Director of Public Prosecutions v Ewart (a pseudonym)

[2019] VCC 1321

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANK EWART (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	19 August 2019
DATE OF SENTENCE:	20 August 2019
CASE MAY BE CITED AS:	DPP v Ewart (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1321

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 D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr R. Barton	Tyler Tipping & Woods

HIS HONOUR: 

1Frank Ewart,[1] you have pleaded guilty to one charge of producing child abuse material; four charges of sexual penetration of a child under 16; and one charge of persistent contravention of a family violence intervention order.  Those crimes carry maximum penalties of five years; 15 years; and five years, respectively. 

2You are now 22 years of age and you were 20 years of age at the time of the offending. 

3Yours was an early plea of guilty and you get the benefit for that.  Remorse is somewhat problematic, but again, I will give you the benefit of the doubt in relation to that.  Obviously you must get the utilitarian benefit of that plea of guilty, saving the community from the cost of a trial. 

4You do have a number of prior convictions and are no stranger to the criminal justice system.  However, I note that none of those priors relate to sexual matters. 

5You are still a young offender and I am now told that the time that I thought was pre-sentence detention on this of 57 days, in fact it was more like 56 days, but in relation to another matter.  Accordingly, as I have indicated to counsel, I am simply going to take into account in a Renzella way. 

6Firstly because of the nature of the offending, you will be placed on the sex offenders register and I must advise you, the reporting conditions will be for life.  You just take that down.  If you would not mind accompanying my associate, thanks, Mr Barton.

7MR BARTON:  Certainly, I'll raise this with Mr Ewart, yes.

8HIS HONOUR:  Yes, yes, yes, just go with her, that is all.  All right. 

9The situation here, is that the complainant was 15 years of age at the time of the offending and was residing in a residential unit under the auspices of the DHHS.  You and her contacted each other, or were communicating via Facebook.  You agreed, in late-2016, to meet, which you did.  The staff at the unit became aware of this and a harbouring notice was served upon you and at that time, she was 14 years of age. 

[1] This is a pseudonym.

10That notice said it was an offence for you to harbour or conceal or induce or assist her to be absent from the place where she - in which she had been placed.  After the service of that notice, there is apparently no evidence of contact between the two of you until October of 2017.  You denied to police that knew anything about that harbouring notice, but be all that as it may, on
10 October you contacted the complainant via Messenger and suggested she join you at your residence to consume alcohol with you. 

11You picked her up, you specified to her that you would pick her up, 'Not near the unit' and you picked her up in another street and over the next three weeks, you communicated with her regularly and arranged on numerous occasions to meet her.  A location would be arranged for her to be picked up and you would take her to your place, where you supplied her with alcohol and also engaged in sexual activity with her.

12It is a situation where I have got absolutely no doubt you were fully aware of her age.  It is an unfortunate set of circumstances which we come across in this jurisdiction in this part of the world very often where these very streetwise and worldly girls who have been abused and grew up in very damaged circumstances remain friends with disaffected youths such as yourself, who having been through the system, understand the system but not how the community works. That these liaisons occur, it is self-perpetuating.  But in any event, there is not much I can do about that and there is not much anybody else can do either, I suspect.

13On 12 October 2017, you apparently lay on a bed together.  She exposed her breasts and a photograph was taken of her lying on you in a semi-naked state.  That is Charge 1 of produce child pornography, which includes a number of incidents on it.  On that occasion you also engaged in penile/vaginal intercourse with her.  Subsequent to that, you, on a number of occasions, supplied her with alcohol, kissed her on the lips and fondled her breasts. 

14Charge 3, another charge of sexual penetration.  You say a set of circumstances where you had sex with her and it was filmed.  Again, further photographs were taken, which can become part of Charge 1.

15She was arrested by police and remanded on 21 October 2017.  I have got no idea what for.  The following day, she contacted the unit and asked the staff for your phone number.  It was at that point in time when photographs were noticed of the two of you, staff saw them, depicting you kissing and fondling the complainant.  As a result of this, your phone was provided to police, an analysis conducted. There was a conversation between you and her over an extended period of time. 

16I have now had the benefit of reading the messages that passed between you on many occasions.  It is clearly apparent from those messages that you were fully aware of the illegality of what you were doing and persisted with it.  They do, though, indicate that you and her were endeavouring to treat it as some sort of relationship and I do not regard this a predatory or having abused her or anything along those lines.  I will come back to that in a moment when I talk about the victim impact statement. 

17On 24 October, after she was released from custody, the pair of you met, drank alcohol again and you had oral penetration with her and then a further act of penile penetration.  They were in the same period of time and effectively would be concurrent. 

18You, for best reasons known to yourself, decided to record quite a bit of it and it was that video and those photographs which police found, which effectively caused you to end up in these set of circumstances.  You were recognised from those images, by reason of tattoo and other distinguishing marks and again,
I do not think I need to go down that path.  In the end you pleaded guilty to all this. 

19When police raided you on 31 October, you were found with her hiding.  You were on a mattress.  There was female clothing and underwear in the bed.  At that time a mobile phone was obtained and you were taken to the Morwell police station.  It is noted that realistically, and I am not sentencing you to things that you are not charged with, but it was really only the arrest that stopped all this, one suspects.

20You, when spoken to by police, essentially tried to deny it all, said she was just a good friend and 'Not his type'.  I don't accept what you said to police about not knowing about the harbouring notice and you then claimed that you did not want to see the photos, they had nothing to do with you, she had taken them, all sorts of things like that. 

21At the end of the day, it is not the worst case of producing child abuse materials.  You were, in fact, in a relationship of sorts, it was not - there is no suggestion before me that you were sending these images to anybody else or that you were selling them or anything along those lines.  You cannot do it, but I accept that in these circumstances. They were taken within the nature of a relationship. 

22I have read the victim impact statement, and have discussed this with counsel. There is really no need to go into this sort of discussion in open court, but I am well aware of the background and the very serious abuse that the complainant has suffered in other aspects.  I am also aware, just from sitting down here on many occasions, that she is no stranger to the court system herself.  She is not the hapless little girl that we sometimes get in these circumstances, but at the end of the day, you knew how old she was.  Effectively you were endeavouring to avoid apprehension and you just kept going and the only reason it stopped, in my view, was because the police raided you and that was the end of that. 

23After all that, you then had circumstances where she was being contacted and we have then got a breach of an intervention order.  I do not have to go through all the detail.  It is certainly not the worst case of sex pen under 16 I have ever seen.  I think it is seems to me that I could sentence fairly sentence you on the basis that it was a relationship of sorts.  The age difference between you, certainly chronologically, is not great and mentally, I suspect, you are probably both pretty close. 

24It is clear again from the messages between you that there was no coercion involved and it could not be said that she was, in any way, shape or form, an unwilling partner.  The victim impact statement says that this has had a massive effect on her life.  I doubt that. Her victim impact statement is more an aspect of sadness and disappointment that yet again she has effectively given herself to somebody, in these sorts of circumstances and ended up with nothing.  However, as I have said, there is not much I can do about all that. 

25The offending has to be regarded as serious.  General deterrence obviously have to play a significant part.  Specific deterrence, I will be surprised if you do this again.  Denunciation is not of such importance, but there has to also be an appropriate punishment.  Gaol is inevitable, in my view.  The Crown's submission was that gaol with a parole period would be appropriate.  The defence position was that gaol with a community corrections order to follow would be appropriate. 

26Having looked at all the material and in that respect, I have got the report of
Dr Cunningham.  You do have a current relationship.  You do have somewhere to go when you get out.  The report of Dr Cunningham goes into a bit of detail about your background.  And I think it is a situation where I do not really have to go into massive detail.  You, in these circumstances, have had a troubled existence.  You had a previous relationship that failed.  You do have a child from that relationship. 

27There is not a situation here where you were exercising any degree of power or control over the complainant and you have suffered a number of difficulties yourself.  Your father left when you were six months old.  You tried to make contact again, but it simply did not work out.  You mother, you have described as 'awesome' up to the age of nine.  She - your age nine, sorry.  She had formed a new relationship and there was alcohol involved.  You would be left alone for large amounts of time.  You lacked supervision. 

28At 11 you went to Warrnambool for a while.  You then had the relationship with the mother of your child that I have described.  That went for four and a half years.  That apparently was violent and unstable, probably on both sides, I suspect, but certainly on hers.  You ended that relationship and you now have a relationship with your current partner and you say that that is a much better relationship. 

29The patriarch of the family, if that is the proper word, your grandfather died in 2017 and you have got very little secondary education.  The longest you have ever been employed was a period of about 13 months.  You are abusing methylamphetamine.  You are using all sorts of other drugs. 
I do not think amphetamine has got anything to do with this, it is a calculated course of conduct over a period of time. 

30I do accept that you have massive feelings of abandonment and rejection and I do accept that you were certainly significantly using drugs and alcohol at that time.  It does not excuse it, but I will repeat for about the third or fourth time, this was calculated.  You knew you should not have been doing it and you kept going. 

31Dr Cunningham says:

'In my opinion, Mr Ewart presents as emotionally immature, relative to his peers.  This is consistent with his childhood of abuse and neglect.  In my opinion, he does not present with a sexual deviance or paraphilia.  In my opinion, Mr Ewart’s relative immaturity, abuse of drugs and alcohol and general life instability were the main contributors to his offence behaviour.'

32I do not quite accept that, but that is what has been said on your behalf and it is the scenario in which I have got to sentence you. 

33Prospects of your rehabilitation.  I am not told that you have just completed a community corrections order.  I wish I had known about that earlier.  But in any event, I did not and that indicates that you are capable of doing this.  The risk of you re-offending in this way, I would accept, is small.  Dr Cunningham says you do not have any sexual deviancy tendencies and I think this is a situation where the nature of the relationship was probably due to your immaturity and her worldliness. 

34When I take all those matters into account, there has to be a gaol sentence, there is just no way around that, even despite your youth.  I do not think that a sentence that warrants a parole period is needed in these circumstances. 
I think a gaol sentence with a community corrections order fits comfortably within what is available.

35Accordingly, if you agree to the community corrections order, that is what
I propose to do.  However, the gaol sentence must be one which indicates it to other people like-minded, if they ever find out about it, to other young men who hang around the “resis”, as we call them, that if you get caught doing this, you are going in.  I think that is just has to be a lesson that has got to be put forward, no matter what the excuses may be. 

36So accordingly, the CCO, I had you assessed.  You are found to be acceptable.  The only conditions will be programs to reduce re-offending.  It will be up to them whether you do the sex offender's program.  I will make the CCO for three years.  It will be with conviction.  But before that CCO is undertaken, you are sentenced to be imprisoned to an aggregate sentence, which I can do because you are not a serious sex offender.  On 1, 2, 3, 4, 5, and 6, will be aggregate sentence of eight months.  No, sorry, the CCO is for two years. To be followed, if you agree, by a CCO for two years with those conditions.

37This 6AAA in these - he has not signed it yet, but just in the circumstances, 6AAA, three years, with 18 months.  Just so he understands that he got a benefit out of pleading.

38MR BARTON:  Thank you, Your Honour.

39MR O'DOHERTY:  There is a forfeiture order too.

40HIS HONOUR:  I have signed that, yes. 

41MR BARTON:  It is not opposed. 

42HIS HONOUR:  No, it is all right, I just misinformed my associate, she missed - I am just having it printed to be taken down. 

43MR BARTON:  Does Mr Ewart need to stand?

44HIS HONOUR:  No. 

45MR BARTON:  No.

46HIS HONOUR:  Not yet.  Yes, all right, if you would just go down and see if he wants to sign that.  If you would not mind going with my associate.

47MR BARTON:  Yes, thanks.

48HIS HONOUR:  Thanks, Mr Barton.

49Yes, all right.  You understand, Mr Ewart, if you breach this, you get brought back for re-sentencing. 

50MR BARTON:  Your Honour, I'll further explain that to him ‑ ‑ ‑ 

51HIS HONOUR:  Yes, I better ‑ ‑ ‑

52MR BARTON:  ‑ ‑ ‑ that what re-sentencing actually will mean. 

53HIS HONOUR:  I do not think he will - yes, well.  It is a good question.  Have a read of The Queen v Luca before you start - yes.

54All right, yes, you can take him now, thank you. 

55Yes, thanks, Mr Barton. 

56MR BARTON:  If the court pleases.

57(At this stage the court proceeded with another matter.)

58HIS HONOUR:  I do not know, I have forgotten now.  Three with 18 months.  That is what I said for AAA?

59MR BARTON:  Yes, certainly, Your Honour.  Three years head sentence with an 18 months non-parole and I'll explain that to him as well. 

60HIS HONOUR:  Yes, that is ‑ ‑ ‑ 

61MR BARTON:  And given that if he breaches the CCO ‑ ‑ ‑ 

62HIS HONOUR:  If he messed this up ‑ ‑ ‑

63MR BARTON:  Certainly.

64HIS HONOUR:  ‑ ‑ ‑ by this sort of offending.  Do not worry about what he got for this, you know.  Anyway, look I - anyway.  There is not a lot many can do,
I do not think. 

65Yes, all right, 9.30.  9.30 tomorrow.       

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