Director of Public Prosecutions v Ferrero

[2016] VCC 1195

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00062

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTONIO FERRERO

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 August 2016
CASE MAY BE CITED AS:	DPP v Ferrero
MEDIUM NEUTRAL CITATION:	[2016] VCC 1195

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	Ms C.M. Burnside
For the Offender	Mr N.J. Goodfellow

HER HONOUR: 

1Antonio Ferrero, you have pleaded guilty to one charge of indecent act with person with cognitive impairment by provider of medical or therapeutic services.  The maximum penalty for that offence is five years' imprisonment. 

2The prosecutor made application for the taking of a forensic sample from you.  The making of that order was not opposed.

3It is a matter of my discretion whether an order is made for registration pursuant to the Sex Offender Registration Act 2004.  No application for such registration was made by the prosecutor.  In these circumstances I am not satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons in the community and, therefore, I do not intend to make a registration order.

4The circumstances of your offending are set out in the Amended Summary of Prosecution Opening on Plea, tendered as Exhibit A.  You have pleaded guilty to one representative charge.  The representative charge encompasses two occasions.  You fall to be sentenced in respect of the second occasion, bearing in mind that the charge is representative of those two occasions.

5You began treating the complainant on 11 September 2007.  You were a registered psychologist.  You were at that time aged 64.  The complainant, then aged 41, was referred to you by her general practitioner due to her diagnosed depression.   Between 11 September 2007 and 28 October 2007 you provided the complainant with seven counselling sessions.  Shortly after the third counselling session on 25 September 2007, you invited the complainant to discuss and explore her previous sexual relationships.  Further, you began cooking meals for the complainant and invited her out to lunch.  You invited the complainant to a conference for cancer survivors on 20 October 2007.  You do not drive, so the complainant picked you up and drove you to the hotel. 

6The complainant recalls that after the conference she was very upset and she drove you back to your apartment, which is also your office, at your request.  You invited her inside to help her relax and offered her a drink, which she accepted.  The complainant said her neck was sore and you offered to give her a massage.  You put a mattress on the floor and told her to lay face down.  The complainant was wearing a long white dress and had to remove her over-garments for the massage.  You then began massaging her neck.  During the course of the massage you moved your hands over the front of her shoulder and began rubbing her breasts.  That is the first occasion.   The complainant says that at the time of this incident she did not feel she was in a position to say no to you because of her mental health condition. 

7The complainant continued to see you for therapeutic sessions.  The subsequent sessions after this first occasion were no longer about the complainant and her problems but were now more about the relationship between the two of you and you planning your life together.  Further, you would discuss your own problems with the complainant.  The complainant questioned you about the professional nature of your relationship numerous times.  You told her not to worry about it and that it was okay. 

8The second incident occurred on an occasion when the complainant was very upset and emotional because she had had an argument with her brother.  The complainant went to your apartment because she was very upset and needed your assistance.  On this occasion you were standing behind her, holding her, and began touching her.  You pulled up her dress and pulled down her underwear.  You removed your clothing.  You could not get a full erection and, as a result, no sexual penetration could take place but you rubbed your penis against her vagina.  That is the second occasion and that incident and action is the subject matter on which you will be sentenced in respect of Charge 1.

9Between 6 November 2007 and 30 December 2007 you sent a number of letters and cards to the complainant reflective of your sexual and emotional feelings towards her.  The letters were persistent despite the complainant stating on two occasions that she did not want to see you.

10In March 2011 the complainant was referred to another psychologist by her GP.  The complainant disclosed to the second psychologist that she had previously had a bad experience in respect of her treatment by you.  On 24 May 2011 the second psychologist lodged a complaint with the Australian Health Practitioner Regulation Agency. 

11On 3 June 2003 the complainant made a complaint to the police.  A statement was taken from the complainant on 3 July 2013.  Further enquiries were conducted and you were arrested on 27 October 2014 and interviewed.  In the interview with the police you denied any sexual contact but made a number of relevant comments and admissions. 

12Charges were filed on 20 October 2016. The committal proceeded on the basis that the issue was, according to defence, a question of cognitive impairment. The plea of guilty was entered at a mention on 9 May 2016. It may be useful to explain that cognitive impairment for these purposes is widely defined by s.50 of the Crimes Act 1958 as including "impairment because of mental illness, intellectual disability, dementia or brain injury."

13A Victim Impact Statement from the complainant was tendered as Exhibit B.  The complainant read her Victim Impact Statement in court.  In her Victim Impact Statement the complainant describes her feelings at the time.  She describes her feelings of loss of trust in you.  She also describes her concerns because her general wellbeing was getting worse despite the fact that she was seeing you because she needed treatment for her condition.  She also describes you engaging her in your personal problems and issues.  The complainant says that she still feels angry and hurt because of your misconduct and because her condition worsened.  She says she felt powerless at the time to do anything.  The complainant also describes her feelings of self-blame and unwarranted blame by others.

14The complainant also describes the social and financial consequences due to her leaving her house because she felt unable to stay there after this offending.  She was concerned because you persistently called her and felt that she should move her home.  That clearly had consequences for her in terms of her social relationships and her financial wellbeing.  Her relationship with her then partner was also affected adversely at the time. 

15Very positively, the complainant reports that she was able to find support from various persons, particularly the psychologist whom she subsequently saw.  She says she still feels sad that this happened but wishes to put the situation behind her.  It is clear that the complainant still requires treatment but that she is obtaining that treatment and support.  I note that she says that, because of your offending, she lost trust in other people, but now she is recovering her faith in humanity.  It is to be hoped that with time and further treatment, she will be able to do as she wishes and move on from this offending. 

16I note the contents of an annexure to the Victim Impact Statement from the complainant's treating psychologist, which confirms that the events surrounding your offending caused a worsening of the complainant's conditions and symptoms of depression and anxiety.  I note the psychologist's opinion that the impact of your behaviour was to compound and prolong her suffering.  As a result of your actions, according to the second psychologist, the complainant did not seek treatment for a period of seven years, during which her illness went untreated, and she was unsupported.

17In sentencing you, I have taken into account your personal circumstances.  You are now 73 years old.  You were born in Uruguay and came to Australia when you were 30 years old.  You are now an Australian citizen.  You married at a young age and separated prior to coming to Australia.  You have three adult children and grandchildren, who reside in South America, but you maintain regular contact with them, particularly by email.  You are largely socially isolated, although you have a small group of friends.

18In 1980 you qualified as a school teacher, and in 1990 you completed a Bachelor of Psychology and participated in an internship at a clinic, becoming a fully qualified psychologist.   You have practised as a psychologist in private practice for approximately 20 years.  About three years ago you were declared bankrupt and stopped your private practice.  You have worked as a psychologist on a casual basis at your local general practitioner's for the past few years until your registration was suspended in April this year. 

19You had one hip replaced earlier this year, and you are due for the other hip replacement in October.  Your only source of income at present is the age pension and you have no assets or savings.  You have no prior criminal history. 

20After the complaint was lodged with the Australian Health Practitioner Regulation Agency in 2011, a full investigation was conducted by that organisation.  You were allowed to continue to practice as a psychologist with supervision for a period of time.  You were notified on 31 March 2016 that your registration would be suspended.  On 6 April 2016 the Board decided to suspend your registration.  It is apparent from the letter from AHPRA, dated 6 April 2016, which was tendered as part of Exhibit 1, being a folder of documents relied upon by defence, that the police had provided more detailed information to AHPRA than had previously been provided.  It appears from that letter that they determined that your conduct was more serious than they had previously appreciated.  It is unclear at this stage whether you will be permitted to practise again. 

21In sentencing submissions your counsel conceded that your actions were entirely inappropriate and that you were professionally and legally obliged to provide the complainant with psychological support and counselling rather than offending against her.

22Your counsel, in sentencing submissions, relied on a number of matters in mitigation of sentence.  Your counsel relied on your plea of guilty and remorse, together with your previous good character.  Your counsel relied on your current physical health issues.  He did not submit that there was any application of Verdins principles in relation to your mental health issues.  It appears from the material that you have been suffering from depression since 2002 but receive regular treatment from your general practitioner, which is effective in controlling that disorder.

23Your counsel also relied on the delay in this matter and what he submitted were your excellent prospects for rehabilitation.  Your counsel submitted that the circumstances of this offending were unlikely to occur again, which would effectively, as I understood it, eliminate the risk of any further offending.  Your counsel said that you had received some extra curial punishment and all of those matters ought be taken into account in view of your age, which would make it difficult for you to re-establish yourself financially.

24In sentencing submissions, the prosecutor submitted that a suspended sentence would be an available sentencing option, given the date of this offending, and would be within range.  The prosecutor also accepted that consideration would need to be given to whether a community correction order could meet the appropriate sentencing considerations in view of the decision in Boulton [2014] VSCA 342.

25Antonio Ferrero, the sort of behaviour in which you engaged is the sort of behaviour that this offence is designed to prevent.  The exploitation of vulnerable people by those trusted to care for them and provide professional services has been made the subject of criminal offences.  The reason for that is to prevent that exploitation.   You clearly became emotionally and sexually fixated on the complainant and ignored her vulnerability due to her psychological issues.  You clearly knew about her vulnerability because you were supposed to have been treating her for it.  Instead of treating her for it and keeping your relationship to that of a treater, you allowed your relationship to become personal and then actively pursued the romantic and sexual aspects of the relationship despite the complainant's lack of interest in you in that way. 

26You engaged in the crossing of professional boundaries repeatedly.  You selfishly burdened the complainant, your patient, with your own emotional and psychological issues.  That is an utterly wrong thing for a treating psychologist to do.  Not only did you cross professional boundaries, but you engaged in criminal sexual acts.  Your behaviour was especially harmful to the complainant because you were, or had been, in a supposedly professional therapeutic relationship with her. 

27The complainant, in her victim impact statement, has described the harm that your offending caused her.  It is clear that she was still very unwell when you ceased treating her but did not seek treatment for some time because of your actions. 

28Your behaviour must be strongly denounced and appropriately punished.  It is also very important that other treating professionals are deterred from behaving in a similar way towards their patients or clients.

29There are a number of matters which I have taken into account in mitigation of sentence.  You have entered a plea of guilty.  The plea of guilty was made late in the process, but that plea of guilty is significant given the potential issues surrounding the question of cognitive impairment.  It is of significance that the complainant was not required to give evidence or be cross-examined on that issue or any other issue in this matter. 

30I accept that your plea of guilty is an expression of remorse.  I consider that your remorse is somewhat limited.  The reason I say that is because of what you said to the police initially.  In what you told the police in the record of interview, in my view you attempted to shift some of the responsibility for this situation to the complainant.  The responsibility was entirely yours.  You were the treating professional.  It also appears that you made limited disclosers to the initial investigation by AHPRA.  When you spoke to Dr Nathan Serry, who reported on your mental health situation as part of the AHPRA investigation, you minimised your offending and denied the sexual component of the relationship.  Again, there was some apparent attempted shifting of responsibility to the complainant.  I accept that you now have greater insight into the wrongfulness of your actions given what has happened through these court processes, and I accept that you are genuinely remorseful for any suffering of the complainant. 

31You are a person of previous good character.  The references in Exhibit 1 make positive statements about your contribution as a psychologist.  There are references from medical practitioners and former clients, who all speak positively of your treatment.

32As I have said, your depression is well-controlled.  There are no current mental health issues to impede your rehabilitation.  You have physical health issues, which would make imprisonment more difficult for you.  You are a person with no prior criminal history.  You are intelligent and you clearly have positive aspects of your character. 

33I am not persuaded that the risk of you re-offending is entirely negated if you are not permitted to practice in the future.  There are other situations where it is conceivable that you might be in a position of authority or care of another person where you might convince yourself that it was appropriate to transgress boundaries.  That said, I consider that the process of these court proceedings is likely to have brought home to you that crossing of boundaries may result in criminal offending.  Given your remorse, your increased insight and your advanced aged, together with the court processes, I consider that you have very good prospects of rehabilitation and that there is a very low risk that you would offend again. 

34I have also taken into account in mitigation of sentence that there has been considerable delay.  During that period of delay you continued to work and provided a positive contribution.  You have not offended again.  The matter has been hanging over your head for some period of time.  There has been a degree of extra curial punishment in loss of professional reputation, your suspension of your practising certificate and loss of reputation within the community.  I have taken those matters into account.

35I consider in the circumstances of this case that a community correction order could appropriately meet the sentencing principles of denunciation, just punishment, general deterrence and specific deterrence.

36Mr Ferrero, could you stand up, please?

37Mr Ferrero, you have been assessed as suitable for a community correction order.  The conditions of the community correction order have been explained to you by the Community Correction person who interviewed you; is that right?

38OFFENDER:  Yes, Your Honour.

39HER HONOUR:  That is, the general conditions.  Mr Goodfellow has taken you through what I propose to do; is that right?

40OFFENDER:  Yes, Your Honour.

41HER HONOUR:  So the special conditions that I would ask you to think about carefully are: The order would go for 18 months; there would be 250 hours of community work; you would be under the supervision of the Community Corrections officers; you would be required to participate in programs or courses that address factors relating to the offending, as directed by the Regional Manager.  Any hours that you do in the treatment and rehabilitation programs would be taken off the work hours.  So I do not know whether you would be required to do the sex offender treatment program, but if you are, those hours will come off the work hours.  The order will be with conviction.

42The other very important aspect of a community correction order is if you breach it by not doing what they tell you or by further offending, you can be brought back before me.  If you have reoffended, I can re-sentence you.  In your case, that is probably not such a big consideration, but you need to bear that in mind.  Do you consent to the order being made?

43OFFENDER:  Yes, I do, Your Honour.

44HER HONOUR:  All right, thank you.

45OFFENDER:  Thank you for your help.

46HER HONOUR:  Now what I propose to do now is I will sign the order. 

47Antonio Ferrero, on Charge 1 of indecent act with person with cognitive impairment by provider of medical or therapeutic services, you are convicted and sentenced to a community correction order for a period of 18 months, commencing today, with the special conditions that I have outlined. 

48I make the order for a taking of a forensic sample from you.  I make that order because of the seriousness of your offending and because the order was not opposed.

49You will be required to go to a police station.  You will get paperwork in respect of this.

50OFFENDER:  Thank you, Your Honour.

51HER HONOUR:  The authorities will take a saliva swab from your mouth.  I am required to advise you that you must cooperate with the authorities.  If you do not cooperate, they are entitled to use reasonable force and may take a blood sample.  I am sure you will cooperate.

52OFFENDER:  Yes, I will, yes.

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