Director of Public Prosecutions v Ferguson (a pseudonym)
[2024] VCC 163
•23 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL FERGUSON (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 February 2024 | |
DATE OF SENTENCE: | 23 February 2024 | |
CASE MAY BE CITED AS: | DPP v Ferguson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 163 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Indecent act with a child under the age of 16; sexual penetration of a child under the age of 12
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited:Worboyes [2021] VSCA 169, The Queen v Doran [2005] VSCA 271, Bugmy v The Queen [2013] 249 CLR 571
Sentence: TES six years six months' imprisonment, NPP four years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Martin | Office of Public Prosecutions |
| For the Offender | Mr S. Norton | Stary Norton Halphen |
HER HONOUR:
1Daniel Ferguson[1], you have pleaded guilty before me to one charge of indecent act with or in the presence of a child under 16 and one charge of sexual penetration of a child under the age of 12.
[1] A pseudonym
2The maximum penalty for indecent act with or in the presence of a child under 16 is 10 years' imprisonment. The maximum penalty for sexual penetration of a child under the age of 12 is 25 years' imprisonment. There is a standard sentence for that offence of 10 years' imprisonment.
Circumstances of the offending
3The circumstances of your offending were comprehensively outlined in the amended summary of prosecution opening for plea hearing, dated 12 September 2023. I will summarise those facts here.
4At the time of the offending you lived in the family home with your parents, your younger brother, your younger sister, Bethany[2], and an aunt and uncle.
[2] A pseudonym
5Bethany is nearly nine years younger than you. She shared a room with your parents and you slept in a room at the back of the house, often used by the family as a storage room.
6When you were aged 14 to 15, Bethany was five to six years old. A few days after her birthday she went into your room and asked if she could borrow a pair of scissors.
7You grabbed her arms and made her sit while you stood in front of her. You started rubbing her vagina with your hand over her clothing. Bethany asked what you were doing and you replied with words to the effect of 'I think you’re ready for this. You're old enough and you should know how to do it'. This forms Incident 1 of Charge 1, a rolled-up charge.
8While you did this you pulled your penis from your pants and told Bethany to 'touch it and play with it', which she did. You told her to move her hand up and down and showed her how to do this. This forms Incident 2 of Charge 1.
9You then committed a number of uncharged acts. Bethany remembers that you did something sexual to her approximately four times a year. You told police you had in fact touched her on a weekly basis since you were around 13.
10If Bethany was in the bathroom after you brushed your teeth, you would grab her ponytail and tell her to suck your penis. You would offer to give her something in return.
11In 2017 Bethany was in your bedroom when you exposed your penis and told her to touch it. She said no. You then told her to give you a 'blowjob' and to 'suck it'. She said no she did not want to.
12In 2021, in the living room, you touched her breasts and bottom before pulling out your penis and putting it above her face. She refused your direction to perform oral sex so you touched her cheeks and chin with your penis while you touched her breasts and bottom with your hand. As I have said above, these are all uncharged acts.
13During 2022 you were 20 years old and Bethany was 11.
14On one occasion in January 2022, Bethany was waiting to use the toilet. You were in there watching pornography. You emerged at around 9.30 pm and noted Bethany was sleepy. You told her she had a choice, she could either give you a 'blowjob' or let you ejaculate in her mouth and swallow it.
15When she refused to suck your penis you told her to swallow your semen. You held her above the elbows to stop her moving away and put your penis inside her mouth. You ejaculated and she spat the ejaculate into the toilet. This forms the basis of the first incident in Charge 2, a course of conduct charge.
16About a month later you were playing on your laptop when Bethany came and asked you to increase the cap on spending on her iPad as she needed money to buy a game.
17You again told her to give you a 'blowjob' or swallow your semen. She elected the latter.
18You exposed your penis, masturbated yourself and told her to open her mouth. You put your penis in her mouth, ejaculated and she spat it onto tissues. You then bought her the game she wanted and she left the room. This is the second incident comprising Charge 2.
19On another occasion in 2022, you were alone with Bethany in the family home while she was playing a game online with friends. You appeared in her bedroom, took your penis from your pants and put oil on your hand. You asked if she was ready and she said no.
20You asked Bethany if she wanted anything. She told you she wanted a house in an online game which she had to purchase. You said, 'If you want it then you have to suck my dick'. Bethany said ok.
21As she moved towards you, you forced your penis into her mouth. You took her by the neck and pushed her head towards your penis, forcing it into her mouth and preventing her from moving away. You kept your penis in her mouth for between three and five minutes.
22Bethany bit your penis to make you stop and you said, 'What the eff is wrong with you?' She said she did not want to do it anymore. You stopped and bought her the game she wanted. It cost $3.00. This forms the basis of Charge 2, Incident 3.
23In May or June 2022, you and Bethany were in your bedroom. She asked for money to buy an online game and you said you would give it to her if she gave you a 'blowjob'.
24You put your penis inside Bethany's mouth and thrust back and forth, keeping one hand on her head and the other on your penis. You told her to 'get down on your knees, I'm going to cum in your mouth.' You ejaculated in her mouth and told her to swallow it. This forms Charge 2, Incident 4.
25In early July you and Bethany were again in your bedroom. She wanted money for an online game and you told her you would buy it for her if she gave you a 'blowjob'.
26You put your penis in her mouth and thrust back and forth. After some time Bethany said, 'I don't want to do it any more' and left the room. You masturbated until you ejaculated. This forms Incident 5 of Charge 2.
27On another occasion, at night, Bethany was brushing her teeth when you went into the bathroom and closed the door. Your parents, brother, aunt and uncle were all in the house.
28When you had brushed your teeth you grabbed Bethany by the ponytail and told her to get on her knees and suck your penis. You said if she did you would buy her anything she wanted.
29When Bethany did not kneel you pushed her down by her shoulders and forced her onto her knees, telling her to 'suck my dick'. You grabbed her ponytail and pushed her head towards your penis, forcing her mouth open and your penis into her mouth.
30You stopped when your parents called out to Bethany. This forms Charge 2, Incident 6.
31In early September 2022, Bethany was playing games on her iPad in her bedroom. You entered the room wearing a towel and she asked you to order her a drink from a store called Chatime. You told her she could either 'suck' your 'dick' or 'swallow' your 'cum' and if she did not choose you would force her.
32After some indecision Bethany agreed to suck your penis. You said, 'Go for it' and forced your penis into her mouth, grabbing her back and ponytail and putting your penis in her mouth. You told her to 'go quicker' and to move her tongue around. This forms Charge 2, Incident 7.
33During that offending you committed a number of uncharged acts, touching and rubbing Bethany's vagina and slapping her bottom over and under her clothing. You put your hand down her underpants and put your finger into her vagina. You then forced her onto her hands and knees and rubbed your penis onto her bare bottom and over her vagina.
34When the incident was over you purchased the drink Bethany had requested.
35Further uncharged acts are alleged. That night you exposed your penis to Bethany and smirked at her in the bathroom, causing her to run to her bedroom.
36Later that week Bethany was brushing her teeth when you entered the bathroom after watching pornography. You grabbed Bethany, forcing your hand into her pants and onto her vagina, rubbing it for two to three minutes.
37Another day that week, Bethany was in the kitchen making noodles while you were seated at the table. You grabbed her and put her on your knee, touching her chest. You pulled down her pants and rubbed your penis against her bare bottom and vagina until you heard someone coming towards the kitchen. As I have said, these are uncharged acts.
38At some stage in 2021, Bethany was learning about what was and was not appropriate behaviour. She told her school friends you had been sexually assaulting her for the past four to five years. She was asked if she wanted to tell a teacher but she said no.
39On 6 and 7 September 2022, Bethany again told her school friends about what you had been doing to her and they decided to tell a teacher on her behalf.
40Department of Families Fairness and Housing and police were notified and Bethany participated in a VARE during which she disclosed that you had been sexually offending against her around four times a year since the first occasion. She particularised four separate occasions.
41Police contacted your parents and asked your younger brother to interpret for them. You attended in his place and purported to be your brother. When police told your parents that Bethany had disclosed your sexual offending, you asked to speak to police privately and revealed your identity.
42You participated in a taped record of interview during which you disclosed:
(a) You had been offending against Bethany since you were between 10 and12 years old;
(b) You touched her vagina, exposed your penis and told her to touch and suck your penis on numerous occasions;
(c) You remembered touching her over a onesie when she was about four years old;
(d) Bethany had started performing oral sex on you in 2022 in exchange for online currency. Prior to this she had refused to do so;
(e) You had committed the final alleged act, being Charge 2, Incident 7, earlier that week prior when Bethany asked for the Chatime drink;
(f) You admitted all the other incidents on the indictment; and
(g) You told police, 'I think I definitely knew it was wrong. After the whole thing, I do feel guilty, right, but then…the next day, like, it was no longer there again. And then I just continue until the guilt comes and then it goes again'.
Objective gravity
43Any sexual offending against children is abhorrent. Yours involved repeated penetration, degrading acts, enticements and coercion and represented a gross breach of the trust that should exist between siblings. It was deplorable conduct.
44The objective gravity of your offending must be seen as high as it involved a young child, your younger sister, aged five to six in the first instance and 11 years in the second.
Plea of guilty
45You first indicated a willingness to plead guilty to the charge when the matter was in the Magistrates Court. I consider, and the prosecution concedes, your plea to have been entered at the earliest stage and it has significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial and spared the witnesses, particularly your sister, the ordeal of giving evidence. In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that.
46The utilitarian benefit of your plea is enhanced by the fact that the Worboyes [2021] VSCA 169 considerations are engaged as your plea was entered during the Covid -19 pandemic. This results in a more pronounced amelioration of sentence than at other times.
47You have expressed remorse, evidenced both by your plea but to some extent in the record of interview and the psychological assessment.
48I note that a number of the offences you have pleaded guilty to arose from your admissions alone. Four of the seven incidents comprising Charge 2 arose in this way and you provided additional information and background in relation to the remaining incidents.
49While there was a prosecution case without your admissions, it was bolstered and significantly expanded by your comments. The nature of the charges you faced became more grave in light of your admissions to offending that would otherwise have gone undetected. This is particularly significant and must result in a demonstrable discount in sentence pursuant to The Queen v Doran [2005] VSCA 271.
Personal circumstances
50I turn now to your personal circumstances.
51You are now 22 years of age, having been born in Myanmar in December 2001. You were aged 14 to 15 at the time of the offending in Charge 1 and 20 years of age at the time of the offending in Charge 2.
52You have an older brother, a younger brother and a younger sister, the latter being the victim of this offending.
53Your family fled Myanmar to a detention camp in Malaysia when you were approximately five years of age and then lived in a hotel for an extended period with extended family and other adults. During this period you were repeatedly sexually abused by your uncle and other men.
54Your family was relocated to Australia and you went to Primary School where you initially spoke no English. You went on to study at a High School in Sydenham where you successfully completed Year 10.
55You are not close to your parents and despite having lived with them report that 'I don't know [my mother], I never had much to do with her'. You were subjected to severe corporal punishment as a child. Your family had little money and given the family dynamic, you often felt neglected.
56You completed a six-month TAFE course in carpentry before your father assisted you in finding a position installing piping in caravans. You worked there for three years until your remand.
57You have been working in gardening and lawn maintenance while on remand.
58You have had no contact with your family since your arrest and miss your younger brother.
59I received a report from Dr Matthew Barth, psychologist, dated 1 February 2024, Exhibit 1 on the plea. He found you to be suffering from significant interpersonal and psychosexual problems with complex treatment needs to support rehabilitation.
60
Dr Barth reports that you have had unfettered access to pornography since the age of eight and your viewing of it quickly became daily and something of a
pre-occupation. You explained to him that your offending was in part seeking to emulate the sexually explicit material you were viewing online.
61You further stated that you reasoned that because you were sexually abused you thought it was a normal thing to do. You conceded, however, that when you were in Year 8 you started to realise that your conduct was wrong.
62Dr Barth assessed you as posing a moderate risk of sexual recidivism, most likely to be focused contact offending against a related female victim.
Deportation
63I accept that your citizenship application was refused in the exercise of discretion. This places you in a position of great uncertainty upon your eventual release from custody.
64It was recognised by the Court of Appeal in Akot v The Queen [2020] VSCA 55 that:
'The potential for an offender to be deported at the completion of a sentence is relevant to the sentence in two ways. First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity for the offender to settle permanently in this country.'
65You have been in Australia since childhood and you have made your life here. I accept that the prospect of deportation will weigh heavily upon you whilst you serve your sentence, particularly as it would involve a return to an unfamiliar country in which your family faced persecution.
Sentencing principles and considerations
66Mr Ferguson, your offending against your sister was unconscionable. While she has not provided a victim impact statement, your persistent abuse of her has no doubt left an indelible stain on her childhood which will impact her long into the future. You are her older brother, someone she should look up to, and you breached that trust in the most unfathomable way.
67Sexual penetration of a child under the age of 12 is a Category 1 offence, meaning I must impose a custodial order pursuant to s5(2G) of the Sentencing Act 1991.
68Charge 2 is also a standard sentence offence with a standard sentence of 10 years. The standard sentence for an offence is a sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness. I must take the standard sentence into account as one of the relevant factors to sentencing. This requirement is to be treated as a legislative guidepost having the same function as the maximum penalty. It does not affect the established instinctive synthesis to sentencing or require or permit two-stage sentencing. I consider your offending in Charge 2 to be at least mid-range.
69The court must only have regard to sentences imposed in cases where the standard sentence regime applies. I will return to the cases I was provided with shortly.
70I have taken the standard sentence for sexual penetration of a child under 12 into account as one of the factors to consider in my instinctive synthesis of all the relevant factors in your case.
71Pursuant to s11A of the Sentencing Act 1991, the non-parole period I impose for a standard sentence offence must be at least 60 per cent of the total effective sentence, unless the court considers that it is in the interests of justice not to do so.
72I was provided with a number of comparable cases but note none of them have a great deal in common with the instant offending. The cases I was provided with, while all standard sentence cases relating to charges of sexual penetration of a child under 12, resulted in vastly different sentences and involved vastly different personal circumstances and so provide limited assistance beyond a confirmation that each case turns on its own facts.
73Given your age and absence of a criminal record, I find that your prospects of rehabilitation are reasonable in the circumstances. That is of course dependent on you receiving treatment in custody and ongoing support upon release.
74I note that at the time you committed Charge 1, you were aged 14 to 15 years. Penalties that may have been imposed at that time are no longer available to you. I take this into account in the sentence I will impose.
75I accept that a combination of factors bear upon your moral culpability. Given your upbringing, I consider the principles in Bugmy v The Queen [2013] 249 CLR 571 to be somewhat applicable. Given your childhood experiences of displacement, sexual assault and parental indifference, I moderate the sentence as compared to an offender without those difficulties.
76Your mental health is a relevant consideration but is not such that imprisonment would be more burdensome for you than for other prisoners.
77General and specific deterrence both remain relevant. The sentence I impose must deter others from engaging in such behaviour. The sexual abuse of children is all too common within our society and general deterrence is of paramount importance. Given your risk assessment, I consider that specific deterrence is also required.
78Just punishment and denunciation are relevant where the effects on the victim and indeed on the community are obvious. Community protection is also relevant given your moderate risk of reoffending against females related to you.
79Mr Ferguson, would you please stand.
Disposition
80On Charge 1, indecent act with a child under 16, you are sentenced to two years' imprisonment.
81On Charge 2, sexual penetration of a child under 12, you are sentenced to six years and six months' imprisonment.
82I direct that the sentence on Charge 1 be served concurrently with that imposed on Charge 2.
83That makes a total effective sentence of six years and six months' imprisonment.
84I direct that you serve a minimum non-parole period of four years before being eligible for parole.
85Pursuant to s18 of the Sentencing Act 1991, I declare that you have served 533 days of pre-sentence detention, excluding today.
86Having been charged with one Class 1 and one Class 2 offence pursuant to the Sex Offenders Registration Act 2004, you are to be placed on the Sex offenders Register. Pursuant to ss6, 7 and 34(1)(c)(ii) of that Act, you are to be registered for life.
87On charge 1, you are to be declared a serious sexual offender. I will have this noted on the record.
88Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty the sentence I would have imposed would have been a total effective sentence of nine years' imprisonment with a non-parole period of six years.
89My associate will now provide you with the Sex Offenders Registration Act acknowledgment.
90MR NORTON: If I can attend to that in court.
91HER HONOUR: Yes, you can certainly assist. You may be seated, Mr Ferguson. I note for the parties this matter will be referred to in the released sentence as the 'Director of Public Prosecutions v Daniel Ferguson, a pseudonym'. Is there anything else from either party?
92MS MARTIN: Nothing from me.
93MR NORTON: Just as a practical measure, Your Honour, if it's possible for him not to be removed immediately after Your Honour rises. If I could have the opportunity to speak to him at the back of the court.
94HER HONOUR: Yes, I will on this occasion.
95MR NORTON: Thank you, Your Honour.
96HER HONOUR: Anything from you, Ms Martin?
97MS MARTIN: No, nothing from me, Your Honour.
98HER HONOUR: Thank you, we'll adjourn the court.
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