Director of Public Prosecutions v Fenby

[2017] VCC 542

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-01635

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY LAURENCE FENBY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	10 May 2017
CASE MAY BE CITED AS:	DPP v Fenby
MEDIUM NEUTRAL CITATION:	[2017] VCC 542

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr P. Bourke
For the Accused	Mr M. Sharpley

1HIS HONOUR:

2You can stay seated, Mr Fenby.  Timothy Laurence Fenby, you have pleaded guilty to one charge of criminal damage, one charge of indecent assault and one charge of common law assault.  Those crimes carry maximum penalties of 10 years, 10 years and 5 years respectively.

3Firstly, pursuant to s.464Z of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide the same, police may use reasonable force to take it from you and that order is made and handed down.

4You are 41 years of age.  You have pleaded guilty to a settled indictment and you must get the utilitarian benefit of that plea of guilty.  In this particular scenario, having heard some of the matters that your counsel was able to put on your behalf during the course of the plea, particularly about text messages subsequent to the offending and subsequent to you being charged, I regard this as a plea which has eschewed a realistic prospect of acquittal on those two charges at least, and therefore should be given full benefit.

5You do have a prior criminal history, a number of the matters of which are concerning. They would appear to be - some of them at least - in some way relationship based but the fact of the matter is you have not previously done an active custodial sentence and this is a relatively contained situation.

6First, summarising the matters, there is a deal of material in the Crown opening which was not drafted by the current prosecutor which I think is of little assistance to me.  The fact of the matter is, and I think it is fair to describe it in these terms, you and the victim were in a dysfunctional relationship.  I am not going to buy into who did what to who, I am simply here to sentence you for what you did in respect of the charges that are brought against you.

7Somewhere in June of 2015, there was an argument about having sex and the victim declined.  You became angry. She then got out of bed and went to the spare room to sleep on the bed in there.  You followed her, leant over the bed and pushed your face against hers.  She felt intimidated.  You then left the room and she heard a loud bang.  Upon her leaving the room, she saw in the wall a dent that looked like a boot mark.  You subsequently admitted to police that it was in fact a book mark and that you had thrown a boot against it.  That gives rise to a charge of criminal damage.

8On the weekend of 26 to 28 June, again there is material in the opening which is of no real assistance to me - anyway on 27 June another argument occurred between you as a consequence of which you had consensual sex.  Having been in Numurkah for a weekend, you stayed at her house.  There was some disagreement between the pair of you.  You asked her to have a shower with you.  She refused and went to bed.

9You joined her in the bed.  There was then another argument where you threw each other's mobile phones around.  You then got on top of her, pressed your forehead against her with pressure, pinned her down and forcibly thrust your hand between her legs and against her genital area.  She said, "Fuck off" and started to struggle and you got off her and were standing at the end of the bed.

10You then said words to the effect of, "This is what you want" before getting back on the bed and pinning her down again.  You again forced your hand between her legs and against her genital area.  She apparently managed to kick you which resulted in you getting off the bed.  You then said, "This is what you want.  Are you happy now?  I'm leaving and not coming back."  That gives rise to Charge 2 of indecent assault.

11She called her parents and they came around. She was seen to be very distressed.  Contact continued between the two of you until 23 July 2015 where during the course of an argument you spat in her face, that is Charge 3 of common law assault.  She continued to contact you by text and consensual sex continued to take place.

12There were further arguments and then on 30 July on discovering that her driver's side tyres of her black utility had been let down, she rang the police and complained about that incident.  It was during the course of that discussion, as I understand it, that the assertions of the sexual assault came out.  She had previously told her parents about that incident.

13You were interviewed, denied the sexual assault but admitted the other offending.  Subsequent to your being charged, the sexual relationship continued and indeed your counsel has been able to read out a couple of text messages sent some months afterwards which would seem to indicate that it was continuing at that point in time.

14I have before me the victim impact statement which, as I indicated to both counsel, I take into account the admissible parts and it certainly plays a part in this sentencing process.  All offending has to be looked at in its context and in this situation the sexual assault has  to be regarded as serious, though certainly not at the higher end of such offending.

15There are a number of matters or a number of decisions in relation to this and it all comes down to the overall circumstances of each individual case.  Your counsel pointed out you are now 41.  You have worked ever since you left school.  You have a very good work record.  You were involved, to put it neutrally, in a dysfunctional relationship which you were clearly unable to cope with.

16Again, as I have said, I am not buying into all the who did what to whos in this particular scenario.  It seems to me that the prospects of your rehabilitation should be relatively good and the risk of you re-offending, certainly in this situation, should be non-existent.  There is an intervention order in place.  If that is breached, the matter will have to be dealt with again but in all the circumstances I think the appropriate disposition here is that which was submitted by your counsel as a community corrections order.

17It will be with conviction which is a punishment in itself.  It will be with 200 work hours and it will be over three years.  Upon the completion of the work hours of course the CCO ceases.  There is no other order that I have to make.  No, thank you.

18Just stand up for me for a second if you would, Mr Fenby.  You are on a community corrections order for three years, 200 work hours.  The situation is if you breach it by offending, anything like this, you will be going through that door.  Fair enough?  Right.

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