Director of Public Prosecutions v Bales (formerly known as Edward Vernon Dowlan)
[2015] VCC 377
•27 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01796
Indictment No. E-11-27388
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TED BALES (formerly known as EDWARD VERNON DOWLAN) |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 9 February 2015 | |
DATE OF SENTENCE: | 27 March 2015 | |
CASE MAY BE CITED AS: | DPP v Bales (formerly known as Edward Vernon DOWLAN) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 377 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – indecent assault on male person (22 charges) – indecent assault (11 charges) – gross indecency-person under 16 (one charge) – plea of guilty
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act (2004).
Cases Cited:Mill v The Queen (1988) 166 CLR 59, Scott v The Queen [2010] VSCA 320, R v RHMcL (2000) 203 CLR 452, Gordon v The Queen [2013] VSCA 343
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B Sonnet | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D Hallowes | Croxford Partners Pty Ltd |
HIS HONOUR:
1 Ted Bales, you have pleaded guilty to 22 charges of indecent assault upon a male person contrary to s68(3A) of the Crimes Act 1958 (as it then was); 11 charges of indecent assault contrary to s44(1) of the that Act; and one charge of gross indecency contrary to s50(1) and s50(2A) of the Crimes Act 1958. These offences occurred between 1971 and about 1985.
2 These offences occurred between 1971 and about 1985. During the period of your offending, you were aged between 21 and 33. You were a Christian Brother, teaching at a number of schools administered by the Christian Brothers congregation, including St Alipius Primary School in Ballarat, St Thomas Moore College, Forest Hill, St Patrick's College, Ballarat, St Josephs College, Warrnambool, Chanel College, Geelong and Cathedral College, East Melbourne.
3 The charges relate to your offending against 20 young boys attending one or other of those schools. Fourteen of the 34 charges are representative charges involving between two and four separate incidents.
4 At the commencement of your plea hearing at 6 February of this year, the prosecutor read a detailed summary of your offending in respect of each of the 20 victims and the charges relating to each of them. It is not necessary for me to repeat that summary in full here. It is sufficient for me to refer to a number of what I consider to be salient features of your offending.
5 Of the 20 victims involved, one was an eight year old, one was a nine year old, one was aged about ten. Eleven were aged between 11 and 12 years, and six were aged between 13 and 14.
6 All but four of the offences occurred at the school where the victim was enrolled, and where you were in a position of trust as a teacher and in many of those instances, as a boarding house dormitory supervisor.
7 In relation to four charges, namely 24, 25, 26 and 27, the offences occurred when you were a trusted and respected guest at the home of your victim and his family.
Offending Behaviour
8 As a teacher, you were renowned as a strict disciplinarian. Many of these offences consisted of the indecent assault of students under the guise of discipline in the classroom.
9 Many of the offences occurred at the back corner of a classroom where the victim had been ordered to go by you on the pretext of discipline. Other students in the class were ordered not to look behind and to carry on with their work while you assaulted the victim.
10 On occasions, your victims were in a vulnerable state. This provided you with an opportunity to purport to comfort them. In reality, your acts of comforting were merely a precursor to indecent assault.
11 Other offences occurred in empty rooms where you would corner the victim, and also in the school toilet block.
12 Your offending in nearly all cases was brazen. You had the power to intimidate children. In all cases you were many years older than your victim. They felt unable to actively resist your actions or simply did not know how to do so. You exhibited a confidence that you would not be reported or exposed.
13 Eleven of the offences involved you fondling and/or rubbing the penis, testicles or buttocks of the victim on the outside of the victim’s clothing or through the pocket of the victim’s trousers. Thirteen of the offences involved you directly fondling or massaging the victim’s penis or buttocks underneath their underwear. Four of the offences involved you touching the anus of your victim.
14 Charge 26 is a representative charge relating to you digitally penetrating the anus of one of your victims whilst staying overnight at his home. A number of offences involved you pressing your erect penis up against them and moving back and forward. Other offences involved you kissing your victim on the cheek and/or on the mouth. In one instance, in the classroom with other students present, you placed your hand on one victim’s thigh and then onto his genitals. When the boy pushed your hand away, you stood back, paused for a moment, and then struck him hard against the face with your hand. That strike is an uncharged act, but it demonstrates the attitude that you had towards your victims and your apparent belief that you had some right or entitlement to abuse them as you did. All of your victims appear to have been genuinely scared of you.
15 Each of the offences committed by you involved a serious breach of trust on your part. These children were entrusted by their parents into your care. Many of them boarded at the school at which they were abused by you. The families of those boys were a long way away. Those families would have legitimately believed that they could rely on the school personnel including you to provide moral support and guidance to their sons. Instead, they were sexually abused by you in the appalling circumstances to which I have referred.
Victim Impact Statements
16 Of the twenty complainants, eighteen made Victim Impact Statements. Six of those complainants elected to read their Victim Impact Statements in Court. The remainder were either read in Court by the prosecutor or filed with the Court.
17 I have listened to and/or read each of those statements. I accept that each of the complainants has suffered significantly as a consequence of your offending against them. Many have suffered ongoing psychological reactions that still affect them some thirty or forty years later. The Court of Appeal has previously noted that rehabilitation of a victim of sexual abuse may often be more difficult to achieve than that of the perpetrator.
18 I was informed by counsel that some of the complainants were, in addition to suffering at your hands, also indecently assaulted by other persons including other teachers at some of the schools to which I have previously referred. It is neither possible nor appropriate to attempt to somehow disentangle the effect of each incident of abuse by various offenders had upon each complainant. Nevertheless, I accept and take into account that your abuse of those victims who made Victim Impact Statements has had a serious effect upon each of them. One can only hope that your being sentenced today can assist them in putting their ongoing memories behind them and assist each of them to move on with their lives.
Earlier Convictions
19 You have been convicted of other similar offences. In June 1996, you pleaded guilty to 16 counts of indecent assault against 11 children. You were sentenced by Judge Curtain (as she then was).
20 At that time, you were known as Edward Vernon Dowlan. The offending to which you pleaded guilty at that time occurred between March 1971 and July 1982 at St Alipius College, St Thomas Moore College, St Patricks College and Cathedral College. Each of those 11 victims was students at one or other of those schools.
21 The offences for which you were then sentenced in 1996 were of a nature similar and, in some instances, virtually identical to the offences for which you are currently before this Court.
22 Most of the offences for which you are to be sentenced today occurred over the same period as those for which you were sentenced in 1996; that is 1971 to 1982. In addition, the offences referred to in charges 25 to 34, inclusive, occurred after that date up to 1985 or thereabouts.
23 As Judge Curtain stated in 1996, your behaviour, over the years that she was dealing with, was marked by “a systematic abuse of children”. She rejected the characterisation of your conduct as a clumsy display of physical, sexual, and emotional affection. She noted that:
“… you had the opportunity to abuse these children at your will and whim and that, because of your authority and the inequality of your relative positions, fell prey to your carnal desires.”
24 She described your actions, for which she was then sentencing you, as “a profound and grave breach of trust”.
25 Such comments apply with equal force to the offences for which I am required to sentence you.
26 In sentencing you in 1996, Her Honour took into account, amongst other matters:
· That you had no prior convictions;
· That there had been (at least to her knowledge) no offending after 1982; that there had been considerable delay in bringing the matters to the attention of authorities and to the Court, and that your prospects for rehabilitation were considered to be favourable; that you had pleaded guilty to the sixteen offences for which she sentenced you; and the Victim Impact Statements before her indicated that your actions had had a profound impact upon on the emotional wellbeing of your victims; and the prison sentence was likely to be served in a more onerous conditions than that of the normal prison population.
27 She also specifically noted at that time that:
“It was lamentable that you had not found yourself able to express remorse or to proffer an apology to those who have suffered as a result of your actions.”
28 In 1996, Her Honour sentenced you to nine years and eight months’ imprisonment, with a minimum non-parole period of six years. On appeal, the Court of Appeal found that her Honour had incorrectly sentenced you on the majority of the charges before her by treating you as a “serious sexual offender” when, at that time, she ought not to have done so.
29 Your sentence was reduced to six years and six months’ imprisonment with a minimum non-parole period of four years. As I understand it, you served 5 years before being released on parole. The extra year was, it seems, on account of your reluctance or inability to express remorse for your offending.
Sentencing Considerations
30 Section 5 of the Sentencing Act 1991 sets out sentencing guidelines, they being the only purposes for which sentences may be imposed. These are:
(a)To punish the offender to an extent and in a manner which is just in all of the circumstances;
(b)To deter the offender or other persons from committing offences of the same or similar character;
(c)To establish conditions within which it is considered by the Court that the rehabilitation of the offender may be facilitated;
(d)To manifest the denunciation by the Court of the type of conduct in which the offender engaged;
(e)To protect the community from the offender; or
(f)A combination of two or more of those purposes.
31 Section 5(2) of the Act requires me to have regard to a number of different matters. Of relevance to this case, they include:
(a) the maximum penalties prescribed for the offence in respect of charge 29, three years imprisonment; and in respect of each of the other 33 charges, the maximum penalty is 5 years imprisonment.
(b) Current sentencing practices; Counsel referred me to a number of sentencing decisions concerning offences similar to yours and I have taken these into account.
(c) The nature and gravity of the offence; in that respect, I consider these offences were serious. They occurred in circumstances where you were in a position of authority and trust. The boys were young.
(d) The offender’s culpability and degree of responsibility for the offence; there could be no doubt that your culpability in respect of each offence was high. No-one else was in any way responsible for them. You could have been under no illusion that what you were doing constituted a serious breach of the law and would be likely to have a devastating effect upon your victims.
(e) The impact of the offence on any victim of it and any resultant injury, loss or damage. In that regard, I shall refer to Victim Impact Statements.
(f) Whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which you pleaded guilty. Here, I accept that you pleaded guilty at an early time after being charged.
(g) The offender’s previous character; I have had regard to the fact that although you have offended in a similar manner previously, these were not prior offences in the sense that you had not been convicted of any prior to the commission of the offences for which you are now before the Court. I therefore sentence you on the basis that you were of good character before your offending commenced in 1971. However, it is to be noted that your offending commenced from your very first year as a Christian Brother teacher and occurred over a period of some 14 years at 6 different schools. I do not consider that your assumed earlier good character is not of great relevance here.
(h) Finally, I am required to have regard to the presence of any aggravating or mitigating factors concerning the offender or any other relevant circumstances.
32 Your Counsel has put forward a number of matters as going to mitigation of your sentence:
(a) Although you continued teaching until 1993, you did not offend in the manner of these charges after 1985. Although the indictment refers to Charges 33 and 34 as being offences having occurred in 1986, I accept that you had no contact with the complainant involved in both of those matters after 1985 and that it is likely that the offence occurred in that year. I accept that your sentence should take into account that you have not offended for some 30 years. Some 5 years of that period were spent in custody.
(b) You left the teaching profession after 1993. There is no suggestion that you offended over the last 8 years of teaching.
(c) Since your release from prison, you have cared for your elderly mother; you have been involved voluntary work for Prison Fellowship, and for Friends of Dismas. These organizations involve, as I understand it, commendable work supporting men who have been released from prison and are re-entering the community. I have read and accept the comments in character references tendered on your behalf to the effect that you have made a significant commitment in time and effort in assisting former prisoners reintegrate with society and live a positive and healthy life. This of course goes to your credit.
(d) In 1996, you continued to have the support of the Christian Brothers order. This appears no longer to be the case as you have left that Order some years ago.
(e) You pleaded guilty to these charges at a very early stage, as previously mentioned. Your plea of guilty has significant utilitarian value – there has been a substantial saving of Court time and resources. The victims of your offences and others will not be required to give evidence at a trial which would likely have been distressing for them.
(f) Although your early plea was submitted to be indicative of some remorse, I am not convinced that you have truly demonstrated remorse. I will deal with this aspect later in these remarks.
(g) There has been a considerable delay between the time of offending and the bringing of charges in respect of the offences. Your counsel conceded that such delay may largely be attributable to the nature of the offending. I have no doubt that many victims of such abuse find it difficult to come forward with complaints – often, victims take many years before becoming able to report these instances to family, spouses and friends, let alone authorities. Nevertheless, I take into account that you have had these matters hanging over your head for a considerable time.
(h) I accept that principles of specific deterrence have little part to play in the sentencing of you. Your offending occurred in the context of your teaching where you had daily contact with young boys, were in a position of authority with them, and where they were often in a position of vulnerability. I consider those conditions are unlikely to occur again.
(i) I accept that prison will be likely more onerous on you than on the normal prison population. You may well require protection in prison. Your Counsel has informed me that you were assaulted in the Court cells in 1997 and that, notwithstanding protection arrangements that are likely to be made, you do still fear further assaults will occur in custody.
(j) As a consequence of the offending that came to the notice of authorities from 1993, you ceased your teaching career. Since then, you have virtually become unemployable. Prior to 1993, you had some respect within the community. I was told that you prided yourself on your occupation. I accept that you have lost your chosen profession. However, it is likely that that loss is attributable to the earlier 1996/7 convictions rather than the offences for which I am to sentence you.
(k) There was a great deal of publicity concerning your offending in and after 1997. Upon your release from prison you changed your name in an apparent attempt to avoid the effects of continuing publicity. Your Counsel informed me that, as recently as last year, as a consequence of further publicity concerning these charges, there was a petition taken by members of the community to have you removed from your place of residence. Although you had been on bail after being charged, you did not seek to have you bail renewed in October 2014. I accept that there can be no doubt that your reputation in the community has virtually dissolved.
33 You are not suffering from any mental impairment that might be said to reduce your culpability for offending. Reports of Mr Ian Joblin, a forensic psychologist, and Dr Lester Walton a psychiatrist, both prepared in 1996 and Dr Maxwell Gayner, a psychiatrist, prepared in February 2015 were tendered on your behalf. Those earlier two reports were also tendered before Judge Curtain in 1996.
34 Then and now, you have been diagnosed with anxiety and depression. You currently suffer from chronic insomnia. You are currently prescribed anti-anxiety and anti-depressive medication.
35 In 1996, Mr Joblin and Dr Walton commented in reports that you were apparently unable to recall any of the events for which you were then before the Court. Mr Joblin thought the most logical explanation for this was an hysterical amnesia brought about by extreme anxiety on being aware of your violations of Christian Brother and teaching principles.
36 I note however that in Judge Curtain’ sentencing remarks of 1996, after referring to Mr Joblin’s diagnosis, she referred to a report from your then treating psychiatrist, Dr Robinson who, she noted, did not entirely embrace that diagnosis. In his recent report, Dr Gayner, who has seen you at various times between 1994 and 2014, makes no reference to Mr Joblin’s diagnosis, merely recording that you have usually informed him that you do not recall any of the sexual offences with which you have been charged, and that you had given him various reasons as to why certain of the offences could not have occurred as alleged. No report from Dr Robinson was tendered before me.
37 On the basis of those reports I am not convinced that you do suffer from an hysterical amnesia and am not convinced you have demonstrated true remorse for any of your offending.
38 I note that on occasions during the course of your offending you were confronted by some victims and by parents of some victims concerning your conduct but still persisted with your indecent assaults afterwards. I accept that your offending is properly described as brazen.
Totality
39 Both your Counsel and the prosecutor made submissions concerning principles of totality and how they should apply to the sentencing of you.
40 Each of the offences for which I am required to sentence you was committed well prior your Court appearance in 1996. Had authorities been aware of them, it is likely that you would have been sentenced in respect of these at the same time as the other offences for which you were sentenced by Judge Curtain.
41 I was referred to and take into account a number of authorities including the judgment of the High Court in Mill v The Queen (1988) 166 CLR 59 at pages 66-7, and the Court of Appeal in Victoria in Scott v The Queen [2010] VSCA 320 at para [13].
42 I accept that I should have regard to the principle of totality with regard to your sentence and consider what the likely course of events would have been had these matters been brought before the Court along with the offences that were before Judge Curtain in 1996.
43 I consider that there are some important differences between the sentence imposed upon you in 1996/7 and that to be imposed upon you now:
(a) Firstly, in 1997, you were sentenced in respect of 16 offences against 11 victims. Here, you are to be sentenced in respect of a further 34 offences (14 of which are representative offences involving 2 or more acts of offending) against 20 different victims.
(b) Secondly, these offences before me cover a slightly longer period than those before the court in 1996. Judge Curtain was unaware that you offended on occasions after 1982 and up to 1985.
(c) Thirdly, and importantly, you are here to be sentenced as a Serious Sexual Offender as defined in the Act. This was not the case in 1996 or 1997. The effect of this is that, pursuant to s6D of the Sentencing Act 2009, the protection of the community is taken to be the principal purpose for which the sentence is to be imposed. Further, by reason of s.6E, a sentence imposed must, unless otherwise directed by the Court, be served cumulatively with other sentences imposed at the same time. This direction is to be viewed as being subject to the principle of totality referred to earlier. I take into account the High Court judgment in R v RHMcL (2000) 203 CLR 452 at paragraph 76, and that of the Court of Appeal in Gordon v The Queen [2013] VSCA 343 at [74] to which I was referred by Counsel. I am conscious that the totality principle should not undermine the legislative policy inherent in s6E.
Sentence
44 I now turn to the sentences I am going to impose.
45 Charge 26 relates to you digitally penetrating the anus of the victim on 3 occasions on that one date. I regard that as the most serious of these offences and sentence you to imprisonment for a period of 18 months in respect of it. This shall be the base sentence.
46 Charges 1, 2, 3, 8, 15, 19, 21, 22, 24, 31 and 32 each involved you fondling or making contact with the victim’s penis or buttocks over his clothing or by means of placing you hand in the pocket or pockets of the victim’s trousers in making such contact. On each of those charges you are sentenced to imprisonment for four months.
47 Charges 4, 5, 6, 10, 17, 18, 25, 28, 33 and 34 involved you directly fondling the penis, pubic area, buttocks or anus of your victim underneath his underwear. On each of these charges, you are sentenced to imprisonment for 9 months.
48 Charge 11 concerned you thrusting your erect penis into your victim’s hips and groin area, rocking back and forward and then placing your hand on his groin area, squeezing his genitals over his clothing. On this charge, you are sentenced to 5 months imprisonment.
49 Charge 7 involved you rubbing the thigh and penis of your victim over clothing in circumstances where you cornered the boy in a toilet cubicle at the school and prevented any escape on his part. You are sentenced to 6 months imprisonment on that charge.
50 Charge 9 is a representative charge involving two occasions when you fondled your victim’s penis under his clothing. On this charge you are sentenced to 9 months imprisonment.
51 Charge 12 is a representative charge involving you standing directly beside your victim and pushing your erect penis back and forth against him. This occurred twice at the rear of a class in which you were teaching and once in a small shed at the school. On the latter occasion you undid the boy’s trousers. On this charge you are sentenced to 9 months imprisonment.
52 Charge 13 is a representative charge relating to you pulling down your victim’s pyjamas at night on two occasions when you were teacher in charge of the boarding dormitory and, on each occasion, fondling his buttocks. You are sentenced to 6 months imprisonment on that charge.
53 Charge 14 is a representative charge involving you kissing your victim and fondling his penis over his clothing on four separate occasions. On this charge you are sentenced to 6 months imprisonment.
54 Charges 16 involved conduct similar conduct to that just referred to in respect of charge 12 in that you pushed your body up against your victim and rocked back and forward. On that charge, you are sentenced to 4 months imprisonment.
55 Charge 20 is a representative charge involving you kissing your victim, and, on two separate occasions pressing your erect penis into your victim’s body and placing your hand inside his pocket and fondling his penis. On this charge you are sentenced to 6 months imprisonment.
56 Charge 23 involved you rubbing your victim’s thigh over clothing. You are sentenced to imprisonment for 1 month on that charge.
57 Charge 27 involved an incident where you placed your penis directly against your victim’s anus (no penetration being alleged). On that charge you are sentenced to 9 months imprisonment.
58 Charge 29 concerned you fondling the buttocks of an unknown student in the presence of the named victim. On this charge you are sentenced to 3 months imprisonment.
59 Charge 30 is a representative charge involving you, on four separate occasions, placing your hand down your victim’s trousers and fondling his buttocks. You are sentenced to nine months' imprisonment in respect of that charge.
60 Notwithstanding the legislative policy expressed in s6(E), I consider that, in all of the circumstances there should be considerable concurrency with respect to those sentences.
61 In respect of cumulation of those sentences of imprisonment, I order as follows;
· 1 month of the sentences imposed in relation to each of charges 1, 2, 8, 15, 19, 21, 22, 24, 31 and 32;
· 2 months of each of the sentences imposed in relation to each of charges 3, 4, 5, 6, 10, 17, 18, 25, 28, 33 and 34;
· 2 months of the sentence imposed in relation to charge 7;
· 2 months of the sentence imposed in relation to charge 9;
· 2 months of the sentence imposed in relation to charge 11;
· 2 months of the sentence imposed in relation to charge 12;
· 2 months of the sentence imposed in relation to charge 13;
· 2 months of the sentence imposed in relation to charge 14;
· 1 months of the sentence imposed in relation to charge 16;
· 2 months of the sentences imposed in relation to each of charges 20 and 27;
· 1 month of the sentence imposed in relation to charge 23;
· 1 month of the sentence imposed in relation to charge 29;
· 3 months of the sentence imposed in relation to charge 30 -
be served cumulatively on the sentence imposed in relation to charge 26,
making a Total Effective Sentence of 6 years.
62 I direct that you serve a period of 3 years before being eligible for parole.
63 Pursuant to s.6(AAA) of the sentencing Act I declare that, had you not pleaded guilty to this charges, I would have sentenced you to an effective head sentence of 9 years with a minimum non-parole period of 6 years.
Pre-Sentence Detention
64 Mr Sonnet, pre-sentence detention, was I told that on the earlier occasion, or what's it calculated?
65 MR SONNET: 169 days, Your Honour.
66 MR HALLOWES: That's agreed, Your Honour.
67 HIS HONOUR: 169, thank you.
68 I declare that 169 days of pre-sentence detention, not including today, be reckoned as having been served under that sentence, and I direct that a declaration to that effect be recorded on the records of this court.
Sex offenders Registration
69 Under the provisions of the Sex Offenders Registration Act (2004), by reason of these convictions, you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first report after your release from custody. Details in writing of these reporting conditions will be served upon you forthwith by my associate. Is your client familiar with these conditions?
70 Mr Hallowes, do you need any time to discuss those matters with your client?
71 MR HALLOWES: No, Your Honour.
72 HIS HONOUR: Thank you. My associate, is obtaining Mr Bales' signature on that document. Mr Sonnet, are there any other ancillary orders sought?
73 MR SONNET: No, Your Honour.
74 HIS HONOUR: Anything else you want to raise Mr Hallowes?
75 MR HALLOWES: No, Your Honour.
76 HIS HONOUR: Yes, thank you. Mr Bales can be taken downstairs. Adjourn the court until 10.30.
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