Director of Public Prosecutions v Ferraro (a Pseudonym)

[2019] VCC 708

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL FERRARO (A Pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	10 May 2019
DATE OF SENTENCE:	17 May 2019
CASE MAY BE CITED AS:	DPP v Ferraro (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 708

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr S. MacDonald	Wakefield Vogrig and Boote Lawyers

HIS HONOUR:

1Paul James Ferraro[1], you have pleaded guilty to one charge of indecent act with a child under the age of 16, that being a course of conduct charge.  The child with whom the course of conduct occurred was your natural daughter.

[1] This is a pseudonym.

2You are 43 years of age.  You were aged between 37 and 39 at the time of the offending.  You have pleaded guilty at the earliest opportunity and have expressed deep remorse and you must get the utilitarian benefit of that plea of guilty.

3Yours is a very unusual situation indeed in that once the child had disclosed the offending to your wife who then disclosed it to you, literally within minutes you were at a police station volunteering a confession.

4It is clear that the breadth of the charge, although not the basis of it, has been increased by your voluntary admissions and it is difficult for me to ascertain whether the matter would have proceeded had you not confessed.

5Within a couple of days, a VARE tape had been made with the complainant and it is my understanding there was an intention to report to the police in any event.  However, it is a situation where on this 14 September 2017, it was all very quick and you have to clearly get a very significant benefit for that indeed.

6As indicated during the course of the plea, it is a most unique circumstance to see this occurring.

7You have no prior convictions and, as I understand it, you have no subsequent matters or anything pending.  All those things go very much in your favour.

8Firstly, you are to be placed on the Sex Offenders Register and I advise you that the reporting conditions of that will be for a period of eight years and I would ask you now to acknowledge receipt of that.  Mr MacDonald, if you would not mind going with my associate to ‑ ‑ ‑

9It is also a situation where after you volunteered your guilt to these matters, it was some five months before you were actually charged and then a significant period of time obviously before this plea came on.

10There is obviously delay.  I am not attributing blame in any way, shape or form for that, but it is certainly a period of time where you have been in circumstances of not knowing what your ultimate fate was to be and I take that delay into account in this sentencing process.

11I say from the outset before I summarise the offending that there is no victim impact statement at all before me and I am unaware as to the consequences of all this for your daughter, however, as the Court of Appeal has pointed out, a judge in these circumstances must infer harm and I can simply take it no further than that.

12I might also just simply indicate that one comparative case that was handed to me by your counsel, I think it was Ingles, it was a situation where there was in fact a victim impact statement in that expressing forgiveness by the victim.  That is not the situation here and I think it clearly distinguishes that decision from this sentencing process.

13The circumstances of the offending are unfortunate indeed.  I have no intention of going through each and every detail of all this.  I will annex the Crown opening to my sentencing remarks but it is important that it would be clearly outlined, the seriousness of the offending that took place.

14The complainant in the matter is your natural daughter and at the time of the offending was between 11 and 12 years of age.  You have pleaded guilty to offending that occurred between 28 September 2013 and 30 October 2014.

15You, as I have indicated, are the natural father.  I do not think I need to go through the family history but, in any event, you ended up living in Neerim East where the family remained until October 2014.

16In around about April 2013, your daughter, who had recently had her 11th birthday, commenced puberty. She had developed quite noticeable breasts and she started menstruating.  At some stage during that year, you started to have inappropriate sexual thoughts about her.

17An incident occurred on 28 September 2013, after the Grand Final, where the two of you were walking home. You were intoxicated and ended up lying on the ground.  You said that she ground her hips into you and you told her to stop and go inside and she did and went to bed.  In any event, you were lying on the ground for some time before going inside.

18Later that evening, you entered her bedroom when she was asleep, and sat near to the bed, you began rubbing her back, moved your hands around the front of the body and rubbed both of her breasts.  She woke to you tracing your hands around her breasts and rubbing your hands on top of them.

19She froze and quickly closed her eyes again.  You said that you rubbed your hand up her body from her waist to her breasts, cupped her breasts before giving her a kiss goodnight.  After leaving the bedroom, you then went to the toilet and masturbated.

20You apparently on the following days apologised for that as inappropriate kissing and touching and you told her it was wrong.  Obviously throughout the course of all this, you knew very well that what you were doing was wrong.

21A couple of nights later, you went into her bedroom whilst she was asleep, rubbing her back and giving her a back massage.  You continued for some time.  You moved your hand around to her breasts again rubbing and fondling them.  Same thing occurred, you said goodnight, went to the toilet and masturbated.

22A few weeks after the first incident, you again went to her bedroom whilst she was asleep on her stomach.  You massaged her back and again moved your hands around to her breasts and fondled them.

23That sort of behaviour continued on a regular basis for the next year.  It was a situation where she says it would happen two or three times a week over that period of time.  There is a dispute as to how often the vagina was touched and I am not going into that.  I will simply work on the basis that the vagina itself was touched on more than one occasion and I think it would be unwise to go into too much detail or try to take it any further than that.

24But, in any event, the behaviour, generally began with you giving her a back massage before moving your hands to her breasts and rubbing them.  You also kissed her on the mouth, her neck, her breasts and stomach.

25As time went on, your actions increased.  You began rubbing her legs and her stomach breaching her pubic line.  She recalls you come into her bedroom at night and touching her, as I said, at least two or three nights a week over the course of this offending.

26You said in fact to police,

'It was like grooming her, you know.  I'd take it that little bit extra every time.'

27As these incidents continued, you, on one occasion at least, after going through that process, then kissed and sucked her nipples.  You would get her to sit on your lap.  You began rubbing her stomach with your hands and you would move your hands further up her torso to her breasts and rubbing them with your hands.

28On a date between October 2013 and October 2014, you went into the bedroom where she were lying on her back.  She was uncomfortable with you being in her room.  She rolled onto her side and faced away from you in an attempt to get away.

29You grabbed by her elbow, rolled her back over so that she was laying on her back and began massaging both of her breasts and upper body with your hands.  She said to you, 'No, go to mummy', and rolled back over onto her side again facing away from you.  You stopped touching her, got up and left the bedroom.

30On another date, you commenced the massage, rubbed her breasts, moved your hands down her body past her pubic line, put your hand underneath her clothing, touched and rubbed her vagina back and forth with your hand.

31On another occasion that has been described, you did the same sort of thing, rolled onto her back, put your hand inside her underwear, placed your fingers on her vagina and her clitoris while touching her vagina.  You were rubbing her breasts with your other hand, that was at the top of her clothes, and you were kissing her on the mouth.  Then you stopped touching her and replaced her clothes and put the blankets over her.

32On another unknown date, same sort of conduct of rubbing hands down her body.  You put your hand in between her legs, rubbed her clitoris and vagina.  She was lying on her side, you were lying behind her.  Whilst rubbing her, you were rubbing your penis on her back.  You were close to ejaculating and believed she had had an orgasm so you stopped rubbing her vagina, gave her a kiss goodnight and left her bedroom after which you went to the toilet and masturbated.

33On another occasion, same sort of conduct, you grabbed her by the shoulders, rubbed your erect penis against her back and after some period of time, got up and left the room.

34This occurred, this type of conduct, on a number of occasions obviously every week over a period just in excess of a year.  It is extraordinary conduct.  It can in no way, shape or form be described as the occasional lapse.  It was a systematic abuse for your own gratification of your own natural daughter.  I can only guess at the damage that this has done to her.  She is 11 to 12 just starting puberty, probably one of the most vulnerable times in a woman's life and she has been subjected to all this.

35In any event, after the event, she was becoming increasingly stressed and anxious and in the end was referred to a psychiatrist.  It was during those counselling sessions in September 2017 that she finally disclosed that you had sexually assaulted her and she subsequently told her mother in September 2017.

36As I have already indicated, to your credit, you were straight to the police station when the allegation was made known to you and you confessed in some detail.  It is clear that you were fully aware that what you were doing was wrong and fully aware of the extent of the wrongness of it.  Words almost fail me in terms of describing how a natural father could do this to his own daughter over such an extended period of time.

37I am well aware in these circumstances that the charge, even thought it is a course of conduct, carries a maximum penalty of 10 years.  Obviously that puts you in a far more serious category than would be an individual count but I am aware of the limitation of the maximum penalty.

38Gaol is inevitable as your counsel conceded.  The submission put on your behalf was that gaol and a CCO would be sufficient.  I have had you assessed for a CCO and you have been found to be acceptable.

39I then look to matters personal to you and I think it is important in a situation such as this where all the material before me is effectively of the effect that all this is going to have on your rather than the effect that it is all going to have on your daughter.  It is a situation where I have outlined in a little bit of detail the views of the court system as to this sort of offending.

40The situation here is that you are not charged with incest and I make this clear for the purposes of the transcript.  There was some banter between myself and your counsel about the decision in Dalgliesh and the subsequent decision of Shawcross.

41It is a situation where I indicated that I disagree with the decision in Shawcross, and I still do, but the fact of the matter is that I will not be sentencing you on a Dalgliesh basis.  You have not been sentenced as an appropriate vehicle for increment.

42Because of the nature of the conversation that I had, somewhat in jest, with your counsel, I think it is important to understand that I am not giving you a sentence greater than I would otherwise but for Dalgliesh and I make that very clear from the outset.

43However, leaving those concepts aside, the Court of Appeal in 2002 in DPP v G, the remarks of Winneke P

'This court, in recent years, had cause to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims.  It is a crime which obliges the court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes.

'The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care will not abuse the trust and confidence reposed in them by those in their charge.  Parents - and those in loco parentis - who fail to exercise the restraint which the community expects of them, and who give into their own sexual gratification, must expect to be severely and appropriately punished.'

44Subsequently, in the decision of Toomey in the Court of Appeal, Vincent J, having gone through the circumstances of incest, described how victims experience all sorts of unjustified feelings, embarrassment, shame of guilt that has been induced.  He then goes on to say that principles of general deterrence must assume very considerable significance in the sentencing consideration.

45He then referred back the decision of Hedigan J referring to the decision of Marks J in R v Sposito back in 1993.  As it was put there,

'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.'

46He went on to say further,

'The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children.  It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.'

47His Honour then went to say importantly,

'Although His Honour's remarks were made in the context of a case concerning incest, they are clearly applicable to many other situations and relationships and certainly to those presently before the court.'

48Accordingly, as you will understand, you are to be sentenced for a course of conduct charge for indecent act, not a course of conduct charge for incest and that was made very clear by Montgomery J in the decision that was handed up to me.  There are quite significant differences and carry different obviously maximum penalties.

49In determining the length of that sentence and whether a CCO is applicable, I then turn to matters personal to you.

50First, I do not need to repeat it again, is the profound remorse and the fact that you volunteered this and the level of cooperation.

51Tendered was a letter from your brother which points out that your elderly father is obviously aging, that you have been his primary carer and that the incarceration of you will cause great difficulties within the family and for your father.

52I take that into account in the sense that it will make it more difficult for you in a prison environment knowing that this is all through your conduct that it has come about.  There are no exceptional circumstances in that so that does not give rise to any of those other principles but I do sentence on the basis that you will know what is happening outside and that you have effectively caused it.

53The reference and your brother point out the otherwise very good character that you have displayed over many years and I am clearly fully aware that you have no priors and nothing pending.

54Also tendered on your behalf were reports from a Andrew Hughes, a psychologist, who in the course of debate, I suppose is a fair word, with your counsel, I pointed out there are aspects of that which I found most unsatisfactory. The report seemed to be barracking for you and not facing up to the reality of what has occurred.

55In any event, I will refer to that in a moment.

56In simple terms, you, at present time, have been living at Yarra Junction with your father and your mother and sister live in New South Wales and your brother who has provided the helpful report on your behalf lives in Bendigo.

57Following a separation from your wife in 2015, your wife and children went to live in New South Wales and you were then having visits on occasion.

58Your education was till Year 11 at Upper Yarra Secondary College.  Your family then moved to Coffs Harbour and you repeated Year 11.  It appears that you dropped out in Year 12 but were hampered by an undiagnosed hearing impediment.

59Very much to your credit is that you have always worked and have a capacity for a work and clearly have a good work ethic.  Your present employment at the moment is as a field services officer with the Department of Environment, Land, Water and Planning in the Knoxfield Depot.  You have been working for them since November 2009.

60I understand from the material that certainly at the time of the plea, they had not been informed of all this so clearly that employment will cease but that is just an extra consequence that has to happen.

61You have been a member of the Army Reserve for periods of time.  You ceased only to work commitments.  You have been a member of ex-services support group 'Diggers Rest' which operates under the auspices of the RSL.  That provides fellowship to struggling ex-service personnel.

62You have been a member of the CFA for 15 and you received a fire service medal for contribution during the 2009 bushfire season.  You worked in Marysville in Upper Yarra.  Following that, back in 2009, 2010, you received counselling following stress occasioned by this work.

63Between the periods of time of 2010 to 2014, you had been having difficult times at work perhaps relating back to Black Saturday and you were in bullying circumstances.  Periods of sick leave were paid to you for all this in August 2014 and October 2014 and you were paid leave for March to June 2015 when you returned back to work.

64It is during that period of time towards the end of 2014 that you were placed on medication and again I will come back to that in a moment.

65The reports of Mr Hughes, as I say, were concerning to me but aspects of them I do accept.  I do accept in your situation that you suffer from anxiety and depression and that a period of time in custody will cause you more difficulty than would to a prisoner without that anxiety disposition.

66It is not contended in your situation that mental health directly contributed to any of the offending and it is conceded by your counsel very properly, if I might say so, that is for the offending was caused by a desire for gratification and an awareness of your wrongfulness.

67What it is put as is that this mental condition started to occur shortly prior to the end or the cessation of this offending.  You do appear to have ceased of your own volition.

68The psychologist himself have been treating you for some time prior to that and at no stage does it appear that you ever mentioned this to him in terms of his treatment of you.

69The report from the psychologist, and I must indicate also that a mental health treatment plan or a medical record, it is obviously what I was taken through by your counsel, says that “the offending was related to a subject of side effects from the medication Pristiq but during the period, you were also drinking regularly and excessively and this mixing of alcohol in combination with Pristiq is considered particularly problematic in terms of the effects on behaviour and thinking hindering an undermining reason of perceptions and judgment.”

70I have no doubt that that is correct but the problem is that it only relates to the last month of the offending that took place.  The previous year prior to that, there was no such set of circumstances.

71It is hard to find a justification for all this.  I accept that in the vernacular during the time while this offending occurred, you were not travelling all that well but it is a fairly bizarre response to anxiety and depression to be endeavouring to have some sort of almost marital on the face of it relationship with your natural daughter.

72His reports go on to say you are in a sex offenders program and the like.  Well, you will have to do that in any event no matter what I do.

73I am fully aware that the consequences of imprisonment for any period of time to you are going to be dramatic in terms of the difficulties that occur afterwards.  I am bound by the legislation not to take into account the Sex Offenders Register or the Working With Children legislation.  They are just natural consequences of this sentence that I impose.

74The prospects of your rehabilitation are really up to you.  They should be good.  There is nothing to suggest to me that there will be any reoffending.

75I am prepared to sentence on the basis that this, albeit over a very extended period of time with your natural daughter, was situational and the circumstances of it occurring again are very unlikely.

76Obviously, as I have indicated already, it is serious.  It calls for the application of general and specific deterrence to a certain extent as well as denunciation and appropriate punishment as outlined in the authorities.

77In the end, and there is not a lot of authority on course of conduct charges, but in the end, I have taken the view that a combination sentence in the situation would be inadequate and I think, in my view, significantly inadequate.

78What I will be doing is sentencing you to a period of imprisonment with a minimum term.

79In these circumstances, it is the situation where s.6AAA requires me to say or give a sentence that I would have given had you not pleaded guilty and it is often an artificial exercise but in this situation, what I am going to do is give a 6AAA which clearly indicates how much value I have given to your admissions and accompanied by the plea of guilty and the appropriate remorse as to what you would have got had your daughter complained and you had been found guilty after a jury trial.  So I am endeavouring to explain it though the statistics will never tell you that.

80Accordingly, taking all those matters into account in circumstances where there is no pre-sentence detention, on the charge, you are sentenced to be imprisoned for a period of three years and three months with a two years be served becoming eligible for parole.

81Pursuant to s.6AAA, so you know what would have happened had you fought this out and not confessed, you would have been imprisoned for a period of six years with a minimum term of four.

82There is no other orders that I have to make, gentlemen?

83MR DEVLIN:  No, Your Honour.  As Your Honour pleases.

84HIS HONOUR:  All right.  Yes.  Thank you.  You can take him now.  Thank you.  Yes.  Thank you, gents.

85MR MacDONALD:  As the court pleases.

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