Director of Public Prosecutions v Bates
[2022] VCC 250
•4 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| THOMAS ROGER BATES (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 March 2022 | |
CASE MAY BE CITED AS: | DPP v Bates | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 250 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Cases Cited: DPP v Bates (A Pseudonym) [2021] VCC 2140.
Sentence:13 months imprisonment; 10 months cumulative on other sentences being served; new TES 6 years 10 months; NPP 4 years 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Plummer | |
| For the Accused | Ms J. Buxton |
HIS HONOUR:
1 Thomas Roger Bates[1], you have pleaded guilty to the offence of Sexual Assault contrary to s.40 Crimes Act. This offence carries a maximum penalty of 10 years' imprisonment. You have also pleaded guilty to a summary charge of Entering a Private Place without Authorisation or Excuse, which carries a maximum penalty of 25 penalty units or 6 months’ imprisonment.
[1] A Pseudonym.
2 You have admitted your prior criminal history. It is irrelevant to this sentencing consideration.
3 Although they are not prior convictions for the purpose of this sentence, you have been previously convicted on 14 December 2021 and imprisoned on four charges of indecent act with a child under 16 years and sexual penetration of a child between 10 and 16 years. You are currently undergoing the sentence for that offending. As you have been previously imprisoned for sexual offences you fall to be sentenced as a serious sexual offender for this offending.
4 I refer to and adopt my sentencing remarks in that matter.[2] As those remarks set out much of your biographical and medical history relied upon in this matter, it will be necessary to first read those sentencing remarks before turning to these.
Circumstances of Offending
[2]DPP v Bates (A Pseudonym) [2021] VCC 2140.
5 I turn to the circumstances of your offending. The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:
6
The complainant is Petra Schmidt[3]. In 2017 Ms Schmidt was then a
22-year-old German National employed as a live-in Nanny for your then wife’s cousin Erin[4] and Erin’s husband, Jesse Jacobs[5] in regional Victoria. Your property was approximately 2 kilometres from the Jacobs residence.
[3] A Pseudonym.
[4] A Pseudonym.
[5] A Pseudonym.
7
On 9 December 2017 you held a party for your daughter's 11th birthday.
Ms Schmidt, the Jacobs family and other family members attended. The party started at about 6 pm and the victim left with the Jacobs family at around midnight. A short time later Ms Schmidt went to bed and closed her bedroom door.
8 After the party Erin Jacobs had been communicating with your wife on Facebook Messenger. At 1:33 am on 10 December you sent a message via Facebook Messenger on your wife’s mobile phone to Erin Jacobs which stated, 'Leave the door open I might over [sic].’
9 I am satisfied that Erin Jacobs thought she was still communicating with your wife and left the door open. She replied, stating to sleep in one of the children's beds.
10 You then drove to the Jacobs residence, opened the unlocked front door and entered Ms Schmidt's bedroom by opening the closed door, without permission.
11 You then got into Ms Schmidt's bed, under the blanket, lay on her left side and started to cuddle her with both arms. Ms Schmidt awoke at around 4 am to find an unknown male in her bed, who she thought was Jesse Jacobs, having got into the wrong bed whilst intoxicated.
12 You initially told her to 'shhhh' every time she spoke. You then touched her upper thigh with your hand and tried to move your hand towards her vagina. She pushed your hand away. Ms Schmidt describes that you were moving your fingers around in a circling motion, that you were breathing heavily and were a 'little bit sweaty'.
13 You told Ms Schmidt that you were not Jesse and she jumped out of bed and opened the door. You got out of bed saying, 'Please don't tell anyone what was going on here', and words similar to 'Don't tell my kids' or 'I don't want to lose my kids'.
14 After you left the bedroom you went to your job of milking cows.
15 On 13 December 2017 you attended the Bendigo Health psychiatric services. There you told medical staff that you experienced some suicidal thoughts but you had no intent to act on these and that you had been having headaches. You were assessed as not suffering delusions or perceptual abnormalities and you were oriented as to time and place. You gave an undocumented history of a brain impairment. On examination and testing your brain was found to be of normal appearance. You reported feeling depressed, with themes of hopelessness and helplessness during unmanaged migraines. It was decided you should be admitted voluntarily and you were discharged on 15 December 2017.
16 You participated in a record of interview on 21 December 2017 in the presence of an Independent Third Person. You denied sexually assaulting Ms Schmidt. When asked whether you were in bed with the victim you said, 'Could've been, could've been me' (Q208) and then, 'I can't remember, sorry. I was that intoxicated and sick' (Q209). You also referred to an earlier purported head injury.
17 You were not charged with the offending until 2019. The delay in the hearing of the matter cannot reasonably be attributed to you or your legal advisers. There were successful negotiations that resulted in the withdrawal of other charges. Thereafter, the plea hearing in this matter was interrupted by the COVID pandemic as well as the outcome of the trial matter for which you are now undergoing sentence.
Objective Gravity and Moral Culpability
18 I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
19 The objective gravity of your offending is informed by the following:
(a)First, you breached another family member's trust by creating the impression that your wife was continuing the conversation and she wanted to sleep at her cousin's house;
(b)Next, you entered the room where your victim slept. It was late at night. She was entitled to feel safe in that house and in her room and at that time of night. You acted with some stealth in getting into bed beside her in the dark; and
(c)Third, it was apparent that she did not know who you were and mistook you for another resident of the house. You told her to 'shhh'. In any event, she still told you not to touch her but you persisted in putting your hand near her vagina.
20 Against these factors your counsel, Ms Buxton, submitted the following factors also informed the seriousness of your offending:
(a) First, it was an isolated incident of relatively limited duration;
(b) Second, when Ms Schmidt questioned you, you immediately got out of bed and did not try to re-engage with her;
(c) Third, it was submitted that the offending occurred when you were intoxicated and that it lacked significant premeditation or sophistication; and
(d) And, finally, you were cooperative with the police.
21 I conclude that you persisted in the sexual assault whilst in bed, but desisted once you were out of the bed. Whilst your offending may have lacked 'significant' premeditation, there was indeed an element of planning. You sent the message to your wife's cousin through your wife's phone, you travelled to her house 2 kilometres away and you entered your victim's bedroom, getting into bed in the dark with her while she slept. This was far from a chance encounter.
22 Finally, whilst you were cooperative with the police, you did not expressly admit the sexual assault and you sought to blame your actions on your intoxication and an earlier purported head injury.
23 Ms Schmidt no longer lives in Australia. She declined to make a victim impact statement. You have admitted to your counsel that your actions must have frightened her. This is all the more so for the fact that she rejected the touching in any event, but thought that it was Mr Jacobs.
24 Although you got into bed with this young woman and you did touch her as she lay there, there is no evidence that you directly touched her breasts or directly touched the outside of her vagina. I must assess the seriousness of your offending in all the circumstances as I have described, but I must also make an assessment for sentencing purposes by comparing your conduct in these circumstances to other cases which come before this court. As serious as this offending is, it is not in the most serious band of this type of offending.
25 Nevertheless, as you are to be sentenced as a serious sexual offender, your conduct must be met by principles of deterrence, denunciation and protection of the community. As you fall to be sentenced as a serious sexual offender the protection of the community becomes the principal sentencing objective.
26 Mr Plummer informed me that the Crown does not seek the imposition of a disproportionate sentence in order to achieve the protection of the community. Rather, the Crown relies upon the displacement of the presumption of concurrency of sentences by your declaration as a serious sexual offender.
27 The law requires that your sentence of imprisonment on this charge must be served cumulatively on the sentence you are currently undergoing unless I order otherwise. I find your moral culpability for your offending to be high.
Personal Circumstances
28 I do not intend to set out your personal circumstances as these have been detailed in my previous sentencing remarks.[6] and, as I have already said, I adopt those sentencing remarks.[7]
[6] see DPP v Bates (A Pseudonym) [2021] VCC 2140.
[7] see DPP v Bates (A Pseudonym) [2021] VCC 2140.
29 I have referred to the Bendigo Health psychiatric services discharge summary relating to your admission to hospital on 13 December 2017. I have re-read the reports tendered on the previous plea hearing in relation to your medical conditions.
30 I was provided with the original reference from Michael Butcher[8], and updated references from Jordan[9] and Susan King[10], and from your wife Belinda[11]. It is apparent that you still have considerable family support. This will be important for you to maintain, both whilst you are in custody and upon your release from custody. Family support is a critical component in helping you to reintegrate into the community and enhancing your prospects for rehabilitation.
[8] A Pseudonym.
[9] A Pseudonym.
[10] A Pseudonym.
[11] A Pseudonym.
31 As I said previously, however, I can only assess the prospects for your rehabilitation with a degree of caution. Immediately after your offending you expressed some contrition and remorse; and you did again express remorse, insight and empathy in the plea hearing through your instructions to counsel. Reliance on 'problems with your head' or pointing to your level of intoxication on the night in question still smack of deflection. Whereas your most recent instructions to counsel display some insight and empathy, they have come very late and remain very indirect in their expression. As I said on the previous occasion, I still consider that you have some work to do before you will be able to achieve your rehabilitation.
Submissions
32 Ms Buxton, who appeared on your behalf submitted the following factors should operate to mitigate your sentence:
(a) First, you have no relevant prior convictions for sentencing purposes on this matter;
(b) Second, your early plea of guilty. I conclude that your plea of guilty has utilitarian benefit and facilitates the course of justice;
(c) Third, the effect of the pandemic is still being felt in the prison system. I acknowledge that movement around the prison, the availability of some courses and work are still likely to be affected by COVID protection measures. These measures may last into the future as the pandemic continues. Moreover, I acknowledge the more insidious aspects of the pandemic: the fear of contracting the virus; the fear for loved ones and often the use of isolation as a measure to effect social distancing. This can affect the availability also of personal face-to-face visits. All of these effects of the pandemic will be taken into account in mitigation of the sentence I impose upon you;
(d) Fourth, Ms Buxton submitted there has been some delay in the finalisation of these proceedings. It is apparent that there was a delay of over a year between the interview and the filing date. Thereafter, a plea was quickly offered to the charge of sexual assault. There was some minor delay caused by the negotiations which resulted in the withdrawal of a charge. After that, the pandemic took effect and there was a delay in the hearing of the trial in your other matter when Judge Marich was forced to adjourn the trial through no fault of yours. I must allow for some mitigation of the sentence in this matter for the delay in the finalisation of these proceedings; and
(e) Fifth, and importantly, Ms Buxton submitted the sentencing process must give effect to the principle of totality. In other words, I must take into account the sentence you are already undergoing and arrive at a just sentence that takes into account your overall offending. Further, I must not impose a sentence that merely amounts to an arithmetical addition to the sentence you are already undergoing and thereby impose a sentence that is crushing.
33 Mr Plummer submitted that the only appropriate sentence is a term of imprisonment with a non-parole period. The Crown submitted that the sentences for these offences must recognise that they are separate from your earlier offending and relate to a different victim. The separateness of this offending, together with the serious sexual offender provisions, ought to lead to a cumulation of this sentence on your earlier offending.
34 Nevertheless, Mr Plummer did not press for total cumulation. Rather, the Crown acknowledged that I must pay heed to the principle of totality.
35 I have decided that in order to achieve a just, and not a crushing, sentence in this case, I must somewhat moderate the sentence I will impose on the two charges and I intend to moderate the periods of cumulation.
36 Accordingly, I make the following orders:
a) On the first charge of sexual assault you are convicted and sentenced to 13 months' imprisonment. I order that nine months of that sentence be served cumulatively on the sentence you are currently serving and on all other sentences.
b) On summary Charge 3 of entering a private place without authorisation or excuse you are convicted and sentenced to two months' imprisonment and I order that one month of that sentence be served cumulatively on all other sentences.
c) The new total effective sentence is now 6 years and 10 months. I order you serve a non-parole period of 4 years and 6 months. There is no pre-sentence detention.
37 The 6AAA declaration for the sexual assault offence only is - but for the plea of guilty I would have imposed a sentence of 17 months.
38 Mr Plummer, is that clear?
39 MR PLUMMER: Yes, Your Honour.
40 HIS HONOUR: Thank you. Ms Buxton?
41 MS BUXTON: Yes, thank you, Your Honour.
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