Director of Public Prosecutions v Farrugia
[2022] VCC 1003
•24 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00131
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARROD FARRUGIA |
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JUDGE: | HER HONOUR JUDGE BLAIR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 March 2022 & 15 June 2022 |
DATE OF SENTENCE: | 24 June 2022 |
CASE MAY BE CITED AS: | DPP v Farrugia |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1003 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Rape – Indecent assault – Guilty verdict – Criminal trial – Historical offence – DNA evidence – Serious offending – Victim impact - Rehabilitation – Delay – Psychological reports – Acquired brain injury – Verdins – Worboyes – Serious offender provisions
Legislation Cited: Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic);
Cases Cited:Worboyes v The Queen 2021 VSCA 169;
Sentence: TES: 3 years & 6 months imprisonment, 18 months NPP
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr F. Cameron | The Office of Public Prosecutions |
For the Accused | Mr S. Lee | Martin Middleton Oates Lawyers |
HER HONOUR:
1Jarrod Farrugia, following a five-day trial, on 13 December 2021 a jury found you guilty of two charges of indecent assault and four charges of rape. The maximum penalty for the offence of indecent assault is 10 years and the maximum penalty for the offence of rape is 25. Given the date of your offending there are no statutory sentencing schemes that apply. I am going to go through my reasons for sentence and when I get to the end and I announce the sentence I will get you to stand, but just bear with me.
Circumstances of Offending
2On the evening of 16 February 2001, you met the victim at a local grocery store in Mildura. While waiting in line you interacted with the victim and proceeded to strike up a conversation in the car park afterwards. You ascertained that the victim smoked cannabis and exchanged names. You asked the victim for her phone number, which she gave you. An arrangement was made that you would call her later that night to meet up somewhere and smoke cannabis together.
3Later that evening, at approximately 11.20 pm, you called the victim and arranged to meet outside the front of her grandmother’s house. You were going to bring $25 worth of marijuana with you for the two of you to smoke.
4Although the initial plan was for the victim to come out and join you at the taxi, you arrived later than planned. The victim had removed her dressing gown and stood near her bedroom door that opened to the outside in her nightie. She whistled and you got out of the taxi. Once you had paid the fare and the taxi driver had left, the victim came out to the street and got your attention. Her uncle, who was inside the house, entered his bedroom and turned on a light, so the victim told you to quickly come into her bedroom with her.
5In the bedroom you proceeded to pack and light a pipe with cannabis. The victim instructed you to move near the door and blow the smoke outside, as her son was sleeping on the double bed inside the room. The victim declined to smoke cannabis with you at the time.
6Thinking that her grandmother was going to check on her, the victim turned off the light in the bedroom. When it became clear that her grandmother was not coming, the victim walked around the bed and bumped into you. You put your arm around her and pulled her against you. Your pants were undone, and your penis was erect and pressed against her. The victim pulled back from you, but you used your arm to hold her close and kissed her on the neck, and this is Charge 1.
7You then pushed her onto a seat on the floor beside the bed. The victim told you that her son was sleeping next to her, and asked if you were, ‘fucking sick’, and if you knew, ‘the meaning of no’. You ignored her complaints, saying girls who say that ‘always mean yes’. You put your arm across her chest and pushed down against her breast firmly. You then pulled the straps of the victim’s nightie down and she was unable to speak from shock. You moved her legs, pulled her underwear to the side and penetrated her vagina with your fingers, moving them in and out in a circular motion, and this is Charge 2.
8You then removed your fingers, took hold of your penis and forced it into
the victim’s vagina. She continued to struggle. This is Charge 3.9After removing your penis from her vagina, you forced your penis into the victim’s anus, causing her excruciating pain. As you did this you were kissing and biting her neck, while she tried to push away your face and grab your eyes. This is
Charge 4.10You then removed your penis from her anus and re-inserted it into her vagina and proceeded to thrust in and out very quickly and roughly, before removing your penis and forcing the victim’s legs down so they were either side of you. This is Charge 5.
11You then ejaculated on the victim’s stomach. This is Charge 6.
12After standing up and getting dressed, you left the house by way of the fly-wire door through which you had entered. The whole incident of sexual assault proceeded for no more than a matter of minutes.
13I accept that the jury’s verdicts are consistent with the victim’s evidence at trial and consistent with a rejection of your evidence. I sentence you on this basis.
Arrest and Procedural History
14The next morning at around 10am the victim telephoned a friend and told her she had been raped. The two women met up later that morning. Some time that day the victim’s friend contacted the police and reported the incident. Two detectives attended upon the friend’s home and took the victim to an assault clinic to be seen and forensically examined. Police took a statement from the doctor that undertook the examination and transported the victim’s clothing and swabs to Victoria Police Forensic Centre. Analysis was undertaken and a DNA profile of male origin was located and placed onto the DNA database. No person was charged for several years.
15In 2016 your DNA had been placed on the DNA database as a result of an unrelated matter. A match was made, and you were arrested on 15 October 2018 and interviewed by police. You denied any offending and stated that ‘it didn’t happen’, although conceding that you were in Mildura at the time. When confronted with the DNA evidence you denied ever having raped anyone and said that you could not remember this incident. You consented to police taking a DNA sample.
Nature and Gravity of the Offending
16Rape is an intensely personal and inherently serious crime. This is evidenced by the 25-year maximum penalty. It is only in exceptional circumstances that an immediate term of imprisonment is not imposed. This is not such a case.
17I accept your counsel’s submissions that you had a socially acceptable interaction with the victim not long before your offending but that you were otherwise not known to each other. I also accept that your offending was impulsive, opportunistic and unplanned and resulted from disinhibition due to your consumption of alcohol and cannabis. Your offending was very brief, as I indicated above, only proceeding for a matter of minutes. However, it occurred in the victim’s home with her young son sleeping only metres away and you ejaculated on her stomach.
18I do not accept your counsel’s submission that there was no force or violence used. The jury clearly accepted the victim’s evidence that you pushed her onto the child’s couch and held her down firmly. The jury also accepted that the victim told you to stop on numerous occasions, and also that she struggled and tried to wriggle away. Whilst it is plain there are more serious examples of such offending and there are certain aggravating features that are absent in your case, on any view, your offending involved an invasion of the sexual privacy and dignity of the victim. It occurred in her own home and against her will. For these reasons it must be seen as very serious.
Victim Impact
19The victim read her victim impact statement to the Court with courage and fortitude.[1] She spoke of how the offending had affected her in so many ways, particularly with relationships and her ability to trust. The victim has blamed herself for many years for what happened that night and was for a long time over-protective of her son. Your offending has impacted her ability to love and respect herself and to feel worthy. The impact of your offending on the victim has been both long lasting, pervasive and profound.
[1] Exhibit A on the Plea.
20I am hopeful, like the victim, that your finding of guilt will now allow her to move forward, allow her to stop blaming herself and allow her to heal. I want to assure the victim that the Court has heard her voice and there will be accountability and consequences for you having caused her this harm.
Personal Circumstances
21So, I turn to your personal circumstances now. You were born and raised in Broken Hill and you are the youngest of three children. You were brought up in what has been described as a ‘functional and cohesive family’. No one in your family had any problems with mental illness, substance abuse or criminality. Your parents were loving and supportive. You told David Ball, psychologist, that you felt very grateful and honoured to have such wonderful parents.[2] Tragically, your mother passed away in 2004 from cancer. Your father is still alive and you still have contact with him and your brother, Randal, and sister, Tania.
[2] Exhibit 3 on the Plea.
22Your sister, Tania, provided a reference on your behalf.[3] She confirmed your experience of growing up in a loving family. She spoke of the heartbreak and sadness when your mother passed and also when your brother’s nine-year-old daughter died as a result of an asthma attack. Your sister is very proud of you and described you as a loving father, husband, brother and son, who has worked hard to support his family.
[3] Exhibit 8 on the Plea.
23After completing Year 10 you left formal education. Initially upon leaving school you commenced a plant mechanic apprenticeship with your father, but you did not complete this training. You moved to Queensland and worked as a stonemason and labourer. You returned to Broken Hill and worked with your father from time to time but also worked as a labourer and machine operator in Adelaide and Mildura. You had some work in Wagga Wagga at an abattoir. At that time in your life, you moved around quite a lot and worked in several different jobs.
24In 2006 you commenced work on pipelines for Mitchell Water Australia in water infrastructure as a leading hand and machine operator. This work involved travel around Australia, laying pipes and building pump stations for major water projects. Your annual salary from this employment was approximately $100,000 per annum. You have not worked since 2020 when you were involved in a serious single vehicle car accident.
25You met your wife, Julia, in 2007 and married a few years later in 2010. Your relationship with Julia is the only significant romantic relationship you have known. You have two children, Alannah, eight, and Samuel who is twelve. Not surprisingly, your marriage has been strained by both these proceedings and the aftermath of your car accident. Currently you stay home, filling your time with domestic duties and watching TV. You have assisted your children with home schooling through the very challenging COVID lockdowns that we have all experienced. Your wife is employed as a health care worker in aged care with local government providing care to the most vulnerable members of our community. Your presence at home has allowed her to work increased hours.
26In a letter to the court your wife described you as a loving, dedicated father and a man who has worked tirelessly to provide for his family, who are your world.[4] She states that imprisonment will see your therapy and rehabilitation cease and will cause trauma and upset to your children. In addition, there will be family and financial hardship as she will be a single parent on a part time income. She has asked I take into account the absence of similar offending, your changed circumstances and role as a father and provider to your family, and I do so.
[4] Exhibit 5 on the Plea.
27In 2020 you were involved in a serious motor vehicle accident that rendered you unconscious. You woke in The Alfred Hospital and remained there for two weeks, before undergoing a further three-to-four-week rehabilitation at Epworth Hospital. Initial testing revealed that you had suffered a moderate to severe traumatic brain injury. Fortunately, according to recent testing undertaken by Dr Linda Borg, you have demonstrated some, but not a complete, recovery from the 2020 head trauma. I will return to Dr Borg’s opinions in more detail shortly. You also sustained injury to your shoulder and are currently prescribed Targin, a pain medication and an anti-depressant. Since your accident you have not been employed. Your wife and sister have observed that you have experienced some memory, as well as interpersonal difficulties, and you have acknowledged that you have experienced a decline in motivation.
28In your past you have used amphetamines, heroin and cannabis, however, there is no indication that drug use has been a feature of your life for some 20 years. The same cannot be said of alcohol. You continue to drink somewhere in the order of three to four full-strength beers and one glass of red wine each day.
29At the time of your offending, which is now 21 years ago, your circumstances were very different to what they are today. You were 29 years old and single. Your prior history confirms that you had issues with drugs and alcohol around that time and also reveals public disorder and assault type offences. I do note that you have no prior convictions or subsequent charges for any sexual offending, which is a factor I take into account in your favour. Quite obviously, you are worlds away from the 29-year-old man who offended against the victim. You are now 50 and both a father and a husband. You have been employed long term and have worked hard. Apart from a couple of relatively minor matters you have been in no further trouble.
Delay
30Delay is an important mitigatory factor I take into account in your case. You have lost the benefit of having this matter dealt with when you were younger and in better health. The delay has allowed you to demonstrate that you have an ability to foster rehabilitation. I accept that you are unlikely to reoffend in the future, as demonstrated by your largely law-abiding lifestyle for the last 15 years.
31I also accept that since your arrest in 2018 the worry and strain of this case have caused not only you, but your family, enormous anxiety and stress. Since this time, you have not known what your future would hold in terms of your liberty, and since 2020 what this would mean in light of your injuries.
Mental Health
32To your credit, since you were found guilty of these crimes you have engaged in counselling with Peter Hanley, psychologist, from Central Melbourne Psychology.[5] I am impressed that even though you pleaded not guilty and denied the offences, you have nonetheless taken this step towards gaining insight and rehabilitation, both in terms of your alcohol use and your offending.
[5] Exhibit 4 on the Plea.
33David Ball, forensic psychologist, undertook a risk assessment and has assessed that you are in the low-moderate risk category for sexual re-offence relative to other male sex offenders. In terms of rehabilitation and management in the community Mr Ball opined that you are likely to present with few, if any challenges in terms of your safe management in the community. He believes you would benefit from the successful completion of a sex offender treatment program and from gaining an understanding of the effects of sexual abuse upon your victim. He is also of the view that you might benefit from continuing to address your alcohol consumption.
34As mentioned before, you were also assessed by Dr Linda Borg, neuropsychologist, and her report, dated 6 May 2022, was tendered on your plea.[6] Dr Borg provided the following opinions:
[6] Exhibit 6 on the Plea.
(a)“Findings from the neuropsychological assessment conducted three to four weeks post-injury indicated slowed speed of processing, impaired higher-order attention and deficits in memory retrieval, as well as somewhat garrulous and over familiar clinical presentation. By comparison, the current performances indicate improvement in basic attention and working memory. However, deficits in processing speed and memory retrieval have persisted over time, with evidence of worsening higher-order attentional efficiency as well as obvious change in mental state, whereby he now impresses as apathetic in manner;
(b)When taken together, Mr Farrugia does appear to have demonstrated some, albeit not a complete, recovery from his 2020 head trauma. Nonetheless, compromise to higher-order attention and processing speed, and subsequently memory, persist. Furthermore, Mr Farrugia demonstrates impairments to reasoning, which are likely compounded by poor judgement and variable insight. The inefficiencies exhibited are consider multifactorial in nature. Firstly, Mr Farrugia demonstrates mild residual deficits, consistent with diffuse axonal injury resulting from his 2020 motor vehicle accident. However, additional contribution from acute influences including underlying depressive features and ongoing daily alcohol use are also likely impeding his cognitive function and contribute to the decline evident in higher-order attention and mental state;
(c)Given that Mr Farrugia is now nearly two years post-accident, there is little likelihood of further neurological recovery from his head trauma, with ongoing intervention likely to be based on the development of compensatory strategies;
(d)From a cognitive perspective a period of incarceration is unlikely to result in deterioration in function if a custodial term is imposed. Given that the structured and routine nature of this environment would likely support attention and memory systems, thereby reducing cognitive demands from day to day. However, incarceration would impede his ability to access remedial supports which may be detrimental to his future prospects, including ability to return to work. Furthermore, given:
(i) previously identified frontal and right temporal pathology on brain imaging;
(ii) the findings from his previous speech pathology assessment; and
(iii) deficits identified in non-verbal reasoning, it is considered likely that Mr Farrugia presents with impairments in pragmatic communication, including reading of social cues, facial expressions and understanding of nuance, sarcasm and innuendo. This may place him at risk in a custodial environment, whereby he may misinterpret the comments or behaviour of others, potentially leading to conflict. Given the presence of extensive diffuse axonal injury, it is imperative to mitigate the risk of further head trauma, as he would be more susceptible to experience a loss of consciousness due to underlying cortical vulnerability;
(e)A further consideration is the potential impact of a custodial sentence on
Mr Farrugia’s mental state. Specifically, given the presence of apathetic and depressive features, the potential for a degree of psychological decompensation, cannot be discounted. Hence, ongoing psychiatric/psychological monitoring is highly recommended.”
35I accept Dr Borg’s opinions that incarceration would impede your access to remedial supports, that because of your ongoing deficits you will likely be at increased risk in custody, that your traumatic brain injury renders you vulnerable and there is very real potential for a decline in your mental state. In the circumstances limbs 5 and 6 of Verdins are enlivened in your case.[7] I take these factors into account in your favour in sentencing you.
[7]R v Verdins & Ors [2007] VSCA 102.
Rehabilitation
36It is my view that you have excellent prospects for rehabilitation. I form this view based on the supports you have in the community and also your demonstrated ability to live a largely law-abiding life for the last 15 years. In recent times you have engaged in treatment with Peter Hanley, and although you do not admit the offending you appear committed to work through your issues.
Onerous Conditions in Custody
37I take into account the onerous conditions in custody as a result of the COVID-19 pandemic. Quarantine, lockdowns, no visits, limited programs and an inability to distance from infection are all factors that are now regular features of the custodial experience.
38Although I cannot take into account family hardship in your case as it does not satisfy the test of exceptional circumstances, I do take into account that imprisonment will be more onerous for you given your concern for your family. This was highlighted when you last appeared before the court and your wife and son had COVID and your son had complications of myocarditis. You have been an active and involved parent and a loving father and husband, who has worked hard to provide for his family.
Sentencing Principles
39I consider the relevant sentencing principles that must be applied in this case are general deterrence, denunciation and just punishment. In my view, specific deterrence plays little or no role in the sentencing matrix, given your age, your background and the delay in this matter. The term of imprisonment that I impose I am sure will sufficiently deter you from offending in the future and I do not expect to see you back inside a court.
40Other sentencing principles that I must apply are parsimony and proportionality. As I explained to you last time, I should do no more than is necessary to punish you. I am of the view that a lengthy sentence is not required to bring the message home to you and that a merciful sentence would be appropriate and consistent with the principle of parsimony.
41Mr Farrugia, after consideration of all of the above matters, including the oral and written submissions of both the defence and prosecution, the victim impact statement from the victim, and all of the tendered material, I have come to the view that the only sentence that can be imposed for the serious offending before the Court is one of imprisonment.
Serious Offender Provisions
42Upon sentencing you to imprisonment on Charges 1 and 2 your status changes to one of a serious sexual offender. This means that community protection becomes the predominant sentencing purpose.
43Pursuant to s6F of the Sentencing Act 1991 I cause to be entered into the records that for Charges 3 through to 6 you are sentenced as a serious offender.[8] I note that s6E applies and that every term of imprisonment imposed by a court on a serious sexual offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any sentence of imprisonment imposed on that offender, whether before or at the same time as that term. That section must, however, give way to some extent to the principle of totality.
[8]Sentencing Act 1991 (Vic).
44Given your offending involved a single victim and arose out a single incident lasting a matter of minutes, I propose to order a nominal amount of cumulation for each of the rape charges. I do so to acknowledge that even acts closely associated in time represent separate and substantial harms.
45The prosecutor, Mr Cameron, submitted that the Crown did not seek a disproportionate sentence.
Sentence
46So, in terms of sentence, Mr Farrugia, if you could stand. In relation to the offending before the Court I sentence you as follows:
Charge 1, indecent assault, six months' imprisonment;
Charge 2, rape, three years' imprisonment;
Charge 3 of rape, three years' imprisonment;
Charge 4 of rape, three years' imprisonment;
Charge 5 of rape, three years' imprisonment;
Charge 6, indecent assault, six months' imprisonment.
47So, Charge 2 is the base sentence and I order that two months of the sentence on Charge 3, two months of the sentence on Charge 4, and two months of the sentence on Charge 5 be served cumulatively. So, what this means is a total effective sentence of three years and six months. That is the head sentence.
| # | Charge | Sentence | Cumulation | ||
| 1 | Indecent Assault | 6 months | nil | ||
| 2 | Rape | 3 years | Base | ||
| 3 | Rape | 3 years | 2 months | ||
| 4 | Rape | 3 years | 2 months | ||
| 5 | Rape | 3 years | 2 months | ||
| 6 | Indecent Assault | 6 months | nil | ||
| Total effective sentence | 3 years 6 months | ||||
48I turn now to the issue of parole. The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation through conditional release where appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all the circumstances of your case, in particular, the concession of the prosecution that taking into account delay and other matters in mitigation, a shorter sentence than may ordinarily be imposed upon a jury finding of guilt, is appropriate. I intend to order a shorter than usual non-parole period and I order that you serve a period of 18 months before being eligible for parole.
49So that is the bottom line, 18 months before being eligible for parole with a head sentence of three years, six months.
50So that is the order of the court. Mr Farrugia, given you have not been in custody for some time, I think it is appropriate that I put down as a custody management issue that you could be vulnerable as a result of the acquired brain injury and I probably should note whether there is any medication, because I understand that you are on antidepressants as well as some pain medication; is that correct?
51OFFENDER: Yeah.
52HER HONOUR: Yes, all right. So, I will make sure that that is noted, all right.
53HER HONOUR: I hope you understand the sentence and I am confident - you will get through this sentence. It will be all right in the end.
54OFFENDER: My family is the biggest worry, Your Honour.
55HER HONOUR: Yes, I know that. So, take care of yourself. They will be all right. They will manage and you will get through this, all right.
56HER HONOUR: All right, so I will adjourn.
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