The Queen v Wilkinson
[2021] VCC 675
•26 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-02234
| THE QUEEN |
| v |
| LIAM WILKINSON |
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JUDGE: | HIS HONOUR JUDGE HANNEBERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2021 | |
DATE OF SENTENCE: | 26 May 2021 | |
CASE MAY BE CITED AS: | The Queen v Wilkinson | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 675 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: use a carriage service to transmit indecent communication to a person believed to be under 16 years - primary school teacher
Legislation Cited: Criminal Code Act 1995 (Cth) - Sentencing Act 1991 (Vic) - Sex Offenders Registration Act 2004 (Vic) - Crimes Act 1914 (Cth)
Cases Cited:R v Verdins (2007) 16 VR 269 - R v Aniezue [2016] ACTSC 82 - McNeice v The Queen [2019] VSCA 78 - DPP (Cth) v Walls [2014] VSCA 323.
Sentence: Nine months' imprisonment to be released forthwith upon giving a recognisance in the amount of $500 and your undertaking to be of good behaviour for a period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr D. Holding | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Accused | Mr N. Papas QC with Ms S. Borg | Goldsmiths Lawyers |
HIS HONOUR:
Introduction
1Liam Paul Wilkinson, you have pleaded guilty to a single charge of use a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to s 474.27A (1) of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence at the time was seven years' imprisonment.
2In sentencing you for this offence I take into account the matters set out in part 1B of the Crimes Act 1914 (Cth), in particular s 16A(2) which sets out the non-exhaustive list of factors to be taken into account as far as they are relevant and known when sentencing a federal offender.
Summary of offending
3The offending was set out in the summary of prosecution opening, which was prosecution Exhibit 1 on the plea. I do not intend to repeat that opening in full but in somewhat abbreviated form the circumstances of the offending are as follows.
4At the time of the offending you were 25 years old and employed as a primary school teacher. In March 2019 you began exchanging phone messages with a person you knew as ‘Callie’[1] who resided in the United States. The contents of these communications had become highly sexualised. These messages were sent by different phone applications including Snapchat and Instagram.
[1]A pseudonym.
5At the time you commenced these messages, you understood that Callie was 16 years old. She was in fact only 13 years old. On 8 March 2019 a complaint was made to the local police in Colorado.
6On 19 March 2019 a police investigator assumed control of Callie’s Snapchat account. This was the account you had previously engaged with. The investigator assumed the identity of Callie and continued communicating with you. The same day you exchanged SMS messages with the person you believed to be Callie. I will not repeat the exchange in full but it involved you asking Callie whether she had shown herself naked to someone before. The investigator, portraying herself as Callie, told you that she was 14 years old.
7On 13 March 2019 you continued your communications with the person you believed to be Callie. The contents of this communication I will relay in full.
Accused: Yeah to be honest I would like to know the full truth about those important things. Sorry was teaching
Accused: Why do you want to be so honest with me?
Recipient: Cuz we have gotten 2 know each other and you've been honest with me. How old are u?
Accused: I'm 25 x
Recipient: Cool
Accused: Yeah x
Recipient: So r u mad at me?
Accused: Just woken for a bit Just feeling a few things Like I really liked you...
Recipient: And...?
Accused: Just seeing how I feel when I fully wake up
Recipient: I understand
Accused: I’m up properly in 6 hours when I get up then and message you I have just woken up about you [Wet Emoji] so that's clouding my judgement right now [Monkey covering eyes emoji] which is super embarrassing lol
Recipient: Awwww sweet
Accused: Yeah maybe not sweet but more kinky lol alright message later
...
Accused: Yeah [Smily face emoji] so did you delete your insta page because of me or because of your mum?
Recipient: Mom. I jus have 2 be careful
Accused: Of showing yourself like that to someone you don't know online [winky face emoji]
Recipient: Hey I have 2 ask have u saved anything that shows me?
Accused: No I would never do that, I am always thankful to see anything [Monkey covering eyes emoji] but I would never save it. Be careful of guys who would screenshot stuff like that
Recipient: Ok n no worries
Accused: Yeah [Smiley face emoji]
Recipient: Like I said, ur really nice
Accused: Well thank you, you can trust me if you ever wanted to show me anything
Recipient: Thanks
Accused: Anytime
Accused: Heyyyyyy how are u?
Recipient: Ur awake!
Accused: Haha yes I am, shower time, want to see anything? [Tongue hanging out winky emoji]
Recipient: Duh
Accused: Do I see anything in return?
Recipient: What do you want to see?
Accused: Surprise me, will send on Snap
Recipient: Wat u wanna see
Accused: You choose [Tongue hanging out winky emoji]
...
Recipient: Duh
Accused: Do I see anything in return?
Recipient: What do you want to see?
Accused: Surprise me, will send on Snap
Recipient: Wat u wanna see
Accused: You choose [Tongue hanging out winky emoji]
8Following that exchange the undercover investigator received an image via Snapchat of a naked adult male, showing his torso and one of his hands partially covering his penis. Following the receipt of that picture, the following exchange occurred:
Recipient: OMG u got awesome bod
Accused: Hehe well thank you [Smiley face emoji]
Recipient: Enjoy ur shower?
Accused: I did...I would have enjoyed it more if I saw you in a snap
Recipient: Lol I bet. Hey u didn't say what u wanted
Accused: I want you to choose, like how I chose for you
Recipient: Yep u did choose 4 me. I NVR asked u 4 any nudes
Accused: Okay sorry
Recipient: U like sending nudes huh?
Accused: I enjoy it, ill stop
...
Accused: Not send that stuff anymore you mean
Recipient: Ya
Accused: That's a shame. That's what I am kina looking for atm, someone to chat to but have fun with, if I am being completely honest with you
Recipient: So u want another girl then teacher?
Accused: Well that's what I will be looking for, someone to play and talk to Just so you are aware
Accused: I'm not pressuring you to do anything just so we are clear
Recipient: I no thx 4 not pressuring me.
...
Accused: That's okay, what you showed me last week was [flame emoji] [love heart eyes emoji] just so you know, be confident & proud of your body
Recipient: Thx. I'm still workin on confidence
Accused: Well I am only full of compliments [Smily face emoji] Btw especially that full body one with you on your knees naked on your bed was just [wet emoji] [wet emoji] [wet emoji] [wet emoji] hahahaha
Recipient: Hope it's a good memory [Crying Laughing emoji]
Accused: Absolutely
Accused: Here if you ever want to talk about anything on your mind, nothing is off limits or would scare me off
Recipient: Really ok cool thx
9A search warrant was executed on your premises on 3 June 2019. You were arrested and participated in an interview with investigators that morning. In the course of that interview, you made admissions to contacting Callie through Instagram, Snapchat, and text messages. You admitted sending to her images of you topless and exposing your genitalia, but said this occurred at a time that you believed her to be 18 years old. You told police that once she found out her age was only 14 or 15, you had no memory of sending her any indecent photos of yourself.
Nature and gravity of offence
10The offence you have pleaded guilty to is inherently serious. The nature of the offence means that general deterrence is a primary sentencing consideration, given the vulnerability of children from online activity and the need to protect children from sexual abuse.
11In assessing the specific gravity of your offending, I note that this offence relates to the sending of a single image. That image, a photograph of your naked torso and partially covered genitalia, was undoubtedly indecent in the context of it being intended for viewing by a 14-year old child. It was, however, at the lower end the scale of explicitness as compared to the types of images that have constituted these type of offences in this court in the past. There was an age gap, you believed, of greater than a decade between you and the intended recipient. Whilst she was not someone with whom you had any special duty of trust, I do regard the fact that you were a schoolteacher at the time of this conduct as something that adds to your moral culpability in seeking to expose a child to such an image.
12It is the case here that no such child was exposed to the image as you intended. The absence of a real child victim, however, represents the absence of an aggravating feature rather than something mitigating your conduct.
Personal Circumstances
13You were 25 years old at the time of this offending. You are now 27 years old. You are the youngest of two children raised by your parents in Warrandyte. Despite experiencing some learning difficulties during your schooling, to your great credit you were able to achieve a degree in primary education from RMIT University. At the time of this offending you were employed full-time teaching Grade 5 students. That employment ended with your resignation after being charged in early 2020.
14You subsequently gained further employment with a data management team. You were promoted to the role of senior account manager. I am instructed that this employment ended recently due to a combination of your personal stress about the pending charge and an inability to get a working with children check.
15You are currently working as a volunteer for a disability advocacy agency.
16I am instructed that you are not presently in a relationship. You had been in a six year relationship that ended shortly after charges were laid.
17It is apparent from the volume and quality of the reference material that you continue to have the support of both family and some very loyal friends.[2]
[2]Exhibits D6, D7, D8, D9, D10, D11, D12, D13, D14, D15, D16, D17, D18, D19, D20, D21, D22, D23, and D24.
18A psychological report from Brian Lavery dated 27 March 2021 was tendered on the plea.[3] Whilst it was not contended on your behalf that any of the Verdins[4] principles were enlivened, the report nonetheless provides some important insight into your circumstances at the time of the offending and, most importantly, the efforts you have made subsequent to being charged to further your rehabilitation.
[3]Exhibits D4 and D5.
[4] R v Verdins (2007) 16 VR 269 (‘Verdins’).
19Your engagement with Mr Lavery commenced on 5 June 2019, only 2 days after your arrest, and you have engaged in 43 consultations with him prior to the preparation of the report. Mr Lavery has observed the very significant psychological impact of your detection and subsequent involvement with police and the justice system.
20These observations are also consistent with the report of Dr Paul Proimos.[5] He has indicated that you are currently prescribed medication for adjustment disorder with associated depression and prominent anxiety.
[5] Exhibit D2.
21Whilst these matters are clearly the consequence of your own conduct, I regard the traumatising effect your involvement in the criminal justice system has had on you, as something that is relevant in making it less probable that you would commit similar offences into the future.
22Mr Lavery also concludes that you have made significant gains through your therapy and that you do not present a risk to society, in particular children. He has determined that you do not have a paedophilia disorder.
23Dr Lauren Gradstein, forensic psychologist, notes in her report dated 11 May 2021 that your “psychosexual risk was estimated at low”.[6] She further noted that you would benefit from ongoing psychological assistance.
[6] Exhibit D3.
24The psychological and medical material filed on your behalf provide some insight into how you have come to engage in the offending behaviour. There are consistent themes of immaturity, insecurity and low self-esteem. None of these matters serve to excuse your offending, nor to reduce your moral culpability. The investigation and identification of psychological issues, and your engagement with appropriate treatment for those issues, are all matters relevant in determining your prospects of rehabilitation, as are the risk assessments provided by Mr Lavery and Dr Gradstein.
Procedural history
25You pleaded guilty to the current charge on 30 March 2021. You are entitled to consideration for the utilitarian value of that plea. In this case, your plea has spared the time and resources that would have otherwise been taken by a trial. I must, however, have some regard for its relative lateness in the proceedings. Whilst you are not to be penalised for exercising your rights, in determining the weight to be given to the utilitarian value of your plea it is relevant that your plea has only marginally foreshortened proceedings, as you sought interlocutory intervention and conducted preparatory cross-examination of the American police officer who assumed Callie’s Snapchat account.
Remorse
26I am prepared to sentence you on the basis that you have some remorse. In a case such as this, where there is no victim per se, the concept of remorse is not really about understanding of the damage your actions have caused and empathy for those who have suffered that damage. Here, contrition is really about your understanding the wrongfulness of your actions, and an acknowledgment of the damage your actions could have done had you in fact been communicating with a child as you believed. I am satisfied that through your engagement with appropriate psychological treatment that you are on a path to fully understanding those things. I also note that there are expressions of remorse in the character references that have been provided.[7]
[7] Exhibits D6 - 24
27Against that, when initially spoken to by police you have provided an account that was clearly untrue on the core matter as to whether you sent a naked image after you knew she was under 16 years of age. I also note that until you entered a plea to this charge you were contesting the very concept as to whether the communication was indecent. All these things are part of a complex mix of evidence on this issue. Overall, in my view it is appropriate to give you credit for some, if not complete, remorse.
Extra-curial punishment
28I have regard for the fact that you have endured particular forms of extra-curial punishment as a result of your offending. As a result of your own actions, your career as a teacher is almost certainly finished. Whilst the loss of that career for conduct not directly linked to your teaching responsibilities is an adverse consequence I have regard for, it is to some extent balanced by what I have already noted to be the increased moral culpability that attaches to your offending because you had a job that gave you a special understanding of the vulnerabilities of children.
29Your case has also attracted significant and legitimate media coverage. I acknowledge that not every case attracts media attention and I also acknowledge that the fact of that exposure has caused you significant distress that does constitute some level of punishment in itself.
Prospects of rehabilitation
30You have no prior convictions nor anything subsequent. The character references attest to your otherwise good character. Whilst the nature of the charged conduct involved you sending indecent communications to someone you believed to be a 14-year-old, and its preamble that involved you, a teacher, engaging in sexualised contact with someone you believed to be a student of only 16, reflects poorly upon you, the entirety of the material suggests this conduct is out of character.
31There is substantial reason in this case to have optimism about your prospects of rehabilitation. You have pleaded guilty. You have shown some remorse. You have no prior convictions nor anything subsequent. That you have positive personal characteristics is evident from the reference material that was tendered. You have displayed a strong commitment to engaging with appropriate psychological services. You have been assessed by professionals as being of low risk of reoffending. I also note the undoubtedly salutary effect of these whole proceedings and the surrounding publicity. Whilst this is an offence that by its nature requires little infrastructure to commit, and can be difficult to detect, in all the circumstances I regard it as improbable that you will reoffend. I regard your prospects of rehabilitation to be very good.
Principles applicable to sentencing
32In sentencing you I have regard for the need to deter others from similar offending. The particular nature of this crime, which is difficult to detect and involves the potential exposure of vulnerable children to damaging imagery, means that general deterrence is an important sentencing consideration.
33In the circumstances of this case, however, having regard for both the extra-curial punishment, your efforts at rehabilitation and your lack of prior or subsequent matters, this in my view, means that specific deterrence carries little weight in the sentencing process.
34I also note that s 16A(1) of the Crimes Act 1914 (Cth) requires the imposition of a sentence which is of a severity appropriate in all the circumstances of the offence, including the need to ensure you are adequately punished.
35I have regard for the fact that consistency in Federal sentencing is achieved through courts being informed as to the appropriate sentencing range by reference to sentences that have previously been imposed by other courts. I have had regard for the case of R v Aniezue[8] in that I have endeavoured to apply the relevant sentencing considerations as articulated in that case.
[8] R v Aniezue [2016] ACTSC 82.
36I have also had regard to the cases of McNeicev The Queen [9] and DPP (Cth) vWalls[10] to the extent they give some guidance as to range. That assistance, however, is limited given that the range and nature of the offending in those cases is unquestionably more serious than the current case, not least because this offence is not committed in the context of other offending like procuring or grooming, as was the situation in those cases. I agree with the observations of both Mr Holding and Mr Papas that they do not assist as a direct comparison.
[9] McNeice v The Queen [2019] VSCA 78.
[10] DPP (Cth) v Walls [2014] VSCA 323.
37Mr Papas and Ms Borg on your behalf submitted that it was appropriate to impose a bond pursuant to s 19B without proceeding to conviction.[11] Alternatively they submitted that such a bond could be imposed with conviction, or pursuant to s 20(1)(a) and a conditional release after conviction could be imposed. They further submitted that beyond those sentencing outcomes, a pecuniary penalty or a Community Corrections Order was open.
[11]Exhibit D1.
38Mr Holding on behalf of the Director submitted that the offence warranted a term of imprisonment, however given that it involved a single image that was not of the highest order of explicitness, it was open for the court to release you immediately upon the entering of a Recognisance Release Order.[12]
[12]Exhibit P2.
39I am conscious that s 17A of the Crimes Act 1914 (Cth) states that a term of imprisonment is not to be imposed unless all other sentencing options have been considered and deemed to be inappropriate. I have also had regard for the Community Corrections Order assessment that was done subsequent to the plea hearing. Perhaps if you stand up, thanks Mr Wilkinson.
Sentence
40In this case, I consider that having regard to all relevant matters as best I can, that on the charge of using a carriage service to transmit indecent communication to a person believed to be under 16 you are convicted and sentenced to a term of nine months' imprisonment but that pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) I direct that you are to be released forthwith upon giving a recognisance in the amount of $500 and your undertaking to be of good behaviour for a period of two years.
41During that two years you must be of good behaviour. If you commit an offence punishable by imprisonment you will breach this Recognisance Release Order and you will fall to be resentenced in respect of the nine months held over your head and the real likelihood is that you will be ordered to serve that nine months and you may forfeit the $500. So you understand that, Mr Wilkinson?
42You will need to sign the Recognizance Release Order and I will discuss the process of that with counsel in a minute and consent to the making of that Order.
43So I think I need to get the prosecution to prepare that Recognizance Release Order? Thank you.
44Perhaps while you are doing that, I will go on to note that Charge 1 is a registerable Class 2 offence under the Sex Offenders Registration Act 2004 (Vic). I direct you are required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for a period of eight years. I do not require Mr Wilkinson to sign the documents acknowledging receipt, but my associate will arrange for a copy of those documents to be sent to his representatives.
45I declare pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that but for your plea of guilty I would have sentenced you to 12 months imprisonment, with 6 months of that sentence to be served before your release on a recognisance release order.
46Is anything else required?
47MR MACDONALD: No, Your Honour.
48HIS HONOUR: Okay, do you want me to go off the Bench while you prepare the Recognisance Release Order?
49MR MACDONALD: If I could, Your Honour.
50HIS HONOUR: Thank you, I will go off the Bench for a moment.
(Short adjournment.)
51HIS HONOUR: All right. Yes sure, anyone who wants to, is excused to go and -
52MR PAPAS: Make sure it is done.
53HIS HONOUR: Anything further required?
54MR MACDONALD: No, Your Honour.
55HIS HONOUR: All right, thank you. I will adjourn until 10.30.
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