Director of Public Prosecutions v Bayleridge (a pseudonym)
[2023] VCC 197
•17 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BLAKE BAYLERIDGE (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 February 2023 |
DATE OF SENTENCE: | 17 February 2023 |
CASE MAY BE CITED AS: | DPP v Bayleridge (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 197 |
REASONS FOR SENTENCE
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Subject: CRIMINAL - Sentence
Catchwords: Sexual penetration of a child under 16 years
Legislation Cited: Criminal Procedure Act 2009; s145; Sentencing Act 1991; s5(2), s5B(3)(b)
Cases Cited:R v Verdins (2007) 16 VR 269; Brown v The Queen [2019] VSCA 286
Sentence:Convicted and sentenced to three years’ and six months’ imprisonment with a non-parole period of two years’ and two months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. McKenry | Director of Public Prosecutions |
For the Accused | Mr S. Kenny | Tyler, Tipping & Woods |
HIS HONOUR:
1Blake Bayleridge[1], on 30 November 2022, at the Latrobe Valley County Court you were found guilty of one charge of sexual penetration of a child under 16 years by a jury of 12 of your peers. The trial was conducted over a period of five days. You were acquitted by the same jury of four other charges involving the same complainant in respect of the allegations of the same offending as your single conviction by the jury.
[1] A pseudonym name.
The circumstances of your offending
2The offence occurred on 5 November 2021. At the time of the offending you were 26 years old. Your victim, Ashley Knetes[2], was 15 years and six months of age at the time of the offence. There was a 10-year age gap between the two of you.
[2] A pseudonym name.
3The offence on 5 November 2021 was Charge 2 on the indictment that had a total of five charges on it. You gave evidence in this case and the issue in this case was twofold:
(a) in respect of Charge 2 the only issue was your belief as to the age of Ashley Knetes at the time you had sexual intercourse with her at the Mid Valley Motel on 5 November 2021; and
(b) in respect of Charges 1, 3, 4 and 5 on the indictment the issue was that no sexual penetration occurred on those four occasions.
4Clearly the jury were not satisfied that any sexual penetration took place between yourself and Ashley Knetes on those four occasions, because they acquitted you, hence the four verdicts of not guilty. The only evidence in support of those four charges was given by Ashley Knetes.
5In the trial you admitted sexual penetration of Ashley Knetes on the one occasion but ran, for want of a better way of describing it, the defence you believed that she was over 16 years of age. The jury convicted you of that single charge.
6I make the following findings of fact in relation to that charge on the requisite standard, which is beyond reasonable doubt:
(a)You met Ashley Knetes for the first time on the day of the offending;
(b)Separately both of you had attended at a house in Morwell to buy and use methylamphetamine;
(c)You, Ashley Knetes and others remained at the house for some hours using drugs at that house;
(d)Ashley Knetes told you that she had nowhere to stay for the night and you offered her the opportunity to stay with you at the Mid Valley Motel in Morwell;
(e)You paid for and organised the room at the Mid Valley Motel, and that is Exhibit “D”;
(f)You and Ashley Knetes spent the evening and most of the next day at the motel;
(g)You had penile-vaginal sexual intercourse with Ashley Knetes;
(h)On Ashley Knetes’ phone was a video recording of your sexual activity with her;
(i)At the time of the sexual penetration you did not reasonably believe Ashley Knetes was 16 years or over, you just did not turn your mind to it;
(j)I do not accept either your evidence or Ashley Knetes’ evidence that there was any discussion about Ashley Knetes’ age at any time on the occasions in question;
(k)There was no violence or force used by you during the period you were at the motel with Ashley Knetes; and
(l)Both you and Ashley Knetes were under the influence of methylamphetamine whilst you are at the Mid Valley Motel.
7I make each of these findings on the standard of, as I said, beyond reasonable doubt. You were acquitted of Charges 1, 3, 4 and 5 by the jury. Clearly the jury did not accept Ashley Knetes as a witness of truth.
8At the time of the offending you were on bail. There was a related summary charge filed, which was Charge 14, and has been transferred to this court pursuant to s145 of the Criminal Procedure Act. You have pleaded guilty to that charge; it has a maximum penalty of three months' imprisonment.
Victim impact statement
9Ashley Knetes filed a victim impact statement dated 31 January 2023. It was Exhibit “B”. Ms Knetes states that since your offence she suffers post-traumatic stress disorder and does not trust older men. She has trouble leaving the house and complains that she is unable to get a job because she is in fear all the time. Ms Knetes says she has no friends and no one to talk to. Ms Knetes states she wants to be happy again.
Personal circumstances
10At the time of the offence you were 26 years of age. You have been in custody on remand for this offence since 13 January 2022. You were raised by your mother and a man you now refer to as your stepfather. This stepfather had a close relationship with you until his death in 2013. You have a twin brother and two younger half-sisters. You have little contact with your siblings.
11You enjoy the ongoing support of your mother and a second stepfather, who now lives at Mount Taylor[3]. You have spent most of your life living in Bairnsdale[4]. You remained at school until the age of 15 years. You suffer from dyslexia and are functionally illiterate. You spent the last two years of education, as I understood it, in a disability education centre.
[3] A pseudonym name.
[4] A pseudonym name.
12Your biological father returned to live with your mother when you were approximately 10 years of age. You told Ms Cokorilo, who examined you for the purposes of this plea hearing, that your own father injected you with heroin when you were 12 years of age. This same father began a sexual relationship with your fiancée when you were around 18 years of age.
13You have had paid employment most of the time since you had left school until, in 2019, you were injured at work and thereafter in receipt of worker's compensation payments.
14In February 2021 you witnessed the murder of a friend's brother. You were a witness in the prosecution case against the alleged murderer. It was after this experience that your drug use spiralled out of control and continued up until the time of your arrest and remand for this offence.
15You have had three main relationships. The first relationship finished when you discovered your father having sex with your then fiancée. You have an eight-year-old daughter. Your second relationship was of short duration. You have a four-year-old daughter from that relationship who lives in the United States. You have limited contact with that child. Your third relationship was for a short period in 2019. That relationship finished when your partner, who had been a friend of yours for some 14 years, accused you of raping her. You were acquitted of all of those charges at trial in the Latrobe Valley last November.
16You have been diagnosed with post-traumatic stress disorder arising from Black Saturday's bushfires when you were a 13-year-old boy. You have reported two episodes of involuntary psychiatric admissions in the past. There was no documentation that I was shown about those.
17You have used and abused the following drugs: heroin, ecstasy, methylamphetamine, cocaine, amphetamines and cannabis. Ms Cokorilo assesses you as a moderate risk of general reoffending and a low risk of sexual recidivism, or sexual reoffending. You have had a difficult time in prison. You have been in protection for most of the time.
Sentencing considerations
18The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
19I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community and seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
20I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences. When I am speaking about current sentencing practices it is limited to standard sentencing matters, as this one is one of them.
21You have no prior convictions for sexual offending. You do have court appearances for contravening family violence intervention orders and a fine disposition for using a carriage service to harass your former domestic partner.
22I note here that you did offer to plead guilty to this charge, Charge 2, immediately prior to the trial on the basis that the prosecution did not proceed with the other four charges on the indictment. The jury verdict vindicated your approach at that time. Nevertheless you conducted the defence of Charge 2 on the basis of your belief in the age of Ashley Knetes. I have assessed that this gives you some grounds for what I would describe as a measure of remorse, although you continue to maintain your innocence of the charge in the face of the jury verdict.
23The maximum sentence for this charge on the indictment is 15 years' imprisonment. This charge is also subject to the standard sentencing provisions. The standard sentence for this offence is six years' imprisonment. The standard sentence only takes account of the objective factors affecting the relative seriousness of the offence of sexual penetration of a child under 16. The maximum sentence and the standard sentence are to be taken into account as guideposts in the sentencing process.
24In s5B(3)(b) the Parliament enacted the standard sentence provisions, in doing so, that is not to affect the approach to sentencing known as the instinctive sentencing synthesis. Champion J in the case of R v Brown set out that the standard sentence is not to take a predominant role in sentencing and is just one of the factors for the court to take into account.
25It follows that the standard does not assume a dominant role in the determination of the sentence in this charge. The standard sentence prescribed by Parliament for the offence is simply one of the relevant factors to which a court must have regard along with other sentencing factors identified which are required to be taken into account in s5(2) of the Sentencing Act. Further, so far as consideration of the current sentencing practices are concerned, sub-s(2)(b) requires a court when considering current sentencing practices for a standard sentence to only consider the sentences previously imposed where the relevant offence was subject to that standard sentencing scheme.
26You were found guilty of this one charge after conducting a trial in respect of the total of five charges. The defence to the charge before the court now was that you had admitted the sexual penetration with Ashley Knetes had taken place, but at the relevant time you believed Ashley Knetes was over the age of 16 years. The jury by its verdict rejected that defence. You were acquitted by the jury of the other four charges on the same indictment. You are entitled to the full benefit of those acquittal verdicts in the sentencing process.
27The gravity of your offending is indicated by the following factors:
(1)The age difference between yourself and Ashley Knetes, you were 26 years of age and she was 15 and a half years old;
(2)Ashley Knetes was a vulnerable person, she was in care, who had told you that she had nowhere to stay on the night of your offence. It is not clear on the evidence whether or not you knew she was in care;
(3)You were unknown to one another until you met that day whilst buying and using methylamphetamine;
(4)You never made any attempt to ascertain if Ashley Knetes was over 16 years of age;
(5)You were intent on taking advantage of the situation presented to you by Ashley Knetes;
(6)There was no force or physical coercion exercised by you at any time. The film of your sexual activity with Ashley Knetes was on her phone, not yours;
(7)You were on bail for charges that you were ultimately acquitted by a jury.
28I assess your offending at the lower end for this offence.
29I take into account your personal circumstances and history as set out in these reasons when finalising your sentence. You have a diagnosis of post-traumatic stress disorder (“PTSD”) made in 2009 as a result of your experience in the Black Saturday bushfires. The PTSD condition was further exacerbated when you witnessed the murder of your friend's brother in 2019.
30You also have a diagnosis of dyslexia, borderline personality disorder and adjustment disorder as outlined in Ms Cokorilo's report, which is Exhibit 2.
31Your full-scale IQ could not be assessed by Ms Cokorilo in her report, but verbal comprehension and working memory placed you in the borderline range for those two tests in the seven tests that are required under a full IQ assessment.
32I assess your prospects of rehabilitation as guarded. You have the ongoing support of your mother and stepfather, who lives in Mount Taylor. Up to 2019 you had a good work history despite a generalised drug abuse problem. The drug problem became more pronounced and acted upon after you witnessed a murder and were accused of rape by your former partner in 2020. You were acquitted of all those charges in the trial held in the Latrobe Valley.
33Your prospects of rehabilitation would be enhanced if you had psychological and drug addiction treatment whilst in custody. Your counsel properly conceded that Verdins principles were not relevant to an assessment of your moral culpability; however, I accept that limbs 5 and 6 of Verdins principles are applicable to your case based on the evidence from Ms Cokorilo's report at paragraph 87. Your PTSD condition will make your time in custody more burdensome than a person of normal mental health.
34I also accept your upbringing with its family violence and forced drug use by your father has set you on a path where your moral culpability for this offending is to be moderated.
35The sentencing principles of general and specific deterrence, just punishment, protection of the community and your rehabilitation dictate that the only just sentence is a head sentence with a non-parole period that is fixed. I have regard to the standard sentence provisions when finalising your sentence.
36On Charge 2 you are convicted and sentenced to three years and six months' imprisonment. I fix a non-parole period of 26 months.
37My calculation for pre‑sentence detention is 400 days not including today. Is that correct?
38MR McKENRY: Agreed, Your Honour.
39HIS HONOUR: Thank you. In terms of the sexual offender register, you are placed on that for a period of 15 years. You will get some documentation about that now.
40MR McKENRY: Pardon me, Your Honour, did Your Honour receive the notice of related summary offence for the breach bail charge?
41HIS HONOUR: Thank you for the reminder. Thank you, Mr McKenry. On the related summary charge you are convicted and sentenced to one month imprisonment. This sentence is to be served with the sentence in Charge 2. That is it is concurrent.
42MR McKENRY: If Your Honour pleases.
43HIS HONOUR: Yes, thanks, Mr McKenry. It's a matter for you, Mr McKenry. I'm sure you've got to get going and do something somewhere else in Horsham. If you wish, you can be formally excused from anything further. The only thing that will happen here is the signing up of the SORA documentation.
44MR McKENRY: Judge Doyle arriving at 10.30, Your Honour, so I'll wait.
45HIS HONOUR: All right, thanks. Is everything clear there, Mr Kenny?
46MR KENNY: Yes, sir.
47HIS HONOUR: Thank you. You'll get a full copy of this sex offenders registration document. When you're released from custody you have to register with the police and you have to tell them everywhere you're going, registration of your car, where you live, all those sorts of things. It's all set out in this. If you breach, they bring you back here and I'll sentence you for it, all right? Yes.
48Mr Kenny, I'll just hand it down. If you'd just have a look at it and check that it's right. I've got that right, haven't I, 400 days? Yes.
49MR KENNY: Yes.
50MR KENNY: So that leaves 400, yes.
51HIS HONOUR: Yes, 400.
52MR KENNY: It would be 401 if you counted today, but you shouldn't do that.
53HIS HONOUR: Yes, sorry, it's 400 not counting today. Yes, thanks. Sorry about that, Mr Bayleridge, another sleep inside that means. Is that right? Get your client to sign it. My associate has to sign it and then I'll get copies of it so that Mr Bayleridge has a copy and you'll have a copy as well, Mr Kenny. Thanks, you can take a seat. Thanks.
54Sorry, my associate will send copies to the legal representatives. Thanks. Thanks, Mr Kenny and Mr McKenry. I want to thank you both for your assistance during (1) the trial and (2) this sentencing process, including the plea date. Thank you.
55MR KENNY: Thank you, Your Honour.
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