R v Walkerden

[2019] NSWDC 881

District Court

New South Wales

Medium Neutral Citation:	R v Walkerden [2019] NSWDC 881
Hearing dates:	7 November 2019
Decision date:	07 November 2019
Jurisdiction:	Criminal
Before:	Haesler DC DCJ
Decision:	Aggregate sentence of 3 years with a non parole period of 1 year 6 months
Catchwords:	SENTENCING - Indecent assault of a child - sexual intercourse with a child – multiple victims   SENTENCING - Relevant factors on sentence – child victims - victim impact – old offences - applicable maximum penalties - application of principle - intellectually disabled offender - no other offending.
Legislation Cited:	Children (Criminal Proceedings) Act Crimes Act Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AJB v R (2007) 169 A Crim R 32 Cahyadi v R [2007] NSWCCA 1 (2007); 168 A Crim R 41 Kutchera v R [2007] NSWCCA 121 Markarian v The Queen [2005] HCA 5; (2005) 228 CLR 357 MJR v R (2002) 54 NSWLR 368 Postiglione v The Queen (1997) 189 CLR 295 Wright v R [2008] NSWCCA 91
Category:	Sentence
Parties:	Michael Walkerden (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender) Mr D Coulton, Solicitor Advocate (for Director of Public Prosecutions   Solicitors: Legal Aid NSW (for the offender)
File Number(s):	2018/00082942
Publication restriction:	Pseudonyms have been used in this judgment for the names the child victims. Pursuant to s15A Children (Criminal Proceedings) Act 1987 & s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute.

SENTENCE – ex tempore revised

1. Pseudonyms have been used for the names of the child victims. Pursuant to s 15A Children (Criminal Proceedings) Act and 57(8)(a) Crimes Act there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of any child. Identifying information has been removed from this version of the judgment to comply with the statute.

Introduction

2. Michael Walkerden has pleaded guilty to two very serious offences- aggravated indecent assault of a child under the age of 16 and sexual intercourse with a person between 10 and 16. The offences occurred in the later 1990s. Aggravated indecent assault of a child then carried a maximum penalty of seven years: s 61M Crimes Act 1900. Sexual intercourse with a person between 10 and 16 then carried the maximum penalty of eight years imprisonment: s 66C(1) Crimes Act.

3. When I deal with Walkerden in relation to each offence he has asked that I take into account that he committed another offence against each of his child victims. In all the circumstances it is reasonable I do so: s33 Crimes (Sentencing Procedure) Act 1999.

4. Walkerden has an intellectual disability assessed as being in the borderline range. The term borderline is not a measure as against all others in the community. Rather, it is a measure of intellectual disability itself, a lasting condition that must be taken into account. Walkerden, in spite of his disability, is able to function in the community if given the appropriate assistance.

Offending - Michelle

5. In the late 1990s Walkerden met Ms Brown (a pseudonym). Ms Brown was caring for her child and also trying to complete university studies. He offered to babysit her child Michelle (a pseudonym). At the time Walkerden was not working and in receipt of a disability support pension. He would babysit Michelle at Ms Brown’s house near Wollongong or at a friend of Ms Brown’s. He was not paid; the babysitting was done as a favour. He helped out with babysitting until the Browns moved interstate in March 2000. At the time Michelle was in Years 1 and 2 at school.

6. Michelle recalls one occasion when Walkerden was babysitting her when he came into her room and put his hands down inside the pants she was wearing. She felt his hand go under her underpants. It was moving around on her vagina. Walkerden said to her, “Do you like this?” She just nodded, unsure of what he was doing. This is the matter for sentence.

7. Michelle also recalls that after Walkerden stopped rubbing her he said, “Now it’s my turn” and pulled his clothes aside just enough for Michelle to see his penis. He asked her to touch it. It seemed to her that he made it a game and in doing so he moved one of her hands onto his penis. This is the matter to be dealt with on the Form 1. She now recalls this as the one time when the offender touched her.

8. Although Michelle does not recall it now, she did tell a friend and her mother about what was occurring. The matter was reported in 2006, but the investigation did not continue until more recent years.

Offending - Andrew

9. At about the same time Walkerden was babysitting Michelle he also met Ms Morrison (a pseudonym). He also looked after her son Andrew (a pseudonym) from time to time. Andrew has some memories of incidents occurring and of being discomfited and uncomfortable when with the offender. Andrew remembers being shown pornographic magazines and the offender coming into the bathroom while he was in the shower.

10. In 1999 or 2000 Andrew recalls meeting the offender while out shopping and being told where the offender was living. One day when Andrew wanted to get out of his house after a family argument he visited the offender in his unit. The offender let him in and they talked. The offender then showed him some pornographic images on files on his computer. While this was occurring the offender exposed his penis to Andrew and played with it. He was also talking about oral intercourse. Andrew noticed the offender’s penis was erect. This is the matter to be dealt with on the Form 1.

11. The agreed facts sets out in full what then occurred. Without going into all the prurient details they indicate that the offender held the child’s head and inserted his penis into Andrew’s mouth. This continued for a period of about three minutes. Andrew was able to move his head away from the penis. The offender made sounds that he was disappointed and said, “Aren’t you going to finish me?” Andrew then left.

12. Andrew made a statement to police in March 2017. A warrant for a listening device was allowed and a portion of the transcript is included in the agreed facts. Some admissions were made. When Andrew said “some stuff that shouldn’t have happened” the offender replied, “I admit that and I’m sorry, dude, you know”. Later Walkerden said:

“I don’t know how it got to that point either, but it happened and it should never have happened and, you know, I like regret a lot of things I did over the years, you know. It could’ve been wanting attention, you know, as well because of what was going on at home”.’

Objective seriousness

13. When a criminal act involves either the indecent touching of or sexual intercourse with a child there is no rigid hierarchy distinguishing different acts one from the other. A sentencing court has to take into account a number of important features or factors. They include;

1. where and in what circumstances the offence occurred; the degree of physical contact;

2. the age of the child;

3. the age difference between the perpetrator and the child;

4. any relationship between the perpetrator and the child;

5. the time over which the act occurred;

6. whether any harm, hurt or injury, physical or psychological, resulted in the extent of that harm; the number of acts and whether there was any escalation in the intrusiveness of the activities.

7. And, so far as the offences which carry an age provision, the child’s age relative to that provision; the younger the child the more serious the offence.

14. So far as Michelle was concerned the offences occurred in her home. She was very young. I sentence on the basis she was under 11 as s 61M(1) offence applies to a child was over 10. I also note that s 80AF Crimes Act now applies. Michelle was at the bottom of the age range of the offence. He was trusted by her mother to babysit her. Although he has an intellectual disability he was still an adult responsible for the child. There was skin on skin contact with the child’s genitals. It was not an isolated act as it was accompanied by the exposure of the child to another act - the incident now on the Form 1.

15. So far as Andrew is concerned Walkerden exploited his prior relationship as an adult babysitter. Walkerden was an adult, Andrew was only 12. He exploited the young boy’s natural curiosity. There was some grooming by the child’s being shown pornography and the exposure of the offender’s genitals: the Form 1 matter. There was an act of oral intercourse in which a child was used for the offender’s sexual pleasure; it went on for three minutes. Walkerden held the child’s head, but he did stop when the child was able to move his head away and there was no persistence thereafter. The offence involved gross invasion of the child’s body and an exploitation of his youth.

Victim impact statements

16. A Victim Impact Statement may be received and considered by a court. It must relate to any personal harm suffered by the victim as a direct result of the offence. The absence of a victim impact statement does not mitigate.

17. A Victim Impact Statement was received from Michelle: exhibit B, tab 5. Michelle read it to the Court. She told me how she felt alone, sad and disgusted with herself; how she had battled with problems of depression and self-harm since she was a teenager. She spoke of the wise words she had received from her father about moving forward with her life. She spoke of the struggle to take control of her life and, ultimately, of her realisation that what had occurred was not her fault. She told me that the pain, sadness and mixed emotions will never be truly gone, but she promised herself that she will carry on and move forward with her life.

18. The matters set out in Michelle’s statement are, tragically, all too typical a reaction to offences of this type.

19. Courts are aware that sometimes misperceptions and stereotyping remain problematic for an understanding of the impact of sexual assaults on children. I have had the benefit, as a judge, of receiving studies and reports from eminent experts in relation to such matters. The recent Royal Commission published information about the nature of behavioural responses to child sexual abuse. Such responses can vary; they vary because of the diversity of the abuse experience. The impacts can be both short and long term; they are more often than not highly individualised. It is however clear that all forms of child mistreatment and maltreatment present significant risks to the child’s physical and emotional wellbeing.

20. Concern is sometimes expressed by the child victims that they are themselves to blame. If someone feels guilty about an experience it is only a small step in an immature mind to draw a conclusion that oneself has been bad. Hiding from the consequent shame is a potent deterrent to disclosure. It is also my experience that once disclosure has occurred, once the Court proceedings finalise, child victims if they take the help offered them and those around them, family, friends and others in the community, turn down the volume, this will help them get on with their lives.

Applicable principles

21. At the time s 61M(1) Crimes Act carried a maximum penalty of seven years imprisonment and s 66C, eight years. If these offences occurred today much higher maximum penalties applied. Section 66C, as it now stands, carries a maximum penalty of 16 years with a seven year standard non-parole period and the sexual touching of a child aged between ten and 16, now s 66DB Crimes Act, carries a maximum penalty of ten years.

22. I must sentence today using the then available maximums as one guide to the exercise of my sentencing discretion: s 19 Crimes (Sentencing Procedure) Act. Content must be given to those maximum penalties and they provide a sentencing measure to be balanced with all other relevant factors.

23. Section 25AA of the Crimes (Sentencing Procedure) Act applies to these proceedings. Accordingly, I am also required to sentence the offender in accordance with the sentencing patterns and practices that apply today, not at the time of the offence. Sentencing patterns have changed since these offences occurred and the penalties imposed reflecting the new maximums and standard non-parole period are now more severe.

24. Those increased sentences reflect the Court’s recognition of the need for a retributive approach indicated by the maximum penalties and the fact that in one case a standard non-parole period applies. They also reflect, perhaps as against last century, a greater understanding by judges and the community of the longer term psychological consequences for victims of such matters and a considered judicial response to changing community attitudes to these crimes: MJR v R (2002) 54 NSWLR 368 at [57].

25. I take guidance from the maximum penalties applicable then not now, s 25AA does not alter this fundamental common law principle. Accordingly, I must determine the facts now available to the Court; have regard to the maximum penalty in force, as a guide; identify where in the range the offending conduct occurs and, identify the relevant factors that affect the objective seriousness, as I believe I have done. As with every sentencing exercise, I must take into account all relevant matters to determine the sentence and determine whether special circumstances apply.

26. I have to take into account the form 1 matter that applies to each of the offences for sentence. They do operate to increase the sentence that must be imposed, recognising the need for personal deterrence and retribution for the crime for sentence. I do so as part of the process of instinctive synthesis explained by McHugh J in Markarian v The Queen [2005] HCA 5; (2005) 228 CLR 357. When I do so I remind myself the sentence to be indicated must be for specific counts which are before the Court and that if, as here, the form 1 matters were taken into account when assessing what happened, such matters should not be double counted to the offender’s disadvantage.

Guilty Plea

27. The offender came to this Court in October 2018. On 27 November 2018 he was arraigned and said that he was not guilty. His trial was fixed for August this year, 2019. In July this year a special call-over was held of all the trials listed in this district. At that call-over Walkerden was, with my leave, re‑arraigned on a fresh indictment. He entered the guilty pleas that are to be dealt with today. That plea had utilitarian value. It meant both victims were spared the ordeal of giving evidence and being cross-examined. It enabled another trial to be listed in its stead.

28. Although generous, at the time of the plea it was accepted by the senior prosecutor who then appeared, that a 15% reduction in the otherwise appropriate sentence be allowed. I will make that reduction and will take care that the process of accumulation does not erode that benefit.

Subjective Case

29. The offences occurred over 20 years ago. This is the first time Walkerden has ever been dealt with by a court. Nothing before me other than the matters I have referred to indicate that he has done anything other than live a law abiding life. He has participated in community activities. He has worked in the community. He is described in the material before me as friendly, chatty, a man who is happy to plod along.

30. The history before me indicates that he had some limited heterosexual activity with a wife and his first girlfriend. Although there is a history of viewing pornography there is no evidence, other than the commission of these offences, of any paedophilic or sexually deviant behaviour.

31. Walkerden is understandably worried about the consequences of his criminal activity. No-one would be other than depressed at the prospect of going to gaol.

32. His aunt set out his family history, in exhibit 2 and her evidence today. She, and others who are aware of the charges, promise to stand by him.

33. Walkerden was born in 1976. He was born with several medical conditions, including cerebral palsy. That is evident today, as he drags his left foot and has minimal use of his left arm and left hand. He also had another disease at birth that meant that he had difficulty holding down food. At four years old he had an heart infarct and was placed under specialist treatment. He went to several primary schools and secondary schools, as his mother, who is here today, moved addresses. He was often placed in special classes because of his disability.

34. At 17 he started to receive the disability support pension. He is still on it. He worked for many years in a sheltered workshop. It was only following his arrest for these matters that he was eventually stopped from working. Such workshops require a working with children certificate; he will never get such a certificate again. This will mean that his future work prospects are limited. His hopes to return to the workshop may prove impossible.

35. Walkerden lives alone in a Housing Commission Unit. He has NDIS support. He is able to look after himself but his aunt says his standards are not high and he needs to be reminded about household chores. He has trouble managing his accounts; particularly his telephone accounts. He will have difficulty managing in gaol and when he is released.

36. The loss of his home, which will be inevitable, is a particular factor that must be taken into account. It is quite clear from the material before me that having a home in a community where he is accepted and understood has been a significant stabilising factor. I cannot ignore the fact that he has worked and lived in the community, without offending, for over 20 years and that a gaol sentence will have a significant impact on I him; an impact greater than it would an a person who do not have an intellectual disability.

37. Walkerden has a number of other ailments and has been sleeping only with the assistance of antidepressants. He has been seeing a psychologist.

38. His employer notes his excellent attendance with no record of any unacceptable behaviour. It was noted that he is a valued and reliable team member.

39. I have had the benefit of a report from Ms Godbee, a psychologist, dated 3 October 2019. She confirms that testing places Walkerden in the borderline measure of intellectual disability. He has no significant difficulties with executive functioning, but his perception of his short term memory indicated it was weak. He generally has low cognitive functioning, but he has, over time, developed enough skills to enable him to lead an independent life.

40. Ms Godbee reports a history of deprivation as a child, in part because he was physically and verbally bullied, but he has been able to complete high school and complete some TAFE courses. He has a mixed relationship with his mother. He reports problems with mobility because of his long standing cerebral palsy. Ms Godbee notes understandable worries associated with the potential prison sentence. She said he gets by, by distracting himself; he will have less opportunity to do so while he is in custody.

41. Ms Godbee performed both the Static-99R and the RSVP dynamic factors for potential future risk of sexual offending. The Static testing shows a low risk of recidivism; the dynamic factors an average risk. One important factor is that he has not re-offended for a lengthy period of time. That period corresponded with growing adulthood, maturity, stable housing and work. He may not have stable housing or work on release, a consequence of his imprisonment.

Delay in Sentencing

42. There has been a considerable delay in bringing this matter to finality for reasons I have outlined earlier. The victims should not be blamed for that. In one case the police were notified and took no further action.

42. Sentencing for a stale crime, long after committing the offence, calls for a considerable measure of understanding and flexibility. Generally a substantial delay in bringing a matter before a court can operate to the offender’s advantage by providing them the opportunity of establishing themselves and demonstrating rehabilitation. That can, in turn, reduce the need to punish the offender, particularly to deter them from future offending: AJB v R (2007) 169 A Crim R 32; Kutchera [2007] NSWCCA 121; Wright [2008] NSWCCA 91.

Structure of sentence

44. I have structured a sentence to recognise that there were two distinct offences against two young children. Public confidence in the administration of justice requires there be no suggestion that separate offences against two children will not receive independent punishment. But those considerations must be balanced against the general principal that the ultimate sentence does not exceed what is called for in all the circumstances. That aggregate sentence must be a just and appropriate measure of the offender’s criminality: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J & Cahyadi v Regina [2007] NSWCCA 1 (2007) 168 A Crim R 41.

Submissions

45. Mr Fraser, Public Defender, who appears for Walkerden, provided comprehensive written submissions. Mr Coulton Solicitor Advocate for the Director of Public Prosecutions, does not disagree with them.

46. Mr Fraser addressed the question of remorse. It is clear that so far as Walkerden understands, and is capable of doing so, he comprehends that he has offended against young children and, by his plea, accepts responsibility for what occurred to the extent that he has a capacity to do so. I am prepared to accept that there is some evidence of remorse, but this matter cannot be given significant weight. Mr Fraser’s other submissions, however, have significantly more force.

Offenders with an intellectual disability

47. The principles relating to sentencing those with an intellectual disability have been held to be similar to those that apply to those with a mental illness. Where a person has an intellectual disability a custodial sentence is generally much harder on them than someone who does not. The fact of an intellectual disability means that at the relevant time Walkerden was intellectually significantly younger than his chronological age. He must be viewed as an immature youth; the sentencing principles that apply to the sentencing of immature youths apply to him.

48. The community must understand, and I am sure they do, that where harsh penalties are necessary to deter others that principle must be moderated where someone has an intellectual disability. There is nothing to indicate that Walkerden is dangerous because of his disability, to the contrary, all the material before me indicates that with support and assistance in the community it is unlikely he will reoffend.

Impact of custody

49. Only a custodial sentence can be imposed. The s 5 Crimes (Sentencing Procedure) Act threshold has been crossed. Recent legislative changes mean that no other option can be considered.

50. Walkerden will, when he goes to gaol today, lose direct family and community support. His aunt has promised that to the extent she can she will do what she can while he is in custody. He has lost his job. It may be very difficult for him to find work again. He will lose his Housing Commission accommodation and there can be no guarantee that he will get it back in time for his release to parole or that he will be able to live again in the local community where he has established himself. Loss of both his job and long term accommodation and the potential breakdown of his pro-social supports in the community mean, paradoxically, that he will be more of a risk of offending when he is released than when he went into gaol.

51. Walkerden is less able intellectually and physically to cope with gaol than a physically and intellectually able offender. He will be more vulnerable in custody than other prisoners.

Synthesis

52. All of those matters require a reduction in the otherwise appropriate sentence. All of those matters also require a significant finding of special circumstances, but the minimum time in custody must still reflect other purposes of sentencing to which I must refer.

53. The Court does not average out all considerations. Sometimes one factor can be determinative. Here, the subjective case for the offender and the consequences of gaol require significant moderation both in the head sentence and the non-parole period from the sentence that would otherwise be expected to be applied. But matters in mitigation can only go so far.

54. There is an absolute prohibition on sexual activity with a child. That prohibition is intended to protect children from the physical and psychological harm taken to be presumed from such premature sexual activity. It is one of the important reasons for the high maximum penalties fixed now and fixed then for offences against children.

55. I must give effect to the basic principles of sentencing law. One of them is a sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime, considered in the light of its objective circumstances. When assessing the objective seriousness of sexual offences against children it is the character and nature of the act that is important.

56. Courts act with the ultimate aim of protecting children from exploitation. While it can be moderated courts must continue to signal to everyone in the community, whether they have a disability or not, that harsh punishment will follow from touching or sexually interfering with children. Sentences also must, by their severity, attempt to vindicate the dignity of the abused child. Sentences must, to a degree, reflect the community abhorrence of and concern about adult sexual abuse of children.

57. A proper sentence marks a court’s view of the seriousness of the crime. It has to enable wrongdoers and those who attempted to offend know that retribution will fall on them. Those principles apply here but while he must be punished they can be moderated. The community would not expect Walkerden to be treated in the same way as a person who was fully intellectually or physically able.

Orders

58. I will reduce each indicated sentence by 15% to reflect the utilitarian value of the guilty plea. There will be a substantial finding of special circumstances. I take into account the matters on the Form 1. Two sentences must be indicated.

59. For the offence of aggravated indecent assault, relating to Michelle, s 61M(1) Crimes Act, there will be an indicated sentence of one year and eight months.

60. So far as the offence against Andrew is concerned, sexual intercourse with a child, there will be an indicated sentence of two years and six months.

61. There will be an aggregate sentence in this matter of three years imprisonment to commence today. There will be a non‑parole period of one year and six months which will expire on 6 May 2021. Balance of the sentence is one year and six months. Parole will commence on that date, 7 May 2021, total sentence expires 6 November 2022.

62. Ms Godbee’s report will go with the warrant. Community Corrections can be advised that Walkerden is a vulnerable person.

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Decision last updated: 30 April 2020