Director of Public Prosecutions v Ferris
[2023] VCC 1674
•14 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00617
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD FERRIS |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 September 2023 | |
DATE OF SENTENCE: | 14 September 2023 | |
CASE MAY BE CITED AS: | DPP v Ferris | |
MEDIUM NEUTRAL CITATION: | [2023] VCC | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: two charges of sexual assault of a child aged 16 or 17 under supervision – four charges of sexual penetration of a child aged 16 or 17 under supervision – one charge of attempted sexual penetration of a child aged 16 or 17 under supervision – rolled up charge – plea of guilt – no relevant criminal history – use of good character in child sex offence
Legislation Cited: Crimes Act 1958 (Vic); Crimes Amendment (Sexual Offences) Act 2016 (Vic); Sex Offenders Registration Act2004 (Vic)
Cases Cited:DPP v Ooms [2023] VSCA 207; Worboyes v The Queen [2021] VSCA 169; Markovic v The Queen [2010] VSCA; 30 VR 589
Sentence: Total effective sentence of 4 years and 1 month imprisonment with a non-parole period of 2 years and 2 months’
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Y. Hardjadibrata | Office of Public Prosecutions |
| For the Accused | Mr B. Johnston Mr C. O’Bryan | Doogue & George |
HER HONOUR:
1Richard Ferris, you have pleaded guilty to:
· Two charges of sexual assault of a child aged 16 or 17 under care, supervision or authority, contrary to s49E(1) of the Crimes Act 1958,[1] which carries a maximum penalty of 5 years’ imprisonment (Charges 1 and 7);
· Four charges of sexual penetration of a child aged 16 or 17 under care, supervision or authority, contrary to s49C(1) of the Crimes Act 1958,[2] which carries a maximum penalty of 10 years’ imprisonment (Charges 2, 3, 4 and 6); and
· One charge of attempted sexual penetration of a child aged 16 or 17 under care, supervision or authority, contrary to ss321M and 49C(1) of the Crimes Act 1958,[3] which carries a maximum penalty of 5 years' imprisonment (Charge 5).
[1] As amended by the Crimes Amendment (Sexual Offences) Act 2016.
[2] As amended by the Crimes Amendment (Sexual Offences) Act 2016.
[3] As amended by the Crimes Amendment (Sexual Offences) Act 2016.
2I note that Charge 2 is a rolled up charge.
Circumstances of offending
3The circumstances of the offending were set out in a summary of prosecution opening. You were born on 25 January 1987, and you were aged 29 when you first met the complainant, Ms Flynn[4].
[4] A pseudonym.
4From 2018 you worked for Webb Pastoral, a livestock farm located in Break Oday Road in Glenburn, Victoria. You also lived on that farm with your wife and two children. The offending occurred whilst the complainant was working for Webb Pastoral, where she was based at the Glenburn farm.
5The complainant, Ms Flynn, was born on 20 December 2001 and was aged 16 and 17 at the time of the offending. Ms Flynn developed a passion for the agricultural industry during her schooling. She received a First XI Stud Beef Cattle Scholarship when she was in Year 9 and aged 14 years. She started to participate at country and royal shows around Victoria.
6In 2017, when she was 15, she first met you as a judge at the Sunbury Show. In late 2017 she was approached by the general manager of Webb Pastoral, Duncan Newcomen, with an offer of employment, which she accepted.
7Mr Newcomen was her supervisor, but you were the farm manager at Webb Pastoral and the first point of contact and immediate supervisor of Ms Flynn.
8As part of her work for Webb Pastoral, the complainant worked at the farm in Glenburn and would stay at your family home on the farm on weekends with another employee, her friend Nicole Brennan[5]. Ms Flynn’s mother would drop her off at the farm on a Friday night after school or early Saturday morning. The complainant would normally sleep on the couch in your living room. Part of her work with Webb Pastoral included attending the Royal Melbourne Show and other shows in country Victoria to showcase the company’s livestock.
[5] A pseudonym.
9The offending in this case was committed between September 2018 and September 2019 at the farm in Glenburn and also at the Royal Melbourne Show and the Gippsland Educational Show.
10Between 15 September and 4 October 2018, Ms Flynn attended the Royal Melbourne Show as part of her employment. As a participant, she was allocated a locker to sleep in throughout the duration of the show. She shared her locker with Nicole Brennan. You had a separate locker.
11During a period whilst the show was on, the complainant and you were sitting around between stalls with a group of people. You had been drinking heavily, and said something about being 'turned on'. After a while, the rest of the group went to check on the cattle, which left you and Ms Flynn alone. Once the other people were out of sight, you placed your hand on the complainant’s lower back over her clothing, just above her buttocks. Ms Flynn froze and went stiff. You then moved your hand down so that she was essentially sitting on your hand. You started to squeeze her buttock over the top of her jeans. The complainant was in shock and did not say anything. You removed your hand when the others came back to sit down. The complainant got up and went to bed; she did not say anything, as she was concerned about rumours (Charge 1).
12On 16 January 2019, not long after the complainant had turned 17, her mother dropped her off at the Webb farm early in the morning. She worked all day with both you and Mr Newcomen. At about 6 pm she travelled back to your home on the farm and upon arrival she noticed that your family were not present. Ms Flynn felt uncomfortable but decided against calling her mother, trusting that she would be safe.
13After sitting on the couch for some time after dinner, you announced that you were going to bed and you went to your bedroom. The complainant, who was wearing tracksuit pants and a jumper without a bra, lay down on the couch ready to sleep. However, you soon returned to the lounge and asked her if she would like to watch pornography in your room. This made Ms Flynn feel physically sick and she said no.
14You then lay down on top of her over the doona that she had covering her. You pulled the doona down, revealing yourself to be naked. The complainant tried to push you away before you began to feel her all over. You touched her face and put your hand up her top, over her bare breasts. You tried to kiss her on her face and lips, but the complainant kept saying 'Stop', 'No, 'This hurts', and 'I don’t like this'. She continued to say 'Please stop' and tried to push you off but to no avail.
15You managed to put your hand under the complainant’s pants and underwear, and started 'fingering' her. You put your fingers inside her vagina. It hurt. You moved your fingers aggressively. Ms Flynn kept saying 'No', she was in pain. As you did this, you touched her breasts with your other hand and you were trying to kiss her on her face and lips. You maintained your position on top of her (and this offending constitutes part of Charge 2).
16After a period of time Ms Flynn gave up fighting. She felt like you were not going to listen to her and that she was not going to be able to get out of the situation because of the way you were behaving and because of your physical size. At some point you undressed the complainant and she said 'Just put it in', resolving that she would rather just go along with what was happening, as she considered she was less likely to be hurt. She considered that she would rather be awake and conscious of what was happening.
17You then put your penis into the complainant’s vagina without a condom and had sex with her. The complainant 'zoned out and shut down'. She did not participate but lay there. You eventually withdrew your penis and ejaculated onto her bare chest and stomach. You left her naked on the couch and went back to your bedroom (and that also constitutes part of Charge 2).
18Ms Flynn then got up and showered for a long time before returning to the couch to try to sleep. She felt disgusted, ashamed and upset. She thought of your connections within the agricultural community and potential repercussions to her if she was to divulge what had happened. She worked the next day and the matter was not spoken about. The complainant bled from the vagina and she was in pain. She did not tell anyone about what had happened.
19The following day on 17 January 2019, after working late, both you and the complainant returned to your home. Again your family were not at home and the complainant was nervous about what might happen that night. She accepted an alcoholic drink from you on the basis that she thought it might ease her anxiety and she fell asleep on the couch while watching TV.
20You later woke her up and asked her to go to your room. The complainant followed, as she felt she did not have a choice and did not want a repeat of the aggression and force if she said no. Ms Flynn wanted to be more in control. Once in the bedroom, you said something about sex, the complainant asked whether you had protection and you said that you did not. The complainant undressed and the two of you had sexual intercourse. This time she did not tell you to stop and she did not want to have sex but she did not want you to become aggressive. She lay on the couch and went to sleep when it was over (and that offending is Charge 3).
21The next sexual encounter happened at the Gippsland Agricultural Education Inc Show on 5 April 2019. After the complainant’s mother dropped her off at your house in the morning, you told Ms Flynn that instead of working at the farm, she would be going to the Gippsland Show. That evening the two of you travelled to the show. The complainant went to her allocated swag to sleep and you sent her a Facebook message inviting her to your swag beside the car. After an exchange of messages, the complainant got into your swag. You began kissing her face and neck and ultimately the two of you ended up having sexual intercourse without a condom. You ejaculated outside of the complainant’s vagina (Charge 4). The complainant left the swag afterwards, before people rose for the morning. The following night the complainant sent a text message to you asking you if you would like her to come to your tent but this time you did not respond.
22The next sexual encounter occurred at the Webb farm in June 2019 during the day when the two of you were working. You had driven to the other side of the property in a buggy and the two of you were alone. When the complainant was sitting in the buggy, she teased you in a happy joking way, saying you could not get her out of the buggy. You ended up pulling her off the buggy in a play-type manner and dragging her towards the ground. You told her that you wanted to have sex with her. The complainant went along with it without saying yes or no.
23You pulled the complainant’s pants and underwear down and undid your pants exposing your penis. You bent the complainant over on the ground and tried to put your penis into her vagina from behind without a condom, but the position was not working. Your penis pushed on the outside of the entrance of her vagina, but she could not recall if at any point it went inside. She recalled that you seemed frustrated and you got up, put your pants back on and got back in the buggy (Charge 5).
24The following day the complainant returned to Webb farm with you and Nicole Brennan in your car. You arrived back at the farm too late for the complainant’s mother to come and pick her up. Your family were not at home and that night you came into the lounge room. The complainant approached you and performed oral sex on you by putting your penis into her mouth. The two of you tried to be quiet so as not to wake Ms Vosper, who was sleeping in your son’s bedroom. You ejaculated into the complainant’s mouth and went to bed (Charge 6). The following morning Ms Flynn’s mother picked her up.
25The last sexual encounter between you and the complainant occurred on 30 September, which was the last night of the Royal Melbourne Show for 2019. That night the complainant had an 'emotional breakdown' in the cattle pavilion. The mental stress arising from what had been occurring with you had made her realise that in order for it to end, she would need to leave the industry. She thought that this would be the last time she would attend the Melbourne Show. You saw the complainant crying and tried to console her by giving her a hug. She was upset about her career but told you that the reason she was upset was because her father was having a new baby and she was not feeling loved.
26Later, after you sent her a text message, the complainant attended your locker, still crying. The two of you sat on the floor where you hugged and comforted her and she fell asleep. The complainant woke to you kissing her neck and touching her breasts over her clothing whilst trying to undo her belt. Ms Flynn told you to please stop, saying 'I can’t do this anymore'. You continued to put your hands up her shirt and grabbed her breast over her bra before moving the fabric to touch her bare breast and nipples. The complainant managed to physically resist the efforts that you were making to put your hand down her pants. She eventually left and returned to her own locker (Charge 7).
27The complainant saw you for the last time the next day, when her mother collected her from the show.
28When the complainant was in Year 11 in 2018 and 2019, she told a school friend over the course of a number of trips on the school bus, that her boss had been making moves on her and sexual advances, saying that she would have sex once or twice a night when she stayed over and at the Melbourne Show.
29Sometime in November or December 2019, the complainant told her then‑boyfriend that she had unwillingly engaged in sexual intercourse with her boss while spending a night at his house. She did not provide any specific details at the time, but did so later in the relationship. She referred to her boss holding a position of power and influence in the agricultural industry.
30Later, in a letter to her mother, the complainant referred to having been sexually assaulted and having complied with continual sexual assault. She did not name you in the letter at that stage, but eventually disclosed that you were the person to whom she was referring. She told her mother that she did not want to jeopardise her career in the industry, which was the reason why she had not spoken up sooner.
31In August 2020, Ms Flynn sent an email to Duncan Newcomen, advising him of her intended career change. She later visited Mr Newcomen at his house in Yea and disclosed what had occurred between the two of you, telling him that she had been sexually assaulted.
32In January 2021, Ms Flynn made a report to the police and later made a statement in February 2021.
33On 9 September 2021, you attended at the Yea Police Station and participated in a record of interview but declined to answer any questions.
Procedural history
34You were charged in October 2021, and in April 2022 you ran a contested committal hearing and you were ultimately committed to stand trial. This matter was listed for trial on 23 May this year and on that date you entered a plea of guilty upon resolution of the matter.
Victim impact
35Ms Flynn has prepared a powerful victim impact statement in which she describes the profound effect that your offending has had on her. Ms Flynn referred to the significant impact on her emotional wellbeing, which continues to this day. She notes that during her senior years at school she suffered significant bouts of depression and anxiety which were extremely debilitating. She almost failed her VCE, as she was sleeping throughout most of her classes, and she decided at this time to leave the agricultural industry for good.
36Leaving the industry has had a devastating effect on Ms Flynn. This has been her only desired occupation since she finished high school. She had spent many years completely absorbed in learning and experiencing every aspect that agriculture had to offer as a career. Although she had been fast-tracked into university and accepted into an agricultural degree before the end of Year 11, she ultimately felt she had no choice but to leave the industry because it was too exhausting, triggering and traumatic for her to continue. As a result, she was forced to change her life’s plans.
37Ms Flynn notes that she was and still is completely lost in finding another industry to match her passion like the agricultural industry, and this is something that she finds quite distressing. Ms Flynn also refers to the difficulties that she experienced in explaining to her family members why it was that she was leaving an industry about which she had been so passionate.
38The complainant refers to the significant amount of guilt that she has experienced as a result of this offending regarding the relationship that she had with a partner at the time. Ms Flynn notes that the psychological impact of this offending on her was so significant that she has experienced severe panic attacks and felt hypervigilant at the time, particularly when she left her home.
39Ms Flynn has engaged in ongoing and expensive psychological treatment in order to be able to come to terms with what has occurred. The legal process has affected her psychological wellbeing and she has felt the weight of these proceedings hanging over her. As a result, she has had to balance significant mood adjustments and heavy depression.
40As the Ms Flynn notes:
'My dreams in agriculture have been shattered, and my emotional and psychological wellbeing is permanently altered as a result of the crimes. The offender’s actions towards me have stolen an enormous part of my adolescence and early adulthood, at a time when I should be embracing independence and freedom.'
41The emotional injuries that she has experienced has led to psychosomatic injuries and symptoms. Financially, although the complainant has spent a considerable amount of money in establishing herself within the agricultural industry, as I have noted, she has had to leave this field and she estimates that the loss incurred is up to at least $10,000. She also refers to the thousands of dollars spent in psychological fees but she states that these estimates do not measure the emotional loss, which she describes as unquantifiable, because the loss of working in agriculture has had a deeper meaning to her than the financial loss experienced. More personally, your offending has affected all of the relationships in her personal life and she is unsure if these can ever be repaired in the future.
42I take into account the significant impact that your offending has had on Ms Flynn.
Nature and gravity of the offending
43Your offending here was particularly serious. You committed these offences over a period of approximately 12 months between September 2018 and September 2019. You committed the offences on six separate occasions during this period. You have had plenty of opportunity between many of the occasions to realise the folly of your actions. As the prosecution points out, there was a significant age disparity between you and the complainant. A number of the charges involve penile/vaginal sexual penetration and as I have noted, Charge 2 is a rolled-up charge that includes digital and penile penetration.
44In relation to the first charge, the complainant was alone with you in the stalls at the Royal Melbourne Show and was not expecting the sexual touching which ultimately took place. She was 16 at that time. I view Charge 2 as particularly serious, given that the complainant was alone with you in your home on a rural property during the night and was therefore particularly vulnerable. You ignored her repeated verbal protests to stop and her complaints that you were hurting her. You persisted despite her physical resistance. In saying that the digital penetration was unwanted and involved the use of some force, I am conscious that you have pleaded guilty to a charge of sexual penetration. As a result of you ignoring her protests, the complainant acquiesced to the penile penetration that followed, in order to avoid injury. She experienced pain and bleeding afterwards. You, however, were only concerned about your own sexual gratification. That you did not wear a condom is an aggravating feature. Although you did not ejaculate inside the complainant, a risk of pregnancy or sexually transmitted disease existed nonetheless.
45The offending is made more serious by the fact that the very next night, when you and the complainant were alone together, that you again sexually penetrated her. Again, you did not wear a condom and on this occasion the complainant acquiesced. Similarly, with respect to Charge 5, you took advantage of being on an isolated part of the rural property and sought your own sexual gratification. In relation to Charge 6, you penetrated the complainant’s mouth with your penis and did so whilst one of her co‑workers, indeed a peer of the complainant, was sleeping in a nearby room. Again, your own gratification appears to have been paramount and you ejaculated in the complainant’s mouth.
46In relation to the final charge, it would have been apparent to you that the complainant was upset and crying. Nevertheless, you took advantage of the situation by kissing her and touching her breasts when she was sleeping and then by sexually assaulting her. The assault on that occasion ended when she left the stall.
Personal circumstances
47You grew up in Noble Park with your parents and older brother. Both of your parents were hard working and you grew up in a stable and loving home. Both of your parents have provided you with their ongoing love and support. Many of your members of your family and close friends have attended court to support you.
48You found schooling difficult growing up and ultimately left in Year 10 to commence an apprenticeship as a cabinetmaker and you undertook this trade for five years.
49You have had a longstanding passion for the agricultural industry in which you are highly regarded and have been actively involved within the community. You commenced working as an assistant farm manager in October 2011 and over the past 12 years you have worked your way up through that industry. You were appointed a farm manager in 2015 and you are currently a director of Westella Agricultural Services in Drouin which provides services including fencing and consulting to cattle farms. You also own cattle of a very high quality.
50You have always been an active contributor to your community. At the age of 14 you were nominated to the committee of the Dandenong Agricultural and Pastoral Society. One of your referees, Ms King, who has also attended court, notes that you were probably the youngest member of this society. She speaks of how diligently you fulfilled this position on the committee and had the utmost respect of all committee members. You continue to volunteer your time with not only this society, but the Royal Agricultural Society of Victoria and the Gippsland Beef Agricultural Education Inc.
51You have been with your wife for many years. The two of you have known each other since you were children and you were ultimately married in 2011. You have three children aged 8, 5, with the youngest being 14 months old. On the weekend when you were arrested and interviewed by police, your wife found out that she was pregnant with your youngest child. You continue to have the support of your wife. She works as a teacher and intends to operate your business in which you have invested substantial time and money, in your absence.
Hardship to family
52Your counsel concedes that it is inevitable that you will receive a term of imprisonment for this offending. A custodial sentence will place considerable strain on your wife in her efforts to run the business alone whilst maintaining her current career. This is necessary in order to keep the business and to meet the substantial mortgage repayments on your home. As a result, I accept that there will be significant financial stress on your wife to support the family, maintain the family home and keep the business running. Your wife will also need to raise your three children on her own and all that this involves in terms of schooling, co-ordinating extra‑curricular activities and everything else that is associated with that. You are indeed fortunate to have the support of other family members, although I note your father‑in‑law has recently had bypass surgery and is less able to assist at present.
53Your counsel does not submit that the circumstances of this case amount to exceptional circumstances in terms of hardship to your family. However, I accept that knowing that your family and in particular your wife will be placed under significant strain and hardship, will make your time in custody more burdensome.[6] It is a sad reality that your conduct has also had far‑reaching implications on your family and your children in addition to the harm caused to Ms Flynn.
[6] Markovic v The Queen [2010] VSCA 1-5; 30 VR 589.
54You continue to have the support of many friends. A number of those friends have provided character references in which as I have said earlier, they speak highly of your dedication to the agricultural industry and your hard-earned reputation in the community. You are described as a man of integrity and compassion with a hardworking and diligent nature. I have taken each of these references into account.
Remorse
55You have expressed to a number of your friends and family the shame you feel as a result of your conduct, which a number of your referees has observed as weighed heavily on you. According to a report prepared by neuropsychologist, Dr Loretta Evans, you repeatedly expressed your remorse, saying that you are sorry for your actions and that if you could change it, you would. I accept that you are remorseful.
56Dr Evans’ also notes in her report that your medical and psychological history are unremarkable and there are no neuropsychological disorders or impairments.
Good character
57I note that the offending occurred between four and five years ago and there has been no subsequent offending. You come before the court with no prior criminal history.
58Your counsel, Mr Johnston submits that you are a person of good character, highlighting your lack of prior criminal history and positive character references. The prosecution submits that s5AA of the Sentencing Act1991 (Vic) (‘Sentencing Act’) is enlivened and accordingly it is submitted that good character cannot be taken into account in mitigation for any of these offences.
59Section 5AA(1) provides that in sentencing an offender for a child sexual offence,[7] a court must not have regard to the offender's previous good character or lack of prior convictions or findings of guilt if the court is satisfied the offender's previous good character or lack of convictions was of assistance to the offender in the commission of the offence.
[7] Defined in s 5AA(3) as a sexual offence within the meaning of the Criminal Procedure Act2009 (Vic), committed in relation to a person under the age of 18 years.
60The onus is on the prosecution to point to evidence of a relevant connection between 'a practical if not evidential onus to point to evidence of a relevant connection' between an 'the offender's previous good character or his or her lack of prior convictions or both' and the offending.
61The use of the word 'assistance' in this provision connotes the offender taking advantage of that status in some discernible way.[8] As the court noted in DPP v Ooms at [64],[9] what is required to establish the causal connection is that 'the good character or lack of convictions have made some material contribution to the offender committing the offence'.
[8] DPP v Ooms [2023] VSCA 207 [62].
[9] [2023] VSCA 207.
62Care should be taken not to take it as granted, for example, that a person who has a child in their care, supervision or authority must either have a good character attribute or necessarily have deployed some good character attribute associated with that role in order to commit the particular child sexual offence for which they are to be sentenced.[10]
[10] Ibid [68].
63The prosecution relies on a number of matters as illustrating that you took advantage of your good character in a discernible way such that it materially contributed to the offending. These include the regard in which you were held in the community as a result of your active contributions over many years; that the offending occurred during the course of your employment including at shows when you were representing Webb Pastoral; the trust placed in you by the complainant and the fact that she was concerned about disclosing the offending for fear that she would not be believed given your reputation; and the impact that this may have had on her future within the industry. The prosecution also submit that your supervisor, Mr Newcomen, completely trusted you with the victim and another similarly aged employee.
64I have considered this matter carefully. I have come to the conclusion that your previous good character was not of assistance to you in the commission of the offence.
65Whilst your good character provided a basis upon which those in the industry trusted you, indeed a basis upon which the complainant trusted you, it was not by virtue of your good character or lack of prior convictions, that enabled the placement of Ms Flynn with you. The high regard in which you were held by others was founded on your work within the industry, and it was on the basis of your expertise that you were entrusted to supervise the complainant, rather than your character itself which gave you access to Ms Flynn.
66Notwithstanding that your offending was facilitated by you being in a position of care, supervision and authority in relation to the complainant; it was not in my view facilitated by your previous good character.
67Accordingly, I do not consider that you took advantage of this good character in a discernible way such that your character materially contributed to the offending. Rather you took advantage of the opportunities of being alone with Ms Flynn in order to offend. In my view, s5AA of the Sentencing Act does not have application in this case.
Delay
68I accept there has been some delay in this matter. The offending occurred four to five years ago and you were charged almost two years ago. Some of the delay is attributed to you contesting the proceedings until the day of your trial but I accept that during this period of delay this has weighed heavily on you, and you have continued to work hard and have not been charged with any further offending. This bodes well for your prospects of rehabilitation. Another consequence of the delay is that the complainant has not been able to have any finality during this period of time.
Prospects of rehabilitation
69I consider that you have good prospects of rehabilitation. I have taken into account your lack of prior criminal history, your acceptance of responsibility for your offending, and the significant motivational factors including the burden placed on your wife whilst in you were in custody, the possibility of losing access to your children during your imprisonment and a significant risk to your business and livelihood.
Plea of guilty
70I take into account your plea of guilty. This was not a plea of guilty entered at an early stage. The matter proceeded with a contested committal and Ms Flynn was required to give evidence. The matter only resolved on the first day of your trial and a new indictment filed to which you pleaded guilty.
71Regardless, your plea of guilty demonstrates a willingness to facilitate the course of justice and is of considerable utilitarian value. You have spared the community and importantly, the complainant and other witnesses from having to give evidence at trial. It is also evidence of your remorse.
72Furthermore, your plea has an additional utilitarian value given that it was entered during a period in which the court is still facing a backlog of trials. As the Court of Appeal articulated in Worboyes v The Queen,[11] your plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the COVID-19 pandemic's effects. As a result, your plea should result in a perceptible amelioration of sentence.
[11] [2021] VSCA 169.
Totality
73You have pleaded guilty to seven charges, one of which was rolled-up. When sentencing on a rolled-up charge, the court must consider all of the circumstances of the offence and the totality of harm described in the charge. However, the plea of guilty must still be treated as entered to a single formal charge. Each offence to which you have pleaded guilty warrants individual punishment given that it involves distinct and serious conduct. However, there should be a degree a concurrency appropriate to satisfy the principle of totality. I must ensure that the totality of the sentences imposed is met with a just and proportionate sentence. Therefore, I have both moderated to a degree the length of the individual sentences and the periods of cumulation.
Current Sentencing Practices
74I have had regard to current sentences practices for similar offending. Both parties have referred me to compatible sentences but self-evidently, every case is different and current sentencing practices are but one of the matters I must take into consideration.
Relevant Sentencing Factors
75The basic purposes for which a court may impose a sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. Pursuant to the Sentencing Act, I am required to take into account various factors when formulating an appropriate sentence. These include the seriousness of the offence, your culpability which I consider to be high, the effect of your offending on the victim and your personal circumstances.
76The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible you are rehabilitated. I am also to have regard to the protection of the community and I have regard to principles of parsimony.
General and specific deterrence
77General deterrence is an important sentencing consideration. Other members of the community must understand that sexual exploitation of children under the care of supervision of an offender will not be tolerated.
78Denunciation and just punishment also loom large when it comes to imposing a sentence on you. Although you do not have a prior criminal history, specific deterrence must also be considered given the repeated and to some extent ongoing nature of your offending over the period of approximately a year.
Serious offender
79The offences of sexual penetration and sexual assault of a child 16 or 17 under care, supervision or authority are 'serious sexual offences' under the serious offender provisions of the Sentencing Act. Upon being convicted and sentenced to a term of imprisonment for two relevant offences, you become a serious sexual offender. The Court must regard protection of the community as the principal purpose for which the sentence is imposed and may impose a sentence which is disproportionate to the gravity of the offending. Here the prosecution are not seeking a disproportionate sentence.
80Pursuant to s6E of the Sentencing Act, sentences of imprisonment must be served cumulatively with any other sentence imposed unless otherwise directed by the Court, and the Court must record the fact that the offender was sentenced as a serious sexual offender.
Sentence
81Can you stand up please, Mr Ferris.
82On Charge 1, you are convicted and sentenced to 1 month imprisonment.
83On Charge 2, you are convicted and sentenced to 2 years and 6 months' imprisonment.
84On Charge 3, you are convicted and sentenced to 22 months' imprisonment.
85On Charge 4, you are convicted and sentenced to 15 months' imprisonment.
86On Charge 5 you are convicted and sentenced to 9 months' imprisonment.
87On Charge 6, you are convicted and sentenced to 15 months' imprisonment.
88On Charge 7 you are convicted and sentenced to 4 months' imprisonment.
89I order that the sentence imposed on Charge 2 will be the base sentence.
90I order that the sentence imposed on Charge 1 be served concurrently with the sentence imposed on Charge 2.
91I order that 6 months of the sentence imposed on Charge 3 be cumulative on Charge 2 and other sentences imposed this day.
92I order that 4 months of the sentence imposed on Charge 4 will be cumulative on Charge 2 and on other sentences imposed this day.
93I order that 4 months of the sentence imposed on Charge 5 be cumulative on Charge 2 and other sentences imposed on this day.
94I order that 4 months of the sentence imposed on Charge 6 be cumulative on Charge 2 and on other sentences imposed this day.
95I order that 1 month of the sentence imposed on Charge 7 will be cumulative on Charge 2 and on other sentences imposed this day.
96This equates to a total effective sentence of 4 years and 1 month imprisonment. I fix a non-parole period of 2 years and 2 months' imprisonment. That is the period that must be served before you become eligible for parole.
97Having been convicted and sentenced to a term of imprisonment on Charges 1 and 2, I have sentenced you as a serious sexual offender on Charges 3, 4, 5, 6 and 7 and this will be noted in the records of the court. I have ordered partial cumulation on these charges.
Pre-Sentence Detention
98Pursuant to section 18 of the Sentencing Act, I declare 3 days' pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
Sex Offenders Register
99Each of these charges are Class 1 offences under the Sex Offenders Registration Act2004 (Vic). If an offender is convicted of two or more Class 1 offences, the length of the reporting period is for the remainder of his life. Registration is mandatory.
100I declare, having been found guilty of more than two Class 1 offences, that you will be required to comply with the obligation imposed by the Sex Offenders Registration Act for the remainder of your life.[12] Upon your release from custody you must comply with your reporting and other obligations as I have said, for the rest of your life.
[12] Sex Offenders Registration Act 2004 (Vic) 34(1)(c)(i).
101I need to advise you about the nature of these obligations under the Sex Offenders Registration Act and this is being provided to you by way of notification of your reporting obligations. You are going to be asked to read those obligations and your counsel will, as I anticipate, take you through them at a later stage. Is that the case, Mr Johnston?
102MR JOHNSTON: It is, Your Honour. We just want to make sure, Your Honour, that when he's provided the material today, that he simply be served with it and then provided back to us so it is not taken with him into custody.
103HER HONOUR: Yes, all right.
104MR JOHNSTON: As Your Honour pleases.
105HER HONOUR: Thank you.
Section 6AAA
106Finally, I indicate that pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to a total effective sentence of 5 years and 7 months' imprisonment with a non- parole period of 3 years and 4 months.
107Counsel, are there any matters that need correction or that I may have overlooked?
108Mr Hardjadibrata: No, Your Honour, my instructor's just ensuring that the calculation for total effective sentence and non-parole period is right.
109HER HONOUR: Yes, please. You can have a seat, Mr Ferris.
110MR HARDJADIBRATA: She indicates yes, Your Honour, there are no errors.
111HER HONOUR: All right, I think I may have earlier in my sentencing remarked, made the comment that the offending occurred on six occasions but it's seven occasions.
112MR HARDJADIBRATA: Yes, Your Honour.
113HER HONOUR: Yes, all right. I thank counsel for your assistance. Could you please remove Mr Ferris and take him into custody. Well in terms of the documentation, that will just need to be provided?
114MR JOHNSTON: It will, Your Honour.
115HER HONOUR: Yes.
116MR JOHNSTON: Now I think.
117HER HONOUR: Yes, I think, well perhaps you can just bring Mr Ferris back. Can you bring Mr Ferris back.
118MR JOHNSTON: He just needs to be brought back just for a moment. If I could approach, Your Honour, if I may?
119HER HONOUR: Yes. I understand that it can be emailed directly to your, to you.
120MR JOHNSTON: Oh really? We are happy to receive it in that way, Your Honour.
121HER HONOUR: Yes. Do you want to approach Mr Ferris briefly about this or?
122MR JOHNSTON: May I?
123HER HONOUR: Yes.
124MR JOHNSTON: Yes, Your Honour, I'm instructed to accept service on behalf of, well, my instructor to accept service on behalf of Mr Ferris.
125HER HONOUR: Yes, thank you. All right, thank you, you can now take Mr Ferris into custody. We'll adjourn, thank you.
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