced for six offences. One of the six is the sexual penetration of a child under the age of 16. The sentence that I am about to impose for that offence is a sentence for a registrable offence under the Sex Offenders Registration Act 2004. As a Class 1 Registrable Offender, you will be handed by an approved delegate at the end of the sentence, documents including a notification of reporting conditions. I will remain on the bench then while those documents are handed to you and receipt is acknowledged.
The other five are offences under the Drugs, Poisons and Controlled Substances Act 1981. All of the five relate to cannabis. One is as to its cultivation between dates in 1995 and 2002. Another is as to its cultivation in June 2003. Another is as to trafficking in cannabis between dates in 1989 and 2002. Another is as to trafficking in cannabis between dates in May and June 2003. The final drug count is as to the supply of cannabis to a child.
The cannabis was supplied to the victim of the sexual penetration. She was born on 2 May 1986. At the start of 2002, she was having trouble communicating with her parents. Like so many 15 year olds, she was testing the parent/teenager boundaries. She wanted to be able to go out when she wanted to, without having to consult her parents. She and her school friends were experimenting in other areas, including the smoking of marijuana. Because she was troubled, she was vulnerable.
You and she had both lived in the same street for some years. You were often out at the front of your house. Although there is no indication in the evidence of you having groomed any other girl, your actions relative to this girl are strongly indicative of your having groomed her in the same way that, regrettably, so many sexual offenders groom vulnerable teenagers. You listened to your victim as she told you of her problems. She took you to be, as was the case, 50 years or more older than she was. She told you that she was having trouble with her parents. She came to confide in you about many things. Some were personal matters, like going on the pill.
You and she discussed smoking marijuana. That was a subject about which you were enthusiastic. You were in a position to help her learn more about marijuana. For thirteen years, since 1989, you had been engaged in the trafficking of marijuana in a small way. For seven years, since 1995, you had been growing a few cannabis plants out the back of your house. You showed your plants to her. The circumstance that she was made aware of your illegal activity enhanced the bond between you. You supplied marijuana to her on a few occasions. You did not expect her to pay. On at least one occasion, you accepted $15 for a gram.
I come back to the grooming of your victim. Early in 2002, the victim sprained her ankle. You offered to massage the ankle. She agreed, and you massaged the ankle on more than one occasion. The occasions when the massages were given provided more opportunities for you to increase her trust in you. On one occasion when she was upset with her parents, you invited her to join you for dinner in the city. She accepted. At the dinner, you offered her wine and she accepted. Some time later, you saw her running in the street. You warned her not to run. You offered to look at the ankle again. Your victim thought it was going to be only her ankle that you proposed to massage again. You spoke of a build up of fluid and the need to get that fluid moving. You said that a massage would help to take fluid away from her spine.
Inside your house, you asked her to take off her track suit and singlet top, and she complied. She still had on her bra and underpants. She lay on the table on her stomach. You massaged her shoulders. You told her that you were going to run your thumbs down the centre of her back. You asked for her OK to undo her bra from the back. She gave the OK. You undid the bra. You put oil on her. You massaged her back. You then moved to her thighs. You said words to the effect that what you were doing was part of your practice. From the side, you lifted her underpants. You moved your fingers into and around in her vagina for some moments. When you did what you did, your victim was shocked. She was also confused because of your preliminary remarks that it was your practice to do what you were going to do. She did not immediately tell you to stop. But she left when she could.
She went home. There she cried. She did not know what to do. She rang her mother, but her mother was at work. Her distress turned to anger towards you. She contacted her boyfriend and told him what you had done. In her confusion and distress and anger, she did several things that can be seen in hindsight to have been unwise. She decided to steal some of your marijuana and to take it to the police to get you into trouble. She went with her boyfriend to your house. She climbed through a window. She stole some marijuana. She and her boyfriend each took some of the marijuana. She put her portion in a cupboard. She later spoke with her mother. She was then still in a state of confusion and distress. A day or so later, her father found the marijuana. He took it to the police. Your victim was then interviewed by the police. She told the police about you and what you had done. The police went to see you. You co-operated with them. You accepted that you had been cultivating and trafficking in marijuana for many years. You also spoke to the police about your victim, and about what she said that you had done.
Much of what you told the police was accurate. But there are significant parts that I do not accept as being true. I accept what you said as to some matters, including that you had been selling marijuana in a small way for many years. Indeed, you had chosen to keep records detailing many smallish transactions. You had in your house both marijuana and items that helped you to cultivate it. You said that you had started selling marijuana to bring in a little more money after your back was injured and you had to give up work as a plasterer. You sold to people discretely introduced to you. Also to bring in a little money, you did some massage and allied remedial work. You have no formal qualifications. You registered the business name: “Alternative Healing Techniques”. You claimed that your philosophy is Love, Mercy, Compassion and Patience.
I do not accept a number of things claimed by you that conflict with what your victim has sworn to. What I there refer to 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.
You were interviewed by the police on 4 April 2002. You were told at the end of the interview that you would receive a summons as to the sexual and drug offences. It appears that you were not contacted again by the police for nearly fifteen months. Some of the delay appears to be linked to the police taking action against your victim and her boyfriend in relation to the theft of your marijuana. In any event, the police came to see you with a summons on 24 June 2003. They found that you had resumed the cultivation and the trafficking of marijuana.
Not one of the six offences to which you have pleaded guilty can be treated as a matter of insignificance. I treat the sexual penetration as the most serious. You took advantage of a vulnerable 15 year old girl. It was a serious breach of the trust that she put in you. You had offered to provide her solace at a difficult time for her. You presented yourself to her as an older man who could be trusted. Your actions in placing your fingers into her vagina indicated that your interest in her was as a sex object. You real interest was in self gratification. It is important that persons like your victim be protected. You only aggravated the situation by portraying her to the police as a liar, and as a provocative one.
As to the offence of supplying cannabis, I accept in your favour that you did not inveigle your victim into starting up the illegal activity of smoking marijuana, but merely encouraged its continuation. You have been described before me as an aged hippie. It seems that too many aged hippies choose to wear rose-coloured glasses. They choose not to see the wreckage caused by marijuana which is so often the subject of evidence before sentencing judges.
I turn to the two offences of cultivating cannabis and the two offences of trafficking cannabis. The two earlier offences are more serious than would otherwise be the case because of the long period of time over which the activity continued. The later two are more serious than would otherwise be the case because they demonstrate your preparedness to continue to flout the law after the police had told you that you would be taken to court. As to the 2003 actions, my sentences will reflect the making of an appropriate allowance in your favour for the delay.
In all areas, general deterrence is a significant consideration. I accept that specific deterrence is not a major consideration, despite the flagrant return to cannabis cultivation and trafficking. I accept that your past involvement with the criminal law is long ago and relatively minor.
I have read the victim impact statement of your victim, and the accompanying psychologist’s report. I found depressing what the victim has written. Your actions have clearly had serious adverse effects on her to date. It seems likely that they will have serious long term adverse effects.
You were born in January 1934, and are now 70 years of age. There have been periods in your life when you have conformed and periods when you have chosen alternative paths. You have married and had children. You have built your own home. You have shown accomplishments as a musician. You have worked as a plasterer, as a bus driver, in sales, as a taxi driver and in other diverse occupations. You have had accident injuries and other health problems. You have developed interests in other fields like transpersonal psychology and alternative healing techniques. The letters put before me from John Ahlert and Nicholas Burckhardt reveal the benefits that they have derived from your talents.
I allow in mitigation for your pleas of guilty, and for your age, and for the delay in your being proceeded against and brought to court, and for your ill health that will make prison an even greater burden for you than for the average prison inmate. Those matters are reflected particularly in the non-parole period that I will set.
I declare 43 days of pre-sentence detention. I direct that that be noted in the records. I have signed an order directing that you undergo a forensic procedure for the taking of a mouth scraping or blood sample. I inform you that a member of the police force may use reasonable force to enable the forensic procedure to be conducted.
I impose a sentence of imprisonment for 4 years on the sexual penetration offence. I impose sentences of imprisonment on the cannabis offences, with concurrency periods on the sexual penetration offence, as follows. On the offence of trafficking between 1989 to 2002, I fix 2 years, 15 months concurrent. On the offence of cultivating between 1995 and 2002, I fix 2 years, 18 months concurrent. On the offence of supplying in 2002 to a child, I fix 6 months, 4 months concurrent. On the offence of trafficking between May and June 2003, I fix 1 year, 8 months concurrent. On the offence of cultivating on 24 June 2003, I fix 1 year, 8 months concurrent. With cumulation, the effective total is six years and one month. I fix a non-parole period of two years and six months.
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