Director of Public Prosecutions v Baker (a pseudonym)
[2023] VCC 1290
•28 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL BAKER[1] |
[1] A pseudonym
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Bendigo |
DATE OF HEARING: | 21 July 2023 |
DATE OF SENTENCE: | 28 July 2023 |
CASE MAY BE CITED AS: | DPP v Baker (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1290 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW SENTENCE
Catchwords: Sentencing – production of child pornography, production of child abuse material, sexual assault of a child under 16, possession of child abuse material, rolled-up charges - plea of guilty
Legislation Cited: Sex Offenders Registration Act , s6AAA Sentencing Act 1991
Cases Cited:-
Sentence: Total Effective Sentence – 5 years and 6 months, non-parole period 3 years and 9 months. Serious Sexual Offender, Sex Offenders Registration reporting conditions – for life.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Ms A. Byrne, Office of Public Prosecutions |
For the Accused | Ms J. Ollquist | Ms M. Maine, LD Legal Services |
HIS HONOUR:
1Paul Baker[2], you have pleaded guilty to one charge of production of child pornography, four charges of production of child abuse material, two charges of sexual assault of a child under 16 and one charge of possession of child abuse material. In addition, you have pleaded guilty to the related summary offence of possessing ammunition without a licence.
[2]A pseudonym
2The facts of your offending are set out in Exhibit A, the prosecution plea opening. I was informed by your counsel that I could treat that document as an agreed statement of fact. I incorporate into these reasons for sentence and sentence you on the basis of the facts set out therein.
3Briefly stated, over five years between 2016 and 2022 you produced child pornography and then child abuse material, after the legislation changed. The subjects of that production were pre-pubescent girls as young as four years of age. Some of the young girls are known, while many are not. You were found in possession of 636 images and videos of child abuse material on 21 December 2021. That is the basis of Charge 8. That material was analysed and five production charges, Charges 1, 2, 3, 5 and 6 related to you taking photographs and videos over that five-year period at your residential address and other addresses in regional Victoria[3]. You took 69 sexualised photographs of three identified pre-pubescent girls on 13 August 2016. That is Charge 1. You took 46 in total photographs of multiple prepubescent girls between December 2018 and April 2020, some at your regional Victorian address, that is Charge 2. The photographs you took are graphically and comprehensively described in paragraph 31 of Exhibit A. In one of them your finger penetrates the child's vagina. This charge is a rolled-up count to cover multiple instances of production of child abuse material.
[3] A pseudonym
4Charge 3 is also a rolled-up charge that covers six or more occasions between December 2018 and April 2020 where you took 30 photographs, child abuse material, of Jamila Chafik[4]. Jamila was a six- to seven-year-old friend of your daughter. She would often have play dates at your home. Whilst Jamila was at your home between 2018 and 2020, you put your hands down her underpants and touched her vagina for about five seconds. On another day, you washed her vagina while she was in a bath. This is the basis of the rolled-up Charge 4, sexual assault of a child.
[4] A pseudonym
5Charge 5 relates to you taking 98 child abuse material photos of Emily Elliot[5] between December 2018 and April 2020 on four separate dates. This is also a rolled-up charge. Emily was six to seven years of age and was the victim of the prior criminal history matter you admitted. In 2020, you touched her genitals while she was asleep.
[5] A pseudonym
6Charge 6 is the final production of child abuse material charge. Between December 2008 and April 2020, you took 68 child abuse material photographs of your four- to seven-year-old daughter Isabella[6]. In the second half of 2019, you rubbed your then-seven-year-old daughter's vagina with your hand for one to two minutes whilst she was on a couch in your regional Victorian home. This is the basis of Charge 7, sexual assault of a child.
[6] A pseudonym
7The related summary offence relates to .308, .22 and .22 Magnum and shot gun ammunition police located in your storage container on 20 May 2022 and you did not hold a firearms licence.
8You worked as an education support officer in regional Victoria in 1978 and at a regional Victorian Primary School[7] from 2019 to 2021. The court was most concerned about the number of children you used to produce the 636 child abuse material images. Three of your victims are known and identified.
[7] A pseudonym
9The prosecution advised the court that the police were able to identify eight separate children in the images, including the three known victims. The five other children cannot be identified.
10In addition, many of the child abuse images do not show the faces of the children so it is not possible to determine the exact number of children you photographed, nor is it known how you came to photograph them. They may well be friends of your daughter, or they may be children you came across in your role as a school support officer. I simply do not know. You have not assisted police in this regard, and I sentence you on the basis that at least eight young girls were victims of your child abuse image productions.
11You were arrested in May 2022. Your mobile phone was seized. You used that phone to take some of the child abuse material photographs, and as I said before, you effectively made a no-comment record of interview.
12All of the indictable offences to which you have pleaded guilty are serious criminal offences. All carry a maximum penalty of 10 years' prison. Several of your offences are rolled-up counts that involve multiple examples of criminal conduct. The maximum penalty remains the same, however your offending is in a rolled-up charge, is a more serious example of that individual charge.
13Two of your young victims and their mothers completed victim impact statements and they are Exhibits B2(e). Both of your victims have been traumatised and damaged by your crimes and both their mothers are angry and confused by what you did. Both are naturally concerned about the damage you have caused their daughters. Neither want their victim impact statements read aloud so I will not further quote from them. I have taken the victim impact statements into account in sentencing you.
14I propose to impose terms of imprisonment for each of the Charges 1 to 8. You therefore fall to be sentenced as a Serious Sexual Offender on Charges 3 to 8. Protection of the community from you is the paramount sentencing consideration.
15To achieve that purpose, the court can impose a disproportionate sentence. I will not do so in your case. The prosecution do not seek such a sentence and I can adequately protect the community with the sentencing options otherwise available to me.
16I direct, however, that it be recorded in the records of the court, that you have been sentenced as a Serious Sexual Offender on Charges 3, 4, 5, 6, 7 and 8. You will also be subject to the Sex Offenders Registration Act reporting conditions for life.
17As previously mentioned, you admitted a prior criminal history. On 11 October 2021, you were sentenced to an 18-month community Corrections order for sexual assault of a child. That offence is only a prior conviction in respect of Charge 8. It is a subsequent conviction for Charges 1 to 7 and therefore, irrelevant to those charges.
18As I previously noted, your victim in that matter was Emily Elliot, one of your victims in this case. The facts of that offending are set out in Exhibit 3, the breach brief for that offending.
19You are reported to have done well on that community Correction order, completing all community work and alcohol and drug treatment requirements. Because of this offending, you were unable to complete the Sex Offender's course.
20Turning to your personal circumstances, you are now 38 years of age, being born on 2 February 1985 at Shepparton. Your counsel's written submissions, Exhibit 1 in the psychological report of Carla Lechner, Exhibit 2, set out your personal history.
21You grew up in the Shepparton region[8], you completed Year 10 at school. You then had completed an apprenticeship as a butcher. You have worked as a butcher on and off for over 20 years. You then completed a Certificate in Education support and became an education support officer.
[8] A pseudonym
22You held a support officer position at the time of your offending. In that role, you came into contact with very young girls. Indeed, it appears that that position put you contact with Emily Elliot. It could well-explain why there are so many unidentified young girls sexualised in your various photographs. Ms Lechner does not address this issue in her report, and I do not have sufficient evidence to make any determination in that regard.
23In 2011, you married your now-ex-wife. You had three children together. You separated in 2021 and were divorced in 2022. Ms Lechner reports that you claim to have no memory of your offending and claim to being depressed and consuming alcohol at the time. You also told her that you do not have a sexual interest in children.
24Those assertions are clearly false. Your offending was planned, choreographed and covert. You kept and stored your child abuse material even after you had been placed on a community Corrections order. I reject your self-serving statements to Ms Lechner. Ms Lechner concludes:
'His offending occurred during this time of stress and alcohol-abuse. At the time he was working as an educational support worker, this giving him access to a range of young children. His offending however is reflective of, at the very least, a deviant paedophilic sexual interest that were acted upon when he was disinhibited by alcohol. It is possible that he harboured deviant sexual interest but did not act on them until disinhibited. Mr Baker currently presents as a moderate high-risk of reoffending and requires a moderate high level of intervention.'
25Your counsel correctly submitted that although the circumstances of your offending are grave, your offending did not involve any training or exchange of your child abuse material, you did not use the Internet or solicit the material, you did not sell or profit by the child abuse images. I take into account in sentencing you, your pleas of guilty. Those pleas were entered at an early stage. You have spared the community the time and expense of a criminal trial.
26Even more importantly, you have spared your young victims the need to give evidence and the trauma associated with that experience. The value of your pleas of guilty is greater because of the effect COVID-19 has had upon our justice system. This increased utilitarian value results in a greater reduction of sentence.
27I also accept that your pleas of guilty provide some evidence of remorse for your conduct. I take into account that you have undertaken courses to better yourself whilst in custody. This will promote your prospects of rehabilitation.
28Clearly, you will be required to complete the Sex Offender's course whilst you are in custody. Your satisfactory completion of that program and dealing with your alcohol abuse issues are fundamental to your prospects for rehabilitation.
29Ms Lechner found you to be a moderate high-risk of future sexual offending and pointed to the need for intervention in this regard.
30I also accept that at present you lack insight into your offending, and you need appropriate intervention. Your counsel properly conceded that a term of imprisonment is the only available sentencing option in your case.
31Your offending represents an extreme abuse of trust, both as a parent and as a school support officer. The principles of general deterrence, specific deterrence, denunciation, just punishment and protection of the community dictate that no other sentencing option is available in your case. I must have regard to principles of totality; however, I do note that six of your charges are rolled-up charges as I previously referred to. On all charges, you are convicted:
32On Charge 1, production of child pornography, you are sentenced to 12 months' imprisonment.
33On Charge 2, production of child abuse material, you are sentenced to 12 months' imprisonment.
34Charge 3, production of child abuse material, 12 months' imprisonment.
35On Charge 4, sexual touching of a child, you are sentenced to two years' imprisonment.
36On Charge 5, production of child abuse material, you are sentenced to 12 months' imprisonment.
37On Charge 6, production of child abuse material, you are sentenced to 12 months' imprisonment.
38Charge 7, sexual assault of a child, you are sentenced to two years imprisonment and on Charge 8, possession of child abuse material, you are sentenced to 18 months' imprisonment.
39On the related summary offence of possessing ammunition, you are fined $500.
40I direct that 12 months of the sentence imposed on Charge 7 and six months of each of the sentences imposed on Charges 1, 2, 3, 5 and 6 be served cumulatively upon the sentence imposed on Charge 4, which I declare to be the base sentence.
41That is a total effective sentence of five years' and six months and I fix three years' and nine months as the period you must serve before being eligible for parole.
42I declare that 442 days, not including today, has already been served by way of pre-sentence detention.
43Pursuant to s6AAA of the Sentencing Act I indicate that but for your pleas of guilty, I would have imposed a total effective sentence of seven years' and nine months with a non-parole period of five years and nine months.
44I make the disposal and forfeiture orders sought by the prosecution. Any other orders required Mr Cordy?
45MR CORDY: No, Your Honour. Can I just inquire of the minimum term again, Your Honour.
46HIS HONOUR: All right.
47MR CORDY: Three years and nine months I thought.
48HIS HONOUR: Wait till I have a look at what I wrote down.
49MR CORDY: Yes.
50HIS HONOUR: Yes, three years and nine months.
51MR CORDY: Yes, thank you.
52HIS HONOUR: All right. Any other matters Ms Ollquist?
53MS OLLQUIST: No, Your Honour.
54HIS HONOUR: All right. I will stand down now till 11 o'clock.
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