Director of Public Prosecutions v Ferdinand Jacobs (a pseudonym)

[2023] VCC 1625

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

FERDINAND JACOBS (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE ROZEN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2023
DATE OF SENTENCE:	8 September 2023
CASE MAY BE CITED AS:	DPP V FERDINAND JACOBS (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1625

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:            Plea of guilty – 2 charges of sexual penetration of a step child – Incest – Standard sentence offence – Mid-range of seriousness – Childhood deprivation – Application of Bugmy principles – Mental health – Application of Verdins principles – Current sentencing practices

Legislation Cited:     Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:DPP v Herrmann [2021] VSCA 160; Walsh (a pseudonym) [2018] VSCA 172; Dalgliesh [2017] VSCA 360; DPP v Dalgliesh [2017] HCA 41; DPP v Stevens (a pseudonym) [2020] VCC 1510; DPP v Orton (a pseudonym) [2020] VCC 2069; DPP v Murray (a pseudonym) [2020] VCC 1475; DPP v Royal (a pseudonym) [2021] VCC 1963; DPP v Rose (a pseudonym) [2021] VCC; DPP v Bishop (a pseudonym) [2022] VCC 1823; DPP v Coleman (a pseudonym) [2023] VCC 926; McPherson v R [2021] VSCA 53

Sentence: 7 years’ and 6 months’ imprisonment with a non-parole period of 4 years – s 6AAA declaration – 10 years’ imprisonment with a non-parole period of 6 years and 9 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms G. McMaster	Solicitor for the Office of Public Prosecutions
For the Accused	Mr D. De Witt	Michael Gleeson and Associates

HIS HONOUR:

1Ferdinand Jacobs[1], you have pleaded guilty to two charges of intentionally sexually penetrating your step-daughter, Jade Moon[2] contrary to s 50D(1) of the Crimes Act 1958 (Vic).

[1] A pseudonym.

[2] A pseudonym.

2The maximum sentence that the court can impose for these offences is 25 years' imprisonment.

Summary of Offending

3A document entitled Summary of Prosecution Opening for Plea dated 18 April 2023 was tendered in evidence.[3] Your counsel informed the court that you accept this as the factual basis upon which you are to be sentenced. Subject to one aspect of the Summary, which is discussed later in these reasons, I have relied on it in sentencing you.

[3] Exhibit P1.

4In 2017, you commenced a relationship with Laurelle Kate[4] having met through a mutual friend. The two of you married in Vietnam in 2018. In 2020, Ms Kate and her two daughters (Jade Moon and Odetta Neal[5]) moved to Australia to live with you in Caroline Springs.

[4] A pseudonym.

[5] A pseudonym.

5Jade was born in 2008 and was 12 years’ old when she moved in with you in 2020 and you became her stepfather.

6On an unknown date between 1 January 2021 and 30 October 2021, Jade was asleep in bed in her bedroom when she awoke to you standing beside her. The two of you were alone at the time.

7You pulled the blanket back and removed her pants and underwear. You then partially inserted your finger into her vagina (Charge 1 – Sexual penetration of a stepchild). While you were doing this, she was yelling and screaming.

8On the morning of 31 October 2021, you were again alone at home with Jade. You walked into her bedroom during the morning naked and asked her if she wanted to have sex with you. You removed her pyjamas and inserted your finger into her vagina (Charge 1 – Sexual penetration of a stepchild). On this occasion, you left your finger there for approximately three minutes. During that time, Jade asked you to stop and pushed her legs together. After you removed your finger, you asked her to hand over her pyjamas so you could wash them.

9Jade complained about your conduct later that day to her mother. The two of them walked to the Caroline Springs police station and reported the matter.

10Jade gave a Video and Audio Recorded statement to police on 30 October 2021.

Arrest and Investigation

11You were arrested by police at approximately 4:45 am on 31 October 2021. While you were transported to the police station at approximately 5:15 am, your conversation with the arresting officers was covertly recorded. The Prosecution Summary recites some admissions that you made in the course of that journey.[6]

[6] Exhibit P1 at [18].

12Once you arrived at the Sunshine police station, you were left alone in an interview room. Shortly after being left in the room, you tried to hang yourself with your jumper. Custody officers were alerted and intervened.

13You were assessed by Dr Daphne Cohen, Forensic Medical Officer, by telephone at 9:06 am on 31 October 2021. Dr Cohen assessed you as unfit for interview.

14Dr Cohen re-assessed you at 3:06 pm and once again she considered you unfit to be interviewed.

15Despite these two assessments, you were interviewed by police at 6:02 pm on 31 October 2021.

16Dr Deacon, who interviewed you at the request of your lawyers, opines that your capacity to protect your best interests at the time of the covert recording 'was very likely to have been markedly compromised'.[7] He concludes that you did not have the capacity to be interviewed.

[7] Report of Dr Adam Deacon dated 10 March 2023 at [11] (Exhibit D4).

17Mr Jackson, consultant clinical neuropsychologist opines that it is 'highly likely that [you] did not have adequate decision-making capacity' at the time you made the admissions.[8]

[8] Report of Mr Martin Jackson dated 15 March 2023 at 16 (Exhibit D6).

18In light of these somewhat troubling circumstances, I have determined that it is both inappropriate and unfair to take into account any admissions that you may have made in the course of the covertly recorded conversation in the police vehicle after your arrest. I have therefore disregarded this aspect of the prosecution summary.

Victim Impact

19The court received victim impact statements from:

(a)   the primary victim, Jade Moon dated 13 May 2023;[9] and

(b)   her mother, Laurelle Kate dated 13 May 2023.[10]

[9] Exhibit P3

[10] Exhibit P2.

20In her very moving statement, Jade explains how your offending has affected her ability to trust men. She says that she is haunted by what you did and while she pretends to cope, inside she suffers. Jade says that she has not figured it out and she guesses she never will.

21Jade’s mother, as is often the case in such prosecutions, blames herself for picking a man she 'taught her daughters to respect'. She has no reason to do so. She bears no responsibility for your offending. Ms Kate cries every single day and does not trust men any more. She expresses her gratitude for the work of the police and prosecutors.

Objective Gravity of Offending

22The offence to which you have pleaded guilty may be committed against a stepchild who is under the age of 18. All else being equal, the younger the child the more serious the offending will be. Jade was between 12 and 13 years of age at the time of the offending.

23Yours was not isolated offending. Over a period which may be as much as 10 months, you twice offended against your step-daughter. She saw you as a father figure. You took advantage of that. This was clearly a gross breach of trust.

24On both occasions the offending occurred in Jade’s bedroom while the two of you were alone in the family home. Jade was particularly vulnerable in these circumstances.

25On the first occasion, Jade was screaming and yelling at the time you inserted part of your finger in her vagina. The distress you were causing her must have been abundantly clear to you. On the second occasion, which lasted approximately three minutes, she had asked you to stop and you caused her discomfort.

26Your offending lacks some of the aggravating features which are sometimes present in such cases. You did not penetrate Jade with your penis thus exposing her to the risk of pregnancy and disease; there was no violence beyond the actual offending (which is itself inherently violent); and you did not threaten Jade with consequences if she told anyone.

27In light of the above, I consider yours to be mid-range examples of the offence of sexual penetration of a stepchild.

28In determining the appropriate sentences to impose, it is necessary to have regard to your personal circumstances and the matters that mitigate the seriousness of your offending, to which I now turn.

Personal circumstances

Childhood

29You were born in 1973 and raised in Guatemala. Your father's work meant the family had to move frequently which disrupted your childhood.

30You told Dr Deacon that when you were nine years' old, you were approached by a recruiter for the Guatemalan army. He recruited you to be a child soldier (which was a common practice) and you commenced at military school. You managed to keep this from your parents although your mother was 'wilfully blind' to what you were doing.

31Between the ages of 9 and 14, you were trained in the use of firearms and played the role of a sniper. You estimate that you personally shot and killed between 30 and 50 people. You directly witnessed dismembered and decapitated bodies and can recall the horrible smell of blood. You have never previously spoken openly about this experience.

32Your family migrated to Australia in 1988 when you were 15. You became a citizen in 1996.

33You managed to complete high school despite your limited English skills and found work as a driver and then in cleaning and security. You have an excellent employment history.

34In 2003 you met Tamzen Nichols[11] and she gave birth to your son Flynn[12] in 2005. In a letter to the Court dated 1 August 2023, Ms Nichols describes you as a very good father and an excellent role model for your son.[13]

[11] A pseudonym.

[12] A pseudonym.

[13] Exhibit D1.

35The two of you separated in 2017 when you met your most recent partner Ms Kate.

Mental Health

36You have a long history of poor mental health dating back to 1991 when you were first prescribed anti-psychotic medication to manage your symptoms of hallucinations and flashbacks.

37Dr Deacon, who interviewed you in November 2022 and March 2023 and again in April 2023 provided two reports. He opines that your history is one of complex post-traumatic disorder as a direct result of your protracted childhood traumas you experienced. Your PTSD contributed to the onset of chronic depressive disorder. You have a history of self-medication with alcohol.[14]

[14] Exhibit D4 at 11.

38In his second report, Dr Deacon states that your underlying mental disorders are not causally related to the offences.[15] Your conditions are likely to be enduring.

[15] Report of Dr Adam Deacon dated 18 April 2023 at 6 (Exhibit D5).

39Dr Deacon considers your risk of reoffending to be low and that it will be reduced if you remain single and do not have access to children. However, he recommends that you should still be referred to a sexual offending program in custody.[16]

[16] Exhibit D5 at 6.

Matters in Mitigation

Guilty Plea

40The first and most important of these are your pleas of guilty. Although not entered at the earliest time, and only made after the victim's mother and other witnesses were cross examined in a hearing conducted under s 198A of the Criminal Procedure Act 2009, your guilty plea to each charge is significant for several reasons. First, it is a recognition by you of your responsibility for the offences. Secondly, it spared the victim, her mother and other witnesses the ordeal of giving evidence at a trial. Thirdly, it saves the community the resources which would be consumed by such a trial in the form of police, prosecution and court time. This 'utilitarian benefit' is especially significant at a time when our justice system remains saddled with significant delays occasioned by the pandemic.[17]

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

Childhood Deprivation

41Your counsel relied upon the principle in the case of Bugmy v The Queen.[18] In written submissions, it was argued on your behalf that your exposure to 'extreme violence, untreated trauma and parental neglect in combination' reduce your moral culpability for your offending.[19] In oral submissions in answer to a question from the Court, Mr De Witt, your counsel, explained that he relies on the specific form of childhood deprivation sentencing mitigation. This was contested by Ms McMaster for the prosecution.

[18] (2013) 249 CLR 571.

[19] Outline of Submissions on behalf of Ferdinand Jacobs dated 7 August 2023 at [14].

42In Bugmy, the High Court recognised that an offender's moral culpability may be reduced where they experienced a traumatic upbringing.[20] The Court of Appeal has recently explained that there are two aspects to the operation of this principle – a general and a specific one. The specific limb of Bugmy applies where the evidence establishes a causative link between the childhood experiences and the offending. The court there gave the example of an offender's impulse for violence being unable to be controlled because of their childhood exposure to violence.[21]

[20] (2013) 249 CLR 571 at [40]-[44].

[21] (2013) 249 CLR 571 at [44].

43The general limb does not require a causal nexus and is applied as part of the overall consideration of the offender's circumstances.[22] In applying this general principle, the moral judgment the court makes through sentencing 'should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in the offender's formative years'.[23] As the Court of Appeal explained in Herrmann, such an approach represents the 'mark of a humane society'.[24]

[22] DPP v Herrmann [2021] VSCA 160 at [36]-[46] (‘Herrmann’).

[23] [2021] VSCA 160 at [46].

[24] [2021] VSCA 160 at [46].

44I am not satisfied, on the evidence before the Court that there is a causal nexus between your sexual offending and your undoubted childhood deprivation. Dr Deacon considers that it was likely that you 'engaged in deliberate and organised behaviour' when you asked the complainant if she wanted to have sex with you. Although he accepts that your childhood deprivation explains your underlying mental disorders of PTSD and depression, he is clear that those disorders 'are not causally related to the offences'.[25]

[25] Exhibit D5 at [16].

45However, I am satisfied that your moral culpability is reduced to a small extent in the application of the Bugmy principles as explained by the Court of Appeal in the case of Herrmann. I have moderated the sentences I am imposing accordingly.

Effect of Imprisonment

46In accordance with limb 5 of the so-called Verdins principles,[26] an offender afflicted by mental illness at the time of sentencing who will find prison more onerous than a person in normal health is entitled to a moderation of sentence. Further, under limb 6, where there is a serious risk that imprisonment will have a significant adverse effect on an offender's mental health, that will mitigate punishment. The Court applies these principles on the basis of the expert evidence.

[26] R v Verdins [2007] VSCA 102 at [32].

47Dr Deacon considers that you 'may experience custody with greater difficulty than a person with stable mental health'.[27] However, this opinion is somewhat qualified by his observation that you reported to him that you had 'largely coped well in custody' during the three months of remand. In this regard, I accept your counsel's submission that I should not assume that coping during the three-month period will necessarily be replicated during the much longer sentence which the Court will impose. I have taken this into account in your favour.

[27] Exhibit D5 at [17].

48There is no support for the application of Verdins limb 6. Dr Deacon merely observes that 'it is possible that [your] mental conditions could be aggravated in a prison environment'.[28]

[28] Ibid.

Remorse

49Your counsel submitted that you are remorseful. This submission finds some support in the report of Dr Deacon who states that you present as remorseful. However, Dr Deacon considers it difficult to interpret whether this is absolutely genuine given your reported 'complete amnesia for the offences' and your initial denial of committing the first offence.[29]

[29] Exhibit D5 at [18].

50In her letter to the Court, your former partner Ms Nichols informs the Court that you are terribly sorry for what you have done and you hope to make everything alright.[30]

[30] Exhibit D1.

51On balance, I accept that you do feel some remorse for your offending.

Prospects of Rehabilitation

52Your counsel submits you have excellent prospects of rehabilitation. This is based on the proactive steps you have taken in recent times to address your alcohol dependence and your mental health. In this regard, I accept that you have engaged very well with counselling services having attended 28 appointments up to August 2023.[31]

[31] Letter from Nexus Primary Health dated 4 August 2023 (Exhibit D3).

53Mr De Witt also relies on your engagement with the Court Integrated Services Program while on bail. The court received a positive report in this regard.[32]

[32] CISP Report dated 26 March 2022 (Exhibit D2).

54You have no relevant prior convictions. Your previous good character, discussed above, has a bearing on your prospects of rehabilitation and upon any perceived need to protect the community.

55Overall, taking account of these matters and your long struggles with mental health, I accept that you have good prospects of rehabilitation.

Consideration

56In DPP v Walsh (a pseudonym)[33] Maxwell P and McLeish JA said of the offence of incest:

Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents[34]

[33] [2018] VSCA 172

[34] [2018] VSCA 172 at [1].

57Further, as the High Court recognised in Director of Public Prosecutions v Dalgliesh (a pseudonym)[35], 'sexual abuse of children by those in authority over them has been revealed as a most serious blight on society'.[36]

[35] [2017] HCA 41 (‘Dalgleish’).

[36] Dalgleish at [57].

58Sentencing in such cases 'must act as a deterrent, general and specific, and it must signify the community's firm denunciation of conduct of this kind'.[37]

[37] Dalgliesh at [73].

59In addition to these general principles, there are several statutory provisions that bind the court in your case.

60These include that the charges are in respect of category 1 offences under the Sentencing Act1991(Vic) and I am therefore required to make a custodial order which cannot be combined with a community correction order.[38]  

[38] Sentencing Act 1991 (Vic), s 5(2G) (‘Sentencing Act’).

61Further, since 2017 the crime of sexual penetration of a stepchild under the age of 18 years has been a 'standard sentence offence'.[39] The 'standard sentence' of 10 years' imprisonment is the sentence for an offence against s 50D(1) 'that is in the middle of the range of seriousness'. The court's assessment for this purpose is made taking into account 'only the objective factors affecting the relative seriousness of that offence'.[40]

[39] Crimes Act 1958 (Vic), s 50D(3)

[40] See Crimes Act 1958 (Vic), s 5A(1).

62The standard sentence is one of a number of matters to which the Court must have regard and does not affect the approach to sentencing known as 'instinctive synthesis'.[41] Further, in considering current sentencing practices under s 5(2)(b) of the Sentencing Act, the Court is only permitted to have regard to sentences previously imposed for the offence as a standard sentence offence.[42]

[41] Sentencing Act 1991 (Vic), s 5B(3).

[42] Ibid, s 5B(2)(b).

63While there have been a number of sentences imposed by Judges of this Court for the s 50D(1) offence as a standard sentence offence, the parties agreed that there have been no appeals against such sentences considered by the Court of Appeal. I have however drawn some assistance from the Court's decision in McPherson v R[43]. 

[43] [2021] VSCA 53 (‘McPherson’).

64That case concerned an appeal against a sentence imposed for the offence of sexual penetration of a child under 12 which also carried a standard sentence of 10 years.[44] The Court recognised the 'difficult task' confronting judges in applying the standard sentence regime. It noted that sexual offences against children cover a wide range of sexual misconduct making the notional 'mid range' very difficult to identify. While the task 'must be given its place in the sentencing calculus', their Honours considered that 'judges ought to be wary of affording it too much weight in the sentencing exercise'.[45]

[44] Crimes Act 1958 (Vic), s 49A.

[45] McPherson at [31].

65As noted earlier in these reasons, in considering the objective seriousness of your offending, I have concluded that these are mid-range examples of the s 50D offence for which your moral culpability is high.

66I note that in its 2018 decision of Grantley v The Queen,[46] the Court of Appeal referred to the 'dramatic change in the sentencing parameters for incest cases' in the previous two years.[47] The Court was in turn referring to the effect of the High Court's 2017 decision in Dalgliesh in which that Court had concluded that sentencing practices in Victoria did not adequately reflect the objective gravity of the offending as indicated by the maximum penalties available to courts in such cases and the moral culpability of the offenders.[48]

[46] [2018] VSCA 112 (‘Grantley’).

[47] Grantley at [20].

[48] Dalgliesh at [53].

67The cases to which the Court has been referred by your counsel reveal that there has indeed been a discernible increase in sentences that have been imposed by courts for the offence of incest since 2017.[49] This trend is apparent in other more recent decisions of this Court which I have also read.[50]

[49] DPP v Stevens (a pseudonym) [2020] VCC 1510; DPP v Orton (a pseudonym) [2020] VCC 2069; DPP v Murray (a pseudonym) [2020] VCC 1475; DPP v Royal (a pseudonym) [2021] VCC 1963.

[50] DPP v Rose (a pseudonym) [2021] VCC; DPP v Bishop (a pseudonym) [2022] VCC 1823; DPP v Coleman (a pseudonym) [2023] VCC 926.

68Another effect of the characterisation of incest as a standard sentence offence is that, the non-parole period I set must be at least 60 per cent of the total effective sentence unless I consider it to be in the interests of justice to fix a lower period.[51] Your counsel has not submitted that a non-parole period of less than 60 per cent of the total effective sentence is appropriate. I consider that there is no reason to depart from the statutory requirement.

[51] Sentencing Act 1991 (Vic), s 11A.

Orders

69Mr Jacobs, could you please stand.

70On Charge 1, sexual penetration of a stepchild, you are convicted and sentenced to 7 years' imprisonment.

71On Charge 2, sexual penetration of a stepchild, you are convicted and sentenced to 7 years' imprisonment.

72The sentence imposed in relation to Charge 2 is the base sentence.

73I order that 6 months of the sentence on Charge 1 is to be served cumulatively on the sentence imposed on Charge 2.

74That means that the total effective sentence is 7 years and 6 months.

75I order that you must serve 4 years of that sentence before you will be eligible for parole.

76Pursuant to s 6AAA of the Sentencing Act, I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of 10 years with a non‑parole period of 6 years and 9 months.

77Pursuant to s 18 of the Sentencing Act, I declare that the 136 days you have spent in custody must be reckoned as time served under the sentence I impose today and that is to be recorded in the Court's records.

78Mr Ferdinand, you have been found guilty of two Class 1 offences and under theSex Offenders Registration Act 2004 (Vic) you are a registrable offender and your reporting obligations are for life.[52]

[52] Sex Offenders Registration Act 2004 (Vic), s 34(1)(c).

79I must inform you, that you must register on the Sex Offenders' Register and I will have handed to you shortly documentation which sets out the requirements under the Act and the consequences if you fail to observe those requirements. I will also have forwarded to you a document which you must sign, which acknowledges that you have received the relevant documentation. The prison authorities will ensure that your signed document is returned to the Court.

80Finally, I make the disposal order sought by the prosecution, noting that it is unopposed.

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