Director of Public Prosecutions v Bannister (a pseudonym)
[2022] VCC 891
•10 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VINCENT BANNISTER (A PSEUDONYM)[1] |
[1] To ensure there is no identification of a victim of a sexual offence, these published reasons for sentence have been anonymised by the adoption of pseudonyms in place of the names of the offender, victim/s and relatives and the removal of all identifying information. A schedule of substitutions will be retained by the Court for future reference.
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial 1: 13, 14, 15, 18, 19, 20, 21, 22, 27, 28, 29 January and 1, 2 February 2021 | |
DATE OF SENTENCE: | 10 June 2022 | |
CASE MAY BE CITED AS: | DPP v Bannister (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 891 | |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: Sentence following trial; verdict of guilty on one charge; indecent act with or in presence of a child under 16; victim was offender’s stepdaughter; delay.
Legislation Cited: Crimes Act1958 (Vic); Crimes (Sexual Offences) Act 1991; Sentencing Act 1991 (Vic); Sex Offender Registration Act 2004 (Vic).
Cases Cited: Clarkson v The Queen (2011) 32 VR 361; Adamson v R [2015] VSCA 194; DPPv Toomey [2006] VSCA 90.
Sentence: 18-month Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Guesdon | Office of Public Prosecutions |
| For the Accused | Mr C. Morgan (trial) Mr C. Grant (plea) | Stary Law |
HER HONOUR:
Introduction
1.Vincent Bannister, on 2 February 2021, a jury found you guilty of one charge of indecent act with or in the presence of a child under 16 contrary to s 47 of the Crimes Act1958 (Vic), as amended by the Crimes (Sexual Offences) Act 1991 (Vic).
2.On the same day, the jury indicated it was unable to reach a verdict on the other 13 charges on the indictment and was discharged. On 7 March 2022 a second jury returned a verdict of not guilty on a charge of assault but was discharged in respect of the remaining 12 charges, after it could not reach a verdict. On 10 March 2022 the prosecution filed a notice of discontinuance in respect of those 12 charges.
3.It is necessary to set out this history to explain how I come to sentence you for a single charge of indecent act so long after you were found guilty of that offence. It is also important to make clear that I am only sentencing you for that one charge, not any of the discontinued allegations.
4.After a plea on your behalf on 3 June 2022, it now falls to me to sentence you. Your counsel in the second trial and on your plea, Mr Grant, submitted that a substantial fine was appropriate and within range. Alternatively, if I considered that some form of supervision was warranted, Mr Grant submitted this could be achieved by an adjourned undertaking.
5.The prosecutor, Ms Guesdon, whilst not ruling out a fine depending on my view of the offence gravity, submitted that a corrections order would reflect all the sentencing principles.
6.In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[2] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
[2]Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).
Circumstances of the Offending
7.Consistent with the jury verdict, I find as follows.
8.In about 2002 you started living with Danielle Cooke and her four children from a previous relationship, including Annie Chestor. Annie was born in April 2001 and thus was very young when you came into her life. You took on Ms Cooke’s four children as your own and were actively involved in their care.
9.Your offending happened when Annie was about five years old and you were about 36. You were both sitting on a couch, under a blanket, watching television, when you showed her your erect penis. You did not say anything to her. You did not touch her, or try to get her to touch you, you simply lifted the blanket so that she could see your erect penis, smiled at her and then resumed watching television as if nothing unusual had happened.
10.Understandably, Annie was confused by what you did. She did not know what to do and did not know that it was wrong. She did not say anything to anyone until sometime later when she was visiting her father, David Chestor. This was on 21 January 2007. She told him that you had showed her your 'doodle' and that it was sticking up. Mr Chestor called the police and later that day Annie was taken to the police station.
11.Unfortunately, in the meantime, Annie, who was upset and missing her mother, was allowed to go home where she was prevailed upon by her mother to tell the police a lie. She told the police that your doodle, to use her words, had fallen out the top of your boxers when you were asleep. She said it was an accident and that she had mistakenly thought you did it on purpose. As a result, the police took no further action.
12.You are not responsible for Ms Cooke’s undermining of her daughter on that day, or indeed afterwards. However, you were clearly informed of the story Annie gave the police, and essentially repeated it when you were finally interviewed by the police more than 10 years later. You said your penis had simply come out the side of your boxers by mistake. This interview occurred on 13 December 2017, following Annie’s decision to make a formal complaint to the police by way of a VARE – that is a Video Audio Record of Evidence – on
17 March 2017. Clearly the jury rejected your account.
Your Personal Circumstances
13.Turning to your personal circumstances which were outlined in defence submissions.
14.You are a 52-year-old man. You were born in Mornington and were raised by your parents until they separated when you were 13. You had a positive relationship with your parents and after their separation spent time with each of them. Your mother re-partnered with Tony Parker, and they had a daughter, your sister Monica Hume. Both your stepfather and your sister provided letters of support to the court in this matter.
15.You attended two local primary schools in the Mornington area and then attended Mornington Technical School, leaving in Year 10. You were diagnosed with dyslexia, and describe yourself as an 'average student'. You report experiencing some bullying in your early teens, but had no difficulty with attendance or social engagement at school.
16.You have a strong work history. After leaving school, you worked as a car detailer before commencing an apprenticeship at the age of 18 as a roof tiler. You completed the four-year apprenticeship and continued to work at the same roofing company for another two years. You then worked at another roofing company for five years. At the age of 27, you left tiling to work as a carpenter for your uncle who was a master builder. Since 2016, you have worked in renovation and repairs. You are about to change into a management role.
17.You do not have any biological children of your own. Indeed, a motorcycle accident when you were 12 years old apparently rendered you infertile. You had two long term relationships in your 20s before you met Danielle Cooke in 2001. In around 2004, you left the workforce to care for Ms Cooke’s four children, including the victim. You remained in this relationship until 2018.
18.Your father died in 2016, shortly after being diagnosed with brain and lung cancer. Although there is discrepancy in the dates, Mr Parker’s letter of support notes that you went to Queensland to help care for your father when he was ill. His death affected you deeply.
19.No medical or psychological reports were provided by defence, however you report becoming extremely depressed and suicidal in 2016 and having severe panic attacks since then. You were prescribed Zoloft to treat your symptoms, but have recently weaned yourself off the medication. More recently, you obtained a mental health care plan from your general practitioner and are waiting to begin appointments with a psychologist.
20.You report no issues with drugs. You experimented with cannabis in your late teens but stopped at the age of 22 and have not used since.
21.You have been on bail, on your own undertaking, since being charged in 2019. You have not committed any further offences. You have been living with your mother and stepfather for the past three years and apparently have a new partner.
Objective gravity of your offending and moral culpability
22.Two factors of central importance in determining any sentence, are the objective gravity of the offending and the moral culpability of the offender.
23.All sexual offending involving children is serious. If there was any doubt about the seriousness of your offence, the maximum penalty of 10 years' imprisonment makes it perfectly clear.
24.In assessing the gravity of your conduct, it is not just what you did, but who you did it to, that matters. You exposed yourself to a five-year-old girl who regarded you as a father. There is no discernible reason for what you did other than your own deviant sexual gratification. You gave absolutely no thought to how your conduct might impact Annie. You exploited her love and trust and, by pretending everything was normal, her innocence.
25.Although it was a single act of short duration, involving no touching and apparently unpremeditated, what you did involved a gross breach of trust and had lasting consequences for Annie as I will detail in a moment.
26.That said, having regard to the wide range of conduct constituted by the crime,
I consider your conduct to fall somewhere between the low and mid-level of seriousness. To be clear, that is not to say that what you did is not serious, rather it is to rank your offending on the scale of seriousness for the offence.
Impact of your offending
27.I am required to take into account the impact of your offending on your victim and her personal circumstances.[3] There are some general principles that apply to all sexual offending involving children. First, there is a legal presumption that premature sexual activity causes long term and serious physical and psychological harm to children.[4]
[3]Sentencing Act (n 2) ss 5(2)(daa), (da) and (db).
[4]Clarkson v The Queen (2011) 32 VR 361, 368 [26], 371 [33]; Adamson v R [2015] VSCA 194, [56].
28.Secondly, the courts have recognised that rehabilitation of children who have been sexually abused may be more difficult than rehabilitation of the offender. In that regard, it was said in a case called Toomey:
'Frequently the damage will be profound and a long time will pass
before it can be addressed at all. In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.'[5][5]DPP v Toomey [2006] VSCA 90, [22] (‘Toomey’).
29.Finally, it is well recognised that when the perpetrator is a family member there can be far reaching consequences for the family unit.
30.The victim impact statement of Annie graphically illustrates that even a single instance of offending can have a profound effect on the victim and bring into play each of these general principles. Whilst you were not, as I have already said, responsible for the way Annie’s mother treated her after the offending, the fact remains that your offending caused a rift between Annie and other family members, which exists to this day. She notes that she 'can't have a relationship' with her mother as she feels that her mother 'chose [you] over [her]' in allowing you to live in the family house after the offence was reported.
31.Annie’s victim impact statement also talks about her feelings of guilt and shame. She felt like she was destroying her family by disclosing your offending, when of course she was in no way responsible for that and should have been supported, not maligned. She described her confusion about what you did given that she loved you at the time. Finally, Annie discussed the anxiety surrounding her giving evidence. She said giving evidence was the 'single hardest thing [she] ever had to do'.
32.As I indicated during the plea, I am conscious that not all the matters discussed in Annie’s victim impact statement may be attributable directly to the offence for which you were found guilty, and it must therefore be treated with caution. That said, it is beyond dispute that this single offence has affected her deeply and will continue to do so.
Current Sentencing Practices
33.One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.[6]
[6] The rationale for doing this is to promote consistency of approach in sentencing, particularly the application of relevant sentencing principles.
34.Neither counsel referred me to any comparable cases, but I have had regard to the most recent – July 2021 – Sentencing Advisory Council Statistics of the higher courts, which indicate that 82 per cent of people sentenced for your now repealed offence of indecent act with or in the presence of a child under 16, over the five years between 1 July 2015 to 30 June 2020, received an immediate term of imprisonment ranging from a number of months to six years, with one to two years being the most common sentence. A community corrections order was the next most frequent sentence imposed at almost 10 per cent.
Plea of not guilty and remorse
35.As you pleaded not guilty you do not get the benefit of a discount in your sentence for a plea of guilty. To be clear you are not being punished for pleading not guilty, you just do not get a discount you would otherwise get.
Your character and risk of reoffending
36.You have no prior convictions or findings of guilt and no subsequent matters. You have a good work history and support from your family and friends. This all bodes well for your future.
37.I have received, as I have mentioned, four character references. One from your stepfather, one from your stepsister and two from friends. It is obvious that they do not believe you have committed the offence for which you have been found guilty which, to some extent, undermines their opinions. Nevertheless, I accept that they know you well and have found you to be a caring, generous and good man.
38.Whilst the fact you contested this charge and put Annie through the trauma of giving evidence is a concern, all up, I consider your prospects of rehabilitation to be very good.
Delay
39.I take into account the fact you have had this matter hanging over your head ever since you were interviewed in December 2017. You were not charged until June 2019 and the court proceedings were protracted for various reasons, but not through any fault of yours. I accept the outcome has been a great source of worry for you.
Purposes of sentencing
40.Under the Sentencing Act 1991 (Vic), the only purposes for which a sentence may be imposed are just punishment, deterrence, rehabilitation, denunciation and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those purposes.
41.The courts have repeatedly emphasised that in sentencing for sexual offences against children, general deterrence and denunciation are paramount sentencing considerations. This applies particularly to offenders like you, who are entrusted with the care of their young victims, whether as family members or otherwise. Anyone who is tempted to offend against children, in the belief they can do so with impunity, needs to know that when their crimes come to light, they will be punished. The passage of time will not protect them.
42.There is a need for sentences to vindicate not only the individual victims, but also the values of society, 'fundamental to which is the protection of its children'.[7] In your case the principles of specific deterrence and community protection have limited relevance.
[7] Toomey (n 5) [17], [22] per Vincent J.
43.Of course, my sentence must also be just. It must reflect the mitigating factors I have already outlined, and it should promote your rehabilitation. It is by your rehabilitation that society will be best protected.
44.I have decided that the purposes of sentencing in this case cannot be met by anything less than a corrections order.
45.I have had you assessed for such an order, and you have been found suitable. The assessing officer recommended a corrections order of no less than
18 months, to enable you to participate in the sex offender program if you are found suitable.
Sentence
46.So, Mr Bannister, can you please stand.
47.On Charge 1, indecent act with or in the presence of a child under 16, I convict and sentence you to a community corrections order for a period of 18 months.
48.You are to report to the Frankston Community Correctional Centre within two working days of today, and that is by 15 June 2022 by 4:00 pm.
49.Now, as well as the mandatory conditions of the corrections order – and those mandatory conditions include not committing another offence, not leaving Victoria without first getting permission to do so, and obeying all the lawful instructions from and directions of the Secretary – I have imposed some special conditions and they are as follows:
· You are to complete 200 hours of unpaid community work.
· You are to be under the supervision of a Corrections officer for the duration of the order.
· You are to undergo mental health assessment and treatment as directed.
· You are to undertake any other treatment and rehabilitative programs to reduce reoffending as directed, so this will include an assessment for the sex offender program and if you are directed to do it, then you will have to do that.
50.I direct that a maximum of 50 hours undertaken for treatment and rehabilitation are to be counted as hours of unpaid work. So, what that means is that, any treatment and rehabilitation hours you spend, and that also includes those programs, up to a maximum of 50 hours, can come off the 200 hours.
51.HER HONOUR: Now, Mr Bannister you have to make sure you comply with this corrections order, because if you do not, there are two things that can happen. One is that it is an offence not to comply with corrections order. So, you will be charged with that offence and you are liable to be sentenced for that. But the other, perhaps more significant thing, I mean they are both significant, but you will be liable to be re-sentenced for this offence. And I have already indicated, I do not regard anything less than a corrections order as a suitable punishment, so if you do not comply with the corrections order I am going to have to work out what to do with you. But I do not think going backwards, less, is going to be appropriate. The only thing I can say to you is that if I do have to re-sentence you for the original offence, I have to take into account the extent to which you did comply with the corrections order before you breached it. So, do you understand that sentence that I have imposed?
52.OFFENDER: Yes, Your Honour.
53.HER HONOUR: The corrections order we have here, I will just sign it and then you can sign it. You'll be given a copy of it and just make sure you report as required and then it'll be explained to you from then on as well. Anything else you don't understand, I'm sure Mr Grant can assist you with that.
54.OFFENDER: Yes, Your Honour.
55.HER HONOUR: All right, unless there's anything else then, I'll just adjourn the court.
56.MR GRANT: The only matter is to apologise for the delay and inconvenience for Mr Bannister getting up to court this morning.
57.HER HONOUR: Yes, thank you, I was told the reason and I know that there can be big delays down there, but on the other hand Mr Bannister, you were well aware that that can happen.
58.OFFENDER: I apologise, Your Honour.
59.HER HONOUR: That's all right, but just make sure that you are more diligent in terms of the corrections order, all right?
60.OFFENDER: Yes, Your Honour.
61.HER HONOUR: Sorry, something else?
62.MR GRANT: Yes, Your Honour. I didn't hear Your Honour indicate his obligations with respect to SORA: it's a mandatory condition for eight years.
63.HER HONOUR: I didn't have that in any of the material, I don't think. Maybe I did, sorry about that. Let me just have a look here. You're quite right, I didn't include that. And now I think about it, I think it is in the, no I don't - it's not in the prosecution submissions, so I've missed it. I didn't pick that up. But is that correct, is it a mandatory - - -
64.MR GRANT: Yes, it is. I've conceded that in my submissions if it's not in my learned friend's submissions.
65.HER HONOUR: What's the reporting period?
66.MR GRANT: It's eight years, Your Honour. It's a class 2 offence and it's a single offence so it makes it eight years.
67.
HER HONOUR: All right. Yes. So, you've probably had this explained to you,
Mr Bannister, but I missed it. But it would have come back to me if my attention hadn't been drawn to it now. You have been found guilty of one class 2 offence. What that means is that there's a mandatory period of reporting under the Sex Offender Registration Act, so you will become a registered sex offender under that Act. You have to comply with the directions under that Act for a period of eight years. That consists of things like: you will have interviews with the police, you have to notify them of changes of address, changes of social media accounts, telephone numbers, that sort of thing.
68.OFFENDER: Yes, Your Honour.
69.HER HONOUR: All right. Now, is there a document I need to make sure we print out and give it to Mr Bannister, so just be seated for the time being, Mr Bannister, while we get that printed out. So, I've got here the notice of reporting obligations and I'm required to give you that document and you sign the back of it and it sets out all of your obligations. It's quite a lengthy document, as I mentioned, includes change in personal details, the documents you need to provide to the police. And you have initial interviews with the police and annual interviews. And you've got to report within seven days of today, to the police as well.
70.
It's got a number there and everything, so again Mr Grant I'm sure will take you through that, but we'll just get you to sign that document now. And
Mr Bannister, like the corrections order, if you fail to comply with your reporting obligations, that's also an offence.
71.OFFENDER: Yes, Your Honour.
72.HER HONOUR: All right. That's it?
73.MR GRANT: Yes, Your Honour.
74.HER HONOUR: Yes, all right, we'll adjourn the court, thank you.
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