Director of Public Prosecutions v Fern
[2021] VCC 1950
•29 November 2021 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 21-00687
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER FERN |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2021 | |
DATE OF SENTENCE: | 29 November 2021 (ex tempore) | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Fern | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1950 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Sexual assault – early plea of guilty – prior good character – relative youth of offender – true remorse – good prospects of rehabilitation – low risk of recidivism of sexual offending – without conviction adjourned undertaking (good behaviour bond)
Legislation Cited: Crimes Act 1958, s40; Sentencing Act 1991, s6AAA
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Mills [1998] 4 VR 235
Sentence: Adjourned undertaking (good behaviour) without conviction, with further conditions. Section 6AAA declaration: Conviction and sentence of six months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J Fallar | Office of Public Prosecutions |
| For the Accused | Mr G Casement | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1Alexander Fern, you are to be sentenced on two charges of sexual assault, contrary to s40 of the Crimes Act 1958. The matter came before me earlier this morning for case conference, and during the case conference I was requested to give a sentence indication. That application was made with the support of the Prosecution. I received a number of documents, all of which I read prior to the case conference. At the sentence indication hearing, after hearing submissions from both sides, I gave the indication that I would not impose a custodial sentence if you pleaded guilty to these two charges.
2I note the current indictment, number L10033158.1, was filed over the existing indictment L10033158. The previous indictment alleged one charge of rape. You have always maintained that there was no sexual penetration as I shall soon describe and the Prosecution accepts that this is so. Although there was a contested committal hearing in this matter, the matter resolved following the committal hearing. You always maintained that although you had touched the complainant Lilliana Maddox[1] in an inappropriate and sexual manner without her consent, you did not at any time sexually penetrate her. At the sentence indication hearing, the Prosecution agreed that it would file over the indictment with the two charges of sexual assault, acknowledging that it would not be able to prove beyond reasonable doubt that sexual penetration occurred.
[1] A pseudonym.
3At the conclusion of the sentence indication hearing, with the cooperation of both parties, I listed the matter for hearing this afternoon, as it seemed to me it was in the interests of justice that that be done to enable everyone to put their position quite clearly while everyone was still available, it being near the end of the legal year. People are busy, and it will be difficult to get everyone back together at the same place prior to the end of the year.
4The maximum applicable penalties for the crimes are imprisonment for 10 years.
5The circumstances of offending are well set out in the Prosecution Summary for Case Conference that I have now renamed Prosecution Opening for Plea. The facts that have been opened comprehensively by the prosecutor, Ms Fallar, are in accordance with that document. That document was tendered as Exhibit A, and, rather than read through it again, I propose to attach a copy of Exhibit A to these reasons for sentence. You have accepted as accurate that summary, and you will be sentenced on the basis of that summary.
6By way of very brief summary, on the evening in question, namely on 8 December 2019 – it may have been the early hours of that morning – you were in bed with Lilliana Maddox. Both of you had been drinking. It was at the Backpackers Residence. There were others who were sharing the room and who were also in the same room for part of the period of offending.
7The complainant was very drunk, but she was awake. She was very much affected by alcohol. You touched her breasts and also touched her on the outside of her vagina. The agreed facts indicate that the complainant was moaning. You thought that meant she was enjoying what you were doing, although you readily concede she had given no explicit consent to either of the assaults.
8On 11 December 2019, Ms Maddox reported the incident to the police. She took part in a pretext phone call with you. During that pretext call, the contents of which are well summarised in paragraph 20 of the Prosecution Opening for Plea, Exhibit A, it was very clear that you were fully remorseful for what you had done. You admitted what you had done. You expressed your extreme regret. You explained to Ms Maddox that you thought that she liked what you were doing, but acknowledged that you should not have assaulted her because you were both so drunk and it was a silly thing to do. You apologised to her and said you were not making any excuses for your conduct. You admitted that it was all your fault, again stating that you had not received any indication that Ms Maddox would want this sort of sexual contact.
9You apologised and said that if Ms Maddox wanted you to leave the country, then you would do so. You said if she wanted to report the matter to the police, she should go ahead and do so, that you would not hide and that you would accept your fate whatever happened. Finally, you expressed your regret from the bottom of your heart, and hoped that she would recover and just feel safe and happy again and enjoy the rest of her time in Australia. You said you would never be able to forgive yourself for what you had done.
10On 2 January 2020, you were arrested and interviewed by police. During the record of interview, you made full and frank admissions as set out in paragraph 21 of Exhibit A. Suffice it to say for present purposes, you showed great maturity despite your relative youth. You accepted that what you had done was wrong, although you were very intoxicated at the time. You said that looking back, you had misread the situation. You stated that Ms Maddox had climbed into bed with you and she was showing signs of enjoyment, but had not given her explicit consent. You said looking back on the situation, it was totally wrong and you felt for Ms Maddox as a result of what you had done. You said it was the lowest you had ever felt in your life, it was out of character, and you were close to feeling suicidal. You said you did not want to make any excuses for your behaviour.
11The crime of sexual assault is a very serious one indeed. So much is clear from the maximum applicable penalty, which is 10 years’ imprisonment. Ordinarily, people have the right to determine who, if anyone, may touch them. Although you felt that Ms Maddox was enjoying herself, as you acknowledge, you did not have consent to do what you did.
12Ms Maddox has not made a victim impact statement, although she has had the opportunity to do so, as she was content for the matter to be finalised today, without providing the Court with such a statement.
13In cases such as these, principles of general deterrence, denunciation and condemnation, and protection of the community are usually the dominant sentencing considerations.
14In a comprehensive plea in mitigation on your behalf, Mr Casement identified a combination of factors which he submitted justified releasing you on an adjourned bond, without conviction.
15Mr Casement’s submissions are set out in the document that was tendered for the purposes of the case conference and which was tendered in these proceedings as Exhibit 1, Accused’s Submissions for Case Conference. I will now refer to them as Submissions on Plea. The relevant parts of Exhibit 1 commence at paragraph 22.
16I now turn to your personal history. You are now aged 23, having been born in 1998. Your current occupation is as a bartender.
17You were born in Manchester in the United Kingdom. You come from a good home. Your mother is a social worker, your father a retired police dispatcher. Your parents divorced when you were aged two years. Both of your parents eventually remarried. You lived with your mother and, as your counsel states, your childhood appears to have been a loving and caring one. You were a good student. There were apparently no problems whilst you were at school and you have always maintained a good work ethic. You attended the University of Derby and completed a Bachelor of Geography, which was conferred in 2019.
18Your counsel points out that despite your youth, you have a consistent and solid work history. You have travelled throughout Australia, always working hard, paying your own way. You arrived in Australia in September 2019 and, as I say, you worked solidly ever since your arrival.
19Your counsel relies on the fact that you have pleaded guilty at the earliest opportunity, notwithstanding the fact that there was a contested committal. The matter was negotiated on the basis, as I said earlier, that there was no sexual penetration, the Crown accepting that as accurate. In these circumstances, the Prosecution has accepted, as do I, that your guilty plea has been entered as the earliest opportunity.
20In determining the weight to be given to your plea of guilty, I take into account the timing of your plea, which, as I say, is at the earliest opportunity. You are entitled to a statutory discount because of your plea. I am satisfied that your plea is indicative of your true remorse. You have avoided the cost and inconvenience of a trial. You have spared witnesses the inconvenience, embarrassment, and ordeal of giving evidence at trial, and there is enormous social utility involved in your guilty pleas. I am satisfied that by taking this course, you have facilitated the course of justice.
21There has been some delay in the matter coming to this point, partly no doubt because of the contested committal, but also because of the worldwide pandemic of COVID‑19. Your counsel has emphasised that in these troubled times of COVID‑19, great significance, perhaps greater than ever before, should be given to the fact that you have pleaded guilty. I note that only over this past weekend, a further variant of the COVID‑19 pandemic was announced. There is now the Omicron variant. On the weekend, Australia closed its borders to some South African countries.
22That only serves to highlight the value of a guilty plea in these circumstances. I refer to Worboyes v The Queen, [2021] VSCA 169, particularly at paragraphs 34 right through to 39.
23You are a person of prior good character. You have no prior convictions and there is nothing pending. Six character references were tendered on your behalf, namely from: Angus Brettingham-Moore, Exhibit 2; James Ling, Exhibit 3; Kieran Elliot Garner-Knapper, Exhibit 4; Jane Louise Garner, Exhibit 5; Katie Strachan, Exhibit 6; and Susan Spruce, Exhibit 7.
24Susan Spruce is your mother. She states that she loves you dearly and has always been very proud of your character and achievements. She states:
“Alex is a very kind, caring person who has empathy and a conscience. Even as a small child Alex would own up if he had done anything wrong and show remorse and compassion. Alex is very caring towards his elderly grand-parents and prior to going to Australia would see them weekly to take them shopping or do jobs around the house. Sadly Alex’s paternal grandmother passed away in August 2020 which was very difficult for Alex, as he was unable to return to the UK to attend her funeral. Alex has also acted as a football coach during his last two years of school, coaching children between the ages of five to eleven.
Alex is very motivated and worked hard through school and university to gain qualifications. He graduated in July 2019 with a degree in Geography, with ambitions to either become a teacher or to work for the environment in some capacity. Alex has a solid group of friends from school and University, both male and female and is popular and well-liked.”
25Your mother goes onto say:
“Alex rang and told me on 2nd January 2020 that he had been arrested and charged with a serious offence. As he was alone and in deep shock I was very concerned for his wellbeing. I flew out to Australia two days later and was with Alex when he attended Melbourne Magistrate’s Court for the Mention Hearing on 7th January. I stayed with him for two weeks and was due to return to Australia again in April 2020 to offer support but the pandemic meant that was not possible. Alex was in a terrible state emotionally and he was also without the support of friends and family at the time. Thankfully his manager Angus at the wine bar where he worked was a tower of strength and support to him. As times has passed, and the pandemic hit it has been really devastating not to be able to visit Alex, or for him to return home. I have been in daily contact with him to support him through some very bleak times such as when he was on in own in a bedsit for weeks during the Melbourne lockdown in 2020.”
26She also states:
“I understand that Alex has been charged with two counts of sexual assault. I know that Alex has shown empathy for the Complainant and wants this situation to be settled in her interests as well as his own. Alex has been brought up to respect women, and the charges are completely out of character in relation to his usual behaviour. Alex has a clear police record and has shown that he had been diligent in following all bail conditions placed on him.
Alex is stranded in Australia, he expected to return home in September 2020. The length of these proceedings and the nature of the charges have impacted on his emotional health significantly living with the uncertainty of the outcome. We have been unable to see him for almost two years.
Alex has been traumatised by these charges and will need time to come to terms with what has happened. We pledge to provide all the support he needs, both personally and professionally. Alex has a secure, loving home to return to and we can’t wait to have him back with us.
Alex has a bright future ahead of him in terms of career options and we hope that a criminal record will place minimum restrictions on his future options.”
27The balance of the references all speak to your good character, the good reputation that you have enjoyed in the community.
28I now turn to the question of remorse. I have touched on this earlier, but it is worth noting that Ms Fallar, the prosecutor, concedes that there is very solid evidence of your insight and remorse. So much is clear from the way you conducted yourself the morning after the incident, as well as during the pretext conversation, and then in the way you made full and frank admissions to the police when interviewed. It is clear that for a young man, as I said, you have shown great maturity accepting responsibility for what you have done, not trying to blame the victim, not trying to blame anyone else but yourself. You have accepted full responsibility for your actions and that does you great credit.
29Turning to the question of your prospects for rehabilitation. I am satisfied that your prospects for rehabilitation are excellent. As I have now said on a number of occasions, you have accepted full responsibility for what you have done. You have insight into your offending. You are greatly troubled by what you have done. You are extremely remorseful, and I am satisfied that you are unlikely to ever offend in like manner again and probably that you are unlikely to offend in any manner.
30Turning to the question of relative youth. You were 21 years of age at the time offending. You are now aged 23. I accept, as your counsel has stated, that as a relatively young offender, you were prone to ill-considered and rash decisions, lacking a degree of insight, judgment and self-control. Given your youth, you are also amenable to rehabilitation. In fact that is an important sentencing consideration and sentencing objective.
31You have great family support. I have just read the relevant parts of the reference provided by your mother in Exhibit 7.
32The principles in relation to sentencing youthful offenders were summarised by Batt JA in the well-known case of the R v Mills [1998] 4 VR 235. What emerges from that case is that the youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court, where the matter properly arises. It does arise in this case.
33The second point is that in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending.
34The third point to be made from Mills is that a youthful offender is not to be sent to an adult prison, if such a disposition can be avoided. The Prosecution does not urge a sentence of imprisonment, as I have said; indeed, the Prosecution has been very fair in its attitude to this proceeding, agreeing that a non-custodial and non-conviction disposition is open in your case.
35Turning to the submissions as to penalty, it seems both your counsel and the learned prosecutor agree that this is a case in which a non-custodial disposition is appropriate, and, as I indicated in the sentence indication hearing, I also agree. You are not an Australian citizen. You will be returning to your home country as soon as you are able to do so.
36I do not propose to impose a community correction order. It is not necessary in the circumstances of this case.
37I take into account all of the matters that have been put to me. I thank Ms Fallar for her support of your cause. She has conceded that although general deterrence and just punishment are important, they must give way when the Court is dealing with a youthful or relatively youthful offender. Matters such as rehabilitation, principles of parsimony, taking account of the fact of delay, prior good character, cooperation with the investigators, your true remorse, your full and frank admissions, the social utility inherent in your guilty plea, and the fact you have support, all speak in favour of either a monetary penalty or an adjourned undertaking. Ms Fallar frankly conceded that an adjourned undertaking is open.
38Again Ms Fallar, with great fairness, indicated that she could not resist a non-conviction disposition, based on your significant insight and remorse. She acknowledged that you have stayed in Australia to face the music, as it were, to face the consequences of your actions, and that you have not sought to evade the criminal justice system.
39Bearing all of these factors in mind, I consider it is appropriate to order that you be released and that the further hearing of this matter be adjourned until 28 November 2022, upon your giving an undertaking with the following conditions, which I will discuss with counsel, but what I propose is that you appear before the Court if called upon to do so during the period of the adjournment. In other words, you do not need to appear on the final date of the bond unless you are called upon to do so.
40You must be of good behaviour during the period of the adjournment, and, at your own expense, you must contribute the sum of $1,500 to a charity that I will discuss with counsel. I had previously mentioned the Women’s Legal Service Victoria, an organisation that helps women who have been victims of sexual abuse. Ms Fallar, is that an appropriate charity?
41MS FALLAR: It is, Your Honour, and just to confirm, that is for Charges 1 and 2, aggregate adjourned undertaking, Your Honour, for one year.
42HER HONOUR: It will be, yes, for both charges.
43MS FALLAR: Thank you, Your Honour.
44HER HONOUR: The adjourned undertaking.
45MR CASEMENT: That charity’s agreed, Your Honour. Thank you.
46HER HONOUR: I am obliged as a matter of law to warn you that if you break the conditions of the undertaking, you may be punished for the offence or the offences that were adjourned on your agreeing to this undertaking. You may be punished for failing to be of good behaviour and in addition to being punished for either of these, you may also be fined. Do you understand Mr Fern?
47OFFENDER: Yes, Your Honour.
48HER HONOUR: Very well, the bond can be prepared in the terms that I have indicated. How are we going to get the document to Mr Fern, so that he can sign it and send it back? Do you have a printer where you are Mr Fern?
49OFFENDER: No I don’t think there’s a printer at the hotel, but the State Library of Victoria is just next door, so I could go there and print it off I’m sure.
50HER HONOUR: Well I cannot finish this hearing until I have the signed bond. So what I might do then is adjourn - how long will it take you to get the document, on the assumption we can send it to you straight away?
51OFFENDER: I could say 20 minutes.
52HER HONOUR: All right, I will just find out from my associate how she is going. I would like to look at the draft before it is sent to the parties, it will then be sent to counsel to make sure that the bond is in the terms that I have ordered.
53MS FALLAR: Sorry, can I enquire Your Honour, in relation to the (indistinct), you have given him 60 days to prove - proof of the funds being given to the charity. Will Your Honour consider the same 60 days as well for Mr Fern?
54HER HONOUR: Yes, I think that is reasonable. Can your client pay that amount within 60 days?
55
MR CASEMENT: I haven’t spoken to him directly about that, Your Honour, but I will in just one moment if that’s convenient? Does that pose you - I’ll do it on the link if Your Honour just permits? Is that going to pose a difficulty for you
Mr Fern, within 60 days, are you able to put $1500 towards the Women’s Legal Service or would ‑ ‑ ‑
56OFFENDER: Yeah, that ‑ ‑ ‑
57MR CASEMENT: ‑ ‑ ‑ you need further time than that?
58OFFENDER: That will be fine, 60 days is enough.
59MR CASEMENT: Thank you very much.
60OFFENDER: So yeah, no problem.
61HER HONOUR: On the question of whether or not a conviction should be recorded, as I have indicated, Ms Fallar has said she cannot resist the submission that there should be no conviction recorded, given the nature of the offence, your character and past history and the impact of the recording conviction on your economic or social wellbeing or on your employment prospects. I propose that this adjourned undertaking be without conviction.
62MS FALLAR: As the Court pleases.
63HER HONOUR: Now what about - there is no suggestion that he should be registered under the Sex Offenders Registration Act? It is discretionary, is that right?
64MS FALLAR: It is, Your Honour, for an adult. I don’t have those instructions, so I think in the circumstances, it’s not being sought.
65HER HONOUR: No application is made that you - for your registration under the Sex Offenders Registration Act. It is not mandatory. There is no application for it and I do not propose to make such an order. When we come back after you the signed the bond, I will make the statement under s6AAA of the Sentencing Act. All right, now how are we going with the draft?
66ASSOCIATE: Your Honour, I apologise. It may take us a few minutes because I also need to request that Mr Fern’s date of birth is confirmed on the record. It’s incorrect in the Court file. It’s listed as 1996 and I just wanted to get confirmation before they update that, that ‑ ‑ ‑
67MR CASEMENT: January 1998 I think.
68ASSOCIATE: January 1998 is ‑ ‑ ‑
69OFFENDER: Yeah, that’s right.
70ASSOCIATE: Thank you. I can then get registry to fix that and then I can prepare the orders, Your Honour.
71HER HONOUR: Thank you.
72MR CASEMENT: Your Honour, if Mr Fern is having difficulty getting a printer at a public service, if Your Honour were to email it to me, I think we’re both city based, Mr Fern and I for today, and he could come up to my chambers and sign it, if that’s a little more satisfactory, but I think Russell Street wouldn’t be too far away.
73HER HONOUR: If you’re happy with that Mr Fern, it seems like a sensible solution and it will ‑ ‑ ‑
74OFFENDER: Yeah.
75HER HONOUR: ‑ ‑ ‑ mean that your counsel, Mr Casement, can go through the terms of the bond with you again and can explain what has happened, in case I did not make myself sufficiently clear.
76OFFENDER: Yeah, no that sounds good with me.
77MR CASEMENT: If convenient, Your Honour, I could - if he could - if you could permit him to come off the link now, I can get him to walk up to chambers and we might be able to get it done quickly. I’ll have to find someone who knows how to scan something up here in chambers, but I’m pretty sure I can do that.
78HER HONOUR: Excellent. Ms Fallar, are you happy with that course?
79MS FALLAR: I was about to actually make that suggestion, when Your Honour leaves the Bench, that he can starting running from Space Hotel ‑ ‑ ‑
80HER HONOUR: Excellent.
81MS FALLAR: ‑ ‑ ‑ to Mr Casement’s chambers.
82HER HONOUR: Off you go Mr Fern. Please go and see ‑ ‑ ‑
83OFFENDER: Okay.
84HER HONOUR: ‑ ‑ ‑ Mr Casement. I take it you have his address?
85MR CASEMENT: I’m not sure he does, but I’ll ‑ ‑ ‑
86OFFENDER: Yeah I can get it.
87MR CASEMENT: We’ll get it to you in just a moment. So if you get off the link, Mike Brown will get it to you.
88OFFENDER: Yeah, no problem. I’ll sort that out now then.
89HER HONOUR: When we resume, Mr Casement, your client will be with you, because I’ll need him to acknowledge that this is his signature and I need to finish the sentencing process.
90MR CASEMENT: I’ll put him in my chambers with me, Your Honour, if that’s convenient and I’ll find some way of showing that we’re both here
91HER HONOUR: Mr Fern, have you been vaccinated?
92OFFENDER: Yeah.
93HER HONOUR: You’ve received both ‑ ‑ ‑
94OFFENDER: Yes, Your Honour.
95HER HONOUR: ‑ ‑ ‑ vaccinations?
96OFFENDER: Yes, Your Honour.
97HER HONOUR: All right, do you have a mask?
98OFFENDER: Yes.
99
HER HONOUR: Good, will you please wear that when you go and see
Mr Casement for his protection and no doubt he will put one on for yours?
100OFFENDER: Yeah absolutely, no problem, Your Honour.
101HER HONOUR: Thank you.
102OFFENDER: Okay, I’ll leave now then.
103HER HONOUR: We will adjourn until Mr Casement tells me that you are there all right? In the meantime, we will start finalising the paperwork.
104MS FALLAR: As the Court pleases.
105HER HONOUR: Thank you.
106MR CASEMENT: Thank you.
107(Short adjournment.)
108HER HONOUR: Mr Casement, where’s Mr Fern?
109MR CASEMENT: He’s right here, Your Honour, and I’m probably the worse barrister to be doing this technical stuff with, but he’s right here.
110HER HONOUR: Very well. Have the parties received their draft adjourned undertaking paperwork?
111MR CASEMENT: We have and it’s been signed, Your Honour, and I was just in the process of pressing send on that document, to send it back to Your Honour.
112
HER HONOUR: And are you both satisfied, that is to say Ms Fallar and
Mr Casement, that the document that you have been sent accords with the order I proposed?
113MR CASEMENT: It does, Your Honour.
114MS FALLAR: I understand there was a new document that is to be sent, because what was sent was supposed to be amended by Your Honour’s associate, so we are awaiting ‑ ‑ ‑
115HER HONOUR: That’s right. The address was incorrect. It has the old address and the document is just being changed to put the new address in. It had City Road and Mr Fern gave his address as Russell Street.
116MR CASEMENT: Yes, thank you. Well we’ve just sent back the one with the bad address, Your Honour, and we’ll - if it gets sent through again, I think we can do it while we’re just about here I think.
117HER HONOUR: Mr Casement and Mr Fern, if you wish to put your masks on, that’s all right, you’re sitting quite close to each other.
118MR CASEMENT: Thank you.
119HER HONOUR: Thank you.
120MR CASEMENT: So Your Honour, are we waiting now for the amended document?
121HER HONOUR: Yes.
122MR CASEMENT: Yes.
123HER HONOUR: It’s got to come to me and I have to sign it after Mr Fern has signed it and then I’ll make the statement under s6AAA.
124ASSOCIATE: That document is on its way to the parties now, with the updated address.
125MR CASEMENT: Thank you.
126HER HONOUR: Thank you.
127MR CASEMENT: I’ve just received that, Your Honour. I’ll print it out. Would Your Honour permit me to go on mute and turn the video off and I’ll quickly take Mr Fern to sign this document?
128HER HONOUR: Yes of course.
129MR CASEMENT: (Indistinct words) interim, we’ll get that straight back to you. Your Honour, that’s been signed I can confirm. I’m just having it scanned to my email and then I’ll forward it straight onto Your Honour’s email, so that’s where we are. All right, I’ve pressed send on that, Your Honour. It’s coming up as the sent item on my phone, Russell Street, with the signature of Mr Fern which for the purposes of the transcript, I saw him sign.
130HER HONOUR: Just one minute, we’ve got to wait for it to be received first through my associate, then she’ll forward it to me. The court system is a little slow.
131MR CASEMENT: Thank you. I’ve also forwarded it to my instructor and yes, Ms Fallar as well.
132ASSOCIATE: I’ve received that and I’m forwarding it to you, Your Honour.
133HER HONOUR: Thank you. All right, I have received the document, I am just printing it out.
134MR CASEMENT: Thank you, Your Honour.
135HER HONOUR: Mr Fern, I have received a document that purports to have your signature on it. That is the adjourned undertaking. Do you acknowledge that that is your signature?
136OFFENDER: Yes, Your Honour.
137HER HONOUR: And do you acknowledge that I have warned you of the consequences of breaking the undertaking?
138OFFENDER: Yes, Your Honour.
139HER HONOUR: Very well, I have signed that. It will just take me a minute to put it back on the scanner to send it to my associate to send to you both. Just one moment. All right, that is on its way back. In the meantime, ‑ ‑ ‑
140MR CASEMENT: Thank you, Your Honour.
141HER HONOUR: ‑ ‑ ‑ I will make the statement under s6AAA of the Sentencing Act. By virtue of s6AAA of the Sentencing Act, I am required to state the sentence and non-parole period if any that would have been imposed in respect of the offences, but for your plea of guilty. Therefore, pursuant to s6AAA and taking into account the matters to which I have previously referred as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea, the total effective sentence I would have imposed is with conviction, sentenced to six months’ imprisonment.
142MR CASEMENT: As Your Honour pleases.
143HER HONOUR: Does that now complete the matters?
144MS FALLAR: Yes, Your Honour, ‑ ‑ ‑
145MR CASEMENT: It does, Your Honour.
146MS FALLAR: ‑ ‑ ‑ it completes it.
147HER HONOUR: Well may I just take the opportunity to thank you both for the comprehensive submissions that you prepared, and also for all the assistance that you gave today. I don’t know that it is very common to have a case conference, followed by a sentence indication hearing, followed by a plea hearing and a sentence all on the same day. It might be a record as far as I know, but I could not have done that without the assistance of you both.
148I want to thank you both for those written submissions and can I also commend you Ms Fallar and your instructor. Without that assistance to the defence and to the Court, there is no way I could have given an ex tempore sentence today. So I thank you very much.
149MR CASEMENT: Thank you, Your Honour.
150HER HONOUR: If I do not see you before the end of the year, I wish you well over the festive season.
151MR CASEMENT: Thank you, I’m grateful Your Honour.
152HER HONOUR: For (indistinct words) safe trip back home, after he’s paid the money.
153OFFENDER: The $1500, yep.
154HER HONOUR: In accordance with this order. Thank you very much.
155MR CASEMENT: Thank you, Your Honour.
156MS FALLAR: As the Court pleases.
ANNEXURE “A”
DPP v Alexander FERN – Prosecution Opening for Plea (2021.10.18)
Charge 1 – Sexual assault comprising of rubbing the vagina (masturbating without penetration); and
Charge 2 – Sexual assault comprising of touching the breast
Introduction.
Accused – Alexander FERN (DOB: 29/1/1998) was 21 years old at the time of alleged offence. He was on a Working Holiday Visa from the United Kingdom.
Complainant – Lilliana MADDOX (DOB: 1/8/1996) was 22 years old at the time and was also on a Working Holiday Visa from the United Kingdom. She arrived in Sydney, Australia on 9 November 2019 and stayed there for about two (2) weeks where she met Katrina PAGE. She travelled to Melbourne around late November 2019.
The incident on 8 December 2019 took place at the Base Backpackers at 17 Carlisle Street, St Kilda VIC (the Base).
Background.
On or about late November 2019 MADDOX travelled to Melbourne and checked-in at the Base Backpackers. MADDOX had previously met the Accused through another backpacker, Katrina PAGE on a more of a “hi/hello” basis only in a group setting and does not even remember his name.
On Saturday, 7 December 2019 MADDOX and some of her friends decided to go out. They had a glass of wine in the room before going downstairs to the bar at about 9.30pm. MADDOX was with a number of other backpackers at the bar. The Accused came to the bar around 10.30pm.
MADDOX briefly spoke with the Accused at the bar while waiting for drink mostly to complain about the long wait for drinks.
At around 11.30pm, MADDOX went with PAGE and another backpacker Maya HILLAM,[2] to PAGE’s room to continue drinking. The Accused and Anthony GILBERT (backpacker and boyfriend of PAGE) were in the room drinking.
[2] A pseudonym.
The group made plans to go to Crown Casino to watch a boxing fight at 4am. The group continued to drink together in the room. When HILLAM left the room (because she had a work shift the next day) she described MADDOX as being a little tipsy but not out of control. She knew this because she had spent the entire week before with her (when she observed her to be much more drunk) and at the time she left the room, she described MADDOX as not being drunk.
The group decided to take a nap before getting up for the fight. GILBERT (D27.1 [3]) and PAGE (D195 L12) observed MADDOX to be affected by alcohol; she was very drunk.
MADDOX laid down on the bed closest to her, being the Accused’s lower single bunk bed. The bed had a single pillow on it. She lay on the bed next to the Accused. GILBERT occupied the upper bunk above the Accused. MADDOX recalled the Accused was fully clothed as he laid on the bed under the duvet up against the wall. She laid down over the duvet then fell asleep. (Gilbert: D27.1 [2-3]) The lights were on and people were still talking.
As the night went on, eventually other people left the room. To stay awake and stay motivated, GILBERT rolled some cigarettes. The Accused kept turning the lights off saying they needed to go to bed. GILBERT and PAGE kept turning the lights on. They then decided to go out and smoke. (Gilbert: D27.1 [4])
GILBERT and PAGE went downstairs for a cigarette. After about 20 minutes or so GILBERT and PAGE returned to the room with the lights off. (D142 [5]) They went to GILBERT’s upper bunk bed to sleep which was above where the Accused and MADDOX lay. PAGE recalls she kind of passed out. (D136 [4[)
Circumstances of Offending.
GILBERT heard noises of the bed moving and laughing noises from underneath. He could also hear moaning noises coming from MADDOX. PAGE also heard moaning noises coming from MADDOX. These noises continued for a period of 20 minutes. She heard the two people below laughing (which she described as a “flirty kind of laughter”), as well as the movement of the bed.
At this point in time GILBERT and PAGE both assumed the two below were being intimate so consequently they decided to transfer to PAGE’s upper bunk bed instead to give them some privacy.
Aftermath of Offending.
When MADDOX woke up at about 5am, the room was now dark. She was now lying on her side facing out into the room. The duvet was now over her; the button and zip of her skirt was undone; it was pulled down and twisted; her underpants were down around her knees. When she realised this, she sat up on the bed confused. She sat for a few minutes not knowing what to do. She pulled her underpants up and did her skirt. She then felt her underpants were a bit wet and realised something had happened. Her shoes were still on. She sat for a moment and saw the Accused was sleeping on his side under the duvet facing her. She shook him awake.
MADDOX does not recall any assault or touching occurring.
Disclosure and Admissions to Offending
When MADDOX woke the Accused up, she asked the Accused if he undid her skirt. The Accused initially denied it. But when pressed further, the Accused admitted to touching her.
MADDOX disclosed what had just happened to various people including PAGE, HILLAM and another backpacker, Hayden CHADWICK.[3] She also informed the Manager. The Accused was asked to leave and he did so.
[3] A pseudonym.
Police investigations
On 11 December 2019 MADDOX reported the incident to police. The matter was then investigated.
On 12 December 2019 MADDOX participated in a pre-text phone call with the Accused:
a)MADDOX asked the Accused why he touched her. He said he was stupid; he had too much to drink which was not an excuse. He had never regretted anything much in his life. He has been crying the past few days. (D68, p2)
b)He said when someone turned the lights off and as they were lying in bed, he started rubbing his hand on her waist. Even though he knew she was asleep because she was drunk, she did not show signs she didn’t want to. He undid her skirt and put his hand down and started rubbing her vagina; she started making noises which suggested to him that she was liking it. She was rubbing her hands on his head. She was showing enough signs that she was enjoying it. (D70-71, pp4-5)
c)He thought that Anthony and Katrina heard it is well. (D71, p5)
d)He shouldn’t have done it because they were both so drunk and it was just fucking stupid. His brain turned off.
e)She said she could not understand how the rubbing of the head was possible. He said he doesn’t really know because the lights were off and she was facing away from him. (D72, p6)
f)He apologised and also for shoosh-ing her that morning as he was half asleep and his head was pounding. (D73, p7)
g)He said while it was happening, he stopped then went to the toilet. When he returned, he shook her and called her name but she didn’t respond. That’s when he stopped. There was no point in trying to take things further like have sex. (D74, p8) He thought that she was awake and responding while doing it, and then she fell asleep when he went to the toilet. (D75, p9)
h)Rather than it being an excuse it was just how he was perceiving it at the time that she was showing signs of responding. He states that her hand was on his leg and head. (D75-76, pp9-10)
i)He states that it was all his fault. (D76, p10)
j)He agreed that she did not give any indication during the night that she would have wanted contact. He said he doesn’t understand why he thought it was an acceptable thing to do. (D77, p11)
k)He apologised and said if she wanted him to leave the country then he would; or if she wanted to report it to police, then she should do so and he would not hide and would accept whatever happens. (D77-78, pp11-12)
l)He regrets it, from the bottom of his heart and he hopes that she can recover, and just feel safe and happy again and enjoy the rest of her time in Australia. He will never be able to forgive himself. (D78-79, pp12-13)
Record of Interview
The Accused participated in a Record of Interview on 2 January 2020. The Accused made the following admissions:
a)ROI 29 – He said at about midnight or 1pm he started throwing up for drinking too much; a girl gave him water; patted his back; he got onto his bed; LILLIANA went to bed alongside him; they had a brief conversation about taking Uber, etc. (D86) ANTHONY turned the lights off. LILLIANA turned her back on him; he put his arm around her; he undid her skirt; he put his hand down. He said he now realise that she was very drunk and should not have done that. At the time he didn’t realise how drunk she was. (D87) He started rubbing her. She was showing signs she was enjoying it; she didn’t say stop or no. She put her hand around her head, playing with his hair. He said, “I believe at the time that it was consensual and she was, you know, enjoying it. But obviously looking back, it – you know, she was – I – I was very drunk. She was very drunk.” (D87) It went for about 20 minutes. (D88) ANTHONY and KATRINA were above and they were laughing. They moved to another bed to give us privacy. (D88) He stopped, by about 2am he went to the toilet; he checked his phone; checked his football team to see if the Stoke City game had kicked off. When he returned he saw that she was asleep. He thought he would sleep too, so that they would wake and go to the Casino.
b)ROI 30 – At about 5am LILLIANA woke him up and asked him why her skirt was undone. He was shocked because he thought she was aware of what had happened. He stuttered and said he didn’t know what she meant. LILLIANA raised her voice saying she was obviously wasn’t sober enough to consent.
c)R130 (D108) – He thinks it was a just a total misread of a situation and he thought that there was consent. The fact while he was masturbating her, she was showing signs of enjoying it but he accepts there was no explicit consent by her.
d)From R107 (D104) – Re: what happened then LILLIANA got into bed with him – there was a short conversation; they cuddled a little bit; he put his hand down; LILLIANA was making sounds and was putting her hands around; LILLIANA was rubbing down the outside of his jeans over his penis; he heard ANTHONY and KATRINA started laughing and moved to the other bed. LILLIANA might have laughed a little bit. I put my hand up and played with her nipples, her breasts a little bit. It lasted about half an hour; he went to the toilet then fell asleep again. He woke up fully clothed which was unusual because he usually sleeps with his boxers. He was drunk enough not to be bothered which was unusual.
e)From ROI 114 (D106) – He masturbated her; he was moving it and then went around there. He was using his right hand because she was on the left of him. He was using either index or middle finger.
f)ROI 120 (D107) – That was when she started showing and making the noises of enjoyment and putting her hand around him.
g)ROI 130 (D108) – Re: signs that LILLIANA gave him to suggest she was consenting – He said looking back, none really. The fact she got into his bed, he misread the sign. The fact that, she was showing signs of enjoying it; no explicit consent by her.
h)ROI 139 (D109) – He was surprised LILLIANA chose to get into bed which he misread as a signal she wanted to cuddle or kiss or something like that. There were 5 beds and LILLIANA chose his bed.
i)From ROI 143 (D110) – There were 4x interactions with LILLIANA from Sunday before. There were no signs of flirting or signals; no suggestion week-long she wanted this incident to happen; he did not make any suggestions to her.
j)From ROI 147 (D110) – LILLIANA’s statement was put to him. He said it’s possible LILLIANA wasn’t under the covers. (R151) He pulled her skirt and pants down so it’s easier for him to do things to her. (R153) Then he stopped, gone to the toilet; came back and LILLIANA was asleep; he shook her; he completely left her. He didn’t even realise her pants were down when he got into bed.
k)ROI 156 (D112) – He was caught off-guard so he lied about it. He realised he totally misread it and made a massive mistake.
l)ROI 157 (D113) – He probably did tell LILLIANA that her eyes were open at times.
m)ROI 162 (D114) – He agreed that LILLIANA was right she never showed him any kind of intention she wanted him to do anything to her. But at the time he thought she was awake and consenting and was enjoying what was going on. Looking back, it was totally wrong. He feels for her for what he had done.
n)From ROI 165 (D114) – He’s aware of the pre-text conversation. He said it was lowest he had felt in his life; it was out of character; he was close to feeling suicidal. He doesn’t want to make excuses.
o)ROI 169 (D116) – LILLIANA wouldn’t lie about being asleep and could not remember the incident; she was too drunk. But at the time he said he thought there was signals and stuff that she was awake.
p)ROI 170 (D117) – He doesn’t know why he would think that it was an acceptable thing to do given she had not given him the impression through the night that she wanted contact.
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