Director of Public Prosecutions v Batty (a pseudonym)
[2021] VCC 1152
•13 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DANIEL BATTY (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 July 2021 | |
DATE OF SENTENCE: | 13 August 2021 | |
CASE MAY BE CITED AS: | DPP v Batty (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1152 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Indecent act with a child under 16 – sexual penetration of a child under 16 – offending against nieces – no criminal history – gross breach of trust
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited:Worboyes v. The Queen [2021] VSCA 169
Sentence: Total effective sentence of four years and ten months’ imprisonment, non-parole period of two years and ten months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Shaw (plea and sentence) | Office of Public Prosecutions Victoria |
| For the Offender | Mr C. Pearson (plea and sentence) | Victoria Legal Aid |
HER HONOUR:
1Daniel Batty[1], you have pleaded guilty to three charges of committing an indecent act with a child under the age of 16 (Charges 1, 2 and 4) and one charge of sexual penetration of a child under 16 (Charge 3). That third charge is a ‘rolled up’ charge comprising two instances of sexual penetration on separate occasions.
[1]A pseudonym has been used to prevent identification of the victims
2The offending that gives rise to these charges occurred between 1 January 2007 and 26 December 2010.
3The victims of your offending were two nieces of your then wife. The first victim was born in August 2000 and was between seven and nine years of age at the time of your offending. The second victim was her sister who was born in August 2002. She was between five and seven years of age at the time of your offending against her.
4Both victims lived with their mother who is the sister of your former wife. As they were growing up, the victims would regularly visit you and their aunt at your home for family gatherings. They would also visit your home at times their mother was at work or away from home.
5You were born in August 1956. At the time of your offending you were between 50 and 54 years of age. You have no prior criminal history.
Circumstances of offending
6The circumstances of your offending are set out in the amended summary of the prosecution opening dated 26 July 2021. A summary of your offending is as follows.
Offending against the first victim
7At times when the first victim visited your house, she would use the computer room to study. You used to call her to the room and get her to sit on your lap.
8On one occasion, she was sitting at the computer desk on your lap when you put your hand down her skirt and rubbed your fingers along her vagina over the top of and underneath her underpants. This occurred between 1 January 2007 and 24 August 2009 when the victim was seven or eight years old. This gives rise to the first charge, being an act of indecent act with a child under 16.
9On a later occasion, between 1 January 2008 and 26 December 2010, there was a family gathering at the victim’s home, which you attended.
10The victim had gone to bed and was in a double bed with her sister. She was wearing elastic-waisted pyjama pants, and no underwear.
11You entered the bedroom while both girls were still awake. You asked them to choose some Tattslotto numbers for you. While they were choosing numbers, you knelt down beside the bed. You put your hand under the bed cover, down the front of the victim’s pyjama pants and began to rub the outside of her vagina. You continued to do this for about five minutes, until the Tattslotto numbers were picked. You then said 'goodnight' and left the room. The victim was eight or nine years old at the time. This gives rise to the second charge, indecent act with a child under 16.
12You and the victim were later eating lunch in a local park, when you told the victim that what had happened was 'our little secret'.
Offending against the second victim
13On an occasion between 1 January 2008 and 26 December 2009, the second victim attended your house for a family gathering.
14At that time, there was a shed adjoining the house in which you stored cars that you were working on. You kept a selection of car-related magazines near a bench in the shed. There was a stool to sit on at the bench.
15You told the victim and her mother that you were taking her out to the shed to look at the cars and magazines. You then took the victim out to the shed. You closed the door, sat on the stool, and sat her on your lap. She was wearing leggings and underwear at the time.
16While she was looking at the magazines, you fondled the victim’s buttocks over the top of her clothing, squeezing and pinching her buttocks. You then placed your hand under her underwear and inserted a finger into her vagina. The sexual penetration consisted of the introduction of your finger into the victim’s vagina 'to a relatively minor extent'[2]. The victim was five or six years old at the time.
[2]Amended Prosecution plea opening dated 26 July 2021, paragraph [17]
17On a later occasion, one Boxing Day, the victim was again at a family gathering at your house. You told her you were taking her to the shed to show her a car you were working on. You took her to the shed and closed the door.
18You sat on the stool and sat the victim on your lap. You showed her some magazines and while doing so fondled her buttocks. You then put your hand into her underwear and inserted at least one finger into her vagina. The sexual penetration consisted of the introduction of at least one of your fingers into the victim’s vagina 'to a relatively minor extent'[3]. The victim was six or seven years old at the time. These two instances of sexual penetration constitute Charge 3, sexual penetration of a child under 16.
[3]Ibid, paragraph [19]
19Later that same summer, you were at Ulupna Island near Strathmerton swimming with the victim and the rest of the family. You asked her to travel home with you in your car. As you were leaving, you gave her lollies from a packet. After giving her lollies, you leaned over while driving and proceeded to rub the victim’s vagina with your fingers, over the top of her clothing. This gives rise to Charge 4, an indecent act with a child under 16.
Interview and arrest
20On 27 July 2016, the matter was formally reported to police and video recorded statements were obtained from the complainants on 3 August 2016. For reasons the prosecution cannot explain, you were not arrested until 2 March 2017. On that date, you participated in a ‘no comment’ record of interview, as is your right.
Gravity of offending and impact on the victims
21I turn now to make some comments about the nature and gravity of your offending.
22Sexual offending against children is inherently serious. The offence of sexual penetration of a child under 16, where the child was under 10 years of age[4], is especially serious as gauged by the maximum penalty of 25 years’ imprisonment set by Parliament. Whilst the charge of sexual penetration is subject to the single maximum penalty, it is necessary for the sentence to reflect the fact that this charge encompasses two distinct episodes of sexual penetration of a child under 16.
[4]See Crimes Act 1958, s45(2)(a), as amended by the Crimes (Amendment) Act 2000,s 5.
23As the uncle of the two victims, you were part of their extended family. For children, growing up and spending time with extended family is an opportunity to develop relationships with others, in a safe and trusting environment. Your offending was a gross breach of that trust. Both victims were very young, and you exploited their innocence and their trust in you, a much older adult.
24This was not an instance of isolated offending. There were five separate instances of offending involving the two young victims. It is an aggravating feature of the offending against the first victim that you sought to protect yourself from detection by telling her what happened was ‘our little secret’.
25The impact of your offending on the victims has been significant. In her victim impact statement, the first victim says that because she had no father or father figure in her childhood, she leant on you emotionally and trusted you. She says you exploited that trust. She now struggles to feel comfortable around older men. She suffered from depression for which she sought treatment. Despite this, her victim impact statement also reveals the strength of her bond with her sister, and her determination to move on in her life; now having successfully completed her Master’s degree.
26The second victim’s impact statement similarly attests to the wide-ranging impact of your offending, particularly on her relationships with others. She no longer feels safe around men. She has difficulty interacting with male co-workers. She says your offending distorted and confused her ability to manage even platonic relationships with men. The offending also impacted on other significant relationships in her life with her mother, her aunt and cousins. Her victim impact statement illustrates the manipulation often inherent in sexual offending against very young children. She says she long believed that because you were never nasty or yelled at her, that you would never harm her. She says she felt terrible about coming forward because you never appeared to be a ‘bad person’. She still struggles to trust people and experiences anxiety.
27The sisters were placed subsequently in the care of their aunt and uncle due to their mother’s medical condition. In their victim impact statements, the carers also reflect on how the offending has impacted on their ability to care for, and to demonstrate affection towards the victims who remain anxious and hesitant about physical contact, particularly with males. Their statements attest to the long-term impact on all members of the family that, in the words of their carer, 'continue to evolve' from your offending. Your offending has had ramifications for the broader family; tensions effectively splitting the family in two.
28These summaries of the victim impact statements do not do them full justice. I have had regard to the entirety of the statements which I have read. Clearly, your offending has caused the victims and the rest of the family immense pain.
Personal circumstances
29I turn now to your personal circumstances and history.
30You are now 64 years old. You were born in the United Kingdom and emigrated to Australia with your family at around the age of 11. You are the eldest of five children. You have one sister and three brothers, all of whom reside in Victoria. You enjoyed a reasonably happy childhood and maintain a positive relationship with your parents and siblings. Both of your parents worked, and you performed quite well at school, completing Year 11.
31In your adult life you have had some financial difficulties relating to businesses that you owned, but otherwise have had a strong work ethic and have been continuously employed, initially in cabinetmaking and carpentry, then as a self-employed plasterer for over 25 years. You continue to work in this capacity.
32You have had one long-term intimate relationship, with your wife of 40 years. Together you had five children, who are now all adults. Once this offending came to light, difficulties in your marriage resulted in you separating in 2011, but you remain close to your former wife.
33You also have seven grandchildren, with whom you have ongoing contact.
34You are generally in good health and do not have a history of problematic alcohol or drug use.
35You continue to have strong family support. In references provided on the plea, your son and your daughter speak of your many years of hard work, supporting the family financially and emotionally throughout their lives. Both state that you are deeply remorseful and ashamed of your actions which they view as being out of character. Knowing the detail of the allegations, they and another family member, who provided a separate character reference, all say they trust you with the grandchildren.
36You were assessed for the purposes of the plea by Dr Dion Gee, forensic psychologist on 21 May 2021. Dr Gee confirmed that you have no significant mental health issues. In Dr Gee’s opinion you do not meet the diagnostic criteria for a paedophilic disorder. Dr Gee notes that your offending was historical and constitutes your first and only period of aberrant sexual behaviour. Having undertaken a comprehensive risk assessment, Dr Gee is of the opinion that you are a low risk of sexual reoffending.
37I now turn to other matters that are relevant in mitigation of your sentence.
Guilty plea and remorse
38Although not an early plea, you entered a guilty plea to the charges prior to the special hearing in April 2021. As a result of your plea, you spared the victims from having to give evidence at the special hearing. This is a particularly significant matter in a case such as this. In doing so you saved the victims the emotional stress and trauma that would undoubtedly have been associated with them having to recount these events. Your plea also saved the community the cost and time associated with a trial and has heightened utilitarian value given the current delay in trials in the wake of the coronavirus pandemic. As the decision of the Court of Appeal in Worboyes[5] makes clear, a plea in these times will carry significant weight in mitigation.
[5]Worboyes v The Queen [2021] VSCA 169 at [39]
39At the commencement of your plea, your counsel, Mr Pearson, proffered an apology to the victims on your behalf. He said you accept full responsibility for your actions and acknowledge the harm caused by your conduct. You also reflected on the wrong you have done and the hurt you have caused the victims and their family in your assessment with Dr Gee. I accept that your guilty plea is accompanied by remorse for your offending conduct.
40As stated you have no prior or subsequent convictions. You are a person of otherwise good character, save for this offending, you have been a law-abiding, hard-working member of the community and this must be taken into account in mitigation.
Delay
41There has also been considerable delay in this matter through no fault of yours. The prosecution concede the delay is a relevant matter in mitigation. As stated, there is no explanation for the delay of seven months between these matters being reported to police in July 2016 and the date of your arrest and interview in March 2017. Following the committal hearing in June 2018, your trial was not reached on two separate occasions in 2019 and was then unable to proceed on the proposed date in 2020 due to the impact of COVID-19.
42The matter resolved to a plea to agreed charges on 19 April 2021; close to five years after the matter was first reported to police. This extensive delay has meant these serious allegations have been hanging over your head, leaving you in a state of uncertainty for that period of time. I acknowledge that the delay in finalising these matters has undoubtedly been difficult for the victims as well. Where, as here, the delay is occasioned through no fault of an accused, it operates to moderate the sentence that I impose.
43Mr Pearson, appearing on your behalf, argued that you should also receive some benefit for the time from when you were first confronted by these allegations by the first victim in 2011 (in the presence of her mother and your wife) and 2016 when you were contacted by police. You apologised when confronted in 2011. In March 2011, a report was made to the Department of Health and Human Services by the victim’s school and the matter was referred to police. However, in May 2011, police notes reveal that no further action was to be taken and that the matter was being addressed within the family. I do not accept the submission of your counsel that it was inevitable you would be charged from that point. In contrast to the delay after 2016, I do not consider the period prior to that date to be particularly mitigating.
44The actual instances of offending were of relatively short duration. However, this was not one-off or opportunistic offending. You had ample opportunity to reflect on the wrongfulness of your conduct and stop. Your culpability increased with each successive occasion of offending and I regard your moral culpability as high. I find that your offending was in the mid-range of seriousness for offending of this type.
45Denunciation, just punishment and general deterrence are each significant sentencing considerations in this case. In sentencing you, my sentence must operate to deter others who may be minded to sexually offend against children and to unequivocally denounce such serious offending. The objective seriousness of your offending warrants an immediate sentence of imprisonment.
46Pursuant to s6B(2)(a) of the Sentencing Act 1991 you fall to be sentenced as a 'serious sexual offender' on Charges 3 and 4. Section 6D of the Act requires that the protection of the community be the principal sentencing purpose for these offences. In order to achieve this purpose, I have the power to impose a sentence greater than that which is proportionate to your offences. I note that the prosecution does not seek a disproportionate sentence. In the circumstances of this case and notably the low risk of future offending, I agree with that submission.
47The serious offender provisions also dictate that any terms of imprisonment imposed in respect of Charges 3 and 4 must be served cumulatively unless otherwise directed by the court. Whilst I must still have regard to the sentencing principles of totality, in doing so I have had regard to this provision. Your counsel accepts that some degree of cumulation is warranted.
48I have been assisted by the table of comparable cases provided by your legal representatives and have taken into account, to the extent I am able, current sentencing practices as one of the factors to which I must have regard in sentencing you.
Sentence
49Balancing all the factors to which I have had regard, and guided by the maximum penalty for the offences, I now sentence you as follows:
50On Charge 1, you are convicted and sentenced to nine months’ imprisonment.
51On Charge 2, you are convicted and sentenced to 14 months’ imprisonment.
52On Charge 3, you are convicted and sentenced to four years’ imprisonment. This is the base sentence.
53On Charge 4, you are convicted and sentenced to 12 months’ imprisonment.
54You are sentenced as a serious sexual offender on Charges 3 and 4.
55I order that two months of the sentence imposed on Charge 1 and four months of the sentence imposed on Charge 2 and four months of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 3 and upon each other.
56This gives a total effective sentence of four years and 10 months’ imprisonment. I fix a non-parole period of two years and 10 months’ imprisonment before you become eligible for parole.
57Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to these offences, but been found guilty following a trial, the sentence I would have imposed would have been a total effective sentence of five years and 10 months’ imprisonment, with a non-parole period of four years.
58Upon being sentenced for one Class 1 offence (Charge 3) and three Class 2 offences (Charges 1, 2, and 4) you become a registrable offender under the Sex Offenders Registration Act 2004 and you must comply with reporting obligations pursuant to Part 3 of that Act for life. You must remain in court to sign the relevant paperwork. Have a seat, please.
59Mr Pearson, are there any custody management matters you wish me to note or any medication that should be recorded?
60MR PEARSON: There's no medication that I'm aware of, Your Honour, and I don't think there's any custody management issues beyond making the obvious comment that I do that this is his first time in custody.
61HER HONOUR: First time in custody. Yes, thank you, that will be recorded. I will just ask that the Sex Offender Registration papers be provided, thank you. If you could take that to Mr Batty, thank you.
62MR PEARSON: I'll accompany Your Honour's associate.
63HER HONOUR: Thank you, certainly.
64MR PEARSON: Yes, thank you, Your Honour. Mr Batty has signed that document acknowledging that he's been given a copy of the document.
65HER HONOUR: Yes, certainly. There are no other matters?
66MR SHAW: No, Your Honour.
67MR PEARSON: No, Your Honour.
68HER HONOUR: Adjourn the court, thank you.
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