Director of Public Prosecutions v Baker

[2017] VCC 193

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00685

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN JAMES BAKER

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 February 2017
CASE MAY BE CITED AS:	DPP v Baker
MEDIUM NEUTRAL CITATION:	[2017] VCC 193

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Hollingworth
For the Accused	Ms Z. Broughton

HER HONOUR:

1Benjamin James Baker, you have pleaded guilty to three charges of sexual penetration of a child under 16.  You have also pleaded guilty to a related summary charge of breach of bail.  The maximum penalty for sexual penetration of a child under 16 is ten years' imprisonment.  The maximum penalty in respect of breach of bail is 3 months imprisonmnet or 30 penalty units.

2The prosecution made application for the disposal of certain material.  The making of that order was consented to.

3The circumstances of your offending are set out in detail in the Summary of Prosecution Opening, which was tendered as Exhibit A.  In brief, the circumstances are as follows:

4You met the victim and her family when you were about 20 years old.  She was nine years old.  You were in a relationship with the victim's older sister.  The victim's mother was a single parent with the care of a number of young children.  You and the older sister, but ultimately you and the victim's mother,  had custody of your child with the victim’s sister.  The victim lived with her mother and her younger siblings and there was a lot of contact between you and members of the victim's family.

5You commenced a sexual relationship with the victim when you were 24 years old and she was 14 or 15.  Charge 1 relates to the first occasion.  The victim had sex with you at your house on 21 December 2013.  She says that you asked her if she would have sex with you as part of a verbal game you played with her.  She agreed because she thought you were joking.  Later that evening you went with the victim into your spare room and had sex with her.  She says she felt both happy and sad.

6Charge 2 relates to another occasion one year later when you had sex with the victim again at your house.  After that, there was an ongoing sexual relationship.

7Charge 3 relates to an occasion in late March/early April 2015, when the victim had sex with you at her house.  The victim says her mother was concerned about the relationship but she denied any sexual relationship.  You gave the victim a mobile phone so that she could speak to you without her family knowing. 

8By July 2015, the victim realised that she was pregnant.  She hid the pregnancy until her mother took her to the doctor in November 2015.  Your child was born in January 2016.  About a week after the birth of your child, you took a food bag to the victim's younger sister at school with a phone hidden in the bottom.  You told the victim's younger sister to get her to ring you which she did.  By doing that you breached the bail conditions imposed on 21 January 2016 that prevented you contacting the victim.  That is the basis of Summary Charge 1 of breach of bail.

9It is apparent from text messages between you and the victim that you spoke of romantic matters, and a future together with your child.

10A Victim Impact Statement from the victim was tendered as Exhibit B.  That victim impact statement makes for sad reading.  It appears that the relationship with you had left the victim feeling, she says, "like a failure, and worthless".  She says it has damaged her relationship with her family.  She said she became a young mum and she did not plan on having a child at such a young age.  She speaks of the situation affecting her relationship with her mother.  It is to be hoped that those matters over time have improved, and that with support, the victim will have much more positive feelings in the future about her situation and potential.

11A Victim Impact Statement was tendered as Exhibit C from the victim's mother.  She speaks of her pain and guilt.  She also describes the betrayal of trust from someone she regarded as part of her family.  She speaks of the emotional and psychological issues suffered as a consequence and the impact on her and her ability to work.  She also describes the disruption to the family and her fears for the future, given that her two daughters now have children with the same father.

12In sentencing you, I have taken into account your personal circumstances.  You are now 27 years old.  I have derived the details of your circumstances from your counsel's submissions, the evidence of your maternal uncle, and the psychological report of Mr Steven Gault, which was tendered as Exhibit 2.

13You grew up with a violent alcoholic father and a mother who had had a difficult childhood herself.  Your mother was described by your uncle as a fairly submissive person.  You commenced self-harming behaviour in Year 7.  Your father ridiculed you about your behaviour.  You became overweight and suffered bullying at school.  Matters did improve in Year 12, because a teacher encouraged you to do exercises, which helped improve your self-esteem.

14You left home around 17 and moved in with your then-girlfriend's family for about two years.  You were working.  You had started working in a hardware store, and then in a bakery job.  In 2010, you began work at a polymer extrusion plant where your father works.  You worked there until you were incarcerated.

15Your self-harming behaviour continued.  In November 2015, you were admitted to hospital after attempting suicide.  You had a further admission in December 2015. 

16You were described by your uncle, who is a Catholic priest, as a friendly, sociable and vivacious person during your teenager years.  In 2016, he was made aware of your hospital admissions.  He then increased his involvement with you.  You stayed with him from time to time.  Your uncle said he would go with you to appointments with mental health practitioners and other appointments.  Your uncle described you as "outstandingly proactive in accessing support services".  You were also able to give practical assistance to your uncle in his work in the community.  Your uncle said that he had discussed your offending with you, and that you were sincerely sorry for the harm you had caused.  You said you were ashamed, and wished to assist the victim in any way you were able to.

17Your uncle has regularly visited you in custody.  He described the positive use you had made of your time in custody, including involvement in work, exercise, reading and church services.  Mr Gault in his report described your heavy alcohol consumption in 2014 and 2015.  You have also used marijuana at some times and amphetamines for a two-year period between 2013 and 2015.  You also engaged in illegal use of buprenorphine for a period.  You became addicted to gambling on poker machines, which led to your bankruptcy in 2015.  You obtained the assistance of a psychologist and told
Mr Gault that you have not gambled since March 2016. 

18Mr Gault describes your history of self-harm and your hospital admissions.  He says that since your incarceration on remand in June 2016, you had weekly sessions with a psychologist between July and December.  You describe that as helpful, but some self-harming behaviour has continued.

19Mr Gault says that you suffer from borderline personality disorder, although not at the severe end of the spectrum.  He says you also have suffered from alcohol use disorder, which is in early remission, and gambling disorder, which is also in early remission.

20Mr Gault says that a recognised symptom of borderline personality disorder is impulsivity in the area of sexuality.  It is his conclusion that this offending is not consistent with that.  He says, even accepting what you say about the number of occasions that you had sexual activity with the victim, because of the period of time over which the offending occurred, your offending was not consistent with impulsivity.  Mr Gault says that there is no indication of paedophilia or any other deviant sexual tendencies.  He describes your offending as opportunistic.  He says that you have, in his opinion, a low risk of reoffending and good prospects of rehabilitation. 

21In sentencing submissions, your counsel submitted that the appropriate penalty would be a sentence of imprisonment to be followed by a community correction order.  Your counsel relied upon your plea of guilty and your cooperation with the police.  You made full admissions early along.  Your cooperation continued, even when additional allegations were made after you have initially been charged.

22Your counsel also relied on your remorse.  She described you as having very good prospects of rehabilitation.  She submitted that your prospects of rehabilitation were enhanced by the matters set out in
Mr Gault's report, your genuine remorse, your cooperation, your strong work ethic, and your demonstrated willingness to comply with treatment.  She also referred to your lack of prior criminal history and the number of courses you had completed in custody, together with your conduct in custody.  A bundle of documents was tendered as Exhibit 4, relating to the period you have spent in custody.  Your counsel said your rehabilitation would also be assisted by family support, especially from your uncle.

23Your counsel submitted that I should give some weight to the fact that you have been in protection whilst on remand, although you have been able to engage in a number of activities, and protection has not been as restrictive for you as it is sometimes.

24Your counsel submitted that your borderline personality disorder would not give rise to the application of Verdins principles, but was "highly relevant in explaining how you came to offend in this manner".  Your counsel submitted that specific deterrence had already commenced, and that a community correction order would allow for your rehabilitation in the community.

25She referred to the disadvantage you had suffered in your childhood.  She also advised the court that you wished to apologise to the victim's family.

26A folder of material relied upon by defence was tendered as Exhibit 3.  That folder included a number of relevant cases and material from the Sentencing Advisory Council. 

27The prosecutor in sentencing submissions addressed circumstances of aggravation in respect of your offending.  The prosecutor referred to the victim's mother's warning to you.  She also submitted that there was some degree of planning.  The prosecutor submitted that the breach of bail was significant, and should be borne in mind when considering your prospects of rehabilitation.

28The prosecutor agreed that you had used protection during your sexual activity with the victim, but it appeared that there was a breakage on the last occasion, which resulted in the pregnancy.

29The prosecutor submitted that if you were sentenced as a serious sexual offender in respect of Charge 3, the prosecution would not seek a disproportionate sentence or total cumulation.  The prosecutor submitted that there should be cumulation in respect of the breach of bail.

30Mr Baker, you have engaged in serious offending.  There is a presumption of harm in respect of children who engage in sexual activity before the age when they can give meaningful consent.  That is a principle well-established, and is particularly referred to in the case R v Clarkson (2011) 32 VR 361.  You took advantage of the trust the victim and her family had in you, and used the opportunity to engage in a sexual relationship with the victim.  You knew how young she was.  You were significantly older than her and had been in a relationship with her sister.  You were well-aware of the family's situation.  It is clear from the text messages that you spoke of affection and an ongoing relationship.  You engaged this young girl in an emotional and physical relationship, for which she was too young, legally and emotionally.

31You selfishly pursued your own desires without giving thought to the consequences for her or her family.  She now has the responsibility of motherhood at a very young age.  She will have to deal with the consequences of that for the rest of her life.  It is only to be hoped that the consequences for her ultimately are more positive than negative.  Not only that, but she and her family will have to deal on an ongoing basis with the potential awkwardness of you being the father of the victim and her sister's children.

32The conduct of your relationship involved planning and subterfuge over a lengthy period.  You knew the victim's mother was concerned.  You effectively encouraged the victim to deceive her mother, who had been supportive of you in the care of your children.  This was a very significant betrayal of trust.  You continued the planning and subterfuge after your arrest and the birth of your child.  You could not leave the victim alone, despite knowing that you had behaved illegally and wrongly.  That was a serious breach of bail conditions.

33Your behaviour in breaching the bail conditions demonstrates that you lacked true remorse at that stage, despite your cooperation with the police.  That also must be taken into account in considering your prospects for rehabilitation.

34The courts must act to protect children from their own bad decisions, and from exploitation by others.  The courts must impose sentences sufficiently severe to deter others from similar offending.  A sentence of imprisonment is warranted for the purposes of denunciation, just punishment, and general deterrence.

35There are a number of matters which must be taken into account in mitigation of sentence.  I have taken into account your personal circumstances, including the significant difficulties you faced in your childhood.  Your self-harming behaviour continues, albeit in a reduced way.  Your self-harming behaviour no doubt is a symptom of considerable psychological distress.  I have taken into account that that and your borderline personality disorder has made your life generally more difficult.

36On the basis of Mr Gault's report, I do not consider that your borderline personality disorder provides any explanation for your continuing offending behaviour in this case.

37You are entitled to a significant discount for your plea of guilty and cooperation with the authorities.  Your initial and continued cooperation and plea of guilty has saved the considerable trauma and expense of a contested committal and trial.  I accept that you are genuinely remorseful for the harm you have caused, and that you accept that you did the wrong thing.

38From what you told Mr Gault, it seems you understand that it is wrong for an adult to have a sexual relationship with a child under 16.  Mr Gault assessed you in early 2017, after you had been in custody on remand for about six months.  Your level of insight and remorse appears to have deepened by then, compared to the period where you breached your bail.  I have noted your wish to apologise to the family.

39I consider that your prospects of rehabilitation are good.  You are relatively young, you have no prior criminal history.  During the period of time you have spent in custody, you have positively engaged in treatment and in courses.  You say you have benefitted from those engagements, and wish to engage in further psychological treatment in the future.  In view of your borderline personality disorder and past difficulties with alcohol, drugs and gambling, that would seem to be highly desirable.

40You have a good work history.  From what your uncle said, you are very capable and hardworking.  You are also able to relate well to people and assist them.  You have support from your uncle and other family members.  You have the prospect of work and somewhere to live on your release.

41You have spent the period of remand in protection, and would be likely to spent any future sentence in protection.  I have taken that into account as making imprisonment more onerous for you.

42I consider that the need to deter others from similar offending and the need to denounce your offending and impose just punishment, means that a sentence of imprisonment to be followed by a community correction order would not adequately reflect the seriousness of your offending.  I have taken into account your plea of guilty, cooperation, remorse and prospects of rehabilitation in setting a shorter non-parole period than I otherwise would have.

43You will be sentenced as a serious sexual offender in respect of Charge 3.  I do not intend to impose a disproportionate sentence for the purpose of community protection.  I consider that total cumulation of sentence would offend against the principles of totality and proportionality.  Some cumulation is warranted to reflect the repetition of your offending.  A greater degree of cumulation in respect of Charge 3 will be imposed to reflect the requirements of the Sentencing Act 1991 in respect to sentencing for serious sexual offences.

44For the purposes of the Sex Offender Registration Act 2004, you have committed three Class 1 offences, and must comply with the reporting conditions of that legislation for life. After I have told you what the sentence is, my associate will come with your counsel and will provide some documentation to you. My associate will ask you to sign a document saying you have received that documentation. Could you please stand up, Mr Baker?

45In respect of CR-16-00685, which is the reference number for the matters on indictment, you are convicted on each charge.

46On Charge 1, you are sentenced to a term of imprisonment of two years and nine months;

47On Charge 2, you are sentenced to a term of imprisonment of two years and nine months;

48On Charge 3, you are convicted and sentenced to a term of imprisonment of two years and nine months.

49The sentence on Charge 1 is the base sentence.  Three months of the sentence on Charge 2 and six months of the sentence on Charge 3 are to be served cumulatively on each other, and on the sentence on Charge 1.

50The total effective sentence is three years and six months' imprisonment.  I fix two years as the period you are required to serve before being eligible for release on parole.

51But for your plea of guilty, I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years and six months.

52In respect of Summary Charge 1, for which the file reference number is
CR-16-01848, you are convicted and sentenced to 45 days' imprisonment.  That period is to be served concurrently with the sentence that I have previously imposed.

53I declare that you have served 258 days by way of presentence detention, to be deducted administratively. 

54In respect of Summary Charge 1, but for your plea of guilty, I would have sentenced you to a term of imprisonment of 60 days. 

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