Director of Public Prosecutions v Bader (a pseudonym)
[2022] VCC 443
•1 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM BADER (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 & 15 March 2022 | |
DATE OF SENTENCE: | 1 April 2022 | |
CASE MAY BE CITED AS: | DPP v Bader (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 443 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence; Sexual Assault of a Child Under the Age of 16 Years; Sexual Assault of a Child Aged 16 or 17 Years Under Care, Supervision or Authority; Persistent Contravention of a Family Violence Intervention Order; Attempting to Pervert the Course of Justice; General Deterrence; Standard Sentencing; Bugmy Principles; Reduced Moral Culpability
Legislation Cited: Crimes Act 1958 (Vic); Family Violence Protection Act 2008 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Brown v R. [2019] 59 VR 462; Bugmy v The Queen [2013] 249 CLR 571; Worboyes v The Queen [2021] VSCA 169
Sentence: 148 days Imprisonment,3 year Community Corrections Orders 300 hours
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J.D. Singh | Office of Public Prosecutions |
| For the Accused | Mr R. Bhattacharya | Victorian Aboriginal Legal Service |
HER HONOUR:
1Adam Bader[1], on 29 November 2021 you were arraigned on an indictment which contained one charge of sexual assault of a child under the age of 16 years[2], one charge of sexual assault of a child aged 16 or 17 years under care, supervision or authority[3], two charges of persistent contravention of a family violence intervention order[4], and two charges of attempting to pervert the course of justice. You pleaded guilty to each of those charges.
[1] A pseudonym.
[2]Crimes Act 1958 (Vic) s 49D.
[3]Ibid s 49E(1).
[4]Family Violence Protection Act 2008 (Vic) s 123.
Circumstances of offending
2The complete prosecution opening was tendered on the plea and marked as Exhibit A. I don’t propose to recite that document in full. What follows is a summary of your offending.
3So in 2018 you were residing at a property with your de facto partner, Aubrey Pepper[5], as well as her son Micah Pepper[6] and her daughter, the victim in this matter, Aimee Pepper[7].
[5] A pseudonym.
[6] A pseudonym.
[7] A pseudonym.
4On 6 July 2018 you entered the bedroom of the victim and sat beside her on her bed. You hugged her, then touched her breasts, first over the jumper and then beneath her clothing, touching her bare breasts. This lasted for approximately a minute, until the victim resisted, at which point you became angry and abusive. The victim then jumped out the bedroom window, ran to a neighbour’s house, and was taken to a police station. This is the factual basis of Charge 1.
5In January 2020, shortly after the victim’s birthday, you were sitting in a motor vehicle with the victim and you placed your hand on her knee, then moved it underneath her clothing and rubbed her vagina.
6On an afternoon in or around April 2020, you entered the bedroom of the victim while she undertook an online hospitality course. You sat beside her and placed your hand on her leg, then beneath her clothing you then rubbed her vagina. Once the victim was able to turn off her microphone, she moved away from you and told you ‘No’ when you asked if she had enjoyed it.
7On 25 May 2020, you entered the victim’s bedroom and sat on her bed. You hugged her, then placed your hands beneath her jumper feeling her naked breasts. You then placed your hand beneath her tracksuit and touched her vagina. The victim indicated to you that she did not like that and shortly after you removed your hand. In a recording made later that day, you can be heard stating that you ‘fell in love’ with the victim, and telling her not to ‘call me a molester when you’re in on it’.
8Together these three incidents are the factual basis for Charge 2 which is a rolled up charge.
9On 2 June 2020 the victim obtained a family violence intervention order against you. It was a condition of this order that you not initiate any kind of contact with the victim. This order was served on you on 5 June 2020.
10Between 10 June and 13 July 2020, on eight separate dates, you sent some 20 text messages to the victim. You also called the victim on 6 June 2020, twice more on 10 June 2020, and once again on 29 June 2020. During these calls you told the victim that if she were ‘honest about us and all that and I’ll go to jail’. The phone calls and the 7 text messages sent during June form the factual basis of Charge 3. The 13 text messages sent in the month of July form the factual basis of Charge 4.
11
You were in custody, no doubt as a result of sending those messages, at Ravenhall Correctional Centre between 20 July 2020 and
10 December 2020. During this time you urged your de facto partner several times to persuade the victim to change her evidence and pretend no sexual touching had taken place.
12Specifically, on 10 August 2020 you suggested that your partner attempt to bribe the victim with a ‘couple of grand maybe’ to tell police she had made up her evidence. Furthermore, on 12 August you told your partner that she should tell the victim ‘she has to do it or we’re going to disown her, she needs to drop the charges’. This is the factual basis of Charge 5.
13Similarly, whilst at Ravenhall, you sought to persuade your stepson to convince the victim to withdraw her complaints. On 5 September 2020 you asked your stepson to call the victim and tell her to say she made it up and you repeated this request twice on the following day, 6 September 2020. You contacted him on 27 August 2020 telling him to direct the victim to say it didn’t happen and this is the factual basis of Charge 6. [8]
[8]This portion of the sentence has been amended to reflect the amendment made to the indictment with regard to the date range of offending subject of charge 6 ie 27 September 2020 has been changed to 27 August 2020.
Arrest and procedural history
14
You were arrested by police and interviewed at Ballarat Police Station on
28 May 2020 in relation to the allegations of sexual assault. You denied any wrongdoing.
15You were further interviewed with respect to breaching the intervention order on 16 July 2020. You made no admissions about any breaches and specifically denied sending any text messages to the victim.
16
You were held at Ravenhall Correctional Centre between 20 July 2020 and
10 December 2020. You have served 148 days of pre-sentence detention.
Victim Impact
17Although no victim impact statement has been received, I accept that your offending would very likely have had a significant adverse impact on the psychological well-being of your victim. There has been a disintegration of the family unit as a result and she is now estranged from not only you but also her mother, your current partner.
Nature and gravity of offending
18
Mr Bader, clearly your offending is serious, as has been conceded on your behalf by your counsel. The maximum penalties applicable to your offending are an important yardstick when considering the objective seriousness. In this regard the maximum penalty for sexual assault of a child under 16 is 10 years imprisonment. The maximum penalty for sexual assault of a child aged 16 or
17 years under care, supervision or authority and persistent contravention of a family violence intervention order is also five years imprisonment. The charge of attempt to pervert the course of justice is punishable by a maximum of 25 years imprisonment.
19In assessing the nature and gravity of your offending I take into account that your offending occurred over two separate periods when the victim was 14 years of age and later between 16 and 17 years of age. The fact that you offended against your step-daughter represents a significant breach of trust. In relation to Charge 2, the fact that she was under your care, supervision and authority is an element of the offence and I must be careful in those circumstances to avoid double punishment.
20In addition Charge 2 is a 'rolled-up' charge. This allows multiple instances of similar offending to be dealt within a single charge and simplifies my task in formulating an appropriate sentence. In your case the rolled up charge covers three separate occasions of offending that occurred over approximately five months from January until May 2020.
21None of your offending involved penetration, however it is serious offending, as is any sexual offending against children. Both of the charges of sexual offending in your case are capable of being dealt with in the Magistrates’ Court and but for the charges in relation to attempt to pervert the course of justice it is likely that would have occurred in your case, or the application most definitely would have been made.
22The persistent breaches of intervention order and the charges of attempt to pervert the course of justice are also serious. However, for reasons which I will talk about shortly, I consider your moral culpability for these charges is significantly reduced and as such sentencing considerations such as general deterrence, which ordinarily have real prominence, must be somewhat moderated.
Standard Sentencing
23The charge of sexual assault of a child under 16 is a standard sentence offence. The standard sentence is four years imprisonment. Standard sentences are to be taken into account as legislative guideposts in the sentencing process.
24In considering the impact of standard sentencing in your case I have considered the decision of Brown v R. [2019] 59 VR 462[9]. In particular, when sentencing for a standard sentence offence I must take the standard sentence into account as one of the factors relevant to sentencing. The standard sentence is not to be viewed as a starting point and it does not affect the established instinctive synthesis approach to sentencing. It does not require or permit two-stage sentencing and does not otherwise affect the matters which I may or must take into account in sentencing. Accordingly, I have taken the standard sentence detailed above into account as one of the factors to consider in my instinctive synthesis of all relevant factors and will reflect this in the sentence I impose.
[9]Brown v R. [2019] 59 VR 462.
25Further, so far as consideration of current sentencing practices are concerned, s5B(2)(b)[10] requires a court when considering current sentencing practices for a standard sentence offence to only consider sentences previously imposed where the relevant offence was subject to the standard sentencing scheme.
[10]Sentencing Act 1991 (Vic) s 5B(2)(b).
Personal circumstances
26It is appropriate at this point to describe your personal history. You are a 47 year old Aboriginal man with cultural connections to the Dja Dja Wurrung people.
27Your father was an angry and aggressive man whom you recall abused alcohol, verbally abused your mother, and both emotionally and physically abused you. You describe your mother, by contrast, as beautiful and generous, and as someone who would try to calm your father in his moments of anger. Your father and mother separated when you were 16 years old. You last had contact with your father in 2004, but maintain regular contact with you mother, interacting weekly.
28You have two siblings, one brother who is some 12 years older than you, and a sister who is eight years older than you. Both of your siblings have withdrawn from your life, alienated by your difficulties with anger and aggression, and you have not had contact with either of them for 10 years.
29These difficulties at home, and your own aggression, rendered your school years as difficult. Your primary school education was marked by bullying, as the son of a poor family and an alcoholic father. You felt compelled to physically defend victims of bullying, going so far as to slam a fellow student’s head against a water tank, breaking his teeth when that student had bullied a female peer.
30Frequent truancy caused you to repeat Year 8. Although you did obtain a Year 9 pass, you were later expelled. While you were not bullied at secondary school, you were involved in several fights and failed to attend school on an average of three days a week. Your ultimate expulsion was the result of your punching the principal after he had slapped you.
31With respect to any sort of employment history, you worked on and off in a number of short-term and casual roles, typically farm labouring. You worked often for cash-in-hand, and have been unemployed for years. It has been approximately 15 years since you were last employed. You believe that this instability around employment is owing to your mental health difficulties.
32At age 14 you began to use cannabis and alcohol. Somewhere around this time, between 13 and 14 years old, you began to exhibit more serious indicators of depression and of anxiety. You would feel ‘overwhelmed’ and ‘start shaking’, then ‘fall to the ground, curled into a ball’. Sometime in your adolescence you began penetrating your arms and your skin with different metal items, though thankfully, you ceased this behaviour once you were 21.
33At 17, you began a long and tumultuous period of binge drinking, consuming a bottle of bourbon every two days. In this same year you first began counselling, which you undertook on a monthly basis for the next six years. Only a year later, at 18, your substance abuse escalated to amphetamine and methamphetamine on a daily basis, and cocaine fortnightly. At the age of 40 you stopped your use of more serious illicit drugs. Presently you smoke cannabis on a daily basis to assist in management of your panic attacks, and you consume alcohol in small quantities.
34You have had a number of long term relationships. The first of these commenced when you were 18. That relationship ended after approximately three years, probably as a result of you getting into trouble with the police around this time.
35Your second long-term relationship also lasted for three years. When that relationship ceased, you reported feeling suicidal for some time afterwards, and again had difficulty around controlling your aggression.
36You met your current partner, the mother of the victim, in Geelong and have been in a relationship with her for approximately 12 years. Your relationship is mostly positive and you remain supportive of one another. You intend to spend your future together on the farm you share.
Prior history
37Although you have appeared in court on several occasions in the past, I note that your prior history is relatively dated and does not include any offending that is of a similar nature and as such is not particularly relevant.
Application of Bugmy principles
38Mr Bhattacharya on your behalf submitted that the principles of Bugmy[11] applied in your case and are a significant mitigatory factor that I should take into account. The case of Bugmy stands for the proposition that profound childhood deprivation is directly relevant to sentencing, in and of itself. This is so because it is likely that moral culpability will be reduced for someone whose early years have been marked by such disadvantage. The effects of such hardship do not diminish over time and full weight must be given to those matters in sentencing. Bugmy principles are relevant to the court’s assessment of moral culpability for the offence itself and also for the court’s consideration of the weight to be given your prior criminal history.
[11]Bugmy v The Queen [2013] 249 CLR 571.
39In your case, I accept that your childhood involved deprivation as a result of your exposure to significant family violence and persistent physical and emotional abuse from your alcoholic father. Further, I take into account that even though you are of Aboriginal origin, you have had limited engagement with your culture as a result of feeling rejected because of your mixed parentage. These experiences have had a substantial impact upon you and have been directly responsible for your ongoing and profound mental health issues.
40As a result, I find that your moral culpability should be somewhat reduced. I also consider that these same factors would have been in operation at the time of your prior matters and, therefore, put your prior convictions in context. It is still my view that there is a place for specific deterrence in your case, although it is reduced as a result of my findings pursuant to the Bugmy principles. The relevance of specific deterrence is also reduced as a result of the appalling time you experienced in custody in the latter half of 2020. I consider this period to have had a significant deterrent effect upon you and I note you have not re-offended since being at liberty for the last 15 months.
Mental health
41Mr Bader, you have experienced depression and anxiety throughout your life.
42More recently, during your period on remand in relation to this matter, you expressed ongoing suicidal ideation and suffered a 'major breakdown', to the extent that you were kept on observation on a number of occasions. You were diagnosed as being severely depressed and suffering from impulsivity, mood fluctuations, audio pseudo-hallucinations that encouraged your self-harming. Personality factors were also identified, including impulsivity and mood fluctuations. Your presentation was such that you spent the majority of your time in custody in a psychiatric unit and you were treated with anti-psychotic medication. It was whilst you were in this state that the charges of perverting the course of justice occurred.
43In February 2022 you were assessed by Mr Simon Candlish who is a consultant psychologist with significant experience in the forensic field, in particular in relation to the treatment and assessment of sex offenders. Mr Candlish administered a number of tests and employed several tools to assess your ongoing risk. As a result this testing and assessment he provides a number of opinions including the following[12];
(a) You meet the criteria for Persistent Depressive Disorder of a moderate severity and have ongoing issues with anxiety.
(b) You meet the criteria for a moderate personality disorder with prominent features of negative affectivity (borderline pattern). In his view it is plausible that some of your apparent psychotic symptoms are a response to significant stress or reflect your particularly negative view of your situation, in the context of your lack of psychological sophistication.
(c) You meet the criteria for cannabis use disorder (moderate).
(d) Taking into account the actuarial outcome and structured professional judgement approaches, you are considered to fall into the low-risk category for sexual offending of the nature outlined in the risk scenario.
(e) At the time of your offending you were affected by your personality disorder and you also were suffering from a depressive disorder.
(f) Your personality issues have impacted on your social and emotional development, contributing to mood instability and poor coping. Your social withdrawal and avoidance reflect such poor coping. Your depressive disorder has impacted on your problem-solving skill and your motivation. Your sexual offending appears related to your sexualisation of your stepdaughter in this context. Your offending is also related to your issues with detachment and egocentricity, affecting your ability to engage in appropriate parental care and empathy.
(g) Your personality issues create a greater vulnerability towards mental health deterioration in custody compared to those without such issues.
(h) You appear to show good prospects for rehabilitation of your sexual offending behaviour based on your presentation, your history and your assessed risk level.
[12]Psychological Report of Simon Candlish dated 23 February 2022.
44In circumstances where you were in the midst of a major breakdown and effectively hospitalised in custody, I accept that your moral culpability in relation to the charges of attempting to pervert the course of justice offending is significantly reduced. I also accept that imprisonment will be more burdensome for you and that your mental state will likely again deteriorate if you are returned to prison.
Plea of guilty
45I accept that your plea of guilty although not entered at the earliest stage, was entered after considerable negotiation and case management by this court. Further, I accept that your plea is indicative of some remorse, probably not a lot but some.
46
There is, however, a significant utilitarian benefit in your plea of guilty. You did not
cross-examine any witnesses. In particular, your victim did not have to relive what would have been traumatic experiences by giving evidence in court. You have also spared the court from what would have been a time-consuming trial.
47In addition, I note what the Court of Appeal recently said in the case of Worboyesv The Queen [2021] VSCA 169 at [39][13]:
“A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time, although a sentencing judge need not quantify the extent of any discount, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”
[13]Worboyes v The Queen [2021] VSCA 169, 39.
48In these circumstances I propose to allow a significant discount for your plea of guilty.
Harsh conditions in custody
49You have experienced significant and direct consequences for your offending whilst on remand between July and December 2020. This is an amount of 148 days which is a significant amount of time. You were in custody at a time where custody was more onerous as a result of the COVID-19 pandemic. Quarantine, lockdowns, no visits, limited programs have all been commonplace in the current regime. In addition, as I have already mentioned, you did not cope well in gaol.
Sentencing principles
50I consider that the relevant sentencing principles that must be applied in your case are general deterrence, denunciation and just punishment. I accept that general deterrence should be somewhat moderated as a result of the application of Bugmy[14] and your reduced moral culpability arising from your mental health issues. In my view specific deterrence, as I have already said, has little role to play in the sentencing matrix.
[14]Bugmy v The Queen [2013] 249 CLR 571.
51Other sentencing principles that I must apply are parsimony and proportionality.
52I have had you assessed as to your suitability for a Community Corrections Order and you have been assessed as suitable for such an order.
53Mr Bader, after very careful consideration of all of the above factors, including the oral and written submissions of both the defence and the prosecution, the psychological report of Mr Simon Candlish and the significant mitigatory matters of your poor mental health, the application of Bugmy principles, the significant discount for your plea of guilty, the harsh conditions in custody and your good prospects of rehabilitation and your low risk of re-offending, I have come to the view that although the only sentence that can be imposed is one of imprisonment I will not return you to custody, but rather, I will impose a term of 148 days and reckon the pre-sentence detention you have already served in satisfaction of that sentence. I do however, propose to impose a significant Community Correction Order given the seriousness of your offending.
54In relation to Charge 1, I sentence you to four months imprisonment. In relation to Charge 2, I sentence you to 4 months imprisonment and I order that 28 days of the sentence on Charge 2 be served cumulatively on the sentence imposed on Charge 1 giving, a total effective sentence of 148 days. I reckon 148 days of pre-sentence detention.
55In addition, on these charges, so this is Charges 1 and 2, you will be placed on a Community Correction Order for a period of three years.
56The conditions of this Community Correction Order include:
(a) 300 hours of unpaid community work over that three-year period;
(b) Assessment and treatment for drug use;
(c) Assessment and treatment for mental health;
(d) Offending behaviour programs, in particular the sex offender treatment program;
(e) Supervision by the Office of Corrections; and also
(f) Judicial monitoring. So you are going to come back and see me because I want to make sure that you are doing this. All right. I will work out when the first of those is going to be in due course and I will let you know.
57I will offset 150 hours of community work against treatment. So that means if you engage in treatment, that can be deducted from the community work hours and I am doing that because I want to provide you an incentive to really knuckle down and concentrate on your rehabilitation.
58In relation to the remaining charges, that is Charges 3 through to 6, I intend to convict you and impose a separate Community Correction Order in identical terms and that will run concurrently with the order I have just imposed.
59Mr Bader, the result is that although I have imposed two Community Correction Orders it is my intention that they will run together and you will only be required to perform the special conditions I have imposed once. So it is not 600 hours. It is 300 hours.
60I must inform you that in addition to the special conditions, there are standard conditions to a Community Correction Order. The first and foremost of these is that you must not commit any other offences during the three-year period which could be punished by imprisonment. You must also report within two working days to the, I believe it is the Ballarat Community Corrections Office. Just one second. That might actually be by telephone but I will clarify that for you. You are required to advise your supervising Corrections Officer of any change of address of where you are living and working. This must be done within two clear working days. It is a term of all Community Correction Orders that you must submit to visits as directed and you must obey all the instructions and directions of the Community Corrections Officer. You cannot leave the State of Victoria without prior permission.
61I must tell you that if you breach the order by reoffending or you do not comply with the conditions I have imposed, you will be charged with a contravention and you will be brought back before me and it may be that I am required to re-sentence you for the original charges and as you would probably appreciate, that would mean that my options would be more limited and you may find yourself back in custody. So it is very important that you comply both by no more offending and that you do the conditions that I have imposed on the order. All right. Do you consent to that order?
62OFFENDER: Yes, Your Honour.
63HER HONOUR: Pursuant to s. 6AAA[15] I indicate that but for your plea of guilty I would have imposed a total effective sentence of two years, six months imprisonment with a non-parole period of 18 months.
[15]Sentencing Act 1991 (Vic) s 6AAA.
64Gentleman, is there anything further?
65MR SINGH: No, thank you, Your Honour.
66MR BHATTACHARYA: I think the registry order, Your Honour.
67MR SINGH: 15 years, Your Honour.
68HER HONOUR: Yes. So Mr Bader, Charges 1 and 2 are both what are considered Class 2 offences under the Sex Offender Registration Act[16] and what that means is that you are now considered to be a registrable sex offender and you will have to report for a period of 15 years. What happens is there will be a member of the police who will become effectively a case manager for you. So you will need to report to them and you'll have to provide a whole lot of information and we'll give you some information about this today. You will need to sign confirming that you've received that information.
[16]Sex Offenders Registration Act 2004 (Vic).
69What I might do is stand down so that the documents can be drawn up and have Mr Bhattacharya explain those documents to you so that you do understand because it is a really serious obligation and depending on how much you change your circumstances, you will at least have to report annually but it could be more frequently than that. So is it important that you understand, all right. So when I stand down we will have both the Community Correction Orders, both of them drawn up, as well as the sex offender registration material and then I will come back and you can sign those orders here in court and then you will be free to go. All right.
70MR BHATTACHARYA: If Your Honour pleases.
71(Short adjournment.)
72HER HONOUR: All right, Mr Bhattacharya, you've had an opportunity to explain those orders?
73MR BHATTACHARYA: Yes, Your Honour.
74
HER HONOUR: Thank you. All right. I will have my associate approach you,
Mr Bader, so that you can sign. All right. Mr Bader, I wish you all the best with those orders and I will see you on 5 July 2022 to see how you are going, all right. Ms Pepper, I wish you all the best. I hope that you can get some closure now and that you can move on and hopefully the future is a bit brighter. It has probably been really difficult I imagine.
75MS PEPPER: Yeah.
76HER HONOUR: Yes. But thanks for coming too because it is important that you see the process. Yes. All right.
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