Director of Public Prosecutions v Farrod (a Pseudonym)

[2020] VCC 260

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEREK FARROD (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	25, 26, 27 and 28 February 2020 2, 3, 4, 10 and 12 March 2020
DATE OF SENTENCE:	12 March 2020
CASE MAY BE CITED AS:	DPP v Farrod (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 260

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S. MacDougall	Office of Public Prosecutions
For the Offender	Mr M. Page	Greg Thomas Barristers & Solicitors

HIS HONOUR:

1Derek Michael Farrod,[1] you were convicted by a jury on 4 March of this year, after a five day trial, of one charge of sexual penetration of a child under the age of 16 years.  That crime carries a maximum penalty of ten years' imprisonment.

[1] This is a pseudonym.

2You are 26 years of age and you were 22 years of age at the time of the offending.  There is no plea of guilty, obviously, in this situation, and there is no evidence at all of remorse.  It seems clear to me that there is very little insight into the seriousness of the offending, however you do remain a youthful offender.  You have no prior convictions and I am told that you have nothing subsequent.

3Firstly, because of the offence of which you have been convicted you will be placed on the Sex Offenders Register and I advise you the reporting conditions will be for 15 years.  If you just acknowledge that?  If you wouldn't mind going to the dock with my associate, Mr Page?

4There has been a significant delay in the matter.  The offending was not reported for in excess of 12 months and I certainly take that into account.  A delay of four years, between the ages of 22 and 26, is of real significance.

5As I indicated a couple of moments ago, it was a plea of not guilty and a trial was run.  To your counsel's credit he ran the trial sensibly, and without any gratuitous attacks upon the complainant.  However, as I have indicated, what it does show is a total lack of remorse.  That does not aggravate the situation, but it removes one of the most important pieces of mitigatory material that usually exists in such matters.

6Indeed, when you were interviewed by police – and I will be referring to some of them again in a moment – a number of messages between you and the victim were read to you and you were asked if you were responsible for them.  During the course of the interview you clearly lied and said that you knew nothing about them and suggested that your wife must have sent them.

7A passage from the transcript out of that record of interview then reveals the following.  The police officer says, at question 1989:  'You talk about that you had that, that she's the last piece in the puzzle.  You're' – and she's quoting from a message said to be sent from you – 'You're a far better mother than Alicia[2] will ever be, no matter how old.  I love the way you giggle and laugh.  I love how you are without any preparation - natural beauty.  I love the way your hair flows and the waves after a shower', and you said to the police, 'Nah'.  Police officer:  Ingrid, you complete me'.  You said:  'Nah, I wouldn't be writing stuff like that'.  Police officer:  'Yeah.  "Ingrid you complete me; you are utter perfection"'.  You:  'Ya.  Yeah, nah, that ain't me'.  Police officer:  'Okay'.  And you then said, 'that makes me laugh', and, in fact, you did laugh.

[2] This is a pseudonym.

8So not only is it a denial of all these matters but there is a note of derision in it as well.  I say for the second or the third time, that does not aggravate the situation, but the lack of insight causes me real concern insofar as rehabilitation and the risk of reoffending is concerned, but I will certainly, at your age, give you the benefit of the doubt about that.

9The trial was run in very unusual circumstances.  I will summarise the evidence, effectively, of the complainant from the Crown opening and then make some serious comments in relation to it.

10The complainant, Ingrid Wall,[3] at the time of all this was 14 years of age.  She had been a friend of your small family's and indeed was the cousin, as I understand it, of your wife.  She said that on 12 March of 2016 – and that was a date certain because of other material that is available – she stayed over at the house where you lived.  At that point in time your wife was in New South Wales attending a beauty pageant.  She said that you had KFC for dinner, that the two children had been put to sleep, that she then lay on a mattress in the living room.  You sat on the couch, playing PlayStation.  She said at one point you said words to the effect of, 'It's a bit uncomfortable up here', and sat next to her.  She said you then turned the light off and, after talking to her, put your hand on her leg.  You then lay next to her, put your arm around her, and she said, 'What are you doing?', and you said, 'It's nothing', like nothing is wrong.  She said she continued to face the opposite way, watching the TV, but you told her to roll over.  She said that you kissed her on the lips.  She said she froze and did not know what to do.  She says she then asked you, 'Don't you think this is wrong?  'Cause I'm the same or a year below your sister'.  You, according to her, responded, 'No, this is completely normal'.  She asked, 'What if Alicia finds out?', that being your wife, and you said, 'We'll deal with that if it happens'.

[3] This is a pseudonym.

11She said around that time you received a phone call from her and left the room.  When you returned she said she went to get a glass of water.  She said when she returned she sat on the couch and you were on the mattress on the floor.  She said you said to her, 'It's more comfortable down here, if you want to lay?', so she went back to the mattress.  You told her to lay down and said words to the effect of, 'Do you have wandering hands?'  She said she did not know and what did that mean.  You, according to her, responded, 'I'll show you', then started touching her.  She said you moved your hands down her pants and removed her pants.  She said she said, 'This is wrong because I'm younger than your sister', but she was too 'shook' to get up and move.  She said that you said it was all right and then moved on top of her, took your pants off and pushed your penis into her vagina, and that went on for about five minutes.  That is the charge of penetration.  She said when you finished she put her pants back on and went to the toilet.  She said she sat there for a few minutes and recalls that it felt like it was burning, like stinging.  She said she returned to the lounge room and stayed on the couch.  You kept asking her if she was okay and she nodded.  She later went to sleep in one of the children's rooms when you were asleep.  She said she did not know what to do or if she should call someone.

12The next morning her mother and her mother's partner picked her up and she said she was too scared to say anything, as she thought she would get into trouble.  She said that later that day you apparently obtained – this is on the 13th, it would be – her phone number and messaged her saying that you were sorry for what had happened and asking if she was okay.  She said that she was fine.  It was then a situation where it was said that the two of you continued to message and call one another regularly, and I will be referring to a couple of those messages in a moment.

13In any event, by 19 March you and your wife and Ingrid had travelled down towards Bairnsdale and incidents took place there where apparently your wife got hold of the phone.  She says on 21 March you apparently said – and certainly in your defence response, 17 March - and a whole raft of messages were obtained.

14In evidence the complainant said that there was only one occasion of having sex with you.  She said that the messaging did not start until a few weeks after that act of sex and was adamant that that act of sex had taken place on 12 March.

15That is the version put before the jury.  All the jury had to be satisfied of was that you sexually penetrated her, with penile-vaginal, on that day in that room.  As I indicated to the jury, they did not have to be satisfied of the detail – precise detail, and all that – but needed to be satisfied of that, and they were given very, I would have thought, strong or robust warnings about the dangers that were involved, I explained it to them fairly clearly in terms of how the complaint had come about.

16After all that she did not complain until around about July of 2017 in response to a phone call from your wife.  In fact, the complainant, leading up to that, had - on a number of occasions, as I understand it – denied that anything had taken place.

17There was other evidence available which meant that quite a deal of what she said, in my view, could not be true.  Not so much as to an act of penetration, but as to surrounding circumstances.  The Crown did not lead that evidence, because it would have involved essentially attacking their own witness.  Your own counsel, in terms of credibility attack, could not go near that evidence, because it would have involved the Crown simply amending the charge to a between dates, but it is evidence of real significance and certainly plays a part in the sentencing process, as far as I am concerned.

18The version that she had presented before the jury is one of this coming totally out of the blue - of her being completely surprised - and whilst it is not an allegation of rape, says she froze, 'didn't know what to do'.  She had the high moral ground, she was saying to you, 'This isn't right'.  You were saying, 'Yes, it is okay', and it certainly ameliorates – she is under 16, so responsibility is not a problem, but it certainly ameliorates her involvement in it and makes it as if you suddenly, for no apparent reason, performed these acts upon her and then, after apologising, did nothing for another two or three weeks.

19In the background to all this are phone records.  She said that you obtained her phone number off your wife on the 13th.  It is quite clear from those phone records that there had been voluminous texting – certainly from your phone to her phone – from around about 9 March on; that is, the three days leading up to it.  Her assertion that there was no texting and that you did not even have her number prior to that date cannot be right.

20Also, there is messages that were sent – and I am only going to, in this situation, go through two of them.  (1), A message from her, and (2), your response.  The messages that I am reading from were not before the jury, and it was not that they were ruled out but it was simply by choice, and I can understand why they were not cross-examined in and certainly why defence counsel did not want them in there.

21These messages must have been sent between the 13th and, on one view, the 15th – or, at the latest, the 20th or 21st of March.  She sent a message to you that said, and I quote:  'This weekend, us being together all day for two days, made me such a happy person.  Waking up and turning over to see that you're just laying there, it just felt right.  I know she had you first and you two were, and are meant to be, a happy couple.  It kills me inside to see the photos of youse together, although there's nothing I can do about it.  I'm constantly wishing it was me.  I love you, Derek, more than I've ever loved anyone.  I can't picture myself without you.  I want us and I know it will take time, a lot of time, but one day I will get there.  I just wish I was older'.

22The sentiments displayed – and something like 80 pages of these sorts of messages – they are not consistent with the description she gives of how you took advantage of her on that particular day and causes me real concern.  Your response to that also causes concern.  You said - and I find this beyond reasonable doubt it was you:  'Aw, Ingrid, xxx.  I love you and it's gonna happen sooner rather than later' – or, kiss, kiss, kiss, I suppose it is – 'I promise.  And in these photos, no, I'm not happy.  I'm basically in her Dad's shoes, stuck because of the kids.  I'm sorry for what happened this morning.  Just know that it's all okay, now I have fixed everything', kiss, kiss, kiss, 'And this weekend was amazing.  Like I said, I'm constantly thinking about the weekend and how I wish Alicia was you.  I love you so much, like I've never loved anyone else'.

23Now, that does two things which, in ways, assist your position.  When I take all that material into account – and obviously if there is a matter that aggravates it I still have to be satisfied beyond reasonable doubt, but it is in your favour just on the balance of probabilities.  I think her description of being taken advantage of on that day, in that particular way, I do not accept.  I have no doubt that you did penetrate her on that weekend.  You both refer to the weekend, she talks about having woken up with you still beside her, which is totally inconsistent with what she said, in effect, to the jury.

24Your response basically accepts what she has had to say in the message.  It does show – and, again, it is that the – from your point of view, whether you were simply using her or not I will not know, and I make no findings about that – but on the face of it, at least, that act of penetration she took part in was considered by both of you to be at least some from of relationship and was not a simple you getting the urge and taking advantage of her.  That, in my view, reduces the moral culpability of the actual act on that day.

25I warned the jury about various matters that have could have taken place, such as there having been an earlier act of sexual intercourse that was being transposed to that day, and my suspicions would lie in that area.  However, the fact of the matter is clear; I cannot sentence you, and do not sentence you, for having sex with her more than once, and I do not sentence you on the basis that it was in a situation where you simply took advantage of her in those circumstances.  I accept from your point of view that whatever people might make of it as a relationship – and, again, the jury were warned about this – that it was part of a purported relationship and not the simple act of taking advantage that she describes.  I think I have already mentioned this – there were dozens of messages along those lines.

26That being said, I then have the situation of dealing with victim impact statements.  She herself has put in a victim impact statement – that is, Ingrid – and your wife, Alicia, has put in a victim impact statement.  I point out - and I do not need to go into this in detail – I have read the original statement that your wife, Alicia, made to the police.  I am aware that these matters all arose out of investigation by DHHS in a situation that it was that that prompted the complaint, and it was in response to a call from Alicia.

27A lot of the material in her victim impact statement, which I declined to allow the Crown to read out, in my view cannot be right.  Insofar as the complainant is concerned she talks about an incident.  She writes a whole lot of things that went wrong.  I, as I say, do not accept her evidence in many respects and I have got grave doubts about the victim impact statement essentially saying that everything that has gone wrong in her life is because of you, because of that one incident.

28I do take them into account.  You were in a position where you were, effectively – her being your wife's very young cousin – in a position of trust.  She was trusted to stay there, you were trusted with her there at the house with the two small children, and you have breached it.  That does not help you in this particular situation, but the consequences that are outlined – and I will use a neutral term – in those victim impact statements; I am not prepared, in the sentencing process, to sheet all that home to what occurred on that day.  It may have come about because of detection, it may have come about because of the persistence by you, it would seem – and her – of a relationship that was, in one sense, never going to work, and on one view, ridiculous.  However, I make that clear; that I am sentencing on those bases after robust discussion with your counsel this morning.  I make it clear that those matters, in fact, I think assist you in this process.  What she describes verged on rape, with her taking the high moral ground saying, 'Don't do it'.  I do not accept that that was the case.  I accept that it was part of an ongoing - purported, at least - relationship.

29The offending, however, remains serious.  It calls for the application of genuine and specific deterrence.  There has to be denunciation.  She was the cousin of your wife, she was 14 years of age, it was a position of trust and you obviously – however this went – talked her into it.

30Punishment is a difficult proposition.  You were 22 at the time, I have to bear that in mind.  Your counsel submitted that a combination would be available.  As I have indicated to him, I think in these circumstances, after a trial, that is just simply not open and not within range.  The other aspect of that is that insofar as the moral culpability is concerned you have certainly had the wherewithal to lie – indeed derided in your record of interview.  You clearly knew it was wrong.  References which have been tendered on your behalf indicate that you were brought up in a situation of having had contact with many, many foster children.  You would have, they pointed out to me, been aware of the consequences to young girls of being treated and sexually abused - I do not mean that in a - as an assault concept, sexually abused – and you nevertheless went ahead with this and committed the crime.

31You maintain your innocence, which you are perfectly entitled to do.  The difficulty with that is that it means that you will be unable to participate in any meaningful sexual offenders program, or anything along those lines.

32You, on my view, show very little insight into the seriousness of your offending.  You are clearly in a situation where people who are supporting you do not believe it happened.  I have no doubt whatsoever that it did.  That means that your risk of reoffending is dependent upon you.  As it stands at the moment there will be no treatment involved and it would be totally speculative of me to take that any further.

33The prospects of your rehabilitation – well, you are still young, you have no priors and nothing subsequent – should be good.

34As indicated to your counsel, I think the overall – I will go to matters personal in a moment – overall the best that I can do in this situation from your point of view, while still showing the seriousness of the offending and the way in which the community regards it, is to give you an opportunity for parole earlier than might otherwise be the case.  As your counsel has explained, and I have no doubt will explain, if you do not do the courses within the custodial environment then you will almost certainly do the entire sentence.  The matters there are entirely up to you, but I am giving you the opportunity.  If you are able to do that, and do do that, the risk of reoffending, I think, should be much lower.  At the moment though, to try and quantify it would be nothing more than speculation.

35I then turn to matters personal to you and a number of references were tendered on your behalf.  I have already indicated during the course of the plea this morning that I am very concerned about two of them.  A situation where this whole matter – the complaint, everything – came around through DHHS involvement, where you had been involved in negotiating access in terms of who had the children, and everything else.  The people involved in that process, involved in decision making, to be putting in references for a person who has now been convicted of the sexual penetration of a child under the age of 16 is of serious concern.  I will take it no further than that, I have made my views very clear indeed – that one could take the cynical view that people in that position are supposed to be protecting children from people who offend against them, not the other way around.

36Be that as it may, what the references do, overall, point out is that you do – up until this particular period of time - have a situation where you have got a very good work ethic, you have got very good family support.  You are now officially, as I understand it, separated from your former wife, with whom there is obviously massive discord.  You now have a partner, who has put in a reference on your behalf, and who has indicated through counsel – and I accept this – that she will support you throughout the time of your gaol sentence, which obviously - in these circumstances, in my view - is inevitable.

37Your childhood was succinctly outlined by your counsel.  You went to Year 12, you have had the support of a family who have given support to many other children, as I read all this, within the community.  Upon leaving school you started a chef's apprentice, which you were unable to complete, but you have been a valued member of the community, you have worked as a chef over extensive periods of time, you have worked long hours - and that is borne out by all of the material, not just the references placed on your behalf.

38Again, as I indicate there are no prior convictions, there is no evidence before me of this having occurred to any other children that have been in contact with you, and you are clearly not unintelligent.  You were able to achieve Year 12, you have both had jobs, there are two small children from that marriage.  They should be a protective matter insofar as you are concerned.  Because you are now on the Sex Offenders Register there is going to be real problems with all that.  There is going to be problems with the fact that your new partner has a child as well.  There is nothing I can do or say about that, it is not a matter I am allowed to take into account in this sentencing process, but the wellbeing of those two small children should be a factor which – on what I am being told in those references – will have an effect on you in terms of determining your ultimate rehabilitation.  There are matters involved in that which only you can decide upon, but that is the fact of the matter for you.

39This is the, obviously, first time that you have been in custody.  You will spend that time, I have absolutely no doubt, in protection, and I have no doubt that you will be, when assessed, sent to Ararat.  Some judges take the view that it does not really matter if you are going to Ararat insofar as the difficulties with protection of prisoners are concerned, but I take the view that if you are in protection it certainly eliminates you from many courses that can be done, and as I pointed out to other judges, to spend a gaol sentence at Ararat, with the company that you would keep up there, is a fairly loathsome experience, and I do take that into account as well.

40So, in short, when you are released you have somewhere to go, you have family support, you have a partner who says she is going to support you, you have two children you are obligated to look after, and that again should be a protective factor.  You have got a good work record – there is no reason why you should not work again – you are in good health, you do not drink, there is no alcohol problem, there is no drug problem, there is no mental health issues, and this all should, in the end, work out, but the fact of the matter is at the end of the day you, in a position of trust, have taken – in a overall sense of a purported relationship – advantage of a 14 year old.  You persisted with it.  She obviously, by the texts that she sent, fell for the whole scenario and it has ended in tears, as one might say.

41So, taking all those matters into account as best I can, and being aware of the snapshots insofar as this type of offending is concerned, a custodial sentence of some significance is inevitable.  With these sorts of offending a significant number of people do not receive a custodial sentence at all, but once you have run a trial and called the – basically called the victim a liar and maintained that innocence with no insight – then the sentences tend to start at a relatively higher rate.  Again, it is difficult, because often those sentences relate to 50 year old's with 12 year old children, and things like that, which is a different ball game.  As I said to your counsel, the average sentence is something in the order of four years or so, however in these circumstances - because of your youth and because of the material that has been placed before me – I am prepared to ameliorate that situation and give you that opportunity for parole at a time earlier than might otherwise have been the case.  However, as I said, it is serious offending and the sentence must deter others who might be likeminded in terms of behaving in this way.

42Accordingly, on the charge of sexual penetration, a sentence of imprisonment for a period of three years.  I direct that you serve a minimum term of 18 months before becoming eligible for parole.

43I direct that seven days be reckoned as having been served under this sentence.  Are there any other orders I need to make?

44MR PAGE:  No.

45MISS MacDOUGALL:  No, Your Honour.

46HIS HONOUR:  There's no ancillary matters or anything like that?

47MISS MacDOUGALL:  No.

48HIS HONOUR:  No?

49MISS MacDOUGALL:  No, Your Honour.  Thank you.

50HIS HONOUR:  All right.  Nothing else you need, Mr Page?

51MR PAGE:  No, Your Honour.

52HIS HONOUR:  All right.  Thanks, you can take him.

53MR PAGE:  Your Honour, sorry.

54HIS HONOUR:  Yes?

55MR PAGE:  There is one matter.

56HIS HONOUR:  No, just stay.  Stay, yes.

57MR PAGE:  It's just a custody management issue.

58HIS HONOUR:  That's not my problem.  I know magistrates do, but I don't buy into that.  Look, they know what they're doing.  They don't need people like me telling them what their job is.

59MR PAGE:  Yes, Your Honour.

60HIS HONOUR:  I understand your concern, but I have total faith in them, all right?  Yes, you can take him now.  Thank you.  All right, thanks for that,
Miss MacDougall.  Thanks, Mr Page.  I've already indicated I might not say this directly from the Bench; the way you've conducted this has been in the highest standards of the Bar, in my view.

61MR PAGE:  I'm grateful, Your Honour.

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