Director of Public Prosecutions v Ferreira (a pseudonym)
[2019] VCC 1212
•8 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| XAVIER FERREIRA (a pseudonym) |
---
| JUDGE: | HIS HONOUR JUDGE O'CONNELL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 July 2019 |
| DATE OF SENTENCE: | 8 August 2019 |
| CASE MAY BE CITED AS: | DPP v Ferreira (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1212 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Incest; Indecent act with a child under 16; Course of conduct charges; Gross breach of trust; Totality; Offender of advanced age and poor health.
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).
Cases Cited:Cheung v The Queen (2001) 209 CLR 1; DPP v Dalgliesh No. 2 [2017] VSCA 360
Sentence:Total effective sentence of 11 years and 9 months. Non parole period of 7 years and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R Pirrie | Office of Public Prosecutions |
| For the Accused | Mr M McGrath | Balmer & Associates |
HIS HONOUR:
1. Xavier Ferreira[1], on 5 March 2019 you pleaded not guilty to six charges of incest and two charges of committing an indecent act with the child under the age of 16. A jury of 12 was then empanelled to try those charges. On 13 March 2019 you were found guilty of 3 charges of incest and one charge of committing an indecent act with a child under the age of 16.
[1] A pseudonym.
2. What follows explains the reasons for imposing sentence on the four charges of which you have been found guilty.
Background
3. The background to these allegations involved you having previously been in a relationship with your daughter’s mother between 1999 and 2007. That relationship ceased at about the time your daughter was born which was on 29 September 2007.
4. After a time, you initiated proceedings in the Family Court. Pursuant to orders of that court your daughter would spend every second weekend and some school holidays staying at your home. You would also see her on birthdays.
Trial
5. In essence the prosecution alleged that between 1 January 2015 and 27 September 2016 you engaged in penile- vaginal, penile-anal and penile-oral sex on a number of occasions with your biological daughter who at the time was between the ages of seven and nine. It was also alleged that during that period you would sometimes cause your daughter to masturbate your penis. It was alleged that this would happen at your residence during times when your daughter was staying with you for access visits.
6. The first four charges on the indictment alleged that you engaged in these sexual assaults as courses of conduct over the period alleged.
7. It was further alleged that on 27 September 2016 you had penile-vaginal, penile-anal, penile-oral sex with your daughter at your home. On that day it was also alleged that you had caused her to masturbate your penis. These specific allegations were reflected in charges 5, 6, 7 and 8.
8. The prosecution case was largely based on a video audio recorded statement (VARE) made by your daughter on 21 June 2017.
9. In that recording, she first described the last time in which she alleged you had engaged in sexual offending against her. She said she thought that was two days before her ninth birthday when she was staying at your home. In detailing that incident she described being told by you to take off her underwear and pants and that she then started to “do it”. She said you put water on your penis and some cream on her. She said “it’s stinged me so he wiped it with a cloth”. She explained that you used soap on her vagina and massaged her vagina and her “butt”. She described you going “up and down” licking and kissing the area around her anus, and also how she masturbated you.
10. She said that she was instructed to put her mouth on your penis and suck it while she was masturbating you. She also described lying on the bed at which time you inserted your penis into her vagina and “started going up and down”. She went on to explain that you put water, as she described it, on your penis which had come from the bathroom sink and proceeded to penetrate her anus. At that point she told you “stop it dad. Let’s just stop”. She also described “yellowy-orangey stuff” coming out of your penis. That account provided the basis for charges 5, 6, 7 and eight.
11. During the course of her VARE your daughter also described you putting your penis in her vagina and in her anus more than once. For example she said “he kept on doing this in my butt and in my vagina” and that you did “the same thing over and over again”. She referred to “it” happening many times. She said you also sometimes told her to put her mouth around your penis. She said “sometimes it was different but sometimes it’s not different … he does the vagina stuff and the bum bum stuff”. During her account she described how she felt at various times including indicating that she did not like anal penetration because “it hurts sometimes”. She said the first time it happened was when she was in grade 2. At the time of the VARE she was in grade 4.
12. Your daughter also described and demonstrated how she masturbated you. She stated that that had happened more than once. According to her you asked heard not to tell anybody about “our business”. She said that you made a “pinky promise” with her not to tell anyone.
13. At trial your daughter gave evidence with the assistance of a qualified intermediary. She confirmed the accuracy of the video recorded statement and in cross examination rejected the assertions that the sexual assaults had not happened.
14. On 21 June 2017 when your daughter was at school she told a classmate that she had touched her father’s “doodah”. The school welfare officer gave evidence at trial that she spoke to your daughter later that day. She described what happened in the following terms:
Um, Emily started to cry, and got really upset, and I told her she's not in trouble, and she kept saying, "But I am going to be in trouble because I'm not supposed to tell anybody, it's, um, it was our little secret, I'm not allowed to tell, and now I've told someone and now I'm telling you and I'm going to be in trouble", and she was crying, kept saying over and over.
And did she say who she was going to be in trouble with?‑‑‑Yeah, she said with her dad.
With her dad?‑‑‑Yes.
All right. Did you reassure her?‑‑‑I did. I reassured her, and said "this is something that you won't be in trouble about" and that she was being brave, and then I know ‑ we keep reassuring her that she's not going to be in trouble, and then I had asked her if there's anything else she wanted to tell me.
All right.And did she then tell you some things that had been happening to her?‑‑‑Yes.
…………..
She told me, um, yes, that her ‑ that he massaged her, um, and I asked where, and she said, "I can't tell you, but I can show you" and then she put her hand on her vagina, and then I said, "Anywhere else?" "Oh, I don't" ‑ and then she put ‑ so sorry, and then she put it on her bottom, um, I asked her, "How often does this happen?" And she said, um, every day till she was eight and a half, and then it stopped.[2]
[2] Transcript of proceedings, DPP v Ferreira (a pseudonym) (County Court of Victoria 18/02060) L8-24/342 and L1-9/343.
15. On that same day, 21 June 2017, you were interviewed by police and denied all of the allegations. That interview, which had been electronically recorded, was played to the jury during the trial.
16. One witness was called in the defence case, a child protection practitioner employed by the Department of Health and Human Services. That witness gave evidence that on 30 March 2016 (about 15 months before your daughter made these allegations) she had attended at your home with a colleague because they had received a report in relation to your daughter.
17. On that day your daughter was questioned by the witness and her colleague. They ascertained that she understood the private parts of her body and she was asked if anybody had touched her on her private parts. She said that one time her father had accidentally poked her “in the boobs with a rake” when she was outside. She otherwise raised nothing of any concern. She was also asked whether she had been asked to touch anyone else’s private parts to which she responded that she had not.
18. Your daughters mother was also questioned by the child protection workers. She did not raise any concern as to your daughter’s interaction with you.
19. To my observation the jury considered these matters, indeed all of the evidence, carefully over their day or so of deliberations. As I indicated earlier, on 13 March 2019 the jury delivered verdicts of guilty with respect to charges 1, 2, 3 and 4 on the indictment. You were found not guilty of charges 5, 6, 7 and 8.
20. Each of the charges of which you found guilty were course of conduct charges, they specifically alleged the following:
21. Charge one alleged that between 1 January 2015 and 26 September 2016 you took part in an act of sexual penetration with a person you knew to be your child by introducing your penis into her vagina.
22. Charge two alleged that between the same dates you took part in an act of penetration with a person you knew to be your child by introducing your penis into her anus.
23. Charge three alleged that you took between the same dates you took part in an act of sexual penetration with a person you knew to be your child by introducing your penis into her mouth.
24. Charge four alleged between the same dates that you wilfully committed an indecent act with or in the presence of a child under the age of 16 in that you caused your daughter to masturbate your penis with her hands.
25. The plea in mitigation was conducted on 25 July 2019.
26. On the plea two issues arose as to the interpretation of the jury’s verdict.
27. The first issue related to the timeframe over which it could be said that you engaged in the course of conduct constituting these offences. The second issue related to the number of times it could be said you engaged in the sexual assaults that constituted the courses of conduct.
28. Mr McGrath who appeared on your behalf argued that the language used by your young daughter in the video recording as to the number of times of these acts varied widely and was necessarily imprecise[3]. He submitted I should not be satisfied beyond reasonable doubt that the acts in question occurred more than a few times.
[3] See VARE Q’s 179 (7 times), 274 (About 50 times), 259 (99 times).
29. He also submitted that whilst the complainant had referred to the assaults stopping when she turned nine, she had described herself in her evidence as being eight and a half when this conduct ceased. She also told the school welfare officer that the abuse stopped when she was eight and a half. The objective evidence also established that for a period of two and a half months between 9 March 2016 and 27 May 2016 you did not see your daughter. It was therefore submitted that I should not be satisfied beyond reasonable doubt that sexual assaults took place after 9 March 2016.
30. Mr Pirrie for the prosecution submitted that it was open for me to proceed to sentence you on the basis that you had sexually assaulted your daughter many times as she had said, and that with the exception of the two and a half month period in March to May 2016, the offending continued until the complainant’s ninth birthday.
31. In considering these submissions I have had regard to the well-established principles set out by the High Court in Cheung v The Queen (2001) 209 CLR 1[4] as to the trial judge’s role in interpreting the jury’s verdict for the purposes of sentence. Given the very high standard of proof to which I must be satisfied and given the understandable imprecision associated with this young child’s account, I will adopt what I regard as a conservative approach by sentencing you on the basis that each course of conduct consisted of several, but not many, instances of the type of sexual assault charged. I will also proceed on the basis that the offending must have ceased by 9 March 2016, in other words at around the time the complainant turned eight and a half.
[4] Summarised at [14].
Victim impact
32. Your daughter’s mother provided a statement which was tendered on the hearing of the plea detailing the terrible impact your offending has had on both your daughter and her.
33. As to her own feelings she describes how devastated she was when she found out what happened to her daughter. In her words “it broke her heart”. At first she thought it was her fault and blamed herself for what had happened. Even now at times she still blames herself. She describes herself as angry and unable to understand how you could have done these things to your daughter, who was also her child.
34. Your daughter has equally been deeply affected by your offending. She is confused, her life has been turned upside down and she has been receiving intensive counselling to assist her in dealing with the impact of what you did to her.
35. Apparently her school has been very supportive and after a long period of time during which she struggled, there appears to be some positive signs now that your daughter’s behaviour and schoolwork are improving and that she is finally becoming more settled.
36. There can be little doubt that what you did to your daughter will be felt acutely by her as she grows older and that the scars of your exploitation of her will remain with her for the rest of her life.
37. You should understand that in formulating a just and appropriate sentence to be imposed in this case, the impact that your offending has had on your daughter and her mother are substantial matters to be taken into account.
Personal History
38. You are now 68 years of age. This offending occurred when you were between the ages of 64 to 66. You have no prior convictions.
39. You arrived in this country with your parents in 1951. You spent about a year at the Bonegilla Immigration camp before settling in Melbourne. Your father worked as a plasterer and your mother worked on the production line at the Holden factory at Fisherman’s Bend.
40. Your younger brother, who attended court during the trial and at the plea hearing, was born in Melbourne.
41. When you were about 11 years of age your father abandoned the family. You and the rest of your family were forced to rely on accommodation and other material support provided by the Salvation Army, but eventually secured a housing commission unit in Carlton.
42. As a young man of about 22 or so, you happened to come across your father at a chance meeting. He apparently promised to hand over to you and your mother his fish and chip shop business to compensate for leaving the family in the dire circumstances I have described. Despite that promise, he shortly afterwards left Australia with his new wife and family, leaving you and your mother with nothing.
43. You had a rudimentary education leaving school at the age of 13 to support your mother and younger brother. You worked, virtually continuously, for the next 45 years. Initially as a telegram boy, then when you were 18 or so, you worked for a time in factories, however, for the last 25 or so years of your working life you worked as a delivery/truck driver. You ceased working when you were 58 years of age due to ill health.
44. When you were 22 years of age you married. There were four children of that relationship. You separated from your then wife in 1984 when she took your youngest son overseas. You remained in Australia caring for the three older children who at that time were approximately aged 10, 9 and 6. You now have occasional contact with two of those children, you are estranged from the fourth child and the other child is deceased. In about 1999 you commenced a relationship with the complainant’s mother.
45. Since being remanded in custody you have spent most of that time in Hopkins Prison in Ararat. You have commenced walking in an attempt to maintain and build fitness and you are on a waiting list to undertake rehabilitative courses. As I have indicated your main source of support has been your brother who has been visiting you in custody. You have also received a visit in custody from members of a sporting group of which you were a part.
46. Over the last 10 years of so you have suffered from a range of difficult health problems including cataracts, a severely fractured ankle which required intensive medical management over a lengthy period, and most notably in May 2018 you suffered a serious heart attack and underwent urgent coronary artery bypass surgery involving 4 grafts. In April of this year, whilst in custody you were hospitalised with further chest pain and suffered a mild stroke. On the material put on the plea it seems your condition has stabilised though it requires ongoing monitoring.
47. Dr Aaron Cunningham, forensic psychologist, provided a report of 24 June 2019 setting out his psychological assessment of you. On the basis of the tests he conducted he found you to be “in the average range of non-verbal fluid intelligence. There was no indication of intellectual disability”. His mental state assessment indicated a diagnosis of depression. He formed the view that you presented someone under significant stress. You told him that you maintain your innocence.
48. Towards the end of his report Dr Cunningham states:
“He presents with significant health concerns that would be aggravated by the stress of imprisonment. His cardiovascular health is precarious and would likely deteriorate in the context of stress and depression. He would likely not receive the level of medical care he could in the community in jail. In my opinion, Mr Ferreira presents with a low risk of sexual of reoffending given his poor health and lack of access to potential victims. He does not present with any overt sexual deviance and there was no indication of paedophilia. His denial of the charges would present as a risk factor and complication for engaging in offence specific treatment. Mr Ferreira would benefit from engaging with suitable medical treatment at his earliest convenience.”
Submissions
49. Mr McGrath, in thorough and very helpful submissions on your behalf, quite properly acknowledged the seriousness of your offending of which you have been found guilty. In particular its duration, the very young age of the complainant and the very real breach of trust in the relationship you had with your daughter. He submitted, however, that it was of some significance that you had, according to the evidence, voluntarily ceased the offending well before it was disclosed. He also sought to place your offending in some context by reference to matters of aggravation that are absent in this case.
50. He submitted that whilst some degree of cumulation may be appropriate, the principle of totality should have a significantly constraining effect on the total effective sentence imposed. He further submitted that you should be assessed as having reasonable prospects for rehabilitation having regard to the fact that you have no prior convictions, there is nothing pending, you are already reasonably elderly and likely will be very old when you are eligible for parole and you will not have access to children upon release.
51. Mr Pirrie, suggested that the seriousness of this offending was self-evident. It involved multiple sexual assaults over a lengthy period of time which were inherently violent and which exploited and violated the complainant through a gross breach of trust. He referred in particular to two matters specific to this case that aggravated the offending, first was the very young age of the victim i.e. 7 and 8 years of age. The second matter was the particularly close relationship you had fostered with your daughter which aggravated the breach of trust involved.
52. Mr Pirrie also referred to a number of statements of principle in the Victorian Court of Appeal judgment in DPP v Dalgliesh No. 2 [2017] VSCA 360 in order to emphasise how serious this offending should be regarded.
Consideration
53. In considering these submissions it should first be noted that s 6B(2)(ac) of the Sentencing Act 1991 (Vic) will effectively require that you should be sentenced as a Serious Sexual Offender in respect of charges 2, 3, and 4 on the Indictment. That means that protection of the community should be the principal purpose for which sentence is to be imposed. It was not suggested by the prosecution however that the sentence imposed should be disproportionate to the objective gravity of the offending. Your status as a Serious Sexual Offender also means that the sentences imposed on charges 2, 3 and 4 should be served cumulatively unless otherwise directed.
54. I note that on 1 February 2018 Parliament determined that a standard sentencing scheme should come into operation and prescribed a standard sentence of 10 years imprisonment to be imposed for the offence of incest where the objective gravity falls in the middle of the range of seriousness. Your offending is not subject to that scheme. I am nonetheless obliged to have regard to all of the other matters set out in s5(2) of the Sentencing Act including the maximum penalty, which for incest is 25 years, current sentencing practice, your culpability and degree of responsibility, the nature and gravity of your offending, the impact on the victim, whether you pleaded guilty and your previous character among others, though no single one of those matters will be determinative of the sentence to be imposed.
55. As to general principle, it was noted in Dalgleish that the offence of incest involving a young child has long been regarded as being one of particular repugnance. The Court there referred to the Court of Criminal Appeal decision of R v Sposito 8 June 1993 (Unrep) which highlighted how parent – child incest constitutes a most abhorrent abuse of trust, due, in part, to the inherent vulnerability of the young victims in such cases. In his judgment, Marks J (with whom Hampel and McDonald JJ agreed) stated:
A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate. 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. ... [incest] include[s] 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. ... Another feature is that the resolve of the victim to resist the demands of the offender is weakened by the natural affection which the child has for his or her parent, and by reasons of other aspects of natural dependency.
...
It is difficult to imagine conduct which is more evil than that of a father, or a person in the position of a father, who preys for his own sexual satisfaction on his own young child ...
56. In my view that statement is apt to articulate why offending of this kind must be met with stern punishment. All of the features there referred to are present in your offending. Moreover, I accept Mr Pirrie’s submission that the very young age of your daughter at the time you abused her constitutes an additional aggravating factor.
57. However, I do not regard the contention that you fostered a particularly close relationship with your daughter thereby accentuating the breach of trust as additionally aggravating sentence. As the Court noted in Dalgleish this offending inherently involves a gross breach of trust. It seems to me that care must be taken to ensure that what is essentially an integral feature of the offending is not treated as a further aggravating feature. Accordingly, I will treat the breach of trust in this instance as indicative of why this offending is so abhorrent, rather than as a separate aggravating feature.
58. As I indicated above I will sentence you on the basis that the courses of conduct that make out these charges ceased by 9 March 2016. It may be a small mercy that you voluntarily desisted from abusing your daughter, but the fact remains that you sexually penetrated her in various ways on several occasions over a 15 or so month period.
59. I do have regard to your advanced age and with it the genuine prospect that you may not live to be released. I will also take into account your ill health which is likely to mean that your incarceration will be more onerous. I further accept your counsel’s submission that totality should constrain to some extent the total effective sentence to be imposed.
60. Those matters do moderate the sentence that might otherwise be imposed but the primary sentencing purpose of protection of the community, together with general and specific deterrence and the need to decisively denounce your conduct ultimately require the imposition of sentences which must properly reflect the gravity of what you did to your daughter. Accordingly, you will be sentenced as follows:
Sentence
61. On charge 1, Incest, you will be convicted and sentenced to a term of imprisonment of 8 years.
62. By reason of s6B(2)(ac) of the Sentencing Act 1991 (Vic) and the term of imprisonment imposed for a course of conduct charged in charge 1, you fall to be sentenced as a Serious Sexual Offender for the purposes of imposing sentence on charges 2, 3, and 4. I will cause a declaration to that effect to be noted in the records of the Court.
63. On charge 2, incest, you will be convicted and sentenced to a term of imprisonment of 8 years.
64. On charge 3, incest, you will be convicted and sentenced to a term of imprisonment of 8 years.
65. On charge 4 you will be convicted and sentenced to a term of imprisonment of 4 years and six months.
66. I will direct that 18 months of the sentence imposed on charge 2, 18 months of the sentence imposed on charge 3 and 9 months of the sentence imposed on charge 4 be served cumulatively on the sentence imposed on charge 1.
67. That renders a total effective sentence of 11 years and 9 months. I will fix a non-parole period of 7 years and 9 months.
68. I will declare pursuant to s 18 of the Sentencing Act that you have already served 134 Days of that sentence by way of pre-sentence detention. I will cause that declaration to be noted in the records of the Court.
69. Under the Sex Offenders Registration Act, incest is defined as a class one offence and because you have been convicted of 2 or more class 1 offences will be required under s 34(1)(c) of that Act to be subject to the reporting and other requirements of that Act for the rest of your life.
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