Director of Public Prosecutions v Tate (a pseudonym)

[2022] VCC 1364

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHIL TATE (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 August 2022
CASE MAY BE CITED AS:	DPP v Tate (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1364

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr J. Connolly	Tyler Tipping & Woods

HIS HONOUR:

1Phil Heath Tate[1], you have pleaded guilty to two charges of incest, six charges of sexual penetration of a child under the age of 16 years, two charges of indecent act with a child under the age of 16 years, and four charges of indecent assault.  Those crimes carry maximum penalties of 25 years, 15 years, 10 years and 10 years respectively. 

[1] A pseudonym.

2You are now 55 years of age.  You pleaded guilty at a late stage of the proceedings and not long before trial was due to take place.  In this matter there was a full committal where essentially the complainants were cross-examined on the basis that it was not true and a lot of the material I had the opportunity of reading overnight suggests that there is very little genuine remorse involved in this matter.  However, you have pleaded guilty and I must give you the for that.

3In so far as utilitarian benefit of the plea of guilty is concerned, that is obviously of benefit.  It has relieved the complainant from yet again having to give evidence in relation to the matter and, in these times of Worboyes with the workload that is on the courts, it is to be given a significant discount.  I also take into account that there has been a significant delay in this matter and again, I take that into account.  In that time, it would appear that you have made endeavours to better yourself and, again, I take that into account.  Importantly, you have no prior convictions. 

4Because of the sentences that I will be imposing on counts of 3 onwards, you will sentenced as a serious sexual offender.  That means that community protection becomes the principle sentencing purpose.  The Crown do not seek a disproportionate sentence.  I am aware that sentences are to be cumulative unless otherwise ordered and, in this situation, totality demands that there be very significant concurrency.  Because of the offending, you will be placed on a sex offender's register and advise you the reporting conditions on that register will be for life.  You will now be handed that and if you could accompany my associate to the dock please, Mr Connolly.

5A summary of the offending is as follows.  The plea relates to three different complainants and the offending occurred between August 1997 and October 2013, something in the order of 16 years. 

6You were born in November 1966.  The first complainant is your natural daughter Helen[2].  She was born in 1987.  The second complainant is your niece Kellie[3].  She was born in 1997.  The third complainant is Emma Baldwin[4] and at the time of the incident involving her she was aged 19 years of age and is a friend of your daughter. 

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

7In respect of each of these matters, you were interviewed on a number of occasions and, as I understand it, made a no comment record of interview on each occasion which, of course, you are entitled to do.  But in any event, in so far as Charge 1 is concerned, sometime between August 1997 and August 2000, you were driving the complainant (this is Helen) home from a church service.  You stopped at KFC.  Both returned to the vehicle. 

8As they sat in the vehicle, you began tickling her around the neck.  She protested and said that you should stop and that your actions were bad.  You told her that the Bible said it was not bad and went on to touch her arms, legs and vaginal area over her clothing (that is indecent act).

9On an occasion between August 2003 and August 2005 when Helen was aged between 16 and 18.  She attended at the Golf Club.  That time she no longer resided with you.  You invited her over for dinner and to stay the night.  After dinner you told her that she would have to sleep in your bed as you had not made up a spare bed for her.  She agreed as there was no other option. 

10After getting into bed, you were both clothes.  You started spooning her by cuddling up to her back and pushing your penis into her back or buttocks.  She responded by curling up into a tight ball.  That is Charge 2 of indecent assault. 

11You then forced your hand between her legs and began rubbing her vagina on the outside of her clothing.  You then placed your hands inside her pants and digitally penetrated her vagina.  As I said, she was 16-17 years old at the relevant time.  That is Charge 3 of incest.

12Between August 2003 and August 2005, she attended again at the Golf Club for the purpose of meeting her sister.  Upon arrival, she began drinking alcohol while waiting for her sister to arrive.  After consuming several drinks, she was advised that her sister would not be attending those premises.  After continuing to drink alcohol, she became drunk.  You then invited her upstairs to your bedroom where she began smoking cannabis.  As a result of this, she felt sick and lay down on a spare bed upstairs. 

13While she was in the vulnerable state, you removed her clothing as she lay face down on the bed.  You then positioned yourself behind her and penetrated her vagina with your penis.  As you did this, you lowered your weight on her, causing her breathing difficulties.  She has no recollection really of what occurred after that, other than you eventually ejaculated onto her back and then left the room.  She was 16-17 years of age at that relevant time.  That is a charge of incest. 

14Again, on an occasion between 2003 and 2005, she went to the golf club together.  You sat down, you began rubbing her back before taking hold of her hand and placing it on your erect penis.  As you did this, she tried to withdraw her hand and you held it there.  This was interrupted by another family member at the premises and, again, she was aged 16-17 years of age at the time.  There are other matters involved in that which I will not go into here, but in any event, that is Charge 5 of indecent assault.

15She said, in very short compass, that her grandparents were witness to the above incident but her grandmother had requested her not to press charges against you. 

16Between 2003 and 2005, again, she discussed your offending behaviour with her sister.  In this matter that I didn't have to go through here but in late December 2012 she said that you had been seeing the psychologist for counselling and that seems to tie in with what the materials provided on your behalf.  She said that you apologised to her for sexually abusing her and that you were attracted to her and confused about your feelings.  I accept that you did say that to her and that you did make an admission of it to her and, again, that is referred to in one of the pretext calls as I understand it, which we will be going to in a moment.

17On another occasion, between 2012 and 2013, you invited her and her children to stay the night at your house.  At that time, you were babysitting other grandchildren.  Shortly after arriving, she felt tired and went to bed and fell asleep.  At approximately 10 am, she was awoken by you who had been drinking alcohol.  You told her that you wanted to have a relationship with her.  As a result of your conduct, she began crying.  You attempted to comfort her by rubbing her arms and trying to kiss her.  You then slid your hand up her leg, inside her underwear, where you touched the outside of her vagina.  She managed to push you away.  She was 25 years of age at that time (indecent assault).

18On 15 December 2012, she made a pretext call to you - and I will be referring to one of those - and in March 2013.  There is two pretext calls, I will be referring to one of them between Helen and yourself. 

19I then turn to the circumstances of the offending against your niece Kellie.  On occasion between January 2008 and October 2010, she attended your house for a sleepover with her cousin.  She was aged between 11 and 12 years.  You placed the girls into separate bedrooms on the ground floor of the house and you slept in your own bedroom on the first floor.  Prior to going to bed that evening, you and another young girl sat in the loungeroom watching a moving.  You were seated by yourself on the couch with the complainant on a separate couch. 

20As you sat and watched the movie, you requested the complainant, that is, Kellie, come and sit on your lap to which she complied.  As she sat on your lap, you placed on her vagina on the outside of her clothing.  She pushed your hand away and told you, 'Stop, my little cousin is here.'  The other young lady said she did not see that.  That is an uncharged act.  It simply just puts all this into context.  She then attempts to get off the couch, however, as she did so, she fell face down on the floor.  She is, as I think I have already indicated, between 11 and 12 years of age. 

21You then got up off the couch, positioned yourself over her, placed one hand onto her back and the other inside her pants, then reached under her bottom and inserted  your fingers inside her vagina.  You continued to hold her on the floor while you moved your fingers in and out of her vagina.  You told her to be quiet.  That is sexual penetration of a child under the age of 16. 

22Later that evening, the complainant woke because she was having a bad dream.  She went upstairs to your bedroom and climbed into bed with you.  That was her usual habit at that age with her own parents.  As soon as she got into bed you awoke.  You then took her hand and put it on your erect penis and instructed her to masturbate you.  That is Charge 8 of indecent act.

23After that act, you removed her clothing and instructed her to suck on your penis.  That is Charge 9 of sexual penetration of a child under the age of 16. 

24You then positioned yourself and her so that you were laying on your back with her on top of you, with her face over your penis and her vagina over your face.  You then began sexually penetrating her vagina with your fingers and tongue or penetrating her mouth with your penis.  That gives rise to the other Charges 10 and 11 of sexual penetration.

25On occasion, between January 2011 to 24 October 2013, Kellie again attended your house.  You watched a movie together.  This time she was aged between 14 and 15 years.  As you watched a movie, you got out of your chair and walked over to where she was sitting in her seat.  You then removed her pants and underwear down to her knees and inserted your fingers into your vagina.  You placed your face down into her lap and began sexually penetrating her vagina with your tongue.  That gives rise to Charge 12 and Charge 13, both of sexual penetration.

26You continued to penetrate her in that way for approximately 15 minutes or so.  She made a complaint but the matter did not really go any further. 

27You profess in various previous accounts that this is all young, drunken circumstances, you have no memory of it.  I think that is very unlikely.  I have now had the opportunity of reading in full the pretext phone calls that took place and also what has been said.  Some time after Kellie had complained, her father, as I understand it, Daniel[5] recalls the conversation that he had with you in early 2018 when playing golf.  When he asked you why you were in such a bad mood you replied, 'If you knew half the shit I've done, you wouldn't be happy with me.'

[5] A pseudonym.

28The 14th charge relates to Emma Baldwin.  Some time in August 2005 she attended your address at the Golf Club for the purpose of Helen's 18th birthday party.  On arrival she was introduced to you.  During the evening, as the party progressed, the complainant went into the kitchen to pour herself a glass of water (that is, Emma).  While she was doing this, you said to her, 'You have tattoos, don't you?'  When she replied that she did not you said, 'Yes, you do.'  You then walked up behind her, placed your hands inside her clothing and down the back of her underwear.  As you moved your hand over her buttocks, she knelt down and managed to wriggle free from you.  Shortly after that incident, she left the party.  That is charge of indecent assault.

29You were, as I said, arrested and interviewed and, as is your perfect right, made no comment records of interview and the matter then proceeded over an extended period of time as I have already indicated.  I am taking into account the question of delay.  Before I turn to the Victim Impact Statements which I have now had the opportunity of reading a couple of times, I turn to the pretext calls that were made back in the early part of the last decade.

30Reading them in their totality is quite incredible.  This is an adult male talking to his natural daughter.  I am only going to read a short part of it.  I have taken into account the full context of the whole of these tapes and it indicates to me that you very clearly knew what you had been doing and you very clearly knew the wrongness of what you had been doing over an extended period of time, certainly in so far as Helen is concerned.  Again, this is reading from a transcript. 

31She has said to you - and some of this will be paraphrased - when speaking to in this pretext call she said, 'I want a normal father/daughter relationship.  I want you to look at me like [Sandra][6], okay?  I don't want - I don't want - I don't want that with you.  I want you to be my dad.'  And you replied, 'All right.  All right, I'm a paedophile.  Okay, lock me up, whatever.' 

[6] A pseudonym.

32She then said how badly she was feeling about all this.  She made various accusations against you and, again, I do not need to read all of that out.  I will be careful here because there is an audio malfunction at one stage which you appear to have become quite abusive towards her.  In any event, she said as part of all this to you, 'I love my dad.  I love my dad.'  You, 'Yeah.  Helen, yeah, yes, you,' and I find this just incredible, 'but you don't want to put out.  That's right, okay, that's fine, not a problem.' 

33I have no doubt that you are fully aware of what you have done and you were fully aware of what you were doing at the time you were doing it.  You have run the apparent defence of, 'Don't remember,' or alcoholic or all lies or whatever it might be.  You told the psychologist Mr Cunningham that it did not happen at all.  That was only a few months ago.  You have provided - even though they have not been sent to them - letters of apology which, in my view, are very late indeed and fall very far short of what could be termed a genuine apology.

34It is important in these situations as destressing as it might be for all concerned, to point out what the consequence of this sort of offending is. 

35Many years ago Justice Hedigan said in The Queen v MJ:

'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.'

36He went on to say:

'The offence of incest is particularly erosive of human relations and casts down on the assumption that parents are natural trustees of the welfare of their children.  It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community and the irreparable fundamental damage to the victim.'

37That refers to incest but in my view here, it also refers to your niece.  It is exactly the equivalent and what His Honour was referring to in that some 30 years ago is still applicable now.  Just to make it very clear, to all concerned as to the damage that you have caused to these young ladies and Ms Baldwin has not made a Victim Impact Statement. 

38Helen says – I will not paraphrase her, I will quote, but this is only short portions of each of the Victim Impact Statements and I understand why that is so - Helen said:

'I do not have any healthy relationships.  I have severe trust issues and have always ended up in domestic family violence relationships.  This case has torn my biological family apart.  I suffer from strong feelings of guilty and depression, I'm scared and I don't trust anyone.  I've been diagnosed with complex PTSD [which I point out is very common in these situations] a bipolar severe panic disorder and manic depression [which is part and parcel with a panic disorder].  I have been cutting, self-harming from a young age and have tried committing suicide several times.  I can't have sexual relationships that are healthy and I need pain to be inflicted which is not healthy.  I have scars all over my body from self-harming to make myself look less appealing and suicide attempts.  I've struggled with long-term drug addiction which resulted in endocarditis.'

39And she has a permanent heart condition.  She said:

'This occurred after I found out about more victims.'

40It is about reliving it. 

'I have been unable to work for over 10 years or complete my diploma in community service due to my humiliating panic attacks and flashbacks.  I struggle to leave the house, especially unmedicated to do the most basic of tasks and generally need to pay to have scripts and food ordered in.  I have constant medical treatment for my mental health.'

41She says, in terms of the social impact upon her:

'I've lost all of my family due to them supporting my dad and my mental health has effected all my friendships.  I never feel safe.  I always feel people are trying to manipulate me or hurt my children.  I've lost contact with my eldest daughter due to this and my two youngest had to go through protective behaviours counselling and also lost their extended family.  I feel disgusted and hate myself and no longer want my own name, as he had told me it came from another incest relationship he had.  I no longer trust the church.' 

42Obviously, she is simply saying she has lost her faith.  That is what you have done to Helen, Mr Tate. 

43Kellie - I think you know I am simply taking portions of this, there is a lot more to it - said this:

'Still to this day I fail to deal with a lot of my feelings and thoughts about those times, wondering if I'll ever be good enough for myself and others because of what happened.  I became socially withdrawn, repeatedly locking myself away from everyone.  My depression grew to be too much and I began to self-harm, cutting my wrists and thighs as an outlet so I can at least feel something, even if it was self-inflicted pain…for years I struggled to look in the mirror at my own reflection, disgusted with myself, always wondering, "Why me."  I remember asking my father to remove the mirrors from my room because I just hated myself so much.  Still to this day, I struggle looking at my own reflection, still disgusted with myself.'

44She then goes on to talk about matters that clearly have gone very wrong in her life.  She talks about numerous psychiatric admissions, she talks about suicidal delineation and the dreadful mental consequences that your offending has had upon her for the bulk of her life.  She said further on that:

'All I want is for him to admit what he'd done, that he knew it was wrong.  All I want is the confession.'

45You have pleaded guilty but you have not done much more.  She said further and they are my words:

'Because of everything coming to the forefront, my own family shut me out, excluded me from family events, told me I was lying and he would never do something as horrendous as what he had.  When I received a phone call from the detective saying that he'd pleaded guilty, I broke down and cried, let all my emotions out.  After all these years of not knowing what was going to be the outcome, I finally have some sense of peace within myself.'

46She said thoughts were running through her brain:

'Would my family speak to me now; do they finally believe me…unfortunately, they still don't talk to me, still refuse to believe it.  I want to be able to have a relationship where I'm not thinking about my past.'

47What each of those two young women have described in those Victim Impact Statements is textbook as to what occurs in this sort of degraded sexual offending and, as I have said, 30 years ago the Court of Appeal pointed it out.  I think it is important to understand, it seems to me, having sat in this chair now for a long time, that very few people understand the utter destruction of young women and young men by this sort of perverted offending, solely for the gratification of very selfish and deviant adult men. 

48The offending is very serious indeed and I do not think anybody is going to dispute that.  It calls for the application of general and specific deterrence, for denunciation, appropriate punishment and, to a certain degree, community protection.  Your counsel argued on your behalf that the principles in Bugmy relate to this matter and to be on the safe side, I am prepared to accept that that is so and that general deterrence should be moderated appropriately.  I simply say, as I will be describing in a moment, the link here between what you did over a period of years and years and what happened to you in your childhood is very, very difficult to reconcile.  But as I say, I am not just discounting it completely.

49The materials provided on your behalf indicate a number of things.  Over the last few years or couple of years since you have not worked.  You do have a very good work record, I accept that.  You have not worked since this offending came to light and you were charged.  I understand that you are now on a NDIS pension or whatever the appropriate expression is.  That you have very bad depression and you have not worked now since these charges were laid.  It seems pretty clear that that significant depression very much relates to the charges and what the prospects are for you in the future, rather than how you were at the time.

50At around about that time, I accept that you were engaging heavily in the use of alcohol.  As I have already indicated, these were not one-off little incidents that occurred whilst a man was intoxicated.  These were calculated violations of literally your own blood. 

51

I have taken into account all those reports that have been filed.  There is the report of Dalton Consulting Services, there is the NDIS report, there is the report of Renee Bowland.  As I indicated during the course of the plea, there is a report from

Dr Cunningham which I do take into account.  Those matters of NDIS are put on the basis, as I understand, not to attract the principles of Verdins, but to simply show that you have made efforts to rehabilitate over the last few years and I accept that that is probably so. 

52However, it is clear from Dr Cunningham's report that you have very little insight, if any, into what you have done.  It is to somehow be hoped, having listened to these matters put and the truth of the matter coming home to all concerned, that you will, at some stage, get a proper understanding of the damage that you have caused to these, in particular your daughter and niece. 

53You are 55 years of age, you were born in Victoria.  Your father was killed in a motor vehicle accident.  You are the eldest of seven children and your mother repartnered some 18 months after your father's death.  Your stepfather was a sailor.  He was initially alcoholic but then did rehabilitation.  Well, this is now obviously a long time ago. 

54You left the family home at the age of 16 and you gained stable accommodation with your wife at the age of 19 or 20.  That relationship continued intermittently for about 20 years.  There were several separations during the course of that and you had four children.  The relationship ended when your wife left for Western Australia in 2003 or 2005.  You then commenced a relationship with Eileen[7] which went for about 10 or 11 years.  That relationship, as I understand it, has now ended because of these charges. 

[7] A pseudonym.

55You basically told - and again, I am not going to go through it in detail - but you went to tech school.  As I say, it is to your credit that you have got a very good work record up until the time of being charged with these matters.  The adjustment disorder with severe depression and anxiety is what has given rise to the NDIS.  There have been very little in Dr Cunningham's report which would justify such a finding but the fact of the matter is that that is in fact the case.

56You have no history of drug use, you have clearly had, in the past, severe difficulties with alcohol and I have already made my comments about the relationship between that and this sort of offending.  Dr Cunningham said your profile indicated a tendency to over report mental health but said the results were not consistent with the presence of a mental illness.  He said that you presented as a moderate risk of sexual reoffending.  He said that was primarily based on your minimisation of the offending, in fact, you denied it to him, and he said your offending occurred in the specific context of alcohol abuse, separation and proximity to the victims and, 'He's unlikely to again be in this specific context.'  I take that into account. 

57The prospects of your rehabilitation should be underway already and will be dependent upon your own attitude when you are ultimately released by the authorities, if indeed you are. 

58You told Dr Cunningham that when you were about seven or eight you were sexually molested by a neighbour over a period of weeks and that when you were 12 or 13 you were sexually abused by the half brother of your stepfather.  You told him that that abuse no longer significantly disrupts your life. 

59It is that self-reporting that your counsel relies upon to bring into effect the principles of Bugmy.  As I say, in this situation, I will give you the benefit of the doubt and respect that and give it some credence but it is a very tenuous argument indeed. 

60You told Dr Cunningham that you could not recall any of the offences occurring.  You stated that you were an alcoholic during the period and you did not believe you engaged in the offense behaviour.  It is hardly symptomatic of insight or any real form of remorse. 

61Other than that, that is about the psychological material on your behalf.  You do have the support, as I understand it, of your parents.  You have support of a sister.  You have the good record, rehabilitation should be under way, risk of reoffending is regarding by Dr Cunningham as moderate and in this situation I see no reason to disagree with that.  You do have an absence of prior convictions and I have mentioned all the other matters I take into account, such as Worboyes and Covid in prison and the like.

62However, at the end of the day, making full allowance for the fact that you finally at least technically owned up to all this.  I have to sentence you as is appropriate for what is very serious offending and in situations like this, as a sentencing judge, I do not take it much further.  Words fail me when I come across this sort of behaviour from adult men towards their own children. 

63I have to be careful and aware, and I am very aware, of totality which is why there will be very significant concurrency.  I am also aware that, as far as possible, I should not impose a crushing sentence.  That does not mean, however, that the sentence should not reflect the very serious nature of what you did over an extended period of time and the dreadful consequence that it has had upon two people that you should have been the carer of and protector of; in fact, you were the opposite.

64Accordingly, you are sentenced as follows.

65Charge 1, three months concurrent.

66Charge 2, three months concurrent.

67Charge 3, five years.

68Charge 4, six years.

69Charge 5, six months concurrent.

70Charge 6, two years.

71Charge 7, four years.

72Charge 8, 12 months concurrent.

73Charge 9, four years.

74Charge 10, four years.

75Charge 11, four years.

76Charge 4, four years. 

77I direct that the sentence imposed on Charge 8 and 11 and 12 be served concurrently, if I have not already said that. 

78Charge 13, four years.

79Charge 14, 12 months. 

80

I direct that - and I am doing it the opposite so it makes sense - 24 months of the sentence imposed upon Charge 3, 12 months of the sentence imposed upon Charge 6, 24 months of the sentence imposed on Charge 8, six months of the sentence imposed on Charge 9, six months of the sentence imposed on

Charge 10, 24 months of the sentence imposed on Charge 13, and six months of the sentence imposed on Charge 14 be served cumulatively upon each other and upon the sentence imposed on Charge 4.  That gives a total affective head sentence of 14-and-a-half years. 

81I will let you serve a minimum term of 10-and-a-half years before being eligible for parole.  I direct that one day be reckoned having been served under this sentence. 

82So that you understand the amount of time that you actually saved yourself by ultimately pleading guilty, I say that but for your plea of guilty, I would have sentenced you to be imprisoned for a period of 21 years with a minimum term of 16.

83Are there any other orders I have to make, gentlemen?  

84MR MOORE:  No, Your Honour.  I might've misheard, but could you just repeat the sentence on Count 12?

85HIS HONOUR:  Yes, four years concurrent. 

86MR MOORE:  Thank you, Your Honour. 

87HIS HONOUR:  There's a number of these are in the same incident, so I as I understand, there's very substantial - - -

88MR MOORE:  Yes.

89HIS HONOUR:  Yes, yes. 

90MR MOORE:  Yes. 

91HIS HONOUR:  All right, nothing else I need to do?

92MR CONNOLLY:  Your Honour, would you mind repeating orders for cumulation please.

93HIS HONOUR:  My what?  Yes, 24 months of Charge 3; 12 months of Charge 6; 24 months of Charge 7; six months of Charge 9; six months of Charge 10; 24 months of Charge 13; and six months of Charge 14. 

94MR CONNOLLY:  Thank you, Your Honour.

95HIS HONOUR:  Are cumulative upon each other and upon Charge 4, which in my calculations is 14 and a half years.

96MR MOORE:  Yes, that's it for the matter now, Your Honour.

97HIS HONOUR:  All right, thank you for that.  Yes, you can take him out, thank you.  Yes, thank you.

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