Director of Public Prosecutions v Bakker

[2023] VCC 520

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR-21-02040

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHARLES BAKKER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	1 March 2023
DATE OF SENTENCE:	1 March 2023
CASE MAY BE CITED AS:	DPP v Bakker
MEDIUM NEUTRAL CITATION:	[2023] VCC 520

REASONS FOR SENTENCE

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr A. Marshall

HIS HONOUR:

1Charles Reid Bakker, you have pleaded guilty to one charge of sexual assault.  That crime carries a maximum penalty of 10 years imprisonment.  You pleaded guilty to a settled indictment and must get the benefit of that certainly in a utilitarian way.  I am aware of the decision of Worboyes and that discounts for settled indictments and pleas in these circumstances should be such as to be recognisable.

2In your situation I suspect that remorse is highly problematic, but I will not go into detail about that and I have sought no submissions on it.  But in any event, you have pleaded guilty.  I will give you some benefit for remorse, but as I say, I think that is highly problematic and I have read your record of interview and the very difficult concept of accept positively that is for sure.

3I also take into account that there is now a delay of three and a half years since the offending occurred.  I am not suggesting whose fault that is, it does not really matter, but at your age it is a significance period of time and I take that into account as well.

4You do have prior convictions over an extended period of time, however none of those are of relevance in this sentencing process and I do not propose to deal with them.  As will be clear from the Crown summary which I will have to summarise in a moment, the offending has to be regarded as serious and general specific deterrence must play a part as well as denunciation and of course there must be an appropriate punishment, which is what the question here really has been.

5A summary of the offending was that you were 68 years at the time of the offending and were living in the Rosedale Caravan Park.  The complainant, I will not use her name so I do not have to anonymise it then.  If somebody could explain to her if she ever read this, it is not being offensive.  The complainant was 45 years of age at the time of the offending and she also resided at the Rosedale Caravan Park.  You had met her some months before the offending.  She identified her sexual orientation as lesbian.

6During the time each of you were living at the caravan you were both clearly alcoholic I would have thought.  You often gathered to drink and socialise at your house within the park.  It is clear from the material that from time to time you made sexualised comments about her body in front of other people.  You would get into her space and try to kiss her and she would ask you not to because it made her feel uncomfortable.

7You would apparently say to her that you wanted to play with her top half and she responded, 'No, the top half go too.'  You would apparently carry on this way on a pretty regular basis.  On one occasion she told you to, 'Fuck off', and walked out and returned to her cabin.  She sent you a message saying the friendship was over.

8In any event, you went to her place with alcohol.  She had left it back over at yours and I do not have to go into all the detail about that.  But in any event, after a number of incidents that occurred she went to your house, if that is what it can be called, had a couple of beers and felt really tired and fell asleep at the kitchen table.  I am assuming there is a significant degree of alcohol involved in all of that.

9In any event, she was woken by you calling her name and you said, 'Lay on the stretcher.  I won't touch you or anything.'  She fell asleep on the stretcher.  Woke up later on and was having a smoke.  You came out, saw her and went back to bed.  You asked her if she wanted into your room and sleep with you.  She said no, she was going home.  You then asked her to go and talk to you and you were lying on the bed.

10You tried to grab her hand but she pulled away.  You tried to touch you on the breast and she responded, 'No.'  You then suddenly got up and quickly pushed her onto the bed and she found it hard to breathe.  The forensic evidence supports that in my view.  In any event, you had her pinned on the bed with your leg hooked over her.  You put your hand under her T-shirt and grabbed her breast.  You then put your hand down her jeans under a belt and touched her on the vagina.  As you were doing this you said to her, 'You would like this.'  She said, 'No, I don't want you to do this.'   You kept trying to kiss her and she kept turning away.  In the end you said to her, 'Did you like it.'  She responded, 'No, I'm going home.'  She walked out of the bedroom, grabbed her tobacco and left.

11She went to another address in the caravan park, as I understand it, in a distressed state and complained at that stage.  You were interviewed by police.  I am not going to go into the detail of all that.  You claimed to the police there had been some sort of ongoing sexual relationship, certainly of a kissing nature.  You did concede that she had always said to you no about touching her breasts and the like.  For some reason or other on this particular night she has apparently according to your record of interview, she said yes and in fact enjoyed it.

12I reject that completely.  The offending is obviously serious.  It does involve an element of force but then there is other factors that have to be taken into account.  The victim impact statement has been read out in court and it is clear that she is a very vulnerable woman.  Again reading between the lines, a problem with alcohol difficulties, clearly mental health issues and living essentially unsupported in a caravan park.

13You have clearly over a period of time, if you like, harassed her and it has culminated in this act of offending.  The Crown position is that a custodial sentence is not an option available and I think with some reluctance that is correct.  I know they are considered instructions from a permanent - I am not going to quibble with that.

14I then look to the matters personal to you.  Your counsel has provided an extensive outline of submissions on your behalf which I have now read a couple of times.  It has been of great assistance.  You were born in Maffra and lived in Gippsland your entire life.  You were brought upon a dairy farm near to Tinamba and you went to Sale Tech.  You left there after a couple of years and worked on the family farm.  You would at Ford's and various other places in Sale for years and milked on the family farm.

15You then ultimately ended up working for Murray Goulburn in Maffra until you retired at the age of 60.  I do not have to go into any of this, but you were married a couple of times, been divorced a couple of times and you have three children and eight grandchildren and have a good relationship with two of the children.  You are still in the caravan park.  You essentially, from what I am told from the Bar table, did various jobs around the place and look after people in a way within the caravan park.

16Probably most importantly in this situation is that you are now 71 years of age.  You have a very long series of health difficulties.  At the present time you are suffering from cancer which is remission.  You have had hip replacements.  You have been shot.  There is a whole raft of things which are contained within that report that Mr Marshall has provided on your behalf and which is exhibited.  I do not need to go through the list of all that.

17To put you in prison I think you would find very difficult indeed and I think you are just a very fortunate man that your victim in this situation would appear to be a very sensible, if I can put it that way, lady who just simply, from what I can gather from all this, just simply wants a resolution of it. 

18I am glad to hear that there is now an intervention order in place.  She says in her victim impact statement that going to Sale really concerns her because that is where you are.  She at least gets some sort of protection from an intervention order and that gives me a degree of confidence. 

19Insofar as your rehabilitation is concerned, that is really a matter for you.  The risk of re-offending is difficult to assess in these circumstances.  The sheer arrogance of the way you treated her makes me concerned, which is why I am having you assessed for a CCO.  I have sought the position of the suggested, and they have agreed, programs to reduce the risk of re-offending.  I understand from that that would normally in situations such as this, involve the Sex Offenders Program which is an onerous program which does amount to a significant punishment in itself.

20The Community Corrections Order if you agree will be with conviction.  It will be for two years.  The only conditions will be supervision and you undergo programs to reduce the risk of re-offending. 

21I do not think there is any other matters I really need to go into here, gentlemen.  It is a relatively simple concept.  The material I have relied upon is all on the court file.

22So if you agree to enter into that Community Corrections Order, Mr Bakker, that will be the order that I do make.  Can I make this very clear to you, that is not to be treated as a joke.  If I give a CCO in circumstances such as this I expect it to be honoured.  I appreciate your age.  I am not going to put work hours on it because I think that might get too difficult.  But if you do not complete this or if you jack up and you are before me for breaching it, if you breach it in a significant way, I make it very, very clear, I would gaol you.

23You are a very lucky man in this situation.  All right.  So my associate can print that off and Mr Marshall can take it down to his client to get it signed.

24Do I need to do a 6AAA here?  I probably do, don't I?  Two year CCO.

25MR MARSHALL:  Yes.  Thank you, Your Honour.  I understand that an appointment has been for my client tomorrow at 2 o'clock so that will soon be underway.

26HIS HONOUR:   All right, yes.  It's up to him, yes.  It's in Sale, I'm assuming, is it?

27MR MARSHALL:  Yes.

28HIS HONOUR:  I just need to sign it.  All right.  In this scenario on this charge which is presented as rolled up in my view the one incident, so but for your plea of guilty and being convicted by a jury of this charge I would have given you six months imprisonment, not pursuant to s6AAA.  Just so you understand the benefit you got of putting your hand for this and having very sensible barristers on both sides of the Bar table, if you had run this trial and been convicted of rape I would have given five years, just so you know.

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