Director of Public Prosecutions v Baker
[2024] VCC 1720
•29 October 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
MORWELL
CRIMINAL JURISDICTION
SITTING IN MELBOURNE
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PERRY BAKER (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 August 2024 |
DATE OF SENTENCE: | 29 October 2024 |
CASE MAY BE CITED AS: | DPP v Baker |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1720 |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Found guilty committing an indecent act with a child under 16 - 2 charges of using a carriage service to transmit indecent communication to a child under 16 - 2 charges of sexual activity in the presence of a child under 16 – step-father role - offending over 3 year period – offender 49 – 52 years complainant 12 – 15 - mother-daughter relationship damaged - medical and counselling appointments required - exploitation of child – lack of remorse – prior drug and alcohol abuse - severe depression
Cases Cited: Verdins v R [2007] VSCA 102
Sentence: Total effective sentence 9 months – 2 year CCO for Commonwealth charges – SORA – life
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. D'Arcy | Office of Public Prosecutions |
For the Accused | Mr A. Marshall | Stephen Peterson Lawyers |
HER HONOUR:
1Perry Baker[1], you have been found guilty by a jury of one charge of committing an indecent act with a child under 16, two Commonwealth charges of using a carriage service to transmit indecent communication to a child under 16 and two charges of sexual activity in the presence of a child under 16.
[1] A pseudonym
2It is convenient to note the maximum penalties here. For the offence of committing an indecent act with a child under 16, the maximum penalty is
10 years' imprisonment. For using a carriage service to transmit indecent communication, it is 12 years and for engaging in sexual activity with a child under 16 it is 10 years.3At the time of the offending, between 1 January 2017 and 20 February 2020, you were aged between 49 and 52 years. In 2016, you began a relationship with the mother of the complainant. You moved into a caravan in the driveway of her home. In March 2017, you moved with the complainant's mother and the complainant into a house and a few months later in June 2017, you all moved to a new house. You remained in a relationship with the mother until February 2020.
4In January 2017, when the complainant was aged 12, you and the complainant were playfighting in the house. During the playfighting, the complainant fell onto the couch and you fell on top of her. You then bit her on the neck in a sensual way, as she described it, like a kiss. That is Charge 1.
5Charge 2 and 6 are the charges of using a carriage service to transmit indecent communication. One day in 2017, after you moved into the new house, you walked into the bathroom when the complainant was naked in the shower. After that, you sent her a text message saying something like, 'I think about you when you're in the shower.' She took this to mean that you thought about the time you saw her in the shower. That is Charge 2.
6Charge 6 occurred in December 2017, when the complainant was 13. A series of text messages began with a discussion about the complainant's father and what she described as, '…his no strings attached dating'. She wrote to you, 'Don't get any ideas, fuckface' and you replied, 'I don't. I just use hand.'
7Another conversation in that series starts with the question from you, 'Has he seen yours?', being a reference to the complainant's boyfriend. The conversation continues with references by you to the complainant's 'pussy' and your question to her, 'How do you know I pull when your mum's away?' The last two comments are from the complainant, saying, 'Just shut up and don't talk to me if you're going to be a creep, you fucking paedophile.' You replied, 'You started it.'
8Charge 7 occurred in January 2018. The complainant was out and her mother was not at home. You sent her several text messages, asking whether she would be coming home. You sent her a message, telling her not to be long, as you wanted to show her something before her mother came home. Three minutes later, you messaged her again, saying, 'Did you hear me?' Five minutes later, you called her, but she missed the call. Eventually she asked you what the surprise was and you said, 'Come home and you'll see.'
9When she arrived home, the complainant went to her bedroom and saw you lying naked on the bed, masturbating. She slammed the door and went outside, crying. When her mother came home, she told her mother, who confronted you and you denied it, saying the complainant must have seen you scratching yourself. The complainant showed her mother the text messages. Afterwards, locks were put on her bedroom door and on the bathroom door. The mother told you to stop sending messages to the complainant.
10Charge 8 was a further incident of masturbation by you in the presence of the complainant. This happened on 20 February 2020, the day the complainant went to the police. The complainant arrived home from school that day and went to her room. You asked her when she would like you to get dinner. She said it was too early, but you repeated the question a short time later, after waiting outside her bedroom. Again, she said no and again you remained outside her door. The complainant went to the door and saw you in the hall with no pants on, masturbating. She slammed her door and locked it. She packed some things into a bag and climbed out the window quietly to avoid alerting you. She sat in a neighbour's yard until her friend's father arrived to pick her up and she was taken to the police station. She made a VARE that evening and a second one in July 2022.
11You were arrested on 21 February 2020 and were interviewed, during which you denied the allegations put to you.
Victim impact statements
12The complainant and her mother have filed victim impact statements in which they describe the serious impact your offending has had on them. The complainant states she has been stripped of her teenage years and having to deal with the court process has turned her life upside down every time she has had to rewatch statements and give evidence. She has not been able to live a normal life, because of this. Her relationship with her mother has suffered. She has felt alone, because she was not allowed to talk about what happened with anyone. She felt silenced by this. She stated that her education has suffered, being unable to concentrate at school and having to move school four times. She said writing the victim impact statement was one of the hardest things she has ever had to write.
13Her mother described the extreme guilt she herself felt, because of her relationship with you having resulted in the violation of her daughter's innocence. She has had to find a way to rebuild her relationship with her daughter and has had to support her daughter through her mental health crises. Both women feel anxious about seeing you in the town where they live. They both describe the anxiety they feel in connection with the repercussions of your offending, including frequent medical and counselling appointments.
Gravity of offending
14This was serious offending of a type that exploited the vulnerability of a child, who by virtue of her age, lacked the ability to make appropriate decisions and judgments, which in turn affected her behaviour. I find it necessary to make this observation, because of the suggestion that you, 'egged each other on', although I appreciate that this was not intended to imply that this would excuse the behaviour.
15By contrast with the complainant's youth, you were well advanced in years and failed to exercise the maturity that would be expected. The offending squarely raises the need for general deterrence in sentencing, and specific deterrence is also relevant because of your denial of the charges. Its importance is somewhat reduced because of your risk of sexual recidivism being assessed as low by the psychologist Ms Cokorilo. I shall return to that matter shortly.
16The text messaging was limited in duration, with the messages that are the subject of each charge having occurred on only one occasion. In the account you gave Ms Cokorilo when she assessed you recently, you continued to deny their existence, despite the clear proof which satisfied the jury.
17The charges involving indecent acts and sexual activity were limited in that only the first charge involved actual physical contact. However, the instances of masturbation were confronting and extremely upsetting for the complainant. The harmful effects of sexual abuse on children are well known and the law presumes harm without the need for evidence of it. Nonetheless, the long-lasting effects upon the complainant are clearly established from her victim impact statement.
Personal background and circumstances
18As I have mentioned, you were assessed by the psychologist Ms Sandra Cokorilo on 6 August 2024, after the trial. In her report dated 16 August, Ms Cokorilo set out your personal and family history, noting a stable family background and good relationships with your parents and siblings. You were the carer for your father in his later years until his death in 2021.
19You completed school until Year 11 and then joined the army, later working as a security officer and hospital orderly for 22 years, with additional employment in construction and hospitality. A workplace injury caused you to leave the workforce and eventually you received a disability support pension after suffering four strokes and having surgery for a congenital heart abnormality.
20Over the years you had a long relationship with the mother of your two adult children, but you became somewhat estranged from them after separating from their mother. When your father died you contacted them and you have become close since then. The breakdown of the relationship with your partner occurred when you were about 52, coinciding with the commencement of your relationship with the complainant's mother and the offending which followed.
21You described to Ms Cokorilo your relationship with the complainant as your first experience of being a stepfather, and you perceived this contribution in positive terms, in disregard of the offending behaviour which you have continued to deny.
22Your history of alcohol and drug use includes binge drinking in your earlier years and long term use of cannabis and amphetamines, which you describe as being recreational and not problematic, although with the escalation of amphetamine use in response to being charged with the offending. You ceased use when you suffered the strokes and have continued to abstain. Your criminal history is limited and devoid of any similar offending. The family violence charges occurred in the context of the breakdown of your long term relationship, with difficulties concerning financial arrangements.
23In 2021, a brief relationship ended when your then partner called you a paedophile and your response was to throw a rock through her window. This would appear to be an example of a problem with anger that you reported to Ms Cokorilo. She also reports that you suffer from severe depression resulting from the allegations and that this remains untreated. She noted that the medical causes of the strokes you suffered have not been identified and that there is a link between acute and chronic emotional stress and the risk of stroke. She said you
'… would benefit from a disposition which promotes access and engagement with therapeutic resources aimed at alleviating some of the undue distress.'[2]
[2] Report of Sandra Cokorillo dated 16 Aug 24 para 7
Mitigating factors
24The severe depression from which you suffer is a mitigating factor by reason of your experience of it and by enlivening the principle in the case of Verdins to the extent that it may make imprisonment more burdensome for you than for others who do not suffer in this way. I take this into account.
25Despite some limited criminal involvement in the past, there is no suggestion of any antisocial interests and as Ms Cokorilo put it, no traits or attributes commonly associated with sexual offender profiles.[3] She considers that your risk of sexual offending is low, despite the assessment by Corrections as to the risk of general reoffending being high, and Ms Cokorilo gave evidence to this effect.
[3] Ibid para 72
26On the contrary you have a long history in the workforce supporting a family and you now have extensive family support. You have a partner and you have frequent and regular contact with your siblings and son and daughter. Those relationships are recognised as protective factors and reduce the risk of reoffending.
27A further mitigating factor which I take into account is that of the social repercussions for you of your offending as a form of extra-curial punishment. You were distressed to receive immediately after the trial a number of denigratory text messages of considerable animosity, which led to suicidal ideation. You were formerly active in the community but have disengaged as you are concerned as to how others see you. You report that you have become a loner in this way and are motivated to move to another town, because of the animosity, even from long-term friends.
Sentence
28I turn now to sentencing you, Mr Baker.
In relation to Charges 1, 7 and 8, I sentence you to the following terms of imprisonment.
For Charge 1, three months.
For each of Charges 7 and 8, six months. That is, two sentences of six months each.
Charge 2 and 6 are Commonwealth offences and I shall impose a Community Correction Order and I shall return to that in a moment.
29The sentence for Charge 7 is the base sentence. Three months of the sentence for Charge 8 is to be served in cumulation upon the base sentence. The sentence for Charge 1 will be served concurrently. This results in a total effective sentence of nine months.
30You have been assessed as suitable for a Community Correction Order and as I said, that will be imposed for Charges 2 and 6. That order will begin on the day of your release from custody and will last for two years. You will be required to report to the Corrections office by 4 pm within two working days of your release. You will be under supervision and you must be assessed and, if necessary, treated for drug and alcohol abuse and for any mental health problems that might be identified. You must also take part in a sex offender program. You must perform 80 hours of unpaid community work and any hours of programs that you complete will be credited against the hours of work.
31You will be placed on the Sex Offender Register for the rest of your life and you will have to report your details to the police each year after you are released. Those two documents will be ready for you to sign in a moment and perhaps, Mr Marshall, you might wish to accompany my associate to the dock.
32MR MARSHALL: Thank you, Your Honour. Your Honour, just, was it 80 hours of work.
33HER HONOUR: Eighty hours, yes.
34MR MARSHALL: Yes, thank you, Your Honour. Thank you, Your Honour.
35HER HONOUR: Well, Mr Marshall and Mr D'Arcy, thank you for your assistance during the trial and since then as well.
36MR D'ARCY: Thank you, Your Honour.
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