Director of Public Prosecutions v Fitzpatrick, Mark
[2012] VCC 1389
•21 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK FITZPATRICK |
---
JUDGE: | HIS HONOUR CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2012 | |
DATE OF SENTENCE: | 21 September 2012 | |
CASE MAY BE CITED AS: | DPP v FITZPATRICK, Mark | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1389 | |
REASONS FOR SENTENCE
---
Catchwords: CRIMINAL LAW – Maintaining a sexual relationship with a child under 16 – Tennis coach – Breach of trust – Lack of insight – Lack of prior criminal convictions – Total Effective Sentence of 6 years’ imprisonment, non-parole period of 3 years and 6 months
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC Ms C Burnside | Office of Public Prosecutions |
| For the Accused | Mr P Morrissey SC Mr R Stary | Robert Stary Lawyers |
HIS HONOUR:
1 Mark Fitzpatrick, you have pleaded guilty to one charge of maintaining a sexual relationship with a child under 16, the maximum penalty for which is 25 years’ imprisonment.
2 Your offending occurred over almost two years between 1 January 2006 and 27 December 2007. The charge on the indictment covers a period just after the complainant turned 14 until the day before her 16th birthday.
3 You were aged between 27 and 29 years at the time of your offending. You have no prior convictions.
4 The facts of the case were opened in detail by Mr Tinney who appeared to prosecute and are contained in the Prosecution Plea Opening, Exhibit A.
5 By way of summary, the complainant was a talented junior female tennis player. You were her tennis coach and delivered private lessons as well as sessions held at the Victorian Institute of Sport where she was on a scholarship. You had been recommended as a coach to her parents by the head coach of the Victorian Institute of Sport and in the course of your coaching you developed a close, friendly and trusted relationship with her family which involved you attending at their home for meals and travelling on holidays with them.
6 From an early stage in your coaching of the complainant you made inappropriate sexual comments and persistent unwanted sexual advances, often when the complainant was alone and in your care, such as during trips to Perth and Singapore for tennis tournaments.
7 It was on the final night of a tournament in Singapore that you first had sexual intercourse with the complainant. Upon your return you continued your pursuit of the complainant through numerous text messages. It was during this time that the complainant's mother, concerned about your performance as a coach, terminated your professional services.
8 The complainant was awarded a tennis scholarship to the Victorian Institute of Sport and her mother sought to take steps to ensure that you would not coach her, especially in a one-on-one environment. You nevertheless continued to coach the complainant throughout her time at the Institute in 2006 and 2007.
9 From early 2006 you acted on the advantage posed, by the one on one intensive contacts you had with her, to continue to engage in sexual intercourse with her. You engaged in numerous acts of intercourse at a variety of locations, usually in public toilets, at your home, as well as the home of the complainant. You gave her a mobile phone during this time which you then used to frequently initiate requests for sexual intercourse.
10 At the start of this period you would use a condom, however after a little while you ceased to do so and ejaculated inside the complainant on a number of occasions causing her distress. On these occasions you would provide the complainant with the "morning after pill". The sexual contact was very frequent and in fact there was rarely a time that you saw the complainant without having sexual intercourse with her.
11 Whilst the complainant attended Melbourne Park for tennis training, a routine developed where you would have sexual intercourse prior to morning training sessions on an almost daily basis. Some features of your offending were that you would regularly arrive with a kit to facilitate your conduct which contained toilet paper and condoms and even though the complainant would protest your suggestions to penetrate her without a condom, you would engage in sex without a condom in disregard of her wishes.
12 On one occasion you were chased from the complainant's home by her mother after you had crept into the home to have sex with the complainant.
13 Towards mid to late 2007, the complainant's mother showed text messages you had sent to the complainant to the President of the tennis club where you were employed and your employment was subsequently terminated. Despite the cessation of your professional relationship with the complainant, you continued to have contact and intercourse with her well beyond her 16th birthday. It was during this time that the complainant's mother took her concerns to the police.
14 You were arrested in 2010 and later interviewed. You denied all the allegations of sexual contact. You painted yourself as a friend and mentor of the complainant and suggested the complainant had a motive to make false allegations.
15
A contested committal was held in October 2011. The complainant was
cross-examined. The trial was listed for hearing in this court on 29 August 2012 and you pleaded guilty on that day.
16 The complainant and her mother and father each provided a victim impact statement. I permitted the complainant to read her statement aloud in court. In her statement she detailed the web of fear, abuse and guilt which you weaved in order to satisfy your sexual desires. She recounted how you abused the position of trust you held as her coach and took from her, her innocence, her virginity and her enjoyment of tennis, a sport which she excelled at. She detailed how the relationship you supposed you had with her was nothing more than a pretext for you engaging in continual sexual intercourse. She spoke of the ongoing trauma she felt in anticipation of the trial and the fact that she had to wait until the very last moment before you acknowledged your wrongdoing.
17 The courage of the complainant to get her life back on track is to be commended and speaks volumes for the procedure laid down by the Parliament which enables complainants to read their statements in court. This process can be an important part of addressing the power imbalance often experienced during the offending. Likewise, the statements of both parents reveal the emotional and psychological trauma caused by your offending, especially because of the advantage you took of your position of trust. I take into account all those statements insofar as they are relevant to these proceedings and to the agreed facts.
18 In response to my query about an appropriate sentencing range, the prosecutor said that a head sentence somewhere between four to six years with a non-parole period of between two and a half and four years was appropriate. Mr Morrissey SC, who appeared on your behalf, agreed with the range advanced by the prosecution.
19 Tendered on your behalf were written sentencing submissions, Exhibit 1; a psychological report of Mr Patrick Newton dated 23 August 2012, Exhibit 2; a bundle of letters written by the complainant, Exhibit 3; and a character reference from a Mr Stathos whose son you coached, Exhibit 4. I note that your parents and wife were in court to support you upon your plea.
20 I turn first to the psychological report of Mr Newton. Mr Newton had accounted your personal history which does not require substantial repetition here, suffice to say you have had an unremarkable childhood and model parents. You progressed through school without incident and took up a tennis scholarship in America and later worked as a tennis coach. You had one previous marriage which broke up due to emotional and sexual frustration. You are currently married and have one son who is two years old. This relationship by all accounts is positive.
21 Mr Newton stated that after you injured your shoulder whilst in the United States and realised that your dream of being a professional tennis player would not come to fruition, you experienced some depression. In terms of your offending, Mr Newton stated that this occurred in a situation where you were experiencing difficulties in your marriage and isolation from others and as such the emotional connection between you and the complainant took on an "intense significance".
22
You began to confide in the complainant about your marriage problems and within a brief time, Mr Newton states that you convinced yourself that your deepening emotional bond with the complainant was a genuine intimate connection and this bond began to grow in intensity. In essence, Mr Newton said that you had fallen in love with the complainant, a notion which
Mr Morrissey advanced upon your plea in terms of your offending not being a situation where you sought out a 14 year old child to have sex with but rather you fell in love with the complainant who happened to be 14. I note that when asked, you expressed remorse to Mr Newton and admitted the inappropriateness of your breach of trust.
23 Mr Newton stated that you are interpersonally dependent and your self-esteem is reliant on positive input and reinforcement from important relationships in your life and that you are beset by self-doubt. It is in this context that Mr Newton stated your offending can be seen as a sort of dysfunctional acting out of these tendencies. He said that your marriage was in turmoil so you "sought to meet your considerable interpersonal needs by pursuing a relationship with an individual who idealised you by virtue of her youth and inexperience and did not challenge your fragile sense of self-esteem." He said that your immaturity led you to form the belief that the complainant had the same capacity as you had to make independent and autonomous decisions as if she were an adult and this distorted your understanding of the emotional and sexual development of the complainant. Mr Newton was realistic in terms of his assessment of your insight as being "very limited indeed".
24 Finally, Mr Newton assessed your risk of re-offending as "moderate" and stated this could be reduced by the provision of ongoing therapy and treatment coupled with close supervision and support. Mr Newton did not find that you were suffering any mental health issues which would enliven any of the principles in Verdins.[1]
[1]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102.
25 On your behalf Mr Morrissey, in addition to relying on the psychological report and written submissions, submitted that I take into account the following matters by way of mitigation:
(a) that your offending involved only one victim and was not an incest-type case;
(b) that you are an immature emotionally dependent person;
(c) that there was an absence of callous behaviour of the kind frequently found in other such cases, specifically that the offending should be seen as arising from a relationship rather than being merely opportunistic;
(d) that you pleaded guilty;
(e) that you have previous good character and subsequent good character;
(f) that you have now assumed mature family responsibilities and ties, namely the care of your two year old son; and
(g) that upon your release there will be a good supportive community waiting for you, especially your wife who is determined to stand by you.
26
Further, Mr Morrissey submitted that I should take into account the fact that you have lost your chosen career and livelihood by your offending.
Mr Morrissey drew on Exhibit 3, the bundle of letters, to place the relationship you had with the complainant into context in that, from an emotional perspective, it was akin to a relationship involving two teenagers. On the question of your relationship with the complainant, Mr Morrissey submitted there was only "a flavour of a breach of trust", and that in your case there was "a world of difference" between your offending and that involving a parent or teacher who abuses their position of trust where they are responsible for the care and supervision of the victim.
27 Mr Morrissey further stated that you have expressed remorse through your plea which, whilst late in the piece, is still indicative of remorse and carries with it utilitarian benefit.
28
On the question of your lies to police during the record of interview,
Mr Morrissey submitted that you were scared at the time given what you had to lose, namely your livelihood.
29 Mr Morrissey also submitted that I should have regard to the significant delay in this matter and the consequent anxiety and stress it has placed upon you and your family.
30 As I previously stated, Mr Morrissey agreed with the prosecution range on sentence and submitted that I should impose a shorter non-parole period in order to allow you to continue your rehabilitation in the community.
31 The basic purposes for which a court may sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. I am required to 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 offenders are rehabilitated and reintegrated into society.
32 The courts have consistently held that sexual offending against children is a matter of utmost seriousness. The maximum penalty of 25 years' imprisonment for the offence of maintaining a sexual relationship with a child under 16 years reflects the gravity with which Parliament and the community view sexual crimes against children. Furthermore, it is important to bear in mind that the rehabilitation of the victim of sexual abuse in cases such as this may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed, if at all. In the meantime, childhood will be destroyed, self-esteem damaged, education and career opportunities lost and the capacity to form and maintain relationships seriously impaired.
33 The vindication of the victim in cases of this kind in particular is profoundly important if the criminal justice system is to perform its role properly. As courts have said in the past, a society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate. According to the principles of just punishment, public denunciation, general and specific deterrence assume considerable significance as sentencing considerations in your case.
34 Yours was a very substantial breach of trust. I do not accept that there is a world of difference between the position you were in and a teacher. Indeed you had closer one on one interaction with your pupil than a teacher would and additionally you were entrusted by her parents to travel with her and share accommodation. You took advantage of the opportunity. You abused the trust. You corrupted her thinking and exploited her vulnerability. She was a child of 14 when the offending started, inexperienced and indeed blind to sexual matters. Your offending was prolonged and relentless even when the complainant's mother intervened to end your coaching position you still sought contact with the complainant. Indeed, the relationship ended due to the complainant drawing away from you not because of any sudden sense of remorse or insight on your part into the inappropriateness of your behaviour.
35 I have regard to your plea of guilty and the utilitarian benefit which flows from it, a point conceded by the prosecution. I note this would have been a trial of significant duration. Any genuine remorse you feel for your conduct and any acceptance by you of the gravity of the offending has only been demonstrated. The trial indictment pleaded 38 charges over a longer period than in the present proceedings.
36 I take into account that you come before this court with no prior convictions and that there has been delay although much of that is occasioned by the fact that you sought to contest the charges for as long as you did.
37
In terms of your prospects of rehabilitation I echo the comments made by
Mr Newton that there would be grounds for guarded optimism if you engaged and completed specialised treatment. You have significant work to do especially in terms of your insight into your offending and the road ahead will no doubt be challenging for you and for your family.
38 Would you stand up, Mr Fitzpatrick.
39 On the charge of maintaining a sexual relationship with a child under 16, you are convicted and sentenced to be imprisoned for six years. I direct that you serve a minimum of three years and six months before being eligible for parole. I declare that 23 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be recorded in the records of the court.
40 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to eight years' imprisonment with a non-parole period of six years.
41 I make an order pursuant to s.464ZF of the Crimes Act 1958. I do so because of the seriousness of the circumstances of the offending and because the application is by consent. I am obliged to tell you that notwithstanding your consent, if you do not ultimately cooperate with the taking of a sample, reasonable force may be used to obtain that sample. Do you understand that?
42 PRISONER: Yes.
43 HIS HONOUR: Very well. Under the Sex Offenders Registration Act 2004 by reason of your conviction on this offence, you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first do so, that is to report, after you have been released from custody. Details in writing of these reporting conditions will now be served upon you by my associate and I will ask your counsel to attend to an acknowledgement that the notice has been served and that you have signed it.
44 MR STARY: If I could just be excused for a moment from the Bar table, Your Honour?
45 HIS HONOUR: Certainly. Thank you. I want to once again commend the complainant for the courage she has shown in these proceedings. Remove the prisoner please. I'm sorry I forgot to ask; are there any other orders that are required?
46 MS BURNSIDE: No there aren't, Your Honour.
47 HIS HONOUR: All right.
- - -
0