Director of Public Prosecutions v Becker (a pseudonym)
[2020] VCC 795
•5 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK BECKER (A PSEUDONYM) |
| JUDGE: | HIS HONOUR JUDGE WRAIGHT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 May 2020 |
| DATE OF SENTENCE: | 5 June 2020 |
| CASE MAY BE CITED AS: | DPP v Becker (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 795 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – One charge of sexual assault of a child under 16 – Standard sentence offence – Offender touched victim’s buttocks – Victim was a friend of the offender’s son – Victim attended the offender’s home and was under his care – Offending opportunistic and of short duration – Victim particularly vulnerable as suffers autism, anxiety and epilepsy – Extensive criminal history of sexual offending against children – Offender has complex physical and mental health issues – Circumstances surrounding COVID-19 pandemic taken into account – Offender sentenced as a serious sexual offender.
Legislation Cited: Crimes Act 1958; Crimes Amendment (Sexual Offences) Act 2016; Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited: DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148; Clarkson v The Queen (2011) 32 VR 361.
Sentence: Community Correction Order for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Roper | Office of Public Prosecutions |
| For the Offender | Ms E Clarke | James Dowsley & Associates |
HIS HONOUR:
Introduction
Patrick Becker[1], you have pleaded guilty to one charge of sexual assault of a child under the age of 16 contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, which carries a maximum penalty of 10 years imprisonment.
[1] A pseudonym
You have admitted your prior criminal history.
Circumstances of the offence
The prosecution opening was tendered on the plea and can be summarised as follows:
The victim in this case, Dana Ward[2], was born in 2002. At the time of the offending the victim was 15 years of age and you were 49 years of age. The victim had been diagnosed with autism, suffers from anxiety and is epileptic.
[2] A pseudonym
The victim had been friends with your son, Nathan Becker[3], since prep grade in school. You also have another son, David Becker[4]. Both of your sons suffer from autism and other ailments.
[3] A pseudonym
[4] A pseudonym
On 4 April 2018, the victim attended your home in Narre Warren for a play date with your son, Nathan.
At around lunch time, Nathan was in the kitchen cooking hot chips and the victim was lying with her head on a pillow at the end of the couch, watching a movie.
You came and lay behind her on the couch, with your arm around her waist. The victim's legs were touching your legs on the couch as you 'snuggled'. You started massaging the victim's back and then put your hand down the back of her underwear and rubbed the bare skin of her buttocks.
The victim stated that at the time of the offence your wife, Rita[5], was asleep in her chair, and your other son, David, was in the room playing Xbox.
[5] A pseudonym
The first person the victim told about the offence was her father, Peter Ward[6]. The victim and her father attended the Dandenong Police Station on 7 April 2018 to report the matter. Mr Ward provided Detective Senior Constable Hayley Mills with a pair of pink underwear which was unwashed and worn by the victim at the time of the offence.
[6] A pseudonym
Detective Mills conducted a Video Audio Recording of Evidence (VARE) with the victim on 12 April 2018 with an Independent Third Person present.
An analysis of the victim's underwear resulted in your DNA being located on the inside of the underwear.
On 19 April 2018, you were arrested and interviewed by police at your home due to your ill health. You stated that the victim was your son Nathan's girlfriend. You stated the victim was then 15 years of age and that she and Nathan had known each other since primary school. You stated that the victim was upset and gave you a cuddle on the couch because she had had a fight with Nathan. You stated that you put your hand only around her waist and that you were very careful where you put your hand. You denied any wrongdoing. You implied that the victim was in the wrong age bracket for you because she was too old by about five to six years.
Nature and gravity of the offending
Sexual offending against young people under the care of adults is very serious offending. The victims of such offending are vulnerable and reliant on adults to care for them whether that be as a parent or, as was the case here, where they are in another adult's home where he is the parent of a friend. Children are entitled to feel safe in circumstances such as those present here, where the victim was visiting your home. In this particular instance the victim was at your home simply to play with your son, who had been a friend of hers since prep grade at school. The victim was also particularly vulnerable as she suffered from anxiety, autism and epilepsy.
Further, it is well settled that the absolute prohibition on sexual activity with a child is founded on a presumption of harm. The significance of violence and harm which such conduct entails cannot be overstated.[7]
[7] DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148 at [47], referring to Clarkson v The Queen (2011) 32 VR 361 at [3].
The seriousness of the offending is also recognised by the maximum penalty imposed by Parliament. Sexual assault of a child under the age of 16 carries a maximum penalty of 10 years imprisonment.
However, in assessing the seriousness of the offence I also take into account that it was opportunistic and of short duration. The offending was limited to a touch on the buttocks and was not accompanied by any threats or force. In my view in the circumstances, while your offending does not represent the most serious example of an offence that may be captured by this charge it is still, in all the circumstances, by its nature serious offending.
Personal circumstances
You are 51 years of age and were 49 at the time of the offending.
You were born and raised in country Victoria. You have a younger brother, two younger paternal half-brothers and a step brother. Your mother died at age 24, when you were seven years of age. You recall that your family life from that point was dysfunctional which was contributed to by substance abuse, health concerns and exposure to domestic violence between your parents. You also recall that you were exposed to intimidation and emotional abuse from your father, whom you believe sexually abused other family and neighbours.
You state that your father would offer you up to friends of the family and that as a result you were sexually abused a number of times, specifically recalling an incident when you were aged 10 or 11.
You moved many times in your younger years, residing with your grandmother between the ages of 12 and 16. You were asked to leave school in Year 9 and completed Year 10 by correspondence while travelling through New South Wales with your grandmother.
When you were between the ages of 16 and 32 you moved between Victoria and New South Wales, working in various occupations including as a debt collector, as a cook and undertaking manual labouring. Your last full time work was more than 10 years ago.
You have been in two long term relationships, the first commencing when you were aged 30 with a younger woman, who was 16 at the time. Within six months of that relationship your partner was pregnant, subsequently giving birth to your daughter. That relationship broke down when you served a prison term in 2000. You maintain some contact with your daughter through social media.
Your second long term relationship was with your ex wife, whom you met via the internet some 17 years ago. You were married in 2003. You have two children from that relationship, both of whom suffer autism spectrum disorder. The relationship with your wife broke down over the past few years; particularly following your wife's confinement to a wheelchair as a result of multiple sclerosis. Since the relationship broke down you have had some contact with your son via the Department of Health and Human Services.
You have an extensive criminal history of sexual offending against children beginning when you were 16 years of age. You have received terms of imprisonment for sexual offending in 1987, 1993, 1995 and 2000 for offences including indecent assault of a child under 10 and procuring children for the purposes of producing child pornography, however you have not offended for some 18 years since the matter that was dealt with in 2000 and there has been no subsequent offending while you have been on bail for the past two years.
You continue to suffer a number of physical ailments and your general health has been declining over the past decade. You suffer from obesity and Type 2 diabetes, however due to some incapacity of your left arm linked to your diabetes you are unable to administer your own insulin. As such, a nurse attends your home on a weekly basis to inject your insulin. You also suffer from diabetic neuropathy. Your left leg was amputated below the knee in 2014. You are able to walk within your home however you otherwise use a mobility scooter outside the home.
Medical records from Peninsula Health were tendered that confirm your complex and extensive medical history, and which also referenced three hospital admissions this year. In May of this year you were hospitalised for two weeks after you became unconscious, which records suggest was linked to your diabetes and control of insulin.
A report was prepared by Dr Dion Gee, forensic psychologist, and tendered on the plea. The report provides a detailed history, including details of your physical ailments. Dr Gee also conducted a number of tests, including assessments as to risk of reoffending. I have read the report and taken its contents into account.
In the 'Summary and Opinion' section of the report Dr Gee makes the following observations:
You present with both acute and chronic symptoms of a mood disorder. Specifically you fulfil the criteria for recurrent depressive disorder with elevated levels of anxiety and with an enduring complex post-traumatic stress disorder;
You present with a Moderate Personality Disorder;
You currently do not meet the diagnostic criteria for a Paedophilic Disorder, however Dr Gee is also of the opinion that while you present with a desire to avoid sexually abhorrent behaviour you lack the skills to meet these issues in a meaningful way;
You lack insight into the needs of others and into your own mental health needs;
Your relapse into abhorrent sexual behaviour can be construed as an attempt at social connection, intimacy and sexual gratification in a man with compromised psychosocial connectedness; and
As to the risk of future sexual violence the concluded view based on testing is that you present a moderate-high risk of reoffending sexually in the future - meaning that you are more likely than the typical convicted sex offender to reoffend if not provided with appropriate intervention.
Dr Gee is also of the view that given your complex presentation, including mental and physical compromise, incarceration would weigh more heavily on you than that of a person in normal mental and physical health. Further, he notes that there is an increased likelihood of a further deterioration in your mental health following incarceration.
Relevant sentencing considerations
I take into account your plea of guilty, which was entered at the committal mention stage, and as such can be considered to be a plea at the earliest opportunity. Your plea has utilitarian value and most importantly, in a case of sexual offending against a child, has avoided the need for the victim to give evidence, therefore your plea in the circumstances has facilitated the course of justice.
Ms Clarke, who appeared on your behalf, submitted that based on the findings and the opinion of Dr Gee Verdins principles five and six are enlivened. Verdins principles are of course relevant only to impaired mental functioning and Dr Gee formed his opinion with reference to the combination of your physical and mental health conditions as being relevant to the impact imprisonment could have. Nonetheless, while there may be some debate about the formal application of Verdins I accept that given your complex physical health issues and your mental health concerns imprisonment will be more onerous for you, and that your mental health is at risk of further deterioration.
General deterrence is a prominent sentencing consideration together with denunciation of your conduct and protection of the community. Specific deterrence must also be given weight in this instance when regard is had to your prior history of sexual offending, noting however that the current offending occurred some 18 years after your last conviction for sexual offending against children.
I take into account the current circumstances surrounding the COVID-19 pandemic. From information provided by Corrections Victoria it is clear that personal visits to prisons have been suspended, there has been a reduction of services and programs and prisoners are experiencing increased lockdown periods. In your specific circumstances, where your needs are high and you would require regular medical support, these matters have relevance.
As sexual assault of a child under 16 is a 'serious offender' offence and you have two or more convictions for relevant sexual offences, you fall to be sentenced as a serious sexual offender. Section 6D of the Sentencing Act 1991 provides that when sentencing you as a serious sexual offender I must have regard to the protection of the community as the principal purpose for which the sentence is imposed. In my view, protection of the community is able to be achieved by the sentence that I will impose. Further, the prosecution does not contend for a disproportionate sentence.
Finally, in addition to the matters that I am required to take into account under s 5 of the Sentencing Act 1991 I must also take into account that sexual assault of a child under 16 is a standard sentence offence. The standard sentence for that charge is four years imprisonment.
Having identified and considered the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty and the standard sentence, in this case I form the view that the sentence I will impose on the charge on the indictment falls below the mid-range for the purposes of the standard sentence.
Ms Clarke submitted that in all the circumstances a community correction order is appropriate. Mr Roper, who appeared on behalf of the Director of Public Prosecutions, also submitted that a community correction order is within range. When consideration is given to all of the circumstances, including your significant physical and mental health issues that have developed since the last offending and the fact that you will necessarily be placed on the sex offenders register for life, in my view the relevant sentencing considerations are able to be met by the imposition of a community correction order with conditions.
Sentence
Mr Becker, you may remain seated.
Patrick Becker, on Charge 1, sexual assault of a child under the age of 16, you will be convicted and placed on a community correction order for a period of two years.
In addition to the standard conditions which attach to all community correction orders there will be special conditions as follows. That you undertake treatment and rehabilitation in relation to any mental health issues, that you undertake offence specific programs to reduce the risk of reoffending and that you be subject to supervision.
Further, as you have been convicted of a Class 2 offence and you have previously been convicted of two Class 2 offences in Victoria and three Class 2 offences in New South Wales, you will be required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for the remainder of your life.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 8 months imprisonment together with a community correction order.
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