Director of Public Prosecutions v Ball (a pseudonym)
[2019] VCC 1293
•15 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| CALEB BALL (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2019 | |
DATE OF SENTENCE: | 15 August 2019 | |
CASE MAY BE CITED AS: | DPP v Ball (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1293 | |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty 1 representative charge of sexual penetration of child under 16 – 2 charges of committing an indecent act with a child under 16 – Offender between 20 and 22 years old – complainant 13 years of age – romance developed – digital penetration - both sets of parents aware of relationship - complainant commenced living with offender when 17 years old – child born – relationship lasted for many years – offender sheltered – immature – childlike disposition at the time – very limited experience of life – long delay - complainant suffers depression attributable to loss of normal adolescence – lack of self-worth.
Cases Cited: Clarkson v R 32 VR 361
Sentence: 18 months imprisonment wholly suspended for 18 months. SOR 15 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Nalpantidis | OPP |
| For the Accused | Mr S. Pascoe | Doogue O’Brien George |
HER HONOUR:
1 Caleb Ball,[1] you have pleaded guilty to one charge of a representative charge of sexual penetration of a child under the age of 16 and two charges of committing an indecent act with a child under 16. The background to these sentencing remarks is that you were born on 16 May 1970 and so are now aged 49. The complainant was born in September 1977 and is now aged 41.
[1] A pseudonym.
2 The difference in age between you is seven years and four months. The offences were committed when you were aged between 20 and 22 and the complainant was aged between 12 and 13 years when the offences commenced. The offending in fact commenced about a week before her 13th birthday.
3 The two of you met several months earlier in the summer school holidays of January 1990, when the complainant would mix with neighbourhood children and you would jog in the area with your dog. You became friends and a romance developed. Between 13 September 1990 and 5 August 1991, regular sexual touching and digital penetration occurred, reference to which is included in the prosecution summary as sexual misconduct relevant to context only.
4 Between the dates specified in the indictment, instances of digital penetration by you of the complainant’s vagina occurred either at her house or in your car. These instances form part of Charge 1, the representative charge of sexual penetration. On 10 August 1991, you asked the complainant to tell her parents that the two of you were going to the movies.
5 You then drove her to a secluded area near the airport at Tullamarine and told her to undress in the backseat of the car. The sexual acts which took place are set out in the prosecution summary and I need not repeat the details here. Those acts make up the subject matter of the three charges on the indictment, all having taken place on the one occasion, other than those that I mentioned a moment ago, which occurred on earlier dates.
6 While you were in the car at that location, a police car approached and when the police learned that the complainant was only 13, you were both taken to separate police stations. The complainant was later examined by a medical practitioner at The Royal Children’s Hospital, to whom she disclosed that she had been digitally penetrated. Following this, her parents allowed her to continue to see you on weekends but with strict rules in place.
7 As a result, you exchanged letters instead of more frequent meetings. However, touching of a sexual nature continued. After you left home and lived in your own accommodation, the complainant moved in with you while she was still a school student in year 12 at the age of 17. Two years later in 1997, she gave birth to your son and you lived together as a family for many years.
8 She was then aged 19 and you were 28 and that was the same year that you were diagnosed with bladder cancer and underwent treatment. In 2007, after an argument, the complainant left the relationship. You later began a relationship with another woman and you married in 2011. The son of that relationship was born in 2010. He is now eight years old. Your wife’s daughter, a university student, also lives with the family.
9 In April 2018, the complainant reported this matter to the police and on 18 May 2018, a pretext telephone call between the two of you was arranged by police. During that recorded call, you admitted to her the nature and duration of your relationship with her. You were later interviewed and denied most of the contextual information and that sexual activity happened before the complainant turned 16.
10 Sexual offences against children are, by their very nature, serious because children lack the maturity to give consent and cannot do so and because of the presumption that premature sexual activity is harmful[2]. In this case, there is evidence of actual harm having been done to the complainant, as set out in her victim impact statement.
[2]Clarkson v R 32 VR 361
11 She was a physically mature child of almost 13 when you met her and it appears that she became quickly attracted to you and was an ostensibly willing participant in sexual activity, giving what could be termed apparent consent as proposed by defence counsel[3]. There was a seven-year gap in ages between you, which is a considerable gap relative to teenage maturity or lack of it.
[3] I note the analysis of this issue in Clarkson v. R ibid, in numerous paragraphs.
12 It was certainly sufficient for you both to be wary initially about disclosing the relationship to the complainant’s parents, despite your own parents’ encouragement for you both to do so. As to the harm caused, this is apparent, as I said, from the complainant’s description of the depression from which she suffers, which she attributes to the loss of a normal adolescence due to her relationship with you.
13 Specifically, she feels that your actions have controlled her life since then and she struggles to maintain her sense of self-worth. When you were aged 20 and the relationship began, the complainant was your first girlfriend. You were a sheltered, quite immature young man, which is evident from the letters you wrote to the complainant at the time, revealing a childlike disposition and very limited experience of life.
14 Although the age difference was considerable, as I have said, your immaturity meant that the power imbalance between you – between a child and an adult – was reduced. You had no comprehension of the potential for harm to the complainant, nor that the relationship was anything other than one of genuine love that continued for a long time.
15 Apparently, no discussion was held with you as to the potential for harm and the relationship was an accepted one by both extended families, which gave a sense of normality to the relationship. Both families socialised together and her family approved of you; indeed, they were very fond of you. At the same time, neither you nor the complainant was able to benefit from the imposition of constraints upon you when the relationship came to the attention of the police.
16 Despite the serious step of a forensic examination of the complainant taking place, the limits placed on physical contact between you were fairly nominal and ineffective and did not prevent the continuation of sexual activity. That, of course, is no excuse but combined with your immaturity, it does reduce your moral culpability to some extent. At least as far as your immaturity is concerned, the prosecution concedes that point.
MITIGTING FACTORS
17 You are a man with no previous convictions and you have been assessed as being at low risk of reoffending. The circumstances of the offending certainly suggest that. Mr Michael Bilyk, a psychologist, who assessed you recently, considers the offending as situational in character and not indicative of any sexual preference for underaged girls.
18 You grew up as one of two children of your parents, who struggled to provide adequately for the family and this led you to being bullied at school. You describe yourself as having been lonely and having had little confidence and wondered whether you would ever have a girlfriend. Later, you were proud to have been the first in your family to graduate from secondary school and in recent years you have completed further study to take on a professional role.
19 On leaving school, you began factory work and continued for 15 years before retraining as an aged-care worker. You later qualified as a nurse and since 2010 you have worked in an aged-care institution. You had to explain to your employer and others in the management team about these charges. In a letter written for the court, your employer describes you in glowing terms as a valuable employee, whose registration as a nurse is in jeopardy because of these charges. Apparently, that is a matter for the Australian Health Practitioner Regulation Agency, known as AHPRA. If you do lose your registration, your employer will try to find another role for you within the organisation.
20 Following treatment of bladder cancer some years ago, it returned in 2016 and fortunately treatment has been successful but you are regularly monitored. Your family is dependent on your income, as although your wife has been running a café business for several years, it has fallen prey to competition resulting from changes to licensing laws in the area and has become virtually unsustainable, with closure threatening. It has required very intense labour, including your own substantial contributions before and after your regular daily work.
21 Your wife has provided a letter for the court in which she described your dedication to this work and your good character in other respects as well. Your parents have also described you as a kind person whose real character is not represented by your offending. You have pleaded guilty at a relatively early stage and have acknowledged your responsibility for the offending, that it should not have happened and you regret that it did.
22 There has been a long delay of 28 years, during which you have led a blameless and very productive life. Specific deterrence plays no part in this sentencing task and it was agreed by the prosecution that imprisonment is not necessary, even though the maximum penalty for each of the offences was at the time 10 years imprisonment.
23 General deterrence is the chief sentencing consideration in these cases because of the need to protect vulnerable children and young people from those who might take advantage of their inability to consent to premature sexual activity, as in this case, or generally, to protect them from any type of sexual abuse. The sentence imposed must be seen to reflect this need for deterrence and to express the strong denunciation of the court.
24 For these reasons, the sentencing submission by the prosecution was that imprisonment is warranted but that such a sentence need not be served immediately. As a sentence of imprisonment wholly or partly suspended was available in 1991, that should be the appropriate sentence.
25 Would you stand now, please, Mr Ball. Taking into account all the circumstances of this case, I sentence you to 18 months’ imprisonment for Charge 1, four months’ imprisonment for Charge 2, and nine months for Charge 3. Each sentence is to be served concurrently, which means the total effective sentence is 18 months. I order that it be wholly suspended for the same period of time, which is 18 months.
26 The prosecution seeks an order for a forensic sample of saliva to be obtained. Through your counsel, that is not opposed and I make that order. I must advise that the police do have the power to use reasonable force to obtain the sample but I trust that will not be necessary.
27 Pursuant to the Sex Offenders Registration Act, you will be required to report your details every year for 15 years to the police. That is a mandatory order, and I have no discretion whether to impose it or not.
28 If you had pleaded not guilty to these charges, I would have sentenced you to a wholly suspended sentence of two years, with an operational period of two years.
29 Are there any other matters? First, Ms Nalpantidis?
30 MS NALPANTIDIS: No, Your Honour.
31 HER HONOUR: All right. Mr Pascoe?
32 MR PASCOE: No, Your Honour.
33 HER HONOUR: My associate is approaching now with the Sex Offender Registration Act. Would you like to approach too, Mr Pascoe?
34 MR PASCOE: Yes, if I could, Your Honour. Thank you.
35 HER HONOUR: Certainly. Mr Pascoe, I have just realised I have neglected to tell Mr Ball that a suspended sentence means that – I will just do that now.
36 MR PASCOE: Yes.
37 HER HONOUR: Mr Ball, the implication of a suspended sentence is that if you were to breach it in any way during that operational period of 18 months, you would be brought back to court and be resentenced. So that is simply an obligation of mine to explain that to you. Thank you.
38 MR PASCOE: Thank you, Your Honour.
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