Director of Public Prosecutions v Bates (a pseudonym)
[2021] VCC 2140
•14 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| 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: | 6 December 2021 | |
DATE OF SENTENCE: | 14 December 2021 | |
CASE MAY BE CITED AS: | DPP v BATES (A PSEUDONYM) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2140 | |
REASONS FOR SENTENCE
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Legislation Cited: s.34 Sex Offenders Registration Act 2004
Sentencing Act 1991
Cases Cited:McPherson v The Queen [2021] VSCA 53
Sentence: 72 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Sharpley | Office of Public Prosecutions |
| For the Accused | Ms E. Strugnell | Stary Norton Halphen |
Thomas Roger Bates[1], after a trial of 6 days, you were found guilty by a jury on 5 November 2021 of three charges of indecent act with a child under 16 and one charge of sexual penetration of a child under 16 years. You were acquitted of one charge of indecent act with a child under 16 – Charge 2.
[1] A pseudonym.
The maximum penalty for each of the charges on which you were convicted is as follows:
Charge No. Charge Max Penalty 1 Indecent act with a child under 16
(s 47 Crimes Act 1958)10 years imprisonment 3 Indecent act with a child under 16
(s 47 Crimes Act 1958)10 years imprisonment 4 Sexual penetration of a child under 16
(s 45(1) Crimes Act 1958)15 years imprisonment 5 Indecent act with a child under 16
(s 47 Crimes Act 1958)10 years imprisonment
You have admitted your prior criminal history. I do not consider it particularly relevant to the sentencing task as it does not involve prior sexual offending.
Upon being sentenced to a term of imprisonment on two charges, you are to be sentenced as a serious sexual offender. Once you are declared a serious sexual offender, the primary sentencing consideration is the protection of the community.
As a result of your convictions on these offences, you are to be registered as a sexual offender and are subject to mandatory reporting for life.[2]
[2] s.34 Sex Offenders Registration Act 2004.
Circumstances of Offending
The facts upon which the jury found their verdicts may be briefly stated.
The victim of your offending is your former sister-in-law, Lucy James[3]. Your offending occurred over the course of four separate occasions.
[3] A pseudonym.
The first two offences of which you were found guilty were alleged to have occurred between October 2006 – December 2006. Ms James stated in evidence that these two offences occurred at a time when your wife Susanne[4] was pregnant with your first child Nella[5]. Nella was born in December 2006, so I conclude that the offending occurred before that date.
(a) Charge 1: Between October 2006 and December 2006, you asked Lucy to massage you on your bed while you were wearing only satin boxer shorts. As she was massaging you with ‘Four Seasons Massage Oil’ you asked her to massage higher up on your legs, then grabbed her hand and put it between your legs and on your genitals. Lucy pulled her hand away and got off the bed.
(b) Charge 3: Between October 2006 and December 2006, you took Lucy spotlighting with you in your ute at about 9 pm. Lucy sat on your lap in the driver’s seat so she could steer the ute while you operated other controls. As you were driving on a bumpy road, you ran your hand up her thigh, put your hand on top of her vagina over her clothes, and pulled her towards your groin area. You stopped after Lucy steered the ute off the road, requiring you to apply the hand brake.
(c) Charge 4: Between December 2006 and January 2007, you, your baby Nella and Lucy were sleeping on your bed while your wife, was out milking. Lucy woke up to find you lying beside her in a spooning position and then heard you get up and open the ‘Four Seasons Massage Oil’. You moved your hand under Lucy’s underwear and inserted your finger into her vagina. Lucy pulled away from you so you removed your finger and lay back down on the other side of the bed.
(d) Charge 5: On the morning of 14 April 2010, Lucy was sleeping in her parent's bed while they were away. She was wearing only her underpants. You got into the bed with her completely naked and moved into a spooning position behind her. You wrapped your arm over her torso so she could feel your naked body pressed against her and you moved your hand from her stomach to her breast. She yelled at you to get off her and you told her to go back to sleep, while still holding her breast. She was crying and pushed you away. You left after apologising and telling her not to tell anyone.
[4] A pseudonym.
[5] A pseudonym.
Ms James had told friends about your offending from an early time. However, on the same morning after your last offending (charge 5), she told her cousin Rose[6]. Ms Rose Williams made notes of what she was told and kept a USB stick storing her notes. The matter of your offending was raised at a family meeting a few days later but was shut down for fear you would take your wife and baby daughter and move away from the area. Rose Williams gave evidence that she was told to destroy the notes and to never talk about the matter. Lucy, in order to have access to her niece, was required to apologise to you. Although you did not initiate the request for the apology, it was made to you and you accepted it.
[6] A pseudonym.
I received victim impact statements from a number of members of the James family, which speak of their anger, hurt, and torment caused by your actions and the impact that this has had on the whole family, including your children. They speak of their guilt for not protecting Lucy from you and the trauma and stress caused by your betrayal.
Lucy James read her victim impact statement in court. She spoke of how you have stolen her childhood and ‘broken’ her. She lives with the pain of what you did to her and the impact it has had on her and her family. Ms James states that she has lost so much because of your actions and the betrayal from you as a person that she loved. It is devastating to hear from a young woman whose life should be ahead of her, that she has repeatedly attempted suicide, feels that you have ‘destroyed’ her and that she has endured a sense of hopelessness throughout her childhood days when the offending occurred.
The victim impact statements of Lucy James and Rose Williams stand out for their descriptions of the ongoing ramifications on their perception of trust, the breakdown of the family relationships, and in respect to Lucy, her feelings of self-worthlessness.
Objective Gravity and Moral Culpability
I turn now to consider the objective gravity and your moral culpability for your offending.
The objective gravity of your offending is obvious.
It was submitted that I should assess the objective seriousness of the penetration charge as relatively low – that is, it was a digital, momentary penetration. However, I must also take into account the fact that you penetrated the vagina of a 10-year-old child. You did so as she lay sleeping on the bed with your newborn baby daughter. You gave some thought to your actions before the penetration because you reached for and applied massage oil to your finger. It was momentary only because Ms James pulled away.
I agree that there are many more serious instances of penetration that come before this court. However, as the Court of Appeal stated in McPherson[7] instances of penetration of young children will always be viewed seriously by the courts.
[7] McPherson v The Queen [2021] VSCA 53.
The touching which constitutes the instances of indecent act must be kept in perspective. Nevertheless, I conclude that while the first instance may have been opportunistic, I am satisfied that there was an element of contrivance by you on the second occasion when you asked Ms James if she wanted to drive the car and you sat her on your lap. On the final occasion in 2010, I can only conclude that you sought out Ms James who was asleep in her parent’s bed in a different house to which you lived in; at a time when her parents were away. This was a place where she was entitled to feel safe. There is evidence from the pretext call that you told your wife that you were out checking on the springers. I do not know whether this offending was planned or whether it was based on a spur-of-the-moment impulse. Whichever it was, you went out of your way to find Ms James in her home.
The criminal law prohibits sexual offending, and specifically sexual offending against children, with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity. There is and can be no question or issue about consent. The prohibition and maximum penalty for its contravention are intended to deter others who may consider engaging in sexual activity with a child.
The absolute prohibition on sexual activity with a child under the age of 16 presumes that sexual activity which occurs before the child reaches an age at which they can give meaningful consent causes harm, which is long-lasting and serious, and manifests itself in both physical and psychological forms. Therefore, the harm to your victim is presumed. In the case of Lucy James however, your harm has been actual, significant and enduring.
The law requires principles of deterrence, denunciation and just punishment to dominate the sentencing consideration. In your case, as you are sentenced as a serious sexual offender, the protection of the community becomes the dominant sentencing consideration in relation to the charges to which it applies.
The Crown does not seek, and I shall not impose, a disproportionate sentence.
I must also consider these principles in light of your moral culpability.
Your moral culpability for your offending is high.
(a) You repeatedly targeted your victim in late 2006 / early 2007.
(b) Your target was a 10 year old child in those instances. The tender age of the child needs no further amplification.
(c) Apart from the clear illegality of your actions, it was or ought to have been apparent to you that your contact was entirely unwelcome.
(d) There was a significant breach of her trust. It is apparent from her evidence that you were a person she had otherwise loved and respected and considered you as a brother.
(e) For the fact that you repeatedly targeted the victim in 2006 and 2007, and then went back to her in 2010, your offending was without remorse. I assess that you still have not demonstrated any remorse.
Your offending must be met by principles of general deterrence, specific deterrence, denunciation and, as I have already noted, protection of the community becomes of primary importance.
Personal circumstances
I turn now to a consideration of your personal circumstances.
You were born in 1984 and are now 37 years old.
You are the eldest child of the relationship between your parents. You have a younger sister and three older half-siblings. All of your three older siblings have significant issues with literacy.
Your mother worked in an abattoir and sales, and now suffers from blood cancer. Your father worked as a truck driver. You reported that your early childhood was unremarkable and that you were not exposed to family violence or sexual or emotional abuse. You were however exposed to your father’s alcohol and substance abuse and his philandering.
You left school during Year 11 to pursue full-time employment. Whilst you suffered from learning difficulties, these were not formally assessed.
You commenced dating Susanne James in Year 11 and later married. There are three children of that relationship. The relationship broke down and you have no contact with your children and have not had since February 2019. You met and married Belinda Bates[8] in February 2018. Ms Bates has a child from a previous relationship. I accept that you play a significant role in that child’s life. Your wife attended every day of the trial to support you.
[8] A pseudonym.
Upon leaving school, you were employed full-time as a service station attendant for approximately 2 years. You have been employed in other manual industries, including factory processing, and as a tyre fitter and in concreting. You have also worked as an interstate truck driver for around 8 years until November 2018. Since then, you have been financially reliant on your wife and Centrelink payments.
You began consuming alcohol in your early teens and commenced binge drinking on weekends from age 18 until you began work as a truck driver in 2013. You have been abstinent from alcohol since February 2018.
You have no history of illicit substance abuse or use.
You have been struggling with episodes of ‘body freezing’ over the last 15 years which occur about twice a year. When your body freezes, you are unresponsive and have no memory of the events. Since then, you have also experienced migraines and issues with focus and memory about once a week.
Although you do not yet have a medical diagnosis, you reported a history of a head injury causing a brain lesion and frequent migraine-like headaches from 2002. Your migraines result in almost total incapacity, photophobia, vision blurring, facial drooping, slurring of speech, memory loss, and nausea/vomiting. You have been hospitalised on multiple occasions due to these migraines, most recently in February 2020. You manage these symptoms through the use of a nasal spray combined with analgesics.
You have had short psychiatric admissions prior to and in the context of your marriage breakdown in 2002 and 2017. After your admission in 2017, you were diagnosed with an adjustment disorder and you were prescribed escitalopram (antidepressant). You were prescribed mirtazapine before March 2019, which was changed to Lexapro and Endep after moving to Geelong. You take sumatriptan nasal spray as required. You have reported having suicidal thoughts in the past. You are not currently engaged in any mental health treatment.
Dr Khalid Psychiatric Reports
In his report dated 19 February 2020, Dr Abdul Khalid diagnosed you with an adjustment disorder with mixed anxiety and depressed mood. He stated that your ‘body freezing’ episodes appeared to be neurological in nature, but the cause had not been diagnosed.
In his report dated 2 April 2020, Dr Khalid further states that your adjustment disorder is mild and temporary. He opined that both your adjustment disorder and your mixed anxiety and depressed mood should go into full remission within 3 to 6 months of the report. He did not consider that any further psychological or psychiatric treatment would be required.
I did not receive any further updated mental health or medical material beyond this and the referral from Barwon Health to Dr Ebrahimkutty dated 5 May 2020. That referral is related to your neurological issue. I was told on the plea that it has not been further investigated because you were unable to afford a private neurological review. Accordingly, your diagnosis for this condition, which remains extant, is uncertain.
Character References
I received and read the character references provided. These references detail the love you have for your family, your friends, and your community. A number of the references detail how you have taken on the role of a committed father figure to your wife’s son.
Sentencing Submissions
Ms Strugnell, who appeared on your behalf, submitted that the following factors should operate to mitigate your sentence:
(a) Delay – The matter was committed to trial on 25 March 2019. The first trial was declared a mistrial due to no fault of yours. The trial was subsequently re-listed three times but was vacated during COVID-19 restrictions.
(b) Ms Strugnell referred to your prior criminal history (one prior matter of shop theft). As I have said, I am not taking that into account.
(c) Ms Strugnell referred to the fact that you were on bail on this matter from 10 March 2019, with no alleged breaches of bail conditions.
(d) I will take it into account the effect of COVID-19 on prison conditions.
Ms Strugnell accepted that the principal sentencing considerations applicable are punishment, general deterrence, denunciation and community protection. To that end, Ms Strugnell conceded that the only available sentence is a term of imprisonment.
Ms Strugnell submitted from the outset that sexual offences against children are of their nature inherently extremely serious. Ms Strugnell submitted I should view Charge 4 as sitting in the low/middle range of seriousness as it comprised a digital penetration of short duration, but was aggravated by the victim’s age. Ms Strugnell submitted that Charge 1 comprised fleeting contact but was aggravated by your entreaties not to tell anyone. Charge 3 was more serious because you touched the complainant’s vaginal area over her clothing. Charge 5 occurred when the victim was 14 years old and comprised touching her body and breasts when she was in bed asleep and nearly naked.
Ms Strugnell acknowledged the overall aggravating features of your conduct – you were in a position of authority, you resided in close proximity to the victim, and the victim was disbelieved because of the family esteem for you and desire to avoid family scandal. Finally, in this respect, the victim was forced to apologise to you; although as I have noted, it was not you who initiated the apology but your then-wife Susanne.
I do take into consideration that your time in custody has been affected by the COVID-19 lockdowns. The immediate effect of any lockdown is a reduction and suspension of vocational and personal improvement courses, restriction on your ability to move around the prison, a severe reduction in work available and a suspension of all visits.
The other more insidious effect of the pandemic and lockdowns is the stress caused to you and the isolation - that is the fear that the pandemic would penetrate into the prison system, and so isolation has been used by prison authorities as a strategy to limit close contact.
I shall take this into account as a mitigating factor in the sentencing process.
Ms Strugnell also provided me with a number of comparable cases. I have considered those cases, and I have also read and referred to the Court of Appeal decision of McPherson. McPherson is useful in that it touches on a number of the principles related to child sex offending. Nevertheless, the charged offending was different to here and involved consideration of the standard sentencing provisions. In the end, I must not be overly influenced by the sentences imposed on other cases. I must give full consideration to the objective circumstances of this offending and, to the limited extent I may, to your personal circumstances.
Mr Sharpley for the Crown relied principally on the outcome of the trial as speaking for itself. He submitted that serious sexual offender provisions applied and required cumulation on Charges 4 and 5.
I can only assess your prospects of rehabilitation with caution. You have a good, continuous work history and after divorce from Susanne, you have built a new life with Belinda and her son. These are prosocial aspects which support your prospects for your rehabilitation. This is balanced, however. by the lack of remorse and absence of insight into your behaviour. There was evidence in the trial that you blamed things on ‘your head’ and other factors. It seems that there is some serious work needs to be undertaken if you are to truly rehabilitate.
Sentence & Orders
The sentences I impose are as follows
| No | Charge | Max Penalty | Sentence | Cumulation |
| 1 | Indecent act with a child under 16 | 10 years | 12 months | 6 months |
| 3 | Indecent act with a child under 16 | 10 years | 14 months | 6 months |
| 4 | Sexual penetration of a child under 16 | 15 years | 54 months | Base |
| 5 | Indecent act with a child under 16 | 10 years | 15 months | 6 months |
The total effective sentence is 72 months’ imprisonment. I order that you serve a non-parole period of 48 months before you are eligible for parole. I declare the period of 86 days' pre-sentence detention reckoned as already served
After your conviction and sentence of imprisonment on Charges 1 and 4, you are to be sentenced as a serious sexual offender pursuant to Part 2 of the Sentencing Act 1991. I cause this fact to be noted on the records of the court.
You are subject to mandatory reporting pursuant to s 34 of the Sex Offenders Registration Act 2004 for a period of a life.
HIS HONOUR: Mr Sharpley is there any other matters?
MR SHARPLEY: No other matters Your Honour.
HIS HONOUR: Thank you. Ms Strugnell anything you need to raise?
MS STRUGNELL: No, Your Honour, thank you.
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