Director of Public Prosecutions v Fennell

[2022] VCC 17

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00815

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN FENNELL

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2021
DATE OF SENTENCE:	19 January 2022
CASE MAY BE CITED AS:	DPP v Fennell
MEDIUM NEUTRAL CITATION:	[2022] VCC 17

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentencing.

Catchwords:             Plea of guilty – Indecent act with a child under 16 – Sexual penetration of a child under 16 – Good prospects of rehabilitation – Advanced age – Poor physical and mental health – COVID-19 pandemic.

Legislation Cited:     Sentencing Act 1991 ss 5, 6AAA, 6E.

Cases Cited:DPP V Toomey [2006] VSCA 90; R v RLP [2009] VSCA 271; R v Sposito, Unrep 8 June 1993; RHMcL v R (2000) 203 CLR; R v Verdins & Ors [2007] VSCA 102; Sayer v R [2018] VSCA 177; Worboyes v R [2021] VSCA 169.

Sentence:                 Imprisonment for a period of 2 years and 2 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S.Coombes Ms A. McVean	Office of Public Prosecutions
For the Accused	Ms A. Beech	Stary Norton Halphen

HER HONOUR:

1John Fennell, you have pleaded guilty on indictment to four charges relating to the one episode of offending between 25 January 2000 and 19 December 2000; Charge 1 and 4 indecent act with a child under 16, Charges 2 and 3 sexual penetration of a child under 16. 

2Each of the charges on the indictment carries a maximum penalty of 10 years' imprisonment.

Circumstances of the offending

3The full circumstances of your offending are set out in the summary of prosecution opening dated 15 November 2021, marked as Exhibit A on the plea.  The document forms part of these reasons. 

4In summary the victim of your offending was Charlie Johnson[1] born in August 1986.  I note here in accordance with protocol, that when published names will be anonymised to protect Mr Johnson and his family's privacy.

[1]A pseudonym.

5Some time on a school day in 2000 when Mr Johnson was aged either 13 or 14, he attended the Knox City Shopping Centre in his school uniform with his school bag.  It may have been within or outside of school hours.  Because of his deafness, he was experiencing frustrations and difficulties at school and would sometimes not attend.

6He attended at the public toilet at the shopping centre and was standing at the urinal urinating.  You stood to his right.  Mr Johnson at the time, only a young boy, thought you looked to be in your 60s or 70s and noticed that you were looking at him.  In fact, you would have been approximately 52 years of age.  After Mr Johnson had finished, you approached him and started talking to him.

7You told him to come with you and he agreed.  You walked together to your white van and you took him to your home in Wantirna South.  The two of you entered your home, and Mr Johnson followed you into your bedroom.  He then complied with the request to take his clothes off, you took your clothes off, laid down next him, and you masturbated in front of him (charge 1: indecent act in the presence of a child). 

8You then told him to perform oral sex on you, which he did.  This went on for some time, where your penis went in and out of his mouth (charge 2: sexual penetration of a child under 16).   You then told him to lie on his stomach and he did so.  You proceeded to put your finger inside his anus and continued to move it in and out.  This was quite forceful and hurt him and he told you to stop (charge 3: sexual penetration of a child under 16).  You also kissed him on the lips.

9You then told him to get off the bed and he knelt down with his back against the bed and you standing before him.  You masturbated for some time, before you ejaculated onto his chest.  He cleaned himself with the towel, and got dressed, and you drove him back to the Knox City Shopping Centre (charge 4: indecent act with a child under 16).

10Mr Johnson did not tell anyone about the incident until 2016, when he spoke to his sister.  She encouraged him to tell their mother, which he did, and they both attended at the Knox Police Station and reported the matter.  At the time, Mr Johnson did not wish to make a formal statement, and he made such a statement on 16 March 2019.

11You were interviewed on 23 August 2019. You stated that you did not remember ever meeting the victim but confirmed your address and that you drove a white van at the time.

Nature and gravity of the offending

12The sentence I impose must reflect the gravity of what you have done.  Sexual offending against children offends against our intrinsic values as a community and our common humanity.  As the courts have repeatedly stated, a society which fails to protect its children from sexual abuse by adults is degenerate.[2] The courts must uphold the laws which treat such offending as extremely serious.  There is no doubt that sexual offences against children call for just punishment, public denunciation and general deterrence.

[2]R v Sposito, Unrep 8 June 1993; DPP v Toomey [2006] VSCA 90.

13As your counsel, Ms Beech, properly conceded, this is a serious example of these offences.  The complainant here was also vulnerable due to his deafness, which its agreed would have been known to you.  On the most favourable view to you, Mr Fennell, your offending is likely to have occurred after you had just completed a parole period referrable to the sentence imposed on you in 1999.

14I regard your offending as serious and your level of culpability for the offending as high.  I accept that it does not contain aggravating features that are sometimes seen in these cases. The offending was not accompanied by threats or manipulation.  While there are four separate charges, it essentially covers one episode of offending.  There is no specific breach of trust involved.  Also, there is no evidence of preplanning, nor any effort to conceal your conduct. 

Victim Impact

15Tendered on the plea as Exhibit B was a victim impact statement of Charlie Johnson of 20 August 2021.  The court also received victim impact statements from his sister, Emily Withers[3] of 5 August 2021, and his mother, Barbara Smith[4] 23 August Exhibit C.  All statements were courageously read out to the court by Ms Withers, Mr Johnson’s sister.

[3] A Pseudonym.

[4] A Pseudonym.

16In his victim impact statement, Mr Johnson speaks of the serious and far-reaching impact your offending has had on him.  He has sleeping problems, and he has struggled over the years with stress, lack of confidence, and depression.  At the time of your offending against him, he felt ashamed and embarrassed.  This caused him to withdraw from others and from school.  Your abuse caused him to struggle with his sexual identity and to fall into destructive behaviours.  He states,

'Being unable to socialise with others has been the biggest issue for me.  When I was in high school, I struggled to embrace who I am because I was so deeply embarrassed and ashamed of my actions with John Fennell.

17His mother, Barbara Smith, speaks of the changes she observed in her son after you offended against him.  She laments the important formative years he has lost as a result of your offending.  She refers to his withdrawal from family and friends, and the difficulties he has experienced with work and study.  She feels that talking about what happened is helping to restore her son's sense of
self-worth.

18Ms Withers speaks of the negative effects of your offending on her brother also and refers to his multiple suicide attempts in the past, and the trauma he has experienced. 

19While such matters cannot overwhelm the sentencing process, there can be no doubt that your offending has had a lifelong and devastating impact upon your victim and his immediate family.  I take this into account in sentencing you.

Plea of guilty and remorse

20You were first interviewed for these offences in August of 2019.  Your filing hearing was in March of 2020.  You entered a plea of guilty to these charges on 21 June 2021.  It cannot be said that your plea of guilty was entered at the earliest opportunity.

21On 22 April 2021, there was a contested committal, where Mr Johnson was cross-examined.  I accept that you are still entitled to a demonstrable discount for your plea.  Mr Johnson and other witnesses have been spared the further delay and distress involved in a trial and in giving evidence.

22Your plea is particularly valuable in circumstances where the pandemic has caused significant delays and a backlog in trials.  I accept that it should, as was submitted on your behalf, attract a more pronounced amelioration of sentence.[5]

[5]Worboyes v R [2021] VSCA 169.

Personal circumstances

23As for your personal circumstances, your counsel, Ms Beech, in a very comprehensive and considered plea, outlined the following: 

24You were born and raised in Wangaratta.  You have an older brother and sister, and one younger sister.  Your father was a farmer, and you were raised on a dairy farm.  Your mother was a school teacher.  You were close to your father, whom you respected and loved; he died when you were 25 years of age from diabetes and heart-related issues.  You suffered considerable grief.

25In your early years, you have suffered a number of life-changing traumatic experiences, including sexual abuse.  When you were eight years of age, your grandfather passed away, and your parents had to go to the city to deal with the funeral arrangements.  At this time, you went to stay with a neighbouring farmer, and while there, you were sexually abused by his 16-year-old son.  This abuse, which included regular and repeated penetrative acts continued over a period of some 18 months.  So, from when you were approximately 8 to 10.

26Your own history of sexual abuse was not proffered as excusing your abusive behaviour but was said to give it some context.  You did not confront these memories for a long time, and you did so only after you were first deal with for your offending.

27You attended Wangaratta technical school, and you struggled with learning, and were diagnosed with dyslexia.  You did not have many friends, and you also struggled to socialise or engage with the other children.  You completed Year 9 and started working as an apprentice carpenter.  You also completed your first year nursing qualification and later joined St Johns Ambulance.  You obtained a youth worker certificate, and later joined the Australian Mission and worked as a missionary in Papua New Guinea.

28Your qualifications in youth work, nursing, and carpentry were put to good use there.  You were forced to return after two years because you contracted malaria.  You initially returned to the family farm, worked in Wangaratta as a youth worker.  You then later moved to Melbourne and obtained work with an architect firm in South Yarra.  You also became a member of the rotary in Toorak and it's there that you met your wife, Susan.[6] You married in 1974 and during the plea hearing, she was seated beside you and she is present in Court today.  She has remained supportive of you throughout.

[6]A Pseudonym.

29After you married, you started your own building business in Melbourne.  You have two sons, Luke,[7] who was born in 1980 and Stefan,[8] who was born in 1992.  Between them, you have four young grandchildren.  I was told that you and your wife care for the grandchildren regularly, but given your SORA registration, you have supervised access with the children.

[7] A Pseudonym.

[8] A Pseudonym.

Prior history and subsequent matters

30You have one prior matter alleged in your criminal history.  On 7 May 1999, you were convicted of the charges of sexual penetration of a 17-year-old under your care and indecent assault.  You were sentenced to a total effective sentence of one year and six months, with a minimum non-parole period of six months.  A copy of the summary of your prior matter was provided to the court.  Your victim in that matter was 17 years of age at the time and was also hearing impaired.  The offending occurred in May 1997.

31I was told that the bulk of the offence specific treatment that you have received was during your first sentence in 1999.  You completed some sex specific treatment in Ararat after serving the six months imposed, and you then participated in further treatment on parole. 

32Your counsel, Ms Beech, very helpfully provided the court with a chronology outlining relevant subsequent matters.

33On 28 May 2007, you were convicted of two charges of indecent assault of a child under the age of 16, which related to offending between December 1995 and January 1996.  Apparently, the victim had been an apprentice in your business.  You were first interviewed about this matter in November of 2006.  You were sentenced to three months' imprisonment, which was suspended for two years.

34In August 2008, you were convicted of failing to comply with the SORA obligations and fined $250.  Apparently, this breach related to your failure to report your vehicle registration.

35In 26 April 2016, you were convicted of five counts of indecent assault, and one gross indecency.  This related to multiple complainants and the offending period spanned from approximately November 1985 to December 2004.  Though you were not interviewed about these matters until later, in approximately 2012, 2013. You were sentenced to nine months' imprisonment, and a two-year Community Corrections order with a range of conditions including unpaid community work, treatment and programs.  I was told that you did not receive any treatment on the order, mainly because of your health needs, and the order was later varied. 

36While these subsequent matters are not prior convictions, they are relevant to your prospects of rehabilitation, and also in particular to the application of the totality principle in your case, which I will come to shortly.  The chronology also indicates that you have not offended since 2004. 

37Now, I will address the factors that were specifically relied upon on your behalf in mitigation.

Old age & physical ill health

38You come before the court aged 73 with a number of debilitating medical conditions, including type two diabetes, cancer of the larynx, ischemic heart disease, hydrocephalus, and osteoarthritis.

39The court received a letter from your treating doctor, Dr Quoc Duong, marked Exhibit 2. The letter outlines your medical conditions and states that management has, 'Included a holistic approach of multiple medications and multiple specialist teams'.  The cancer has been treated to resolution and is now being monitored for reoccurrence.

'The myriad of other conditions of chronic long-term issues that are managed with the aim of control and trying to slow the process of inevitable deterioration rather than cure'.

40The letter also indicates that you were admitted to St Vincent's Hospital on
25 August 2021 for a ventriculoperitoneal shunt procedure and notes that, 'There is the potential for future surgeries, especially with complications related to the shunt, such as blockage'.  Dr Duong also opines that you’re already quite frail with limited mobility and you are at increase fall's risk, possibly even more so in a different environment than your home.

41He considers you to also be in the high-risk group for a reoccurrence of a cardiovascular event or stroke.  Dr Duong's overall impression is that the custodial environment will negatively affect both your physical and mental health.  I was told that you are on approximately 18 different types of medication and that your wife provides significant assistance to you on a daily basis.

42You have a medical appointment at least once a week.  Your blood is tested and monitored every six weeks, and you have regular CT scans.  The risk of a stroke is also something being monitored.

43Your counsel referred to the case of R v RLP,[9] for the relevant principles to be applied by the courts when dealing with an elderly offender who is in ill health.  What is clear is that advanced age or ill health of an offender is no doubt a relevant sentencing consideration and may in some cases be of significance.  However, it cannot be used to justify the imposition of an unacceptably inappropriate sentence, or to displace the primacy as sentencing considerations of just punishment, proportionality, and general and specific deterrence.

[9] [2009] VSCA 271.

44I take into account, Mr Fennell, your ill health in the two different ways advanced on your behalf.  I accept that it will be a greater burden on you by reason of your state of health, and that there is a serious risk of imprisonment, having a gravely adverse effect on your health.  I also take into account your old age in sentencing you, and I accept that your advanced years, in combination with your physical illnesses, are such as to make prison more difficult than it would be for a prisoner of younger years in a healthy condition.

45The prosecution submitted that your health and your conditions are not at a level where you cannot be managed and treated in custody. There was reference at the plea to correspondence from the Victorian Government Solicitors Office in relation to services provided and the availability of hospital care.

Mental health

46I also received a letter from psychologist, Jordan Eldridge marked as Exhibit 1.  You have seen Mr Eldridge for regular sessions, approximately every three to four weeks since March 2018 to present.  He diagnoses you as suffering from major depressive disorder, severe with recurrent major depressive episodes, which significantly affects your day-to-day functioning.  Your symptoms include depressed mood, diminished interest in activities, insomnia, fatigue and recurring suicidal ideation.  He opines that a term of imprisonment would likely weigh more heavily on you than it would a person in normal health, given the ongoing severity of your long-standing depression and its effects on your functioning.

47I accept that limbs five and six of Verdins[10] are enlivened in your case and I take those matters into account.  I accept you will likely find imprisonment more burdensome because of your psychological conditions that your health may adversely be affected if you are separated from your usual treatment regime, and that these two factors are exacerbated by the impact of the Coronavirus in custody presently. 

[10][2007] VSCA 102.

Totality

48Given the subsequent matters and sentences that I have already referred to, totality does have an important role to play in your case.  Broadly speaking, your other offending was of a similar nature perpetrated by you over a number of years, mainly in the 80s and 90s.  The last offending was in 2004.  The prior sentences and time spent in custody, a part of your circumstances, which are required by the principle of totality to be taken into account and I do so.[11]

[11]Sayer v R [2018] VSCA 177.

49I give weight to the fact that the objectives of specific deterrence and rehabilitation have largely been addressed by the intervening sentences that you have served.  Totality is also relevant, because you stand to be sentenced on the current indictment for multiple offences committed at the same or a similar time.  On your behalf, it was submitted that considering your criminality as a whole, some concurrency was, 'just and appropriate' and I accept this submission.

50In your case, a serious sexual offender regime applies, and whilst s6E of the Sentencing Act must be regarded as moderating and limiting totality, the principle remains relevant, as does proportionality.[12] For completeness, I note here that counsel for the prosecution does not seek a disproportionate sentence in the circumstances of your case.  I do not intend to impose sentences on the relevant charges, which are disproportionate to the gravity of each offence considered in light of the objective circumstances. The protection of the community must be regarded as the principal purpose for which the sentence is to be imposed.  I accept that your advanced age and your ill health make the risk of reoffending highly unlikely. 

[12] RHMcL v R (2000) 203 CLR, [76].  

Delay

51There has been a delay in this case of over 20 years, the offending occurred in 2000.  Mr Johnson did not make a formal statement until March 2019, and you were not interviewed until August 2019. The lapse of time since the commission of these offences is not unusual.  Delay is often a feature of this offending, with shame playing a large part in victims not disclosing such offending, particularly children.[13] 

[13]DPP V Toomey [2006] VSCA 90, [14].

52As submitted on your behalf, I accept that the effects of the delay in your case are important and relevant. The delay here has allowed you to demonstrate your ongoing commitment to your rehabilitation.  The delay also means that you are now being sentenced as a 73-year-old with significant health issues, and any term of imprisonment as I have already noted, will be more onerous for you.  I take all these matters into account.  I note here that the delay also means, Mr Fennell, that the court can see how the trauma you have caused Mr Johnson has been long-lasting and pervasive.

Impact Covid-19

53Should I sentence you to immediate custody, the conditions you face will be more onerous because of the impact of the COVID-19 pandemic.  A sentence will necessarily involve an initial isolation period, and you will be subject to greater restrictions, deprivations, and stress than in normal times.  I accept and take into account that the existence of COVID along with the other matters I have referred to will make custody more burdensome for you.

Prospects of rehabilitation

54I accept the submission made on your behalf by Ms Beech that you have travelled a long way along your path to rehabilitation.  Your prospects have improved, and they are good.  You have engaged in treatment.  You have experienced the powerful deterrent effect of imprisonment.  You have not reoffended for a long time.  You have protective factors in your favour, including the ongoing support of your family.

Sentencing principles

55The basic purposes for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation, denunciation, and protection of the community.  In sentencing you, I am required to have regard to a range of matters including seriousness of your offending, your culpability, your personal circumstances, and those of your victim.

56I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant in your case.  I have also had regard to current sentencing practices for the offences for which you have pleaded.  I also give full weight to the maximum penalties which pertained at the relevant time as they are an important yardstick in fixing the present sentence.

57There was no dispute between the parties that a term of imprisonment is warranted in your case.  The dispute centred around whether you should be required to serve an immediate term of custody.  Your counsel submits that a wholly suspended sentence, which is open to be imposed in your case, would satisfy all sentencing principles.  The Crown made no submission as to the precise structure or form of sentence but did submit that an immediate term of imprisonment was required.

58Mr Fennell, I have given very close and careful consideration to your case and whether you should be required to serve an immediate term of imprisonment.  I consider that specific deterrence and community protection have a limited role to play in the sentencing exercise.  However, I have reached the conclusion that the seriousness of your offending, and the need to unequivocally condemn such behaviour and to deter others, does call for an immediate term of imprisonment to be served.

59In determining the sentence, totality and proportionality also have an important role to play.  Weighing up all matters and in light of the significant mitigating factors advanced on your behalf, I consider that a term of imprisonment that is partially suspended is in all the circumstances desirable and appropriate. 

Sentence

60Mr Fennell, just remain seated there, and I am going to pronounce the actual numbers and the sentence.  You are convicted and sentenced as follows.  Charge 1, indecent act 4 months' imprisonment.  Charge 2, sexual penetration of a child 16 months' imprisonment.  Charge 3, sexual penetration of a child  20 months' imprisonment.  Charge 4, indecent act 6 months' imprisonment.

61Charge 3 is the base sentence.  I order that one month on Charge 1, four months on Charge 2, and one month on Charge 4, be served cumulatively on Charge 3.  This arrives, and I will have counsel check the numbers in a moment, at a total effective sentence of 26 months.  In other words, 2 years and 2 months' imprisonment. 

62You are required to serve 5 months and the remaining 21 months will be suspended for a period of 3 years.

63Before making this order, Mr Fennell, I am required to explain to you the purpose and effect of the order after your service of five months in custody.  You will have a 21-month prison sentence hanging over your heard for a period of 3 years.  That is a term of imprisonment, you must abide by it.  The consequences that may follow if you breach the order by committing an offence punishable by imprisonment during its operational period, is that you would come back before me on breach proceedings, and you may be required to serve the period that was suspended.  Do you understand that, Mr Fennell?

64OFFENDER:  I understand that.

65HER HONOUR:  In light of your prior criminal history from Charge 2 on the indictment, you fall to be sentenced as a serious sexual offender and the fact that you are to be so sentenced on Charges 2 through to 4 inclusive is to be noted in the records of the court. 

66Pursuant to s6AAA of the Sentencing Act I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence of three years and three months imprisonment, with a non-parole period of 18 months.

67By reason of your prior conviction for sexual penetration of a 16, 17-year-old, you must be placed on the SORA registry.  I therefore further order that you are required to comply with the reporting obligations under the SORA and the length of the reporting period is for life which is mandatory in your case.  You will be provided with documents and paperwork in relation to those obligations, Mr Fennell, which I take it you are already familiar with.

68Now, can I just check; Ms Beech and Ms McVean, the total effective sentence should arrive at two years and two months' imprisonment?

69MS BEECH:  Thank you, Your Honour.

70HER HONOUR:  Ms McVean, you agree?  The total effective is
26 months.

71MS McVEAN:  That is correct, Your Honour, being two years and two months.

72HER HONOUR:  That is right.  All right, thank you.  Is there anything further?  I will have custody management issues noted and I just wonder Ms Beech, in this case, whether it might be best for the exhibits, for the psychological report and also the medical report of Dr Duong to be annexed to the remand warrant.

73MS BEECH:  Yes, please, Your Honour.

74HER HONOUR:  I note as custody management issues,
Mr Fennell’s advanced years, his very poor physical ill health, the fact that he has been vomiting this morning, his poor psychological health, and I annex both the report from psychologist Dr Jordan Eldridge dated 19 November 2021 and Dr Quoc Duang 22 September 2021. 

75MS BEECH:  Yes, thank you.

76HER HONOUR:  Is there anything further?  I think that should deal with it.

77MS BEECH:  No, I think that covers it, Your Honour.  Thank you.

78HER HONOUR:  It will, all right.  Mr Fennell, you will be required now to go back to the Dock.  I have sentenced you as you have heard, to serve an immediate term of five months' imprisonment.  Once you have served that time, you will be released as I have indicated on a further term of imprisonment, although that will be suspended.  All right, Mr Fennell?  All right. 

79Can I thank Ms Beech, you for your assistance in this case.  Ms McVean, yourself and counsel, and everybody for their attendance today.

80MS McVEAN:  Thank you.

81HER HONOUR:  All right.  Unless there is anything further, we will adjourn the court.

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