Director of Public Prosecutions v Fennell

[2016] VCC 486

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -14-00841

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN ARNOLD FENNELL

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 April 2016
CASE MAY BE CITED AS:	DPP v Fennell
MEDIUM NEUTRAL CITATION:	[2016] VCC 486

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Loughnan
For the Accused	Mr M. Goldberg

HER HONOUR:

1John Arnold Fennell, you have pleaded guilty to six charges relating to four different victims.  There are five charges of indecent assault and one charge of gross indecency.  The maximum penalty for these offences are, indecent assault committed before 1 January 1992, that is Charges 1, 2 and 3, five years', indecent assault, Charges 5 and 6, ten years', gross indecency, two years'. 

2During the late 1980s, you were working as a registered builder and employed each of the complainants as work experience students in your business, Devoy Building Industries Proprietary Limited. 

3Tyson Dalgarno[1] was aged 13 in November 1985, when his father arranged for him to do work experience with you.  You were then aged 37.  You had taken Tyson to a house in South Yarra, where you were doing some kitchen renovations.  Inside the house you approached Tyson from behind and put your hand down the front of his pants.  You touched his penis, causing it to become erect.  You then pulled his jeans and underwear down to his ankles, wrapped your legs around his and cupped his testicles and penis.  You then pulled out your penis and masturbated in Tyson's presence.  Tyson Dalgarno was petrified and froze for the duration of the assault.  You gave Tyson $100 for the day's work and said to him, "It was our own little secret."  You contacted him to do more work experience, but that did not happen. 

[1] A pseudonym

4During 1989, Patrick Earle[2] also did work experience with you.  He was in Year 9 and aged about 15 years.  You were 41.  You were driving with Patrick seated in the car next to you in the front seat, to a timberyard in Syndal.  You reached over and touched Patrick's penis over his clothing, until it was erect.  That is Charge 2.  Patrick was scared and uncomfortable and did not know how to deal with the situation. 

[2] A pseudonym

5On another occasion Patrick was at your home and you masturbated his penis.  That is Charge 3.  Whilst doing this, you tried to push your penis into Patrick's anus.  He could feel pressure in this area on his bottom.  On a different occasion, you masturbated in Patrick's presence at your home and you then instructed him to masturbate himself.  That is Charge 4.  You paid Patrick Earle $240 cash, a sum much more than a work experience student was expected to receive.  You repeatedly engaged in sexual talk and innuendo with Patrick.  Patrick Earle told his wife about the abuse in 1994 and he went to the police in 2010. 

6During 2004, Jonathon Bussell[3] did work experience with you when he was 17.  You were aged 56.  You were driving your van to a job in Rowville with Jonathon sitting next to you in the front seat.  You put your hand on his upper thigh and moved it towards his crutch area.  You persisted in the conduct after being challenged by Jonathon, but he eventually pushed your hand away and telling you to "piss off".  That is Charge 5. 

[3] A pseudonym.

7In 2005, Joel Henning[4], then aged 18 years, did some casual work with you.  You were then 56 years.  You were driving your van to a job in Kilsyth with Joel sitting next to you in the front seat.  You put your hand on his upper thigh and then crutch area.  Joel pushed your hand away and said "no".  You persisted, telling him he would love it and asking how he would know if he did not love it if he had not done it before.  Joel Henning was freaked out by your behaviour. 

[4] A pseudonym

8The circumstances of this latter offending needs to be seen in context.  On
7 May 1999, you were convicted of similar offending that occurred in May 1997.  You were sentenced to 18 months' imprisonment and released after the completion of the six month minimum term.  Charges 5 and 6 were committed after your release.  The 1999 matters are therefore prior convictions in respect of Charges 5 and 6. 

9Each of the victims provided victim impact statements which were tendered to the court, Exhibits B, C, D and E.  Some of your victims were in court to hear the proceedings. 

10Your offending has had a significant effect on them, impacting on many aspects of their lives, including; their confidence; self-esteem; capacity to trust older men and others in the workplace; and most significantly, their relationships with partners and family.  Some have reverted to alcohol abuse, in an attempt to block out or deal with their experiences.  They experience anger and sadness. 

11One states:

"I feel I am damaged goods and I have lived a shadow of what might have been my life, according to that belief.  It is only now that I am starting to feel some positive emotions when I look out at the natural world and see the wonder it contains.  Regardless of how big or small the abuse, the impact on a child's life is forever."

12Another states:

"To this day, I still cannot tell my family the exact details of the abuse. 
I have to live with this inside me daily and struggle with the deeply sad feelings this has embedded in me.  The fight is a tiring one and I can really only fight it on my own.  I have, all these years, tried to desensitise myself from feeling my own emotions, and that has caused me to shut down from feeling other people's emotions too.  I have felt like a scared little boy. 
I feel like, to this day, I am still that young boy in my body today.  I was vulnerable, innocent and good.  I was a child and he took that away from me and I can never get that back."

13You are currently aged 68 years, having been born in Wangaratta on 1 March 1948.  You are the third eldest in the family and have a brother and two sisters.  Both your parents are deceased.  You attended school locally, up until you were 15, then completed a carpentry apprenticeship, working on various rural properties.  In the early to mid-70s, you moved to Melbourne and worked in the building industry, running a number of different businesses until your retirement in 2013. 

14You have been married since 1974 and your wife remains supportive of you.  You live with her at a property in The Basin, though you have spent most of your married life at a house in Wantirna South.  You have two sons who both have children and you have close relationships with all immediate family members. 

15Your wife gave evidence on the plea and prepared written material, which I take into account.  She told me about the arrangements in place for when your grandchildren visit the house.  She informed me that family members and DHHS are aware that you are not to be left alone with the children.  You were placed on the Sex Offender Register as a consequence of matters in 2008.  She also gave evidence regarding your compliance with Sex Offender Registration provisions, and as to your current both physical and psychological health issues.  I also received written material from your brother-in-law, sister and son.  It is clear that you have strong support from her and the family unit. 

16You have had a number of health issues in your life, most seriously and recently in three areas particularly: 

(i)    You have a heart condition.  You have recently been suffering chest pain              and been reviewed by your cardiologist, who ordered an angiogram.                  This was necessary, having regard to your 2013 history of coronary heart            disease and stenting procedures that have been undertaken. 

(ii)   Insulin dependent diabetes.  Your control of      this condition has been                 poor.  You were recently reviewed, so as to improve and stabilise your           treatment for this condition. 

(iii)  Haemoptysis.  Given your previous throat cancer, a CT scan was                   recently conducted and your condition continues to be needed to be                  monitored. 

17I received letters from Dr Quoc Duong, dated 24 November 2015 and 19 April 2016, which outline your medical history, current medications and your current medical presentation and health.  I accept these medical conditions will make prison more difficult for you, even if and when the conditions stabilise.  However there was no suggestion your health concerns could not be adequately treated in custody. 

18You are currently attending upon a psychologist, Paul Bleazby from Fernhills Clinic in Boronia, as a consequence of a referral from Dr Duong.  I was provided with a report from Bleazby, dated 12 November 2015, and take that into account.  The report outlines traumatic events that have had a major negative impact on your psychological health, though it is reported you have made some positive progress in dealing with these issues. 

19I also received a report, dated 23 November 2015, and heard evidence from Jeffrey Cummins, clinical and forensic psychologist.  I take all of that material into account.  You reported to Mr Cummins that you were anally raped repeatedly by a neighbour who was aged eight or nine years older than you when you were an eight-year-old boy.  That abuse has had a permanent psychological impact on you.  You reported having experienced nightmares and flashbacks.  You indicated that you revealed this before when you participated in the Sex Offender Program when you were in custody. 

20Mr Cummins concluded that this played a role in your offending against other males.  In Mr Cummins' opinion, your presentation, whilst talking about that abuse and your stated symptoms relatable to that sex abuse, confirmed that your developed PTSD in response to that abuse.  You PTSD has triggered impairment, in terms of perception, ability to think clearly and your ability to make appropriate judgment in relation to sexual attraction to underage males.  I take this assessment and conclusion into account. 

21Mr Cummins conducted a risk assessment using the relevant tools, as detailed in his report.  In his evidence to me, he indicated, upon being provided with further information since the preparation of his report, that he assessed your risk of re-offending as high/moderate, that is the risk in the higher range of moderate.

22Mr Cummins, in the course of evidence, also indicated that you were quite a poor historian and appeared to have severe memory difficulties.  It was his opinion that it was appropriate for you to be neuropsychologically examined, and as a consequence, I ordered a Forensicare report for that assessment to take place.  Unfortunately that assessment or report was not available to the court until April 2016. 

23In that report prepared by Dr Matt Treeby, a clinical neuropsychologist, it is stated, your mildly reduced basic auditory attention and information processing speed and greater difficulties with divided attention can be explained by your multiple vascular risk factors and your profile is consistent with a diagnosis of mild vascular impairment.  Your abilities in other cognitive domains remains preserved.  There was no evidence of progressive dementia or neurodegenerative process. 

24In conclusion he states:

"Overall, cognitive impairments are seen on a formal neuropsychological assessment, can be considered mild and have foreseeable adverse impact on his experience or ability to cope in a structured and routine prison environment."

25I take that opinion into account. 

26I take into account your plea of guilty to these matters.  However, it could not be said to be at the earliest opportunity.  You were charged on 17 November 2013 and the matter ultimately proceeded by way of hand-up brief at the Magistrates' Court on 14 May 2014, with a trial date listed for 31 July 2015.  You were arraigned on 26 June 2015, before the trial was due to commence. 

27There is a utilitarian benefit of the plea, saving time and cost to the community and facilitating the course of justice.  This is particularly so in your case, having avoided the need for any of your victims giving evidence and be required to relive their childhood experiences. 

28You have no prior convictions in respect of Charges 1 to 4. However, there are prior matters relevant on Charges 5 and 6, given the time at which they were committed.  I note that they are all similar in nature to those currently before me, with the offences taking place whilst the boy victim was undertaking work experience with you as a builder. 

29On 7 May 1999, you appeared at this court before Chief Judge Waldron, and pleaded guilty to one count of sexual penetration with a 17-year-old child under your care, supervision and authority, and one count of indecent assault.  These offences occurred in 1977 - 1997 and related to sexual activity with a boy working with you for work experience.  You were convicted and sentenced to 18 months' imprisonment, with a non-parole period of six months'. 

30On 28 May 2008, you were convicted of two charges of indecent act with a child under 16 years and sentenced to three months' imprisonment, wholly suspended.  These offences occurred in 1992 and 1996. 

31The earlier offences occurred in 1985 and 1989.  The latter in 2004.  You were not charged in respect of any of them until 2013.  Some occurred 30 years ago and it is over ten years since the last of these offences were committed.  It is, however, not unusual for children who have been subjected to sexual abuse, to delay in coming forward and making a complaint.  Some never do.  Others, as in this instance, are in their adult years when they complain. 

32During this 30 year period, you have spent six months in custody and have had periods on parole and in the community on a suspended sentence.  It is of some concern that you have undertaken a sex offender program and went on to re-offend.  However, your conduct since the commission of the 2004 offences is a matter I take into account in your favour, relating both to delay and rehabilitation. 

33You successfully ran your own building business until 2013, when you retired, that decision presumably linked to your heart condition.  You are no longer in a situation of having young boys working with you.  You have taken some positive steps towards your rehabilitation.  In addition, you have the support of your family.  You have independently sought assistance in addressing psychological issues.  It was submitted that you now lead an isolated life with your wife, concerned primarily with the day-to-day tasks of the property. 

34There are some aggravating features of your offending.  All of the offending occurred in circumstances where you breached the trust of children and their parents, in having their boys engage in work experience with you.  You took advantage of the power imbalance.  Your offending occurred over an extended period of time.  Your offending involved four children of varying ages, between 13 to 17. 

35In respect of Charges 2, 3 and 4, your offending against this victim was on more than one occasion.  In respect of Charges 5 and 6, you have relevant prior convictions and the greater maximum penalty applies. 

36Your conduct warrants just punishment and denunciation.  General deterrence plays a significant part in sentencing you.  Specific deterrence is a relevant sentencing consideration, however, is of less weight, having regard to your current situation, as outlined above. 

37Given your history, you are to be sentenced as a serious sex offender under the Sentencing Act in respect of the sentences to be imposed.  Pursuant to those provisions, the Crown does not seek the imposition of a disproportionate sentence. However, pursuant to the relevant section, protection of the community is the principle sentencing consideration.  Given this offending involves separate acts relating to four victims, a level of cumulation is required. 

38Your counsel submitted that all sentencing considerations could be served by the imposition of a community correction order.  The prosecution submitted that it was necessary for you to serve a term of imprisonment, though conceded that a combined disposition involving a period in custody and a community correction order at its completion, was within range. 

39Taking all relevant sentencing considerations into account; including, the seriousness and gravity of this offending; the effect on the victims; just punishment; general deterrence; protection of the community; balanced with your personal circumstances; plea of guilty; delay and good rehabilitation prospects, I propose to adopt their course of imposing a term of imprisonment with a CCO to be completed at the end of that term. 

40I will include a short period of community work to be completed and the other conditions recommended in the report prepared by the court by the Office of Corrections. 

41Could you please stand, Mr Fennell.

42In respect of Charge 1, you are convicted and sentenced to a period of three months' imprisonment. 

43In respect of Charge 2, you are convicted and sentenced to a period of one month imprisonment.

44In respect of Charge 3, you are convicted and sentenced to a period of six months' imprisonment.

45In respect of Charge 4, you are convicted and sentenced to a period of three months' imprisonment.

46In respect of Charge 5, you are convicted and sentenced to a period of three months' imprisonment.

47In respect of Charge 6, you are convicted and sentenced to a period of three months' imprisonment. 

48One month of the sentence imposed on Charge 1, one month of the sentence imposed on Charge 5, and one month of the sentence imposed on Charge 6, is cumulative on the sentence imposed on Charge 3.  That leaves a total effective sentence of nine months'. 

49At the completion of that term, you will be placed on a community corrections order for a period of two years, with the conditions that are included in the report that has been provided to me by the Office of Corrections. 

50Those conditions include community work, and I will set 40 hours community work to be completed; treatment and rehabilitation in respect of your mental health; and treatment and rehabilitation in respect of programs to reduce your re-offending.  You will be under the supervision of the Corrections office at Ringwood. 

51Pursuant to s.6AAA, if you had not pleaded guilty for these offence, I would have imposed a term of imprisonment of three years', with a non-parole period of two years'. 

52I understand that you are already on the Sex Offenders Registration for a period of reporting for life, so there is no need for an additional order. 

53Have I already done the 464? 

54MS LOUGHNAN:  No, Your Honour, I have those here. 

55HER HONOUR:  Thank you.  I will just have my associate prepare that order, so that Mr Fennell can sign that as well.

56MR GOLDBERG:  As Your Honour pleases. 

57HER HONOUR:  All right, Mr Fennell, you need to understand, at the completion of your term of imprisonment, if you breach the community corrections order, you will come back before me and I will have to deal with you again in relation to that matter, as well as these matters.  Thank you. 

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