Waldon v The Queen [2016] VSCA 260

CRIMINAL LAW - Sentencing - Whether judge erred in finding applicant's prospects of rehabilitation only 'reasonable' - Lack of insight into offending - Psychologist considered ongoing treatment necessary - Finding that prospects 'reasonable' open to sentencing judge.

1 On 11 July 2016 the applicant (now aged 33), pleaded guilty to grooming for sexual conduct with a child under the age of 16 years, indecent act with a child under the age of 16 and possession of child pornography. Following a plea on 11 July 2016, the applicant was sentenced on 14 July 2016 as follows:

Grooming for sexual conduct with child under the age of 16 years [Crimes Act 1958, s 49B(2)]

10 years [Crimes Act 1958, s 49B(2)]

Indecent act with child under the age of 16 [Crimes Act 1958, s 47(1)] (Representative Charge)

10 years [Crimes Act 1958, s 47(1)]

[Crimes Act 1958, s 70(1)]

10 years [Crimes Act 1958, s 70(1)]

8 months' imprisonment, followed by a Community Correction Order for 2 years, including treatment, participation in a sex offender behaviour program and 200 hours of unpaid community work.

3 years' imprisonment, with a non-parole period of 12 months.

Other orders: Pursuant to s 464ZF of the Crimes Act 1958, the taking of an intimate sample.

Pursuant to s 34 of the Sex Offenders Registration Act 2004, placed on the sex offender register for life.

2 The applicant seeks leave to appeal against his sentence on the grounds that he was doubly punished for the conduct the subject of charges 2 and 3, his prospects of rehabilitation were wrongly found to only be 'reasonable' and the sentences were manifestly excessive.

3 At the time of the offending the applicant was 31 years old and employed as a Youth Worker with an organisation which provides education and assistance to young adults with intellectual disabilities. The complainant,[1] was 14 years old at the time of the offending and was a student where the applicant worked. She suffers from autism and has a mild intellectual disability.

4 Between 1 April and 24 July 2015 the applicant communicated with the complainant, via the social media platform Instagram, and in person, with the intention of facilitating the complainant's engagement in, or involvement in a sexual offence with the applicant. This constituted charge 1 - grooming for sexual conduct with a child under the age of 16 years.

5 In early April the complainant was alone in the applicant's office and he was comforting her after an argument she had with her mother. The applicant stroked both her legs from the top of her knee to the upper thigh and touched her hands. When the complainant challenged the applicant about his actions, he stated he was 'comforting' her and she left. This conduct constituted charge 2 - indecent act with a child under the age of 16.[2]

6 In June 2015 the applicant asked the complainant (via Instagram) to send photographs of herself while showering. This was the first time the applicant requested photographs. He told the complainant that he 'would not stick up for her at school' if she did not comply and that he would tell the principal she was using Instagram. The complainant sent a photograph of her face but the applicant requested a photo of her breasts. The next day the applicant again requested photographs. The complainant felt compelled to send him a photograph of herself showing her breasts.

7 The applicant's further attempts to engage with the complainant included a request to meet the complainant at the park during school time, which the complainant declined. He sent the complainant a picture of him in his underwear holding his penis and asking the complainant if she wanted to 'swap hands'. The complainant deleted the photograph. The applicant also told the complainant she was 'pretty' and 'hot' and insisted the complainant send 'dirtier' photographs.

8 On 23 July 2015 the applicant asked the complainant (via Instagram) for a photo of herself in the bath and told her that he would protect her at school. The complainant sent the applicant a photograph of herself naked in the bath with bubbles all over herself. The applicant requested she move the bubbles so the complainant showered and took a nude photograph of herself from the neck down and sent it. This constituted charge 3 - possession of child pornography. Later, during an Instagram chat, the applicant requested a video of the complainant in front of the mirror 'fingering' herself. The complainant refused and the applicant attempted to persuade her to do it by providing instructions. When the complainant refused the applicant became angry and did not chat with the complainant for the rest of the night.

9 Previously, the applicant had convinced the complainant she would get in trouble if people discovered what they were doing and on one occasion had told the complainant that if people discovered the messages and photographs, he would say that he did not ask the complainant to send them to him. The applicant convinced the complainant that if she disclosed what was happening he would make her life 'hell'. He said he would get her into trouble at school and would say it was her fault.

10 On 24 July 2015, a meeting was held at the school with the complainant, the applicant, the complainant's sister and mother and the school principal, concerning the complainant's behaviour at school. After the meeting the complainant sent the applicant a message thanking him for 'sticking up for her' during the meeting. The applicant replied, telling the complainant she 'owed him'. The complainant believed him. The applicant again asked her to send a video of herself 'fingering' herself. When the complainant refused, the applicant persisted and told her she owed it to him.

11 Later on the same day the complainant's sister discovered Instagram chats between the applicant and the complainant on the complainant's iPad, including a message from the applicant asking for a photograph and another message which included the photograph of the complainant naked in the bath. The matter was then reported to the school and to the police on that day. During a VARE statement, the complainant disclosed the offending.

12 In her sentencing remarks, the judge said that any sexual offending against a child is serious, and was even more serious in this case, as it involved an egregious breach of trust.[3] Her Honour found the grooming charge was the most serious of the charges, and did not consider any of the offences were at the lowest end of the scale, because of the significant breach of trust.[4] Her Honour took into account the applicant's plea of guilty, at the earliest opportunity, and in particular that it saved the complainant from the ordeal of giving evidence.[5] She also took into account the applicant's lack of criminal record,[6] and the strong support the applicant had from his fiancée and family.[7] Her Honour observed that no real explanation had been put forward for the applicant's criminal behaviour.[8] She referred to the content of the reports of psychologist, Mr Jeffrey Cummins, in which it was said that the applicant was considered to be immature, naïve, possessing a dependent and avoidant personality and had not come to terms with the sudden death of his father in 2008.[9]

13 The sentencing judge outlined the need for denunciation and general deterrence for sexual crimes committed against a child, especially one with added vulnerabilities. As it was not known why the applicant committed the offences, her Honour considered it necessary to also deter the applicant from re-offending, although it was recognised that the applicant's passage through the criminal justice system for the first time would be an incentive not to make a return visit.[10]

14 The sentencing judge considered she had no alternative but to impose a term of imprisonment on the charge of grooming, due to the gross breach of trust involved, the age and vulnerability of the child, the threats and manipulation, the period of four months over which the conduct occurred, and the fact that compared to grooming conducted over the internet, there was personal contact with the complainant which provided further opportunity to engage in offending conduct.[11]

15 On the plea it had been submitted by counsel for the applicant that any term of imprisonment imposed should only be 'notional'. Her Honour stated that the eight month term of imprisonment was not intended to be notional, but that it reflected the time her Honour considered in all the circumstances should be served on the grooming charge. Her Honour was satisfied that the combined sentence appropriately reflected the seriousness of the overall offending of which the conduct was 'overlapping'.[12]

16 Ground 1 is set out by the applicant as follows:

The sentencing process miscarried, by reason of the inclusion of the conduct that constituted charges 2 and 3 within charge 1.

(i) The learned sentencing Judge departed from the factual basis of the plea by including the conduct comprising charges 2 and 3 within the grooming offence;

(ii) It constituted impermissible double punishment to impose a discrete sentence on the charge of committing an indecent act, where the commission of that act was itself the subject of the grooming charge.

17 Near the beginning of the sentencing judge's reasons, her Honour set out the conduct generally relating to the grooming charge:

Between April and July 2015, you communicated with Danielle by messages and in person in sexually explicit ways, including sending her photographs of your genitalia, and asking her to send you photographs of her body, and a video of her performing a sexual act. I find that you cajoled, threatened and manipulated her during this course of conduct. The full details of your grooming activity are in paragraph 7 of the Prosecution Opening (charge 1).[13]

18 Later in her sentencing remarks her Honour said:[14]

With respect to Charges 2 and 3, I have decided that I do have an alternative to imprisonment, because those offences involve offending at the low end of the scale of possible conduct for such crimes,[15] and are part of the overall grooming conduct, albeit constituting separate offences. I have not forgotten that Charge 2 is representative of three occasions.

My intention is that you undergo a community correction order on Charges 2 and 3. My intention is that order will commence immediately on your release from prison. I will make the formal orders shortly, but I propose to sentence you to eight months' imprisonment, followed by a two year community correction order with certain conditions. The term of imprisonment is not, and not intended to be, notional; it reflects the time that I consider in all the circumstances you should be required to serve on the grooming charge. As you will not be sentenced as a serious sex offender there is no reduction in the effect of the principle of totality. I have therefore considered the punitive aspects of the community correction order for Charges 2 and 3, combined with the obvious punitive aspect of imprisonment on Charge 1 and am satisfied that this combined sentence appropriately reflects the seriousness of your overall offending of which the conduct is overlapping, as well as meeting all other sentencing objectives.

19 The applicant submits that the sentencing process miscarried by reason of the grooming offence being treated as including the particular conduct that was also the subject of charges 2 and 3. The applicant submits that this led to a departure, without notice, from the way that the prosecution had put the case and that the inclusion of the conduct underlying charge 2 within charge 1 involved impermissible double punishment. The applicant, during oral argument, took the Court to various paragraphs of the sentencing remarks and transcript, to submit that her Honour had made a substantive error by twice taking into account the acts constituting charges 2 and 3.

20 During the course of oral submissions counsel for the applicant drew to the Court's attention that there had been two versions of the prosecution opening provided to the sentencing judge. The initial prosecution opening,[16] in paragraph 7 referred to a number of communications by the applicant to the victim being part of the grooming, which were said to demonstrate the applicant's intention of facilitating the victim's engagement in or involvement in a sexual offence with the accused. Within this paragraph, the conduct said to constitute charge 2 was also described.

21 In an amended prosecution opening,[17] the conduct constituting charge 2 was not included within the description of the acts said to constitute the grooming behaviour the subject of charge 1. The conduct constituting charge 2 was now set out in paragraphs 7, 8 and 9, while the conduct constituting the grooming, the subject of charge 1, was set out at length in paragraph 10.

22 In a report provided by the sentencing judge to this Court, her Honour stated that the reference to paragraph 7 in her sentencing remarks was in error and that it should have been to paragraph 10 (presumably of the second opening). Notwithstanding the report by her Honour, in oral argument on the appeal, the applicant maintained that her Honour did engage in some form of double-counting of the acts constituting charges 2 and 3. It was submitted that the acts constituting grooming and the acts constituting indecent assault were grouped together in paragraph 7 of the original opening and it was that paragraph to which her Honour had referred. A merging of the conduct of both charges, it was said, was further demonstrated by the statement later in the sentencing remarks that the conduct the subject of charge 2 and 3 was 'part of the overall grooming conduct.' The applicant submits that on this interpretation of her Honour's sentencing remarks, there was no discrete aspect of the conduct that made up charge 2 or 3, which was not the subject of punishment in sentencing for charge 1. Consequently, to impose discrete sentences on charges 2 and 3 resulted in impermissible double punishment.

23 The applicant drew upon a further particular of ground 1 that it constituted impermissible double punishment to impose a discrete sentence on the charge of possessing child pornography over the course of one night, where the obtaining of that child pornography on the preceding day was the subject of the grooming charge. He submits that, even if possession of child pornography (charge 3) had not been included within the grooming conduct, only the 'most artificial' distinction could be drawn between the conduct the subject of charge 3 and the related conduct the subject of charge 1. The prosecution opening identified that charge 1 encompassed the applicant having the complainant send him two particular images of herself on 23 July 2015. Charge 3 related to his passive possession of those particular images between 23 and 24 July 2015. The applicant submits that the passive possession of those images for one night, having received them in circumstances that were the subject of the grooming charge, added nothing to the criminality that was already the subject of punishment in the grooming charge.

24 The submission is unsustainable that there was no additional criminality due to the 'passive possession' of child pornography images. The applicant had made repeated requests to the complainant to send him sexually motivated and naked images. The two photographs the subject of charge 3 were sent to the applicant. It was not suggested on the plea or appeal that the inference should not be drawn that the applicant intended to keep them.

25 The possession of child pornography is recognised by the Legislature and the Courts as a serious offence.[18] Possession or retention of child pornography, constitutes discrete and serious offending.[19] Even had it been suggested that had the applicant's offending not been uncovered, it was not intended to retain possession of it, the possession constituted a separate form of offending which was properly the subject of charge 3.

26 The Crown points to the fact that charge 2 was a representative count of three occasions of physical conduct, which involved offending warranting additional punishment. Similarly, charge 3 involved not only the receipt of the images, but also their retention, warranting additional and separate punishment.

27 The Crown submits that, properly understood, her Honour's statement that charges 2 and 3 'are part of the overall grooming conduct, albeit constituting separate offences',[20] should be interpreted as saying no more than that those charges formed part of the overall offending conduct, and that they could be dealt with more leniently than by the imposition of an immediate custodial sentence.

28 The Crown submits that the sentence on the grooming charge, being the most serious offence in the indictment, could be viewed as modest and that, even if her Honour had erred in engaging in double-punishment, no different sentence should be imposed.

29 The sentencing judge is very experienced and it would be surprising had her Honour made the obvious error alleged. It is however unnecessary that we determine whether her Honour, in describing the acts constituting charge 1 fell into error in taking into account acts constituting charges 2 or 3 as we are of the view that even if such error had been made, no less severe sentence should be imposed.

30 The offending on charge 1 involved a degree of persistence and cruelty. Her Honour rightly identified the grooming offence as the most serious.[21] Sexual offending against children must be viewed as extremely serious,[22] particularly where (as is often the case) such offences involve breaches of trust and responsibility on the part of those who had such young persons in their care.[23]

31 Her Honour was entirely correct to reject the submission that any term of imprisonment should be notional. The age and vulnerability of the victim who suffers from a disability and who was in the care of the applicant, the persistent nature of the offending accompanied by threats and manipulation, lead to the conclusion that the term of imprisonment imposed, regardless of any error which may have attended it, was entirely appropriate in all of the circumstances.

32 The applicant had little to say about the length of the CCO during the appeal it being submitted that if the term of imprisonment was reduced, the applicant would not complain if the length of the CCO was increased by a modest margin. If the judge did err as the applicant contends, we do not consider that a CCO of lesser duration or containing less onerous conditions should be imposed.

33 Under this ground the applicant submits that her Honour erred in assessing the applicant's prospects of rehabilitation as only 'reasonable'. The applicant advanced the difficult submission her Honour was bound to make a more favourable finding as to the applicant's prospects.

34 The applicant pointed to the two reports prepared by Mr Cummins that were before the sentencing judge. In the second report Mr Cummins opined:

In my earlier report ... I expressed the opinion the current risk for him reoffending was Low-Moderate. However, as a result of the further consultation with [the applicant] I am now of the opinion his risk for reoffending is trending towards low. In my opinion though, it is still appropriate he participate in offence specific treatment ...

35 The applicant submits that the sentencing judge appears to have accepted Cummins' assessment. That assessment, when combined with the fact that the applicant had no prior history of offending and had never been anything but a model employee, was said to lead to the conclusion that her Honour should not have made the finding which she did. We reject that contention.

36 The sentencing judge considered a number of factors in assessing the applicant's prospects of rehabilitation. While noting that the applicant continued to receive significant family support,[25] there were a number of factors which her Honour regarded as supporting the conclusion that the applicant's prospects of rehabilitation were 'reasonable'. Her Honour referred to the fact that the applicant had initially denied the events, had sought to shift the blame to the victim and had attempted to minimise his conduct, which constituted as an 'egregious breach of trust' by a person in a position of authority.[26] The applicant gave the psychologist 'unconvincing' reasons in an attempt to explain the offences.[27] She noted that according to his treating psychologist, the applicant 'had difficulty accepting the full import of [his] grooming behaviour' and to some extent lacked insight into his offending behaviour.[28] Her Honour said:

The evidence of Mr Cummins was that you said, and I am paraphrasing, you had not had appropriate training in dealing with the sorts of things you had to deal with as a youth worker. Mr Cummins did not accept that, and neither do I. First, any adult knows that it is never appropriate to cross the boundaries with underage people, and that any sexual interaction, by words or deed, is illegal. Second, your education and work experience could not have proceeded without that imperative being canvassed by your one or more of your employers at some stage [sic]. On the basis of Mr Cummins' evidence I accept that it is at least possible that while you knew you had breached the boundaries, because of your personality type, you allowed yourself to believe, wrongly, that you were interacting with a female with the same emotional immaturity as you. This delusion clearly must be addressed in any treatment that you undertake.[29]

37 Her Honour also observed that during the period of the offending, the applicant was in a relationship with an adult woman and had become engaged to be married yet 'this did not deter the applicant from the offending.'[30] Her Honour found that no real explanation was advanced for the applicant's criminal behaviour.[31] Her Honour concluded that there remained some risk of the applicant reoffending and that he required six to nine months of further treatment to reduce this risk.[32]

38 The factors enumerated by her Honour provided ample justification for her conclusion that the applicant's prospects of rehabilitation were reasonable. Such a finding was clearly open.

40 The applicant submits that each of the sentences imposed was manifestly excessive.

41 The applicant must demonstrate that the sentence imposed is 'wholly outside the range of sentencing options available' to the sentencing judge.[33] The applicant submits that, when one considers the raft of significant features that tended in the applicant's favour, the sentencing judge should not have imposed any term of imprisonment and that a CCO would give sufficient effect to the relevant sentence purposes for charge 1. The applicant further submits at the very least, the term of eight months' imprisonment was manifestly excessive, and that, as was maintained on the plea, a 'notional' term of imprisonment only, was warranted. The applicant points to the fact that the applicant had pleaded guilty at the first available opportunity, had undertaken the rehabilitative steps of seeking treatment and commencing a new career, has the continuing support of his finance and strong family support, that his risk of re-offending is 'tending towards low', and that as a first time offender he would likely be a vulnerable prisoner. These were all matters taken into account by the sentencing judge.

42 With respect to the term of imprisonment, as the sentencing judge noted,[34] there has only been one other sentence imposed for the charge of grooming since the enactment of this offence in 2015. In Director of Public Prosecutions v Hussain,[35] the offender received a sentence on the charge of grooming of 12 months' imprisonment.

43 As we have already said in dealing with ground 1, we do not consider that had error been established, a less severe term of imprisonment should have been imposed or a different less onerous CCO. It follows that we are also of the view that the contention that the term of imprisonment of imprisonment, the CCO or the combined sentence is manifestly excessive is unsustainable. For the reasons we have already given, these were sentences that fell within a sound exercise of the sentencing discretion.

[1] Anonymised in the County Court as Danielle Smith.

[2] Charge 2 is a representative charge, representative of two other occasions when the applicant stroked the complainant's thighs.

[3] DPP v Waldon [2016] VCC 1069 [8] ('Reasons').

[15] DPP v Cole (a pseudonym) [2014] VCC, unreported, County Court of Victoria, 7 November 2014; Cole (a pseudonym) v DPP [2015] VSCA 144, Court of Appeal 20 March 2015 (footnote in original).

[18] See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 5 August 2015, 2418 (Mr Pakula, Attorney-General).

[19] See, eg, DPP v Watson [2016] VSCA 73.

[22] DPP v Dalgliesh [2016] VSCA 148 [124]; DPP v DJK [2003] VSCA 109; DPP v Toomey [2006] VSCA 90.

[23] Ryan v The Queen (2001) 206 CLR 267, 302 [117].

[24] Ground 2 was abandoned during the oral hearing.

[33] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127]; Nam Son Nguyen v The Queen [2016] VSCA 198.

[35] Unreported, County Court of Victoria, Judge Patrick, 13 May 2016.