Director of Public Prosecutions v Bain (a pseudonym)
[2021] VCC 1195
•20 August 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL BAIN (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 July 2021 |
DATE OF SENTENCE: | 20 August 2021 |
CASE MAY BE CITED AS: | DPP v Bain (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1195 |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Carnal knowledge of a girl between 10 and 16
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence:2 years and 9 months imprisonment, wholly suspended for 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | Office of Public Prosecutions |
For the Offender | Mr D. Sala | Stary Norton Halphen Criminal Lawyers |
HER HONOUR:
1.Michael Bain[1], you have pleaded guilty on indictment to one charge of carnal knowledge of a girl between 10 and 16 years. This charge is a ‘rolled up’ charge which captures more than one instance of offending.
[1] A pseudonym.
2.In sentencing you for this crime I must have regard to the maximum penalty for the offence that you have committed, as in operation at the time of your offending. The maximum penalty for carnal knowledge of a girl between 10 and 16 years, at the relevant time, was one of 10 years imprisonment. The maximum penalty reflects the seriousness with which Parliament then regarded that offence.
Background to the Offending
3.The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening on Plea' dated 9 June 2021. It is a detailed document and represents an acceptance by you of all the elements of the offence to which you have pleaded guilty and the factual basis on which I am to sentence. It will not be repeated by me in full, but I have had recourse to the entire document.
4.In short compass, your offending was committed between 1 November 1972 and 31 December 1972. You were approximately 25 years of age at that time.
5.The victim, Ms Lawson[2], was 14 years at the time of offending and is your first maternal cousin.
[2] A pseudonym.
6.During her teenage years, Ms Lawson lived in Birregurra with her maternal grandmother, her Uncle Donny[3] whom she referred to as her father, her brother, Jack[4], and her sister, Pam[5].
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
7.On an occasion between 1 January 1968 and 31 December 1969, when Ms Lawson was aged between nine and 11 years old, you came to stay with her family in Birregurra. During the stay, Ms Lawson was outside in the garden when you called her over. When she approached you took your erect penis from your trousers, grabbed her hand and pulled her towards you, placing her hand on your penis. You told her to ‘rub’ your penis. She became frightened and ran inside to her grandmother but did not say what had just happened.
8.This act is relied on by the Crown as what is called ‘context evidence’ in relation to the offending on the indictment- so that I may have full regard to the circumstances of that offending and to enable a more realistic assessment of it to be made. It may bear upon matters such as the extent of your culpability, the need for specific deterrence, as well as your prospects for rehabilitation. You are not to be sentenced for any uncharged acts set out in the agreed summary of prosecution opening.
The Offending
9.In 1972, when Ms Lawson was thirteen and a half years old, she became pregnant.
10.During the last trimester of her pregnancy she was sent by her grandmother to stay with her maternal aunt - your mother - and you, at your residence in Braybrook.
11.In October 1972 Ms Lawson went into labour. You drove her to the Royal Women's Hospital, where she gave birth to a child who was then adopted out.
12.Ms Lawson returned home to her family in Birregurra on discharge from hospital.
13.Between 1 November 1972 and 30 April 1973, Ms Lawson travelled to Melbourne with her family and stayed for weekends at your Braybrook residence.
14.On an occasion between 1 November and 30 November 1972, approximately six weeks after having given birth, Ms Lawson returned to the Royal Women's Hospital for a medical appointment.
15.She and her family all travelled to Melbourne, staying at your home in Braybrook. On a Saturday night, Ms Lawsons’ family attended a wrestling event, but Ms Lawson did not join them.
16.When her family had left for the wrestling, Ms Lawsons’ aunt, again your mother, told her to accompany you to a Sports Bar. Ms Lawsons’ aunt provided her with a long black and silver evening gown with ‘sparkles’ for her to wear as she said she did not have any good clothing with her.
17.You then drove Ms Lawson to the Sportsman's Bar in Swanston Street, Melbourne where the two of you remained for about two hours. You consumed 'a few' alcoholic drinks and bought Ms Lawson a soft drink
18.On leaving the bar, you and Ms Lawson got into your vehicle and you told her, 'We'll go for a drive and see the water'. You drove for about ten to fifteen minutes before parking in the car park of the Palais Theatre.
19.After approximately two minutes of sitting in the vehicle, you told Ms Lawson to 'hop in the back' and she asked you, 'Why?' You told her that she needed a 'cuddle because she had just had a baby’ and ‘had been through a lot’ by giving the child up for adoption. You both then got into the rear of the vehicle.
20.You leant across and kissed Ms Lawson on her neck a 'couple' of times, scaring her. You told her that they would 'have a bit of fun' and pulled your wallet from your trousers, taking a condom out. You told Ms Lawson to 'lie down'.
21.Ms Lawson did so, and you pulled your pants down and put on a condom. You rolled over so that you were lying on top of her, pulled her dress above her waist and her underwear down to her knees and inserted your penis into her vagina. You then had sexual intercourse with her.
22.Due to having recently given birth, the penetration caused Ms Lawson immediate pain and she wanted you to stop. You continued to have sexual intercourse with her for about two minutes, stopping when you ejaculated. You then removed the condom and cleaned yourself with a towel.
23.Ms Lawson pulled her underwear back up. Both of you then exited the rear of the vehicle and returned to the front seat. You told her not to ‘tell anyone what had happened’ and if she did ‘she would be placed in an orphanage due to her young age and the fact that she had just given birth’. Ms Lawson believed you.
24.You then drove back to Braybrook where everyone had gone to bed. Ms Lawson had a shower, describing herself as feeling 'filthy and dirty', got into bed and then cried herself to sleep.
25.The following morning, Ms Lawson had breakfast with her grandmother, ‘father’ and aunt and acted as if nothing had occurred even though she describes herself as feeling 'horrible and scared'. Ms Lawsons’ family left Braybrook that day and returned to Birregurra.
26.When they returned home, Ms Lawson was sitting at the kitchen table completing her homework when her ‘father’ asked if you, Mr Bain, ‘had done anything to her that he shouldn't have.’ She replied 'no' as she was scared of being placed in an orphanage.
27.On an occasion between 1 December and 31 December 1972, Ms Lawson and her family travelled to Melbourne to attend wrestling at Festival Hall, again staying with you and your mother in Braybrook. This time she went to the wrestling with her family. On their return Ms Lawson noticed that you were dressed in what she describes as 'your good clothes'.
28.While the rest of the family went to bed, Ms Lawsons’ grandmother sat in the kitchen with Ms Lawsons’ aunt (again, your mother) who told her that she ‘should go out’ with you so that you were not alone at a bar. Ms Lawson told her aunt that she did not ‘want to’ but her aunt said, ‘Come on, he needs someone to go with’ and went and got a dress for her to wear. You and Ms Lawson left an hour later, driving again to the Sportsman’s Bar.
29.As on the previous occasion, you both stayed at the bar for ‘a couple’ of hours, during which time you had alcoholic drinks while Ms Lawson had a soft drink.
30.When you both left the bar, you again drove to the Palais Theatre and parked in the same area of the car park and again told her to get into the rear of the vehicle. Ms Lawson complied.
31.While seated in the rear, the acts of the previous occasion essentially repeated themselves. You kissed Ms Lawson on her neck ‘a couple of times.’ She then lay on her back and you pulled your pants down and put a condom on your penis. You then lay on top of her, pulled her dress above her waist and pulled her underwear down, inserting your penis into her vagina. You had sexual intercourse with her for about two minutes, stopping when you ejaculated.
32.Ms Lawson again felt pain to her vagina. You removed the condom from your penis and cleaned yourself using a towel. As you did so, Ms Lawson pulled her underwear back up and then returned to the front seat of the vehicle
33.You, Mr Bain, repeated the threat that you had made on the previous occasion. It is these facts that form the basis for Charge 1 - Carnal Knowledge of a girl aged 10 or more years and under 16 years.
34.The following day Ms Lawson and her family again returned to Birregurra. Ms Lawson ‘father’ asked her if you had ‘done anything’ to her that you should not have and again, she told him ‘no’.
35.By April of 1973, Ms Lawson and her family commenced attending the wrestling at a different venue which meant that they did not need to stay overnight. This effectively put a stop to your offending.
36.Ms Lawson and her family did return to Braybrook on other occasions so that they could attend the wrestling, which had been closed over the Christmas and New Year period. On each occasion, I am told you used the same modus operandi to facilitate sexual intercourse with her. The number of occasions between in effect January and April of 1973 is not particularised and, given the Christmas break period and the end of your offending by April of 1973, must have been relatively confined. Again, this is referred to me to give context to the offending the subject of the charge on the indictment and will be used as such.
Investigation and arrest
37.In 2010, Ms Lawson confronted you at a family function.
38.In early 2018, Ms Lawson was having what she describes as a ‘sort of breakdown’ due to television news broadcasts ‘triggering’ what she was ‘going through.’ She used Facebook Messenger five or six times pretending she was someone called ‘Craig’, to try and ‘bait’ you into ‘owning’ what you ‘had done to her’.
39.In February of 2018, Ms Lawson spoke to police and formally disclosed your offending against her.
40.On 14 of June 2018, arrangements were made with police for Ms Lawson to call you and for that call to be recorded, a pretext call. The contents of that call are outlined in the Crown summary in detail but in that phone call you did admit your wrongdoing and in fact apologised for your offending.
41.It is also apparent from that pretext call that you had already told your wife about your wrongdoing, prior to police involvement.
42.On 11 September 2018, arrangements were made for you to attend the Werribee police station, at which time a record of interview was conducted with you. You made a ‘No comment’ response to the allegations as they were put, as is your right.
Victim Impact Statement
43.A victim impact statement of Ms Lawson dated 14 July 2021 has been tendered by the prosecution. A victim impact statement gives those affected by your crime the opportunity to participate by informing the court of the effects of your behaviour upon them.
44.Ms Lawson requested that her victim impact statement be read aloud in court by the prosecutor. This was done. As a result, you can be under absolutely no illusion as to the effect of your offending on Ms Lawson.
45.It is accurate to describe the impact of your offending upon her as 'profound'.
46.Ms Lawsons’ victim impact statement is replete with the ongoing impact on every facet of her life of what you did. This is still ongoing. Towards the end of that statement she states 'I’m not a frightened little girl any more, I’m trying to decide who I am now… now that it is almost over, I can determine who I am, not who he made me'. I genuinely hope that there will be something about this process that gives Ms Lawson some finality
47.Whilst not to be overwhelmed by victim impact, sentences imposed for offending of this type must reflect the personal damage that is inflicted by such behaviour and the stark reality that rehabilitation of the victim can in fact be far more difficult to achieve than for those who perpetrate such wrongdoing. Such is the case in this instance – your life has moved on, much of Ms Lawsons’ has not. Accordingly, courts must, in order to protect future victims, attempt to deter others through appropriate sentences, those who may be so inclined, from engaging in such activity.
48.This process does require that a range of factors be taken into account
Gravity of the offending
49.One of those includes an assessment of the gravity of the offending. You abused the trust that Ms Lawson should have been able to place in you as her older cousin. I note that you were some 10 years older than her.
50.You abused the trust put in you by others to take care of Ms Lawson when you took her out, instead you abused her vulnerability, vulnerability which was well known to you.
51.You also threatened her with what would happen to her if she told anyone and did so in a way which would instil fear and allowed you to, not only offend on more than one occasion, but meant that it was Ms Lawson who felt like the wrongdoer and kept your secret. Ms Lawson, of course, did nothing wrong.
52.The gravity of your offending, Mr Bain, was high.
Plea of guilty
53.The Sentencing Act obliges me to take into account the stage at which you entered your plea.
54.There have been numerous procedural listings of this matter since you were charged in August of 2019. A committal listing was vacated in July 2020 due to the COVID-19 pandemic and was not in a position to proceed until 4 February of 2021.
55.You did run a contested committal proceeding and Ms Lawson was cross-examined. Your counsel submits that the matter was nonetheless run on what he describes as a discrete basis and focused solely on the number of occasions the offending was said to have occurred rather than a denial of the offending. I accept that this is so and in fact assisted in the resolution of the matter.
56.I observe it is clear from the history of the matter overall that, once charged, there have been many indications that you hoped to resolve the matter as you now have.
57.You indicated your willingness to plead guilty to the charge on the indictment as a result of the case conferencing process which has formed part of the court's response to the COVID-19 pandemic.
58.Case conferences are designed to discuss pathways to resolution where possible or to narrow the issues prior to listing any trial. Your decision to resolve and plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court’s operations have and remain been significantly disrupted and many trials remain as yet unfixed.
59.In the recent decision of Worboyes v The Queen [2021] VSCA 169 at paragraph [39], the Court of Appeal said:
'For these reasons, we consider that — all other things being equal — 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.'
60.The prosecution concedes your plea was at an early stage given the chronology of the proceedings.
61.Your decision has spared Ms Lawson having to once again relive events of so long ago.
62.In addition, I do accept that you are remorseful for your offending. That much was apparent, in part, from the pretext call and the reference from your wife to which I will shortly refer.
63.These factors will all be taken into account in your favour.
Personal circumstances
64.Mr Bain, I turn now to your personal circumstances.
65.You were born in March 1947 and are currently 74 years of age.
66.You have no prior criminal history.
67.You grew up in the Braybrook area and were one of a sibship of three. You had a younger sister and a younger brother. Your brother died some 30 years ago.
68.You left school at about 14 years of age, when you commenced working as butcher.
69.After about five years you then commenced work in a factory before briefly returning to butchering and then finally getting a job as an electrician’s assistant at the Melbourne Harbour Trust. You worked in that role for about five years.
70.You commenced work with Pronto Concrete in Sunshine in 1985 and stayed in that role until you retired about nine years ago.
71.It was at the age of around 24 years that you met your wife, Robyn[6], and you have been married for about 45 years.
[6] A pseudonym.
72.You have two adult daughters who are aged 40 and 37 respectively and instruct that your family, apart from your wife, are unaware of these charges.
73.You also have three grandchildren.
74.You report some health issues including blood pressure, cholesterol and instruct that you had a heart attack some 20 years ago. You currently suffer from chronic obstructive pulmonary disease.
75.As I mentioned earlier, your wife, Robyn, has provided a written reference and was present for your plea hearing on 31 July 2021 and is present outside the courtroom today. She describes herself as being happily married to you for a period in excess of 45 years. She also describes you as remorseful and upset over your offending. You have suffered bouts of depression, guilt and anxiety as a direct result. Otherwise, your wife describes you as a good provider for her and your daughters. She describes you as a hard-working and as a dedicated family man. She suffers from a range of serious health issues and you are her carer. Robyn states that you are someone who she sees as putting others before yourself and as being kind, supportive, respectful and compassionate. She does describe your offending as being out of character and history would bear this assessment as a correct one.
Delay
76.Delay is another relevant factor to this sentencing process.
77.You were arrested and interviewed in relation to this matter on 11 September 2018. It was approximately a year later, on 15 August 2019, that you were charged.
78.You have now been subject to bail for a lengthy period.
79.The delay of some three years between your arrest, interview and the matter being finalised today, being 20 August 2021, is relevant primarily in two ways.
a. Firstly, for that period it has been a burden over your head;
b. Secondly it has been a further testing period, and a stressful one, in which to further assess your prospects for rehabilitation.
80.In terms of your prospects for rehabilitation, your offending is essentially in the late 60s (if I include the uncharged act referred to in the summary) and the early 70s.
81.You had no prior history before that time period.
82.Importantly, there has been no suggestion of any further offending whatsoever for a period in excess of 48 years.
83.The other evidence before me indicates that you have been a positive contributor to the community since that time and to your family and working life.
84.It is axiomatic to say that your rehabilitation appears complete.
85.There would appear little, if any need, for specific deterrence and little, if any, need to consider protection of the community in the sentence that must be imposed. Denunciation and general deterrence still, however, remain relevant.
86.I do take the delay factor into account in the way I have outlined.
Sex Offenders Registration
87.The charge to which you have pleaded guilty I am told is a Class 1 offence. This means I am required to place you on the sex offenders register for life, and I do so.[7] You will be provided with documents that you will be required to sign which set out your obligations under this scheme and Mr Sala can assist you with that.
[7] Amended to a reporting period of 15 years pursuant to s34(1)(b)(i) of the Sex Offenders Registration Act after the sentencing hearing.
Sentencing
88.Both parties submit that any sentence imposed should be one of imprisonment. I agree.
89.Both parties submit that in all the circumstances, it would be within a proper consideration of all relevant sentencing factors for any term of imprisonment to be wholly suspended.
90.In terms of relevant sentencing factors, the basic purposes for which a court may impose a sentence include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of your offending, your culpability for it, your personal circumstances and those of your victim.
91.I must also balance the interest of the community in denouncing criminal conduct with the interests the community clearly has in, seeking to ensure as far as is possible, that offenders are rehabilitated and are reintegrated into society.
92.I have taken into account the relevant sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, as well as the principles of both totality and proportionality.
93.I now turn to sentence.
94.On Charge 1, carnal knowledge of a girl between 10 and 16, you are convicted and sentenced to two years and nine months imprisonment.
95.Your blameless life since 1973, advancing age, and the relevant discounts for your plea, including your completed rehabilitation, lead me to the view that there is no merit in requiring you to actually serve any of this term. It will, however, hang over your head.
96.Your sentence is to be wholly suspended for a period of two years.
97.Should you reoffend during that operational period by an offence punishable by imprisonment you are at risk of being required to serve the two years and nine months' imprisonment unless there are exceptional circumstances that have arisen since the imposition of the suspended sentence this day.
98.Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty to the charge. If not for your plea of guilty I would have sentenced you to a total effective sentence of three years and eight months imprisonment with a minimum of two years and four months before being eligible for parole.
99.Ms Duckett, is there anything that I have missed?
100.MS DUCKETT: No, Your Honour, there's no outstanding issues.
101.HER HONOUR: Mr Sala?
102.MR SALA: Nothing from my end, Your Honour.
103.HER HONOUR: All right, thank you. You will obviously have the opportunity to speak with your client and I would be grateful if you could assist him with the registration process.
104.MR SALA: Certainly, Your Honour.
105.HER HONOUR: All right, thank you. I will close in effect this court until Monday 23 August when I will be sitting in the Latrobe Valley. Thank you.
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