Director of Public Prosecutions v Ferguson (a pseudonym)

[2017] VCC 357

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELLIOT FERGUSON (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 April 2017
CASE MAY BE CITED AS:	DPP v Ferguson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 357

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

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms M. A. Mahady
For the Accused	Mr P. J. Hannebery

HER HONOUR:

1Elliot Ferguson,[1] you have pleaded guilty to one charge of sexual penetration with a child under ten.  The facts underlying your offending are as follows.  The victim to this offending is your half-brother, Rhys Ferguson,[2] who was aged between seven and nine at the time of the offending and you were aged between 13 and 15 years of age.  The offending itself took place between

[1] Elliot Ferguson is a pseudonym.

[2] Rhys Ferguson is a pseudonym.

25 February 1987 and 20 June 1989. 

2At that time, you were living with your mother and your step-brother Rhys at your maternal grandparents home in Deepdene.  Sometime between 1987 and 1989, Rhys was lying in his bed and you were talking to him.  It was dark outside, your mother was asleep in her bedroom in the room next door.  You whispered something to Rhys, then walked over to his bed.  You were apparently wearing blue underpants and knelt down next to his bed.  You told Rhys you would be the doctor and Rhys the patient.  You put your head to Rhys' chest and rubbed your hand over his body, telling him he was fine and it was now Rhys’ turn to be the doctor.

3You went back to your bed. Rhys went over to your bed where you told him to kneel down, as you had pain.  Rhys put his hand on your chest.  You told him the pain was lower.  Rhys eventually kept moving his hand at your direction, until he reached your penis.  You apparently had an erection.  You took off your underpants and told Rhys to stroke your penis, which he did.  You then told Rhys that this was not helping and to try his mouth.  Rhys put your penis into his mouth and you ejaculated into his mouth and made him swallow your semen.  You told Rhys he could not tell anyone as it was just a part of growing up, that it was what brothers did and that if he did tell anyone, he would be in trouble.  Rhys went back to his bed and started crying.  Apparently this doctor patient scenario, which inevitably led to you penetrating Rhys’ mouth with your penis, occurred on six separate occasions.  The abuse stopped when you left school at the end of Year 10 in 1989. 

4Rhys told his mother and grandmother about the abuse when he was 20 years old, at which your mother rang you and you admitted you had done this, but that it had not gone on for long.  You apparently also had a direct conversation with Rhys saying you just could not understand why you had done what you had done.

5In 2015, Mr Rhys Ferguson who had been very badly affected by the sexual abuse on a life-long basis, attended police and you were interviewed on
27 December 2015.  You made a "No comment" record of interview, however, entered a plea of guilty at a first committal mention stage which is accepted by the prosecution as being a very early plea.

6I now turn to your personal circumstances.  You are 43 years of age and have no prior convictions.  Your parents separated when you were born and you have never had any contact with your biological father.  Your mother remarried and Rhys was born of that union.  The relationship ending in divorce when you were about nine or ten.  You lived with your maternal grandparents at the back of their home in Deepdene.  You were educated to Year 10 at Swinburne Technical College.  You left school in 1989 and then for the next four years, undertook an upholstery apprenticeship which you completed.  During this time, you lived at home.

7You then joined the army in 1994 and moved away from home when you were aged about 20, staying in the army for four years at which time you were posted to Townsville.  In February 1998, you transferred to the Navy where you remained until October 2016.  In that time, being posted to various places such as Sydney, Perth and Cairns.  In during all of that period, again, living away from home.

8You entered a relationship with your partner Dylan[3] in November 2005 and now live with him in Armadale in New South Wales.  You resigned from the Navy in 2016.  This being a move, your counsel inform me, that you had been contemplating for some time, but which was finally prompted by the laying of these charges.

[3] Dylan is a pseudonym.

9Since then, you have lived with your partner, who for the past three years, has run an industrial cleaning business.  You work in that business and have invested all your long service pay and savings into it in an attempt to expand it.  The two of you have also invested unfortunately, in properties in mining towns which for obvious reasons, are not investments which have prospered.

10You still have some contact with your mother, although your counsel informed me that has been a difficult relationship and since the laying of these charges, as I understand it, that contact has virtually ceased.

11I received a psychiatric assessment on the plea, conducted by Dr Leon Turnbull of you.  The date of the report being 1 April 2017.  You were found by
Dr Turnbull to be "An unremarkable man.  Not a sufferer of any mental abuse".  Dr Turnbull said that you "Made straight forward statements about the offending", which you have never denied and went onto say, "There was nothing to indicate they were anything other than genuine in my opinion".

12In your interview with Dr Turnbull, you expressed a great deal of concern about your brother, stating, "I hadn't realised until reading this", that is your brother's victim impact statement, "How much it affected him".  Dr Turnbull stated, "He theorised that mental health issues, alcohol, his life, perceptions of relationships may all have been affected".  He gets some support from knowing Rhys has a supportive partner.

13You also told Dr Turnbull that you were worried about what was going to happen to your brother, "That you somehow wanted him to move forward and be okay".  Dr Turnbull accepted your concern for your brother's wellbeing as genuine.

14Importantly, Dr Turnbull stated:

"I am not so sure that he could have foreseen the long term sequelae of what occurred and it is not so clear what his perception of wrongfulness was at the time.  I doubt he will ever fully come to grips with what he was thinking at the precise time of offending.  What I can say is he has avoided providing per functionary or flimsy excuses or reasons and that is at least somewhat refreshing".

15Dr Turnbull noted that you had very strong views of disgust towards sexual abuse towards children, denied any attraction towards them and did not find that you were in any way a danger to children, or that you were a person with any paedophilic tendencies.

16The effect upon your brother, as is clear from the victim impact statements of both he and his partner Tegan Vincent[4] have been long term and devastating.  He appears to have in some ways, suffered from some sort of arrested development, so that he relies upon cartoons and cartoon figures to soothe him.  He suffers massive panic attacks.  He has been diagnosed as suffering depression and post-traumatic stress disorder.  He is clearly on some sort of disability pension, and has been unable to work, has been actively suicidal for years and in fact, requires a carer which is what his partner Ms Vincent has effectively become.

[4] Tegan Vincent is a pseudonym.

17The two of them live in a remote rural area and Ms Vincent in her victim impact statement outlined the enormous difficulties emotionally, suffered by
Mr Ferguson, for example, stating that he relies on plush toys and kids DVDs to get him to sleep.  Mr Ferguson spoke vividly of his night terrors which have resulted in injury to her, his terror of crowds, his need to live in a remote and peaceful area.  There appears to have been no relief in Mr Ferguson's psychological situation over the years, nor does that appear to be likely in the future. 

18I was directed to Mr Ferguson's statement to police which was conducted in interview form, if I can put it that way, and he gave the reason for pursuing this matter with police as some form of closure.  It is to be hoped that that in fact does occur for him.  But I am satisfied that that is something that you want for him as well.

19I also accept that as a teenager, whilst it appears you had some idea of the wrongness of your actions, you in no way understood the long term effect it did, or would have upon your brother's life and that this is something that you regret and are sorry for.  I am satisfied you do not present any danger to the community.

20In my view, you are genuinely remorseful for your offending above and beyond.  The remorse inevitably accompanying apprehension and being brought to court.  In my view, specific deterrence has no role to play in the sentencing exercise before me.  Nor in my view is general deterrence of particular significance given your age at the time, so that you could not be said to be a suitable vehicle for general deterrence.

21Delay in my view is a particularly significant mitigatory factor.  This matter is now in the area of 30 years old.  You have not gone onto offend in any way.  Your position today as a contributing non-offending and responsible member of the community is well established and your position now is one which is entirely different to that which would have been the case, had the matter been reported earlier.  Indeed, had it been reported earlier, you would have been probably not dealt with in a way, but would in any event have led to your imprisonment.

22I do note that the maximum penalty for this offending is 20 years imprisonment.  In all the particular circumstances of this case, I accept defence counsel's submission that an undertaking to be of good behaviour with conviction is the appropriate response in this case.  I note this is not a course that is disputed by the prosecution.  I therefore sentence you as follows.

23On the charge of sexual penetration of a child under ten, I am going to place you upon an undertaking to be of good behaviour for a period of two years.  There will be a conviction attached to this disposition.  You will also be placed on the Sex Offenders Register.  How long is that for?

24MS MAHADY:  Seven and a half years, Your Honour.

25HER HONOUR:  For seven and a half years.  Your counsel will explain to you your obligations in relation to that.  Could you have a seat sir while we print out the appropriate documentation?  Thank you.  Just off the record Ms Mahady, this is another - it is just another case where - Sex Offenders Register.

26MS MAHADY:  Yes, I just said the same thing, Your Honour, to my instructor.

27HER HONOUR:  Really?

28MS MAHADY:  Draconian

29HER HONOUR:  It is meant to be for people who are currently - pose some threat.  Yet again, all right, thank you very much.  Section 6AAA?

30MS MAHADY:  Yes, Your Honour.

31HER HONOUR:  Pursuant to s.6AAA, had you pleaded not guilty, I would have placed you on a community corrections order for a period of two years, most likely to ensure that you be subject to a sex offenders program.  I also note that it was Dr Turnbull's view that your presentation was such that a sex offenders program would not be necessary in your case.  He noted that your reaction to child sex offending was one of strong disgust.  You therefore have appropriate attitudes towards it, hence the superfluity of the sex offenders program.  Thank you.