Director of Public Prosecutions v Abad

[2016] VCC 1219

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00124

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANCO ABAD

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 August 2016
CASE MAY BE CITED AS:	DPP v Abad
MEDIUM NEUTRAL CITATION:	[2016] VCC 1219

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	Solicitor for Office of Public Prosecutions
For the Accused	Mr A. Halphen	Doogue O’Brien George

HIS HONOUR:

1Mr Abad, you may remain seated until I ask you to stand.  Franco Abad, on
23 May this year you were arraigned and pleaded not guilty to one charge of sexual penetration of a child under 16 years.  On 26 May the jury returned a verdict of guilty. You have admitted prior convictions.  However I regard those as irrelevant to the exercise of my sentencing discretion. 

2The facts surrounding your offending are unusual.  In the months leading up to your offending which occurred in September of 2015, you were working as a security guard at the Children's Court at Melbourne. There you met the complainant in this matter.  You approached her and a friendship developed.  She told you she was 17 years of age.  Your friendship developed into a sexual relationship.  It was accepted that prior to your offending you believed that the complainant was 17 years of age and no charges were preferred against you for any sexual relations that took place between you and the complainant prior to the event which founds the count on the trial indictment which occurred between the 3rd and 4th of September of 2015.

3Sometime prior to 3 September police became aware of your relationship with the complainant.  You attended at the Sunshine Police Station voluntarily on
3 September and there you were shown a photograph of the complainant whom you denied knowing.  The police informed you that the complainant was
14 years of age and under the care of the Department of Human Services and living in a residential care unit. You were advised that any act of sexual intimacy with the complainant would be a criminal offence. 

4You returned home to your sister's residence where you lived.  The complainant arrived later at your sister's residence and over a period of time she was challenged by you and your sister about her age and what the police had told you.

5The complainant told you that she was 17 and that her mother was making trouble for her and that she had lied to the police.  Your sister was called by the prosecution on the trial and she described the complainant as being very mature and confident.

6Your sister swore that the argument of 3 September lasted for something in the order of two hours and the complainant at all times maintained that she was
17 years of age.  At the end of the argument you purported to put an end to the relationship and went to bed.  Sometime later that night the complainant joined you in your bed and you had sex, which is the act that founds the charge on which you have been convicted.

7You were interviewed under caution on 11 September 2015.  Initially you denied any knowledge of the complainant.  However in the latter half of the interview your conscience got the better of you and you admitted sexual activity between 3 and 4 September 2015.

8In addition you admitted that prior to 3 September you had some suspicions in respect to the complainant's age, but that when she was challenged in respect of those suspicions she always insisted that she was 17 years old.  Your defence was that you believed on reasonable grounds the complainant was over the age of 16 years.

9The jury were not satisfied on the balance of probabilities that this was the case, and to my mind this came as no great surprise.  However, it says nothing about your subjective belief, even allowing for doubts that you may have entertained.

10I observed that the complainant during her video and audio recorded evidence that was taken on 10 September of 2015 appeared to be much older than her years, and she was extremely matter of fact in her description of your sexual relationship and she told the police that she maintained to you at all times, even after your attendance at the police station on 3 September 2015, that she was 17 years of age.

11Tendered as Exhibit 1 on the plea was the report of consultant psychiatrist, Carla Lechner, dated 20 July 2016.  Mr Halphen, who appeared on your behalf, relied upon the contents of that document in respect to your personal history and I will relate it in short compass.

12You are 32 years of age and are the elder of two children.  You were born in Mendoza, Argentina, and migrated to Australia with your family when you were aged two years.  Your family came here as a result of your paternal uncle promising your family a better life.  But within two weeks of arriving in Australia he kicked you out of his home and your family had to fend for themselves.

13You attended St Joseph's Catholic Primary School and Deer Park Primary School.  Your parents separated when you were about ten years of age and you have had very limited contact with your mother since that time.  Your secondary education was the Deer Park Secondary College and you left there during your Year 12 year.

14You took up an apprenticeship as a cook and completed your apprenticeship, and thereafter worked in a range of restaurants in the Melbourne metropolitan area.  After a number of years working as a cook you decided to change your career and effectively worked as a labourer for a stonemason and a tiler, and did so for a period of approximately seven years or so.

15You described to Ms Lechner that at the end of that period of time your body was tired and so you looked for other work.  You commenced security work in 2012 or thereabouts and ultimately ended up working for Wilson Security from 2014 at the Werribee Magistrates' Court and at the Melbourne Children's Court.

16Ms Lechner assessed you as being of average intelligence.  She said that you described a very close relationship with your sister and nephews and that you had a very small social network.  You have not used illicit drugs save for the occasional use of marijuana.

17It is evident to me that you have been a hard worker since leaving school.  Importantly Ms Lechner opines that you do not suffer symptoms of any specific psychological disorder, although you have some unresolved issues relating to your mother's abandonment of your family.

18Importantly she opines that you do not present as a sexual offender per se in that you developed a relationship with the victim fully believing that she was
17 years of age.  Further, she opined that this offence is out of character for you, bearing in mind the assessment that she made of your personality and psychological makeup.

19Further, it was her assessment, and I agree with it, that the process of arrest, trial and court proceedings have been a salutary lesson to you.  Finally she opined that you presented a low risk of re-offending and had a positive prognosis.

20The offence you have been convicted of carries a maximum penalty of ten years' imprisonment.  However the circumstances in which this offence is committed can vary immensely.  I regard your offending as being at the lower end of offending of its kind.

21As a consequence of your offending you lost your job.  You have been unemployed since that time.  However you have undertaken a course of training and continue to do so with the view of commencing your own business.  You still reside with your sister and her children and in the intervening months since your arrest and being charged have taken on the domestic role within that household.

22Additionally and surprisingly to my mind, the Department of Human Services became involved with your sister's family even to the extent of interviewing her young children at school, an unnecessary invasion of her family privacy, in my view, bearing in mind the circumstances of your offending.  I regard your prospects for rehabilitation as good and your likelihood of reoffending as remote.

23Would you please stand up?  By this sentence that I impose on your I must punish you.  I must publicly denounce your conduct and deter you and others from committing this kind of crime.  Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedence, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you in the following terms.

24Pursuant to s.72 of the Sentencing Act 1991 I convict you and I adjourn these proceedings for a period of two years, and I release you on an undertaking that you be of good behaviour during the period of the adjournment and that you attend before this court at the end of that period if you are called upon to do so. Are you willing to enter into that undertaking?

25ACCUSED:  Sorry, Your Honour?

26HIS HONOUR:  Are you willing to enter into that undertaking to be of good behaviour?

27ACCUSED:  Yes.

28HIS HONOUR: Then that document will be brought to you. Pursuant to the provisions of the Sex Offender Registration Act you are liable to the provisions of that Act for a period of 15 years. My associate will bring to you a set of documents that relate to the provisions of that Act as they relate to you. You are to sign them as an acknowledgement of having been given them.

29If you wish to assist your client in this respect, Mr Halphen, do so by all means.

30MR HALPHEN:  Thank you, Your Honour.

31HIS HONOUR:  Mr Abad, in respect to the Crown's application for a forensic sample I refuse the application on the basis that it is my view that it is not in the public interest to grant the application.

32MR HUTTON:  As Your Honour pleases.

33MR HALPHEN:  As Your Honour pleases.

34HIS HONOUR:  In respect to this adjourned undertaking you must understand that from today's date for a period of two years you must be of good behaviour.  If you commit any offence in the period of the bond you breach this bond.  You will be dealt with for the offence that you commit and you will be brought back to me for breaching this bond. If you come back to me I have the ability to re-sentence you.  Do you understand?

35ACCUSED:  Yes, Your Honour.

36HIS HONOUR:  Copies of these documents will be made and provided to both counsel and you, Mr Abad, for your own records.  I would like to thank counsel for their assistance in this respect.  Mr Abad, please come out of the dock and sit behind your counsel and documents will be provided to you.

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