Director of Public Prosecutions v Yeates
[2022] VCC 501
•8 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN YEATES (A Pseudonym) |
---
JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 April 2022, 7 April 2022 | |
DATE OF SENTENCE: | 8 April 2022 | |
CASE MAY BE CITED AS: | DPP v Yeates | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 501 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Hutton | Solicitor for the office of Public Prosecutions |
| For the Accused | Mr G. Chisholm | Stephen Peterson Lawyers Pty Ltd |
HIS HONOUR:
1 John Yeates[1], you were some days ago found guilty by a jury of three charges of incest after a short trial. That crime carries a maximum penalty of 25 years imprisonment. Because of there being no plea of guilty you do not get the utilitarian benefit of such a plea and remorse becomes somewhat problematical. In your situation it is not an aggravation, it simply takes away what would in other circumstances had been a very significant mitigatory factor. I take into account that there has been a delay involved in all this and I take into account that any time that you spend in gaol or the time that you spent in gaol were done in COVID circumstances.
[1] A pseudonym.
2 The circumstances surrounding the offending were that, and I will just read that in short compass because the opening remains on file. You formed a relationship with the mother of your victim in around about 2009. The victim's mother moved to Australia and married you and then after some time the victim also came here. I make it clear - I think her mother might be listening. I say this so as anonymised as no disrespect meant to anybody. You and her mother had a child together subsequently and that child is still with the mother. The complainant was 6 years old, almost 7, when she came to Australia and she joined her mother and you and her half brother.
3 The Crown summary says that you took on a parenting role with the complainant. That role included administering discipline to the complainant. She says that small things would set you off such as not cleaning the kitchen or accidentally slamming a door. On the first few occasions that your disciplined the complainant you took her into a bedroom where you instructed her to take down her pants and then spanked her bare buttocks as she stood. After the first few occasions you began digitally penetrating her during that discipline. She says that the assaults occurred both two addresses where you were living and that they were 'uncountable'. In other situations, she said it happened often and I am certainly not making any findings as to the frequency as to which it happened, but clearly it was far from an uncommon action.
4 Charge 1 is an occasion when you were left alone with the victim. You asked her to sleep in your room. I think my recollection is that her mother was overseas. She was uncomfortable with that but did not know how to say, no, and complied with that instruction. One night after dinner whilst sleeping bed with you, she said that she had a sore back and you offered to give her a massage. You said you knew how to perform a massage from involvements in football and martial arts and she felt compelled to comply with your offer unsure as to how to say, no. You instructed her to remove all her clothes to reach her back. She lay on her stomach as you used oils to start massaging her back and you massaged her back for a while before digitally penetrating her vagina. That lasted about 5 to 10 minutes on her estimate.
5 On another occasion whilst her mother was away from that address, she left her underwear and her pants after getting changed, forgot to remove them and put them with the dirty laundry. You found them and scolded her for it telling her 'don't ever do that, it's so grotty'. You took her to the bedroom shared by yourself and her mother. You removed her pants and spanked her and digitally penetrated her vagina. On one occasion when she was being digitally penetrated she asked you why you were 'fingering her' to which you told her that it was part of her punishment.
6 The family moved and upon returning to that address you continued to discipline her in the same manner, that is, by removing her pants, spanking her buttocks and digitally penetrating her vagina. On an occasion there she was in the bath and threw something in the direction of the washing machine. She overthrew the item and it went behind the washing machine and she got out of the bath, wrapped a towel around herself and attempted to get behind the washing machine to retrieve whatever it was she had thrown. Apparently, there was a loud bang. You went into the bathroom holding a small plate or container holding what she believed to be butter. I think she described it as a yellow, gooey substance, all gooey and yellow. You came in angry and asked what she had been doing and demanded that she show more respect for the things that you had paid for. You removed the towel which was wrapped around her. She stood naked in the bathroom. You took hold of her, forced her up against the washing machine with her back to you. You smeared your fingers in the butter-like substance and that is when she said it was 'gooey and yellow'. You then used the butter smeared to digitally penetrate the vagina. She said that your fingers were fat and it hurt.
7 The defence was that during the course of the trial that these events simply never happened and she was making them up. I simply say no child would make up an incident like that.
8 The victim and her mother have both filed victim impact statements and her mother, as so often the case with these matters, points out the guilt that she feels about not having protected her daughter. It is not the mother's fault but they almost always seem to feel like that. She feels utterly betrayed by having left her daughter with someone that she trusted and for this to happen to her. She is also extremely concerned that within her own community this has become somewhat common knowledge and she has been judged and has great difficulty now even in her own social situation.
9 Her daughter said, 'I feel as if my childhood was stripped away from me and I didn't have the chance to experience being a child'. 'For the longest time my own body did not feel like it belonged to me. It felt as if it were there, not only for me, but for others too. The crime physically impacted the way I respond to the touch of others. Prior to moving to Australia family was someone you could just in but that changed when I violated by someone, I suppose, to trust in'. 'I no longer feel 100 per cent safe anywhere and I am constantly reminded by those around me to be aware of my surroundings no matter where I go due to the extreme outcomes and the situation'. She then goes on to say that she is determined to live a normal, carefree and joyous life.
10 And now I am hopeful that on the jury's verdict here she has received some sort of resolution for that and it is fortunate for you in a sense that the damage that you have done to her is not as great as I have seen in other matters. In many of these situations the damage is lifelong and emotionally and psychologically crippling. That does not appear to be the case here.
11 Also in terms of looking at the offending itself I accept that is situational. A circumstance of the third charge with the butter would appear to have been premeditated but it is difficult to articulate the circumstances of it. I accept that there is an element of control in it. I accept that there was an element of punishment involved in it but clearly on the materials also an element of sexual gratification. I do not propose to enter into the exercise. I have indicated to counsel of trying to delineate between all those factors that does, obviously, still remain serious. There were no threats made, I accept that. There was no gratuitous humiliation, although the acts themselves are humiliating in themselves and I take those matters into account. There was no suggestion where there is no penile penetration or disease or pregnancy or any of those matters. Again, I am not buying into whether a penile penetration is worse than a digital one.
12 But in these overall circumstances whilst incest is always a serious crime. It seems to me that this is certainly not at the highest end of incest as it is seen by these courts. It still remains, obviously, very serious. Of course, the application of general deterrents, specific deterrents in your case, where the circumstance of a situation that I do not really apply. Of course, obviously, for denunciation, obviously, for punishment and in this situation, again because I think the chances of you re-offending are low, community protection does not play such a large part.
13 On Charge 3 you are sentenced as a serious sex offender. I am aware that means community protection becomes the principal sentencing purpose and I have already commented on that. The Crown do not seek a disproportionate sentence. I am aware that sentence is to be accumulative on the others and, in fact, to avoid that problem I will sentence in reverse and put the other two accumulative on that. Totality dictates that that occur. The nature of your family is such that you will be placed on the sex offenders register and I advise you that the reporting period for that will be for life. I will just get you to get him to sign a form, Mr Chisholm, if you do not mind. Yes, thank you for that.
14 My view that when sentencing with incest, and I will return to the personal matters first, one usually starts with the proposition put by His Honour Justice Marks backing The Queen v Sposito some 30 years ago. 'The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. There ought to be unnecessary recount the morbid features of incest, the most prominent which included the exploitation by the stronger will of the adult, of the weaker will of the child, the physical and psychologic 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 irreputable fundamental damage to the victim'. In this case as indicator, I hope that that damage will not be irreputable but those remarks are apt in this and almost every other case of incest which calls to be sentenced.
15 I then turn to matters personal to you in terms of trying to work out such a sentence. You do have a number of prior convictions involving domestic violence. I do not propose to go through the details of those. They do not involve a sexual connotation. They are of concern but they are not determinative by the issues that are involved here. I will go through this in a little bit more detail in a moment but your counsel in simple terms pointed out that you were born in Melbourne in 1956. You had a childhood that was filled with trauma, violence, sexual assault and exposure to drug and alcohol abuse. You have lived a life of working hard and I accept that.
16 The first matter that I would look at is that of your health which includes high blood pressure, arthritis, serious arthritis, gout, borderline high cholesterol, previous surgeries, the fact that you need hearing aids and the fact that you had heart issues will make it more difficult for you in a custodial environment but I note that there are none of those matters that cannot be treated in a custodial setting. I also take into account that the stress of all this upon you will be increased in a custodial situation.
17 You have, as my calculations, five children. It may well be that the younger ones, in particular, are not allowed to visit you. That will be a matter for DHS. As I understand it, DHS action in the background at some point but I accept that you may well end up in circumstances where you have very few, if any, visits and I simply take that into account. I am aware of principles of totality and I am aware of the need, if possible, to avoid a crushing sentence whatever that means.
18 I then turn to your own history as outlined to your counsel and it is a very strange one indeed. Your mother identified as Aboriginal. Her family came from the Gippsland area. You apparently no little about your Aboriginal heritage and are in the process of trying to find out about it. Your great, great grandfather came from Gippsland, and I would assume on the basis of the surname that ultimately you will discover that you are Gunai. But in any event, your mother was raised in a convent in Northcote taken off her maternal grandparents from a young age. Your maternal grandfather is Aboriginal and was a horse and train driver for a timber yard. Your maternal grandmother passed away from childbirth or an abortion years ago. You had no contact with your father until the age of 14 and that was one where he gave you drugs in any event. I accept that you have not, otherwise, touched drugs and that you do not drink.
19 Your mother cared for you until you were about 6 months old and you were made a ward of the State. You were removed from her care due to her being a single mother and working as a prostitute. She ultimately remarried a Peter Yeates[2] when you were 18 months old and you had a stepsister who died of a heroin overdose when she was 25. You were taken to a children's home for infants. You were eventually taken into the care of your step-grandparents; however, during the childhood child protection were always involved. Your mother had significant substance abuse issues and, as I have indicated, worked as a prostitute and I am told that was in the inner city. She also assisted her husband with his criminal activities and she was regularly involved in the criminal justice system.
[2] A pseudonym
20 Peter Yeates apparently was a Scottish man who was involved in the running of sly-grog shops and the like in the 50s and early 60s. He worked for the Carlton Brewery and would steal merchandise with his brother, who was apparently a standover man for their group. You at the age of 11 apparently saw a man kicked to death in Newry Street. Your step-grandparents cared for you over a standard period of time but clearly changed address on many, many occasions and you had a very unstable childhood.
21 I accept on what I am told that you were assaulted by a male, friend of your step-grandmothers, when you were in Grade 2 and 'stuff' was done to you. That was never reported and the man ultimately was sent to gaol but not involving you. You went three different primary schools and that is never a good sign with a small child. By the age of 8 you were selling Heralds. You were also selling footy records at Princess Park. You were exposed to domestic violence in your childhood. Your grandfather was the foreman and fitter at GMH at Fishermans Bend and your grandmother was regular church goer. Your grandfather was an alcoholic and your grandmother was a victim of both verbal and physically violence. You also saw physical violence towards your mother from Peter Yeates, the man that she married, and your grandmother in all these circumstances would often give you the strap with a heavy thick piece of leather.
22 It is clear from your record of interview that you did with police that this has had a pretty dreadful effect on you and the way you see the world. Over the years your justification of disciplining of children was concerning in that interview when watched you doing a re-enactment of trying to smack a child who didn't want to be. I have no doubt that that background played in principles involved in Bugmy. You do not have a childhood like that and come good in five minutes and I totally accept that. I am sure if the Crown partially put to the jury at the end of the trial that was involving control and the like, background like that do tend to leave, as from previous experience at the Children's Court, do leave children with a feeling of a need to control their environment and a sense that no-one is going to look after them but themselves.
23 In any event, you were then selling papers at the Fitzroy footy oval on Brunswick Street. You went to Brunswick Tech and did all right there. You wanted to become an architect and were apparently a good student and began your apprenticeship on the completion of your schooling and you worked your whole life up until about three years ago. I do not think I have to go through the details of all that. You have got five children. You have always been in employment and you have always supported yourself. You have clearly been involved in some quite serious construction exercises over those years.
24 And I accept on the material before me that as a result of this offending and as a result effectively of family law proceedings, you will be under the concern and the anxiety that you will complete your sentence or be allowed on parole poverty stricken effectively with nowhere really to go. They are not matters that I take into account directly in terms of their effect but only in the terms of their effect upon you, not the fact of them. Already indicated your concerns about visitations and the like but at the end of the day the prospects of your rehabilitation are really up to you. As an indicator I think the risk of you reoffending certainly in this way is low but one can only hope that it remains as such. It is a situation where you were at a trial and you have to wear the consequences of that.
25 I am going to give you an earlier opportunity for parole that I would, otherwise have done. Your barrister would have explained to you that in the circumstances that exist these days, it is almost impossible to get parole unless you admit the offences and do a sex offender's program. That is something I am not taking into account here. I am simply giving you an opportunity for an earlier parole. If that is to come about it has got nothing to do with me, it has got to do with the authorities. Not sympathy is not the right word but there is a concern I have in the instinctive synthesis in this process that your childhood has deeply affected your behaviour as an adult. And it is not a situation of calling for mercy but there is an element of this which is extremely unfortunate and not your fault. But at the end of the day there has to be a gaol sentence, it has to be a significant one and there is no way around that.
26 Accordingly, you can remain seated, on Charge 1 six years, Charge 2 six years, Charge 3 six years. Directed 18 months of the sentencing imposed on Charge 1, 18 months of the sentencing imposed on Charge 2, be served accumulatively upon each other and upon the sentencing imposed on Charge 3. That gives an effective head sentence of nine years.
27 In these circumstances, bearing the extraordinary background that you have had, I am proposing that you serve a minimum term of five years before becoming eligible for parole. That may seem lenient but the fact of the matter is that it may well never occur and I am operating on the basis that you will be doing the entire 9 years as the Act requires that I do so operate. I direct that two days be written as having been served under this sentence.
- - -
0
0