Director of Public Prosecutions v Bellette (No 2)
[2022] ACTSC 327
•30 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Bellette (No 2) |
Citation: | [2022] ACTSC 327 |
Hearing Date: | 29 November 2022 |
DecisionDate: | 30 November 2022 |
Before: | Elkaim J |
Decision: | (i) For the offence of sexual intercourse without consent, the offender is sentenced to 20 months’ imprisonment (reduced from 21 months) to commence today and end on 29 July 2024. (ii) For the offence of indecent assault, the offender is sentenced to seven months’ imprisonment (reduced from eight months) to commence today and end on 29 June 2023. (iii) The above sentences of imprisonment are suspended after three months, that is from 28 February 2023 on the condition that the offender enter into a good behaviour order for 18 months on core conditions. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – indecent assault – where offences occurred on Mooseheads’ dance floor – where drunk and drugged men must be discouraged from preying on innocent women at social venues – where offender’s subjective factors are real and compelling |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54, 60 Crimes (Sentencing) Act 2005 (ACT) s 35A |
Cases Cited: | R v Aroub [2017] ACTSC 187 R v Incandela (No 4) [2022] ACTSC 139 Wyper v The Queen; R v Wyper [2017] ACTCA 59 |
Parties: | ACT Director of Public Prosecutions Parker Jae Robert Bellette (Offender) |
Representation: | Counsel B Morrisroe (ACT Director of Public Prosecutions) M Jones SC (Offender) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law (Offender) | |
File Number: | SCC 24 of 2022 |
Elkaim J:
On 6 October 2022, the offender was arraigned before a jury panel on an indictment containing four counts. They were as follows:
(a)Count 1: sexual intercourse without consent.
(b)Count 2: indecent assault.
(c)Count 3: sexual intercourse without consent.
(d)Count 4: indecent assault.
The offender pleaded guilty to the two charges of indecent assault. These two charges were respectively alternative charges to the two charges of sexual intercourse without consent.
Count 1 alleged that the sexual intercourse had been committed by the digital penetration of the victim’s vagina. Count 2 alleged an act of indecency relating to the victim’s vagina.
Count 3 alleged that sexual intercourse had been committed by digital penetration of the victim’s anus. Count 4 alleged an act of indecency relating to the victim’s anus.
On 12 October 2022 the jury returned a verdict of guilty on Count 1 and not guilty on Count 3. The result is that the offender is to be sentenced in respect of Counts 1 and 4.
The maximum penalty for sexual intercourse without consent is 12 years’ imprisonment: s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for an indecent assault is seven years’ imprisonment: s 60(1) of the Crimes Act.
The facts of the matter arose from an incident at the Mooseheads establishment in the city of Canberra. I have, on many occasions, commented on how this location is a magnet for crime. It is also, in particular on Thursday nights, a magnet for students who reside in colleges of the Australian National University.
The habit of students attending Mooseheads is well known to the colleges. It is apparent that the colleges have little interest in attempting to regulate the attendance of the students at Mooseheads. It is equally apparent that the relevant authorities allow this unseemly establishment to continue to function despite its persistent association with crime and in particular the sexual assault of young women. A search of the judgments database of this Court will reveal just how often Mooseheads plays a part in criminal activity.
The relevant events occurred in the early hours of 5 March 2021. The victim was on the dance floor in close engagement with a fellow student whom she had met a little earlier. The offender manoeuvred himself behind the victim and placed his hand in the proximity of her anus (Count 4) and inserted his fingers into her vagina (Count 1).
The victim alleged that there had also been digital penetration of her anus (Count 3). The jury clearly was not satisfied beyond reasonable doubt that this had occurred. At first sight, this result (guilty on Count 1 but not guilty on Count 3) seems to be contrary to the victim’s evidence that on the following day she felt pain in her anus but she made no complaint of pain in her vagina.
The jury’s conclusion however is consistent with the submissions made to the jury on behalf of the offender in which it was pointed out that the large amount of complaint evidence did not include any specific complaint of digital penetration of her anus.
I am satisfied that the jury’s verdict is consistent with a proper analysis of the evidence.
The objective seriousness of the primary offence is influenced by the offence having occurred in a public place against a victim who was totally unknown to the offender. It is difficult to contemplate his thinking in taking the actions that he did. Although there was some suggestion that other women were being interfered with, that was not part of the prosecution case and I do not take the suggestion into account. I am satisfied that the offences were opportunistic and covered a brief period of time.
Although the victim referred to the conduct occurring over two minutes, I think that was an erroneous but understandable estimate and is certainly not consistent with the CCTV footage.
The fact that the offences occurred over a short period of time is not a mitigating factor. It is also important to note that the offences were committed on a complete stranger and were no doubt a very humiliating experience for her, the assault taking place in a public forum.
I assess objective seriousness as just below the medium nature of offences of this type. This does not of course ameliorate the fact that any sexual intercourse without consent is a most serious offence. This is highlighted by the maximum penalty.
A victim impact statement was read out by the victim. The statement was understandably wide-ranging, but I think the following excerpts were most relevant to sentencing:
Before this happened, I was a normal college student. I was embarking on my second year at ANU. In reality, it was really my first year being able to experience some normalcy at college due to the pandemic. I was a kind, innocent, empathetic, outgoing, happy person. I had done nothing to you. I was doing what all college students do, going out and having fun. It was part of a rite of passage that are commonly regarded as some of the best years of your life. The things you took from me I will never get back. I will never be able to enter a social scene like a club again and not be afraid a monster is behind me. I will never be able to enter a club again and not think of the horrifying things you did to me, or that someone else is there to do the same thing again.
……
Shortly after you did what you did, I started having symptoms of PTSD. For months on end, and still today, I struggle to sleep at night. I was told this was due to the excess amounts of adrenaline running through me. He took the safety of my own personal space away.
……
After you did what you did, I lost my passion and drive for law and the study of crime. I thought that if you could do what you did, the type of society we live in is irreparable. I stopped studying completely and my grades significantly dropped for the rest of the year.
…..
After you violated me, I struggle to make friends and trust people. I’m now more of an introverted person who trusts very few people. This is a stark contrast to the outgoing person I once was.
……
I’d like the Court to know the trial re-traumatised me. I have since been experiencing the PTSD symptoms I had shortly after the offence.
…..
I hope the court takes into consideration the deep and long-term effects the crime has had on me.
At various points in her statement, the victim expressed a wish that the offender be sent to prison. She went so far as to say that “my faith in society will be restored once I see you sentenced to prison”. It is of course not the victim’s decision as to the punishment to be imposed.
The offender was born in 1993 in South Korea. He was adopted by an Australian family and brought up in regional New South Wales. He had, and has, a good and supportive relationship with his parents.
He had a brother who died from an overdose of drugs at age 23. The family was naturally traumatised.
The offender came to the ACT when he was 17. He had completed Year 11 before dropping out of school and coming to Canberra. He found work in the construction industry. He has always worked, a lot of the time in landscaping. The offender had a long-term relationship which ended after seven years. There were two daughters from the relationship. The breakdown had a major effect on the offender’s mental health. He turned to alcohol to defeat loneliness and suicidal ideation. There has been some drug use, in particular cocaine. He appears to have given up this habit.
The offender has frequent weekend visitation rights with his children.
The offender told the authors of the pre-sentence report that on the night of the offending he had drunk about 20 alcoholic beverages and had used cocaine. He had little memory of the details of the night. He said his actions were completely impulsive but he accepts responsibility for his actions “and the severity of the consequences of the offence for the victim”.
The pre-sentence report says that the “Service holds some concern concerning Mr Bellette’s mental health and his use of alcohol and drugs to occupy his spare time, which is a particular concern should Mr Bellette be restricted from leaving the ACT and, therefore, prevented from seeing his children in New South Wales”.
The report says that there is a low to medium risk of general re-offending but a higher risk of sexual re-offending. The report suggests that there be specific intervention in this regard. The report says that the offender is suitable for an Intensive Correction Order (an ICO).
There are three character references. Mrs Bellette, the offender’s mother, has described the offender as a good son and a good family man. She describes the relationship he has with his daughters and the contact and financial support they receive from them. She says that:
A prison sentence will have a severe effect on his relationship with his daughters who will be devastated not to have contact with their father and the emotional support he provides. The girls and their mother will also be impacted by the lack of financial support Parker provides for them.
Parker has expressed his desire to grow and learn from this regrettable incident and to undertake any rehabilitation courses or personal development which will assist him to continue to be a productive and valuable member of the community.
Mrs Bellette also gave oral evidence. She was an impressive witness. She described the supportive home in which the offender was brought up, his affection for his children and his devastation at his separation. Her description was such that the term “out of character” was given real meaning.
Under cross-examination, Mrs Bellette said that she and her husband would meet any financial needs of their grandchildren and also maintain contact with them should their father be unable to do so. The honesty of her evidence to some extent countered the suggestion of the emotional and financial upheaval that the children would suffer if the offender was imprisoned.
Ms Natasha Moy was in a relationship with the offender and is the mother of their children. She describes the offender as a:
very loving, considerate, sober, gentle and family oriented person and always put the well-being of myself and his daughters first. The behaviour for which he has been found guilty is totally out of character and unlike the Parker I know.
Parker is extremely remorseful for the hurt and consequences his actions have had on all concerned, particularly our daughters and his family.
The effect of a prison sentence on Parker will profoundly affect our daughters financially, psychologically and emotionally.
Mr Edwards OAM CSP is a long-time family friend. He says he was shocked by the news of the crimes. He said:
I note he is extremely embarrassed and remorseful for himself and for the pain he has caused those near to him.
As I have said above, the objective seriousness may be below medium, but that does not make the offence other than serious. A sexual offence in which an innocent woman is violated must be seen, as stated in R v Incandela (No 4) [2022] ACTSC 139, as “an invasion of bodily integrity and autonomy”: at [9].
The offender pleaded guilty to indecent assault and he is entitled to some discount for that. However, the sentence will necessarily be dominated by the primary count.
There must be a very large element of public deterrence. Drunk and drugged men must be discouraged from preying on innocent women at social venues. I have no doubt that Mooseheads, which obviously allows drunk men to wander through its premises (no doubt because of the alcohol they are purchasing from the establishment) bears some responsibility. But I am not sentencing Mooseheads. It is for other authorities to take appropriate action.
I am sentencing the offender for his sexual assaults upon the victim. The fact that the establishment permitted his drunken presence does not excuse his behaviour. He must be punished for what he did.
I was provided with some very broadly comparable cases. I think the one closest to the present facts is R v Aroub [2017] ACTSC 187 (Aroub), in which the offender was sentenced to two years’ imprisonment suspended after six months. The offending had involved digital penetration which Murrell CJ described as impulsive and brief. I think this description applies to the present matter. The suspension after six months was said to be due to “strong subjective features”.
I think there are such features here, including the absence of any criminal record and the offender’s mental health problems which will no doubt be exacerbated by a being in prison and having no contact with his children.
I appreciate there will be an effect on his children, both emotionally and financially, but these are matters that occur every time a person with a family falls into crime. As to the influence of the alcohol, of course the offender chose to drink before he acted so stupidly.
Ms Jones SC, on behalf of the offender, has submitted that the objective facts in Aroub were more serious and the subjective features less impressive. I tend to agree but not to an extent that makes this matter suitable for an ICO. However I do think the period of imprisonment before suspension of the sentence may legitimately be less than in Aroub.
In proposing an ICO, Ms Jones referred to Wyper v The Queen; R v Wyper [2017] ACTCA 59 where, at first instance, the primary judge had imposed an ICO following an incident in which there had been digital penetration of a victim. A notable issue in the appeal was whether or not there had been significant harm to the community. There had not been. In this case, however, there has been significant harm to the community. A person attacking a member of the community, in the community, at a social venue is unquestionably an offence against the community.
Ms Jones submitted that I should apply a discount in accordance with s 35A of the Crimes (Sentencing) Act 2005 (ACT). I agree. The discount arises from correspondence sent to the prosecution before the trial in which identification was effectively taken out of the issues at trial. I think this was of real assistance and despite some unnecessary cross-examination about a photo-fit picture, the victim was spared the task of identifying the offender and a number of witnesses were not needed.
I assess the discount at five per cent. In relation to the plea of guilty for indecent assault, it was made at a late stage. I will allow a discount of 10 per cent, but note that it is to some degree academic because I intend to make the sentence for the indecent assault wholly concurrent with the primary sentence. This is because the offending must be seen in its entirety and represents a single incident. Both discounts are subject to a small amount of rounding off.
I have given serious consideration to an ICO. The subjective factors are real and compelling. However ultimately the overwhelming criminality of an offence to a member of the public, when that person was totally unknown to the offender, and the offence was committed in the most brazen of circumstances compels me to impose a sentence of imprisonment.
I will however take the subjective factors into account through suspending the sentence after what I consider to be a reasonably short period. In essence this crime, both for the crime itself and for the need for public deterrence, must attract a period of full-time imprisonment.
I make the following orders:
(i)For the offence of sexual intercourse without consent, the offender is sentenced to 20 months’ imprisonment (reduced from 21 months) to commence today and end on 29 July 2024.
(ii)For the offence of indecent assault, the offender is sentenced to seven months’ imprisonment (reduced from eight months) to commence today and end on 29 June 2023.
(iii)The above sentences of imprisonment are suspended after three months, that is from 28 February 2023, on the condition that the offender enter into a good behaviour order for 18 months on core conditions.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
0
3
2