Director of Public Prosecutions v Kevin Ballinger
[2018] VCC 2263
•16 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01896
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEVIN BALLINGER |
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JUDGE: | BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2018 | |
DATE OF SENTENCE: | 16 November 2018 | |
CASE MAY BE CITED AS: | DPP v Kevin BALLINGER | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2263 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P A D’Arcy | Office of Public Prosecutions |
| For the Accused | Ms D Price | Fitzroy Legal Service |
HIS HONOUR:
1 Kevin Ballinger you have pleaded guilty on 24 July 2018 to one charge of Indecent Act with a child under 16 years. Your trial on more numerous offences commenced the previous day. Pre-trial issues were ventilated which facilitated further discussion with the Prosecution and your Counsel. This led to a new Indictment being filed containing the single charge you were arraigned on and to which you have pleaded guilty. This is a very serious offence by its nature and has a maximum penalty of up to 10 years imprisonment. Your conviction will also cause you to be placed on the Sex Offender Registry and subject to its reporting obligations and conditions.
Circumstances of Offending
2 Around 1996 you were the franchisee of a Pinky’s Pizza Shop in Heidelberg. It was here that you met and began a relationship with the Complainant’s mother who was an employee. The Complainant and her mother moved into your house in West Heidelberg for a period of 6 months before moving to a flat in Reservoir for a period and eventually a house in West Heidelberg. Your relationship with the Complainant’s mother progressed and you had two sons together, the first in 1997 and the second in 1999.
3 It was at this property and following the birth of your two sons that on some occasion between October 2001 and October 2003 when the Complainant was 11 or 12 the offence was committed. She shared a bedroom with her two younger brothers. On this occasion the Complainant awoke to find you sitting at the edge of her bed, her pyjama pants pulled down to her knees and you touching the Complainant, rubbing in between the lips of her vagina. You continued to do this for some 30 seconds to a minute before the Complainant’s mother called out and you replied that you were just tucking the boys in. The Complainant then pulled up her pyjama pants and remained in her bed.
4 The day after the offending the Complainant told her school friend Rhiannon what had occurred and the Complainant recalls being told later that Rhiannon had mentioned it to her mother. The first time that the Complainant revealed the offending was to her now ex-boyfriend Daniel, when she was aged 20, in order to explain the nightmares she suffered.
5 You were interviewed by the police on 13 August 2016 and denied the offending but admitted that you knew the Complainant and the circumstances of your involvement with her. You did admit that there was a possibility that you had kissed the Complainant on the lips at some point but could not remember doing so.
Matters Personal to You
6 You were born in Melbourne on 10 April 1959, raised in the Broadmeadows area and were one of eight children. Your father worked as a forklift driver and was regarded as a jack of all trades. Your mother was the stay at home parent, however she died of a heart attack when you were 7 years old. Your father became your primary carer and you remember him as a loving and caring parent. He remarried at some stage, marrying a woman named Robyn who had children of her own and with whom you report having a good relationship. You have lost contact with some of your siblings but have a number of long term friendships, notably a woman called Kathleen who has known you since you were a child and was a friend of your parents. You also have developed a close relationship with her daughter Michelle. You regard them both as the people closest to you. Both have provided the Court with character references, tendered as Exhibit 3.
7 Schooled in Broadmeadows for both Primary School and Technical School, you did not complete high school leaving to join the workforce. As an adult you found that you continued to have some difficulty with reading and writing. Your employment history is varied, having held roles as a forklift driver, storeman, machine operator and kitchen hand as well as your time as a franchisee of a Pinky’s Pizza. Having been placed on a Disability Support Pension sometime around 2006 your working life is effectively over.
8 You have fathered four children, two from your first marriage which broke down acrimoniously. Family Court orders were made relating to your visitation and contact with these children. You regret that due to the difficulties with your first wife contact was problematic and you have no present relationship with these children. Additionally, you fathered two sons with the Complainant’s mother. Your relationship was of considerable length and you separated only several years ago, but you had remained friends up until the time of your arraignment. The youngest of your two sons from this relationship has maintained a good relationship with you even through this proceeding. It is mentioned in both character references and submitted by your Counsel that you provide a level of care and support to this son and assist with his ongoing chronic health issues and attendance at medical appointments. It was submitted by your Counsel on the Plea that you regret what this proceeding has done within the Complainant’s family and acknowledge that there has been a breach of trust through your conduct and it has caused a flow on effect with the other family members.
9 As to your current housing situation you live alone in a rented Ministry of Housing unit in Research after experiencing a period of unstable housing accommodation. You are now facing again the possibility of unstable housing as you may need to relocate because of the proximity of your current housing to an early learning centre, as a result of you being placed on the Sex Offender Registry. Your Counsel submitted on the Plea that you have already been in contact with the Ministry of Housing and that you are attempting to plan for this possibility. In your free time you spend time with your friends, watching television and using your computer.
10 You have a number of ongoing health concerns and two bundles of Medical materials were tendered on the Plea from Austin Health and Northern Health, Exhibits 1 and 2 respectively. These bundles were prepared by your Counsel from subpoenas to these organisations. Without traversing all the information contained within them, they advise:
· You have been partially deaf since birth and utilise a hearing aid;
· You are an ongoing patient of the Austin Health Cardiology department having suffered two heart attacks.
· In July 2017 you reported blood in your urine over a period of months and an exploration revealed multifocal papillary superficial tumours in your bladder. As they are a form of low-grade cancer they are regularly monitored by cystoscopy.
Suffice to say that you remain a patient of these organisations and are receiving ongoing appointments and monitoring for your heart and bladder conditions.
Character References
11 Both individuals mentioned above state that you are part of the family and are always in attendance at family events and significant occasions. You are regarded as dependable and Kathleen states that you have been incredibly helpful since the loss of her husband, especially with the charity work and fundraising that she undertakes through the operation of Attractions at the Whittlesea Show each year. By doing so you have contributed to fundraising for a number of charitable endeavours including the Royal Children’s Hospital. Michelle’s children regard you as a father figure and you are completely trusted around them. You have been sad and depressed since this matter began and are aware of the serious nature of the charge and Kathleen believes that you are remorseful for your conduct. It is seen by both that this behaviour is completely out of character.
Victim Impact Statement
12 No victim impact statement was tendered in the course of the Plea. The Court however is informed, in part, as to the lasting impact that your offending has caused, by the Complainant first reporting, to her now ex-boyfriend, that she was suffering nightmares related to him at the age of 20, some 8 years after the offence.
Nature and Seriousness of Offence
13 Your Counsel submitted that the Court must view this as an inherently serious offence with reference to the maximum penalty set by Parliament. Further such offences against children are always serious in nature as they are a vulnerable class of victim. The Court should regard your offending to be in the medium to low range and should be viewed as lacking aggravating features as it is a non-penetrative offence, no deliberate force was applied, nor threats, it was not repeated and there was no degradation of the Complainant involved. However, it was conceded there were also present aggravating factors in your commission of this offence being the age of the Complainant and the breach of trust inherent in the act. With these factors in mind it was submitted the Court should view your offending as not as serious as other examples often before it.
Criminal History
14 You have two prior convictions from your late teens. At the Preston Magistrates’ Court in April of 1977 you were placed on Probation for 3 years for Wilful and Indecent Exposure and in April 1978 you were convicted of assault at Broadmeadows Magistrates’ Court and fined $50 and in default of payment to be imprisoned for 5 days. It has now been over 40 years since your last conviction and your Counsel submitted that the Court should consider that you were of an age that these matters would have been dealt with in the Children’s Court in today’s criminal justice system. It was submitted that these convictions should have little bearing on the disposition that the Court imposes for this offending and that there are no pending matters and that the conduct of this offending has not recurred in the 15-17 years since its commission. Considering all of these factors the Court must fashion a sentence for the man you are today.
Sentencing principles and considerations
15 In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of deterrence, both general and specific. I must deter other people from behaving like you. I must deter you from repeating such behaviour. I must express the community’s denunciation of your conduct and promote your rehabilitation. I must also have regard to current sentencing practices for offences of the kind that you have committed and I must balance your personal circumstances.
Plea of guilty and remorse
16 It was submitted that your plea should be regarded as not being an early plea but still worth considerable weight. While I take the timing of your plea into account, you will, of course, receive credit for its objective utilitarian benefit through the saving of time and resources associated with the running of a trial, and I do recognise a level of remorse with respect to this offending and your subjective willingness to facilitate the course of justice. Importantly I note that in pleading guilty to this offence you have spared the Complainant the stress, pain and anguish of having to give evidence and relive what can only have been a traumatic experience for a girl of that age.
17 Your counsel submitted that in conjunction with the evidence of remorse and acknowledgment inherent in your pleading guilty, the Court can also see evidence of remorse through the character reference of Kathleen.
Submissions as to Disposition
18 Your counsel submitted that a term of imprisonment should not be, and is not, the only sentencing option available to the Court. It is submitted that a Community Correction Order alone would be sufficient to deal with all the relevant sentencing principles. In making this submission Defence Counsel acknowledged the recent decisions of the Court of Appeal in the cases of Dalgleish and their relevance to current sentencing practice. Your Counsel primarily relied on the case of Boulton and the principles enunciated within it, relevantly at para [131]:
It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.
19 Flowing from this it was submitted that sentencing you to a CCO with strict conditions and under the Supervisions of Correction would be adequate for the needs of just punishment, denunciation and general deterrence to be met; that those sentencing principles and considerations did not lead inevitably to a term of imprisonment being imposed.
Prospects of Rehabilitation, Delay, Specific Deterrence and Community Protection
20 It was submitted on your behalf that the Court should view your prospects of rehabilitation as good. Your personal circumstances were completely different now from at the time of the offence; that you now live on your own with no wife or children and manage your health as best you can. Further, it is submitted, you pose little threat to the community and this is exhibited in there being no subsequent matters arising since the time of the offending.
21 While not in any way criticising the Complainant in this matter nor the usual investigatory time frame of Victoria Police it was submitted that there had been a significant delay between the offending and you being sentenced. Accordingly, this can be seen as in some ways mitigating the need for, and prominence of, specific deterrence in your case and evidence as to your good prospects of rehabilitation. Further, it was submitted that the imposition of a CCO would assist in achieving the sentencing principles of community protection and your rehabilitation. This could be achieved through Corrections being able to ensure your assessment and referral to appropriate treatment and programs to minimise your risk of re-offending and deal with any underlying causes of your offending.
General Deterrence, Denunciation and Just Punishment
22 Your Counsel has submitted that any disposition that the Court orders must be adequate to meet the need for just punishment, it must sufficiently denounce your conduct and satisfy the principle of general deterrence, communicating to the community and other potential offenders, that offences of this kind against children will not be tolerated. This was completely inappropriate and deplorable conduct on your behalf. You were in a relationship with the Complainant’s mother and were the father of her two half-brothers, you knew that this was a child who trusted you and over whom you had authority over due to your relationship with her mother. This act that you committed must have caused significant and enduring harm to this Complainant and now to the family unit as a whole. These facts will remain with you for the rest of your life.
23 It is submitted that despite all of these matters, it does not lead inevitably to a term of imprisonment in this case. Further, all the purposes of sentencing can still be met through the imposition of a standalone Community Correction Order and the Prosecution did not resist this submission and acknowledged that such a disposition was in range. In all the only matter which the Prosecution cavilled with was to the applicability of the comments of Boulton as the Community Correction Order regime had been the subject of legislative change with respect to combination sentences imposed by Courts since that decision.
CCO Assessment
24 You were assessed for a Community Correction Order and found to be suitable, however you have been assessed as a medium risk of re-offending. It is reported that you made full admissions of the offending and expressed some level of remorse for your inappropriate conduct. In the course of your assessment you admitted that you have experienced “depression on and off” throughout your time and your assessor believed that it could potentially be one of the contributing factors in your offending behaviour. On that basis it was submitted that a mental health condition be considered by the Court as a way to have you be assessed by a mental health professional to ascertain whether there are underlying issues present. You would also be referred to Corrections Victoria Specialised Assessment and Treatment Services (SOATS) and may be assessed for eligibility into the Sex Offenders Program.
Sentence
25 Mr Ballinger could you please stand. Having considered the submissions of the Prosecution and your Counsel I have determined that the sentence I will impose is as follows: you are convicted and released on a Community Correction Order for a period of 24 months with the following conditions pursuant to the following provisions of the Sentencing Act 1991:
(a), supervision by the Secretary of the Department as provided by s.48E;
(b), treatment and rehabilitation regarding your mental health as provided by s.48D(3)(e);
(c), you must attend programs to reduce the prospects of your reoffending as provided by s.48D(3)(f).
26 You can now take a seat. What I will do, Mr Ballinger, is to give you a warning relevant to the Community Correction Order to which I have sentenced you. I am sure you have heard this before but I am obliged to give you this warning and I will do so now.
27 In addition to the conditions I have specifically imposed, you must also abide by the terms that apply to all Community Correction Orders. These are:
(a), you must not commit any other offences during the two-year period the order is enforced, being an offence for which you could be imprisoned even if the court would not choose to impose imprisonment;
(b), you must report to and receive visits from a Community Corrections officer;
(c), you must report to the Community Corrections Centre at South Morang within two clear working days of today;
(d), you must not leave Victoria without first getting permission from a Community Corrections officer and you must inform the Community Corrections officer of any change of address, where you live or work within 48 hours of that occurring; and
(e), finally, you must obey all lawful instructions from and directions of Community Corrections officers.
28 Do you understand the conditions I have imposed and the general terms that apply?
29 Before you consent to the making of such an order, you must understand that the contravention of any condition attached to the Community Correction Order except for a contravention of a direction by the Secretary is itself an offence punishable by three months' imprisonment. Contravention of a Community Correction Order also carries with it the prospect that you will be brought back before me and resentenced for this offence. Do you consent in those circumstances to the imposition of such an order?
30 I will now provide the order to your Counsel so that you may sign it and discuss any matters of concern to you about what I have just said.
31 The second matter is that as a result of my sentence today, you become a registrable sex offender. You will be required within 7 days to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for 8 years as you have now been found guilty of a Class 2 offence. My associate will now ask you to sign a document to acknowledge that you have received notice of these obligations.
32 The Prosecution have also made an application for a Forensic Sample Order and I understand that is not opposed. You will have to attend a Police station for the collection of an intimate sample of saliva from the mouth. I must warn you that if you refuse to provide such a sample reasonable force can be used to acquire one by the police.
33 I’ll ask your Counsel to explain the requirements of the Sex Offender Registry and Forensic Sample Order to you once I leave the bench.
34 Are there any other matters Counsel?
35 Mr Ballinger I have to stress that this disposition should be viewed as an opportunity for you. You only narrowly avoided going to prison.
36 Adjourn the Court the please.
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