Director of Public Prosecutions v Bannister (a pseudonym)

[2018] VCC 1288

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT SHEPPARTON
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK BANNISTER (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	15 August 2018
DATE OF SENTENCE:	17 August 2018
CASE MAY BE CITED AS:	DPP v Bannister (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1288

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr S. Kenny	Chester Metcalfe & Co

HIS HONOUR:

1Patrick Bannister,[1] you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 years.  That was a composite charge.

[1] Patrick Bannister is a pseudonym.

2You are 26 years of age and were 25 years of age at the time of the offending.  You pleaded guilty to a settled indictment and must get the benefit of that.  I accept that you have subsequently displayed appropriate remorse and you must obviously get the utilitarian benefit of that plea of guilty.  There was no committal in this matter and your plea has saved the complainant from the necessity of giving evidence.

3In any event, your plea has eliminated what was potentially a defence of belief in age.  Whether that would have succeeded or not is another matter but I can understand how the matter got this far without being resolved.  You have no prior convictions of any description and in your situation that is very important.

4Firstly, pursuant to the Sex Offenders Registration Act I advise you, because of this conviction, you will be required to report and the period of reporting will be 15 years.  I will now ask if you could just sign this.

5All right, and then pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes. That requires you to attend at the Kilmore Police Station to give a saliva sample within 28 days and I must advise you that should you fail to provide such a sample, police may use reasonable force to take it from you, and that order is made and handed down.

6A summary of the offending has been tendered and I do not have to go into it in great detail, just simply describe what occurred.  The complainant in this matter was your niece, and at the date of the offending she was something in the order of three months shy of her 16th birthday.  You were 25.  You at that stage were living in Kilmore and she was living with her mother and younger siblings.  Her older sister, Rosie,[2] was living with her husband, Harold,[3] with their young children.

[2] Rosie is a pseudonym.

[3] Harold is a pseudonym.

7On 9 June 2017 the complainant went to her sister's house in Eden Avenue. [4] There also present were a Yasmin Harper[5] and a Bethany Blue.[6]  They arrived at about 5 pm.  Throughout the night she and her friend were drinking Vodka and playing pool.  She describes the Vodka as having an effect on her and she was not walking straight.  Some time after 7.30 pm you arrived at the address.  You had been drinking prior to getting there and were clearly at that stage already intoxicated.  There is no dispute about that.  You continued to drink at those premises.  You played pool with Harold during the evening and were talking with the complainant and her friends at times.

[4] Eden Avenue is a pseudonym.

[5] Yasmin Harper is a pseudonym.

[6] Bethany Blue is a pseudonym.

8At about 12.30 am you wanted to go home.  The house that you were going to was not far from the Eden Avenue address and Ms Atkin and Ms Harper and Ms Blue were sober and walked you home.  Upon arriving at the Kubba Court[7] address Ms Blue realised she lost her phone along the way and two of the girls went to look for her phone.  It is important to note I think at this stage that this was not predatory, you did not manipulate this situation and it was not a set of circumstances that was brought about wilfully by you.  It was simply, and I am prepared to accept this, totally situational.  There is no suggest here that you had been grooming her or taking any steps prior to getting her into this sort of situation.  Both of you were clearly intoxicated.  I note that you said - or she says that you said later on in the evening that you had been thinking of having sex with her for a period of time.  Whether that is true or not I have got no idea but clearly in a real sense nothing had been done to endeavour to achieve that.

[7] Kubba Court is a pseudonym.

9In any event, the two of you were left alone at the address.  She decided to put you to bed due to your intoxication.  I think in a VARE statement she said she pushed you towards the bed.  You sat on the bed, said you were not tired and at that point asked to her to lay in bed with you and watch TV.  You agreed and lay in bed together for a while, watching Netflix.  You then left the room for five minutes.  She believes that you locked the door.  I take it no further than that.  You returned to the bedroom and got in with her.  You started touching her on the waist and hugging her.  You got on top of her and started kissing her.  She kissed and hugged back.  She got on top of you and you started taking off her clothes and touching her breasts.  You undid your pants and her head went down towards your crutch and she put your penis in her mouth and performed oral sex.  That stopped and she then got on top of you and you penetrated her with your penis.  You asked her if she wanted to do this and she told you that she did.  It may well be she only said that because she was drunk but the fact of the matter is she did.

10The two of you had sex with your penis inside her vagina while she was on top.  After five minutes of that you asked if she wanted to swap over, so she did.  You continued to have sex for about another ten minutes.  You were not wearing a condom but did not ejaculate.  Voices were heard and you told her not to get up.  She stayed with you in the bed because she thought you were lonely and upset about the break-up with your girlfriend, which I will come to later.

11The people who had been outside returned to the Eden Avenue address and people came and knocked.  There was no answer.  You answered the door and said that  you had not seen her and there were various acts of saying that she was not there and the like.  The Crown disavowed effectively what used to be called consciousness of guilt so far as this was concerned, so I do not take a lot of notice of that.

12Your counsel raised on your behalf the concept of consent, and I have read the authorities and I am well aware of them in relation to such a matter.  I simply say this, that consent has to be looked at, as the authorities say, in the overall circumstances.  That does not decry from the situation where the law says that children must be protected not only from predators but from themselves, but in this situation it is clear that you did not, I do not believe, use your position as an uncle to force her or persuade her or undue influence.  It was a situation where two intoxicated people probably both made very, very bad mistakes.  She did consent and she told you later on she admitted during the course of the night that it had been fun.

13However, I make it clear I do take all that into account in an overall sense, that it eliminates a lot of the aggravating features that usually occur in situations such as this but does not decry from the fact that albeit someone only three months from this whole thing not even being a crime, it was still an offence to do what you did.

14When you were interviewed by police you basically agreed that there had been sexual conduct of some description.  You said you could not remember what it was.  That may or may not be correct, I do not know.  The situation was that it was with your niece, which is not a crime in itself.  I need to be careful not to treat this as an incest but that purported lack of memory, if it is true, may just be because you were aware of the relationship between the two of you and out of sheer guilt, if you like, of what you had done, not necessarily guilt about a criminal offence.

15When the question of age was raised with her she told the police that she suspected that you knew she was under 16.  You told the police that you thought that she was 16, so it is all a pretty close run thing insofar as those matters are concerned.  I have before me a victim impact statement which is very brief and simply says that the consequences of this for her have been devastating.  I would expect that some of the consequences are not necessarily what occurred on the night but what has occurred subsequently, but clearly, it is not a situation where she is finding it amusing now even if she did at the time.  If has clearly had an effect on her and obviously I take that into account.

16There is a breach of trust involved.  You were her uncle, albeit you did not bring the situation about of your own volition.  It was in one sense brought upon you.  However, there is a trust involved and you betrayed it and I am sure you are aware of that.

17The authorities outline the various factors to take into account in terms of determining moral culpability and that your counsel in an extremely good plea, if I may so, pointed out.  They are virtually all absent here other than the breach of trust and obviously the simple fact that she was under age.  I think the risk of you reoffending is low indeed as I have had you assessed for a community corrections order and that is their view as well.  Your prospects of rehabilitation are good.   You work, you have family support.  You have a home to live in and no priors.  Everything points in that direction.

18The Crown said that an active custodial sentence was required.  Your counsel submitted that the community corrections order fell within the range, working on the basis of Boulton and the other decisions he referred to.  I might say as an aside, and this is one of the various situations that could have been, in my view, much better covered by a suspended sentence but that disposition has been removed and I no longer have that option.

19The people at Corrections say that you are suitable for a community corrections order and the reasons that I do that are that I have indicated the lower level of culpability in all this in the circumstances that existed.  I had pointed out to me the statistics in relation to this, and whilst they are no longer the controlling factor in a sentencing process it is quite clear that 50 per cent of people charged with this offence get an active custodial and 50 per cent do not.  It is, in my view, having looked at it all, bearing in mind the mitigating aspects of it, that you fall within the 50 per cent who do not get locked up.  One of the factors in that, obviously, is the fact that the complainant was so close to being 16 years of age.

20Your history can be outlined in fairly short compass.  You are 26 years of age, raised by your mother and father and you maintain a close relationship.  You have older brothers and sisters and I note that the relationship between you and the complainant, or certainly between you and the mother of the complainant, albeit the sister, was not particularly close, so it is not a circumstance that one gets of having been over a period of years, a series of events leading up to this.  It is not as if she was someone who was very close to you.

21When you were younger you were diagnosed with having Asperger's.  You dispute that.  You think it may well have just been having to deal with an older brother who was behaving badly.  You have not taken psychiatric medication or anything since and your counsel does not rely on that and he just simply gives it as part of the history.

22You went to Year 10.  After leaving school you worked at Coles.  You got your truck licence and you worked as a truck driver.  Between the ages of 20 and 25 you were in a relationship, and this is important in this overall sentencing process as to your moral culpability.  You and your then partner lived together during that period of time. You had separated about two weeks prior to the offending.  It was explained to me that during that period of time she had developed cancer and in effect  had become infertile.  That was causing difficulties.  There had been some marital infidelity involved.  You as a truck driver had lost your driver's licence for a significant period of time and in all those circumstances were operating in a very depressed and, I would anticipate probably self-pitying state of mind.

23On this night you were very intoxicated.  I accept that you normally would not have drunk to that extent and that is the scenario.  It does not mitigate or excuse it but that is the scenario in which this situation and one-off offending occurred.  You were seeking comfort and solace with others and, unfortunately for her, she found herself in that situation that she was in.

24There is a significant age difference between the two of you, that is 15 to 25 as it was at the time, and I say this in observation from the Bench, that if I was asked to say how old you were without knowing anything about you, just by physical appearance, I would have said you were about 20.  So I accept that it is not the massive age difference that sometimes occurs in these situations and on itself on occasion makes incarceration inevitable.  It is a single incident, as your counsel points out, with a single complainant.

25I think I have been through all the matters involved in this.  This is a situation where, as Boulton says, a community corrections order can be of real punishment.  I have had you assessed and your counsel will have seen the details.  If you agree, I will put you on a three year community corrections order.  As part of the punishment involved in that it will be with conviction, which is a punishment in itself.  I will direct that you complete 350 hours of work and that you be given treatment and rehabilitation conditions for alcohol, mental health and offending behaviour programs.  There will also be supervision.  I direct that any time spent doing programs can be regarded as work hours pursuant to the 350 hours that I have ordered.

26Their report, as I think I have already said, indicates you as being a low risk of reoffending and I accept that.  They are the matters involved in this pretty sorry exercise.  A lot of people make mistakes in their lives and each of you have made a very, very bad one but it seems to me that to do anything other than to impose on you a community disposition, albeit a fairly onerous one in terms of the terms I have given, would not help anybody.  General deterrence obviously has to play a part in all this but general deterrence has to be viewed as to how they occur in a given situation, and accordingly, I think here a CCO is sufficient for that purpose.  I think specific, in your situation, is not really necessary and I think anyone who knew all the bases of the material would understand at least, if not approve, of how all this unfortunately came to be.  So if you are prepared to sign that community corrections order that will be the disposition of the court.  Thanks, Mr Hanko.

27All right, so understand you are on a CCO.  If you breach it you get brought back for resentencing, all right.  You understand clearly that if you are brought back for offending something along these lines you will be going through that door for a long period of time, all right.  It may be an element of mercy involved in this sentencing process.  So be it.  You are still a young man.  I see no point in ruining your life but do something like this again and someone is going to do something very, very ugly, all right.  All right, yes?

28MR HAMMILL:  Disposal order, Your Honour?  We sought a disposal order.

29HIS HONOUR:  Already signed that.  That has already been done.

30MR HAMMILL:  Yes, thank you, Your Honour.

31HIS HONOUR:  6AAA?  I think I have to now.

32MR HAMMILL:  Yes, yes.  Well, I think Your Honour just has without using specific figures.

33HIS HONOUR:  Two with a one.

34MR HAMMILL:  Yes, Your Honour.

35HIS HONOUR:  All right, I will leave it at that and I will just simply say in final to you, Mr Bannister, and you should thank your counsel very much for the advice he has given you and the extremely good plea he did on your behalf.

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