Director of Public Prosecutions v Foggitt

[2023] VCC 121

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-20-01757  

DIRECTOR OF PUBLIC PROSECUTIONS

v

WAYNE FOGGITT

---

JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2022
DATE OF SENTENCE:	7 February 2023
CASE MAY BE CITED AS:	DPP v Foggitt
MEDIUM NEUTRAL CITATION:	[2023] VCC 121

REASONS FOR SENTENCE
---

Subject:Criminal law

Catchwords:              Sentence – guilty pleas- persistent sexual abuse of a child under 16 - persistent contravention of a FIVO

Legislation Cited:      Sex Offender Registration Act 2004 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:                  Total effective sentence of eight years and six months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron	Office of Public Prosecutions
For the Accused	Ms M. Tittensor SC Mr S. Norton	Stary Norton Halphen

HER HONOUR:

1When Aria Lacombe[1] was eight or nine years of age, you Wayne Foggitt, began living with her older sister, Leia[2].  She was about 18 at the time.  You moved into the house in which Leia, Aria and their mother were living, and from then on, you lived as a family.  You were considerably older than Leia, about 20 years older than her, and nearly 30 years older than Aria.  On the agreed summary it would appear that from the time you began living with Leia, you assumed a father figure role with Aria.

[1]A pseudonym.

[2]A pseudonym.

2In September 2018, when Aria was 15, the relationship between you and Leia came to an end.  She moved out, but you remained in the home in which all of you had been living, remaining with Aria and her mother. You continued to live as a family.

3Two months later, in November 2018, Aria and Leia’s mother heard noises from your bedroom which sounded to her as if you and Aria were having sex.  She went into the room and the two of you, Aria, naked from the waist down, ran into the bathroom and locked yourselves in.  She rang the police.  When Leia and the police arrived at the house, you falsely denied any sexual activity.  Aria having initially refused to comment, later also denied that any sexual activity had taken place between the two of you.  Police suspicions were understandably aroused by what they had seen and your phone was seized.  It revealed sexualised messages passing between you and Aria.

4The suspicions that you were engaged in sexual activity, despite the denials, led to police taking out an interim FIVO in relation to you which prevented you from being near or in contact with Aria directly or indirectly.

5As a result, you moved out of the house and moved in with your brother who lived nearby. However you continued, despite the existence of the order, to have contact with Aria.  Some of that was facilitated by Leia, who had believed your denials of sexual activity with Aria. 

6Police became aware of the likelihood that you were breaching the FIVO and you were rearrested and questioned again 10 days later.  You were subsequently charged with grooming Aria (relating to the sexualised phone messages found on your phone in the two week period leading up to the police attendance at the house after Aria’s mother found her in your bedroom) and breach of the interim FIVO, by having phone contact with Aria over the period since the first police interview.

7Twelve months' later, in December 2019, you pleaded guilty to the charges of grooming and breach of the interim intervention order.  You were then sentenced to a term of imprisonment of four months.

8Shortly before that term of imprisonment was due to expire, Aria told Leia there had been sexual activity between herself and you, both before, and after the police involvement in November 2018.  She told Leia that you had threatened to expose her to her mother, threatened her with there being no one to look after the family if she made a disclosure and threatened that she and her mother would lose the house if she told the truth.

9Police were then involved again, and Aria made a formal video and audio-recorded statement and a police investigation commenced.  Leia revealed that you had been communicating with Aria through her during the time that you had been serving your sentence of imprisonment. 

10As a result, you were again interviewed on the day you were due to be released, and you were charged with further sexual offences relating to Aria.  When police interviewed you, you again denied engaging in any sexual activity with her, and expressed shock and upset that such allegations had been made.

11Despite those denials, you have now pleaded guilty to, and come now to be sentenced for one charge of persistent sexual abuse of a child under 16, (an offence punishable by a maximum sentence of 25 years, and in respect of which a standard sentence of 10 years for an offence of objective mid-range seriousness is prescribed) and one charge of persistent contravention of a FIVO (which carries a maximum sentence of five years imprisonment).

12It is important in identifying the sentencing facts to distinguish between the conduct, the subject of these charges, for which I come to sentence you, that part of the agreed summary of facts in respect of these charges which is relied on as context or uncharged acts, and the conduct for which you have already been sentenced and punished.  The need to punish you for the offences actually charged, to avoid double punishment and to avoid taking into account as part of the charges, the contextual evidence uncharged acts or acts for which you have already been sentenced is clear. 

13The charge of persistent sexual abuse of a child under 16 spans a four month period from September to December 2018.  Aria was 15 for the whole of that time. It involved eight specified acts on four specified occasions in that four month period.  The period of offending commenced after your relationship with Leia came to an end and she had moved out of the family home in September 2018, runs through the time when the police first became involved after Aria’s mother found you with Aria in the bedroom, and continued beyond the time that you were charged with grooming and breach of the interim FIVO that resulted from the initial attendance of police and the subsequent investigation of your phone.  

14That charge of persistent sexual abuse of a child under 16 covering that four month period with those eight identified acts is contextualised by, on the agreed statement of facts, a background of sexual activity with Aria commencing before your relationship with Leia came to an end, whilst Leia was still living with you, and you were living with Leia, Aria and her mother as a family.  It involved or has features of regular displays of affection between you and Aria, buying Aria gifts, including jewellery and lingerie to wear during sexual activity with you, and according to Aria, conduct making her feel her continued compliance was the price to pay to keep her mother and sister happy, and for your financial support of the family to continue.

15The first specified occasion of the charge is some time after Leia left in September 2018, but before the first police attendance in November 2018.  The specified acts are Aria performing oral sex on you, you performing oral sex on her, followed by penile/vaginal penetration.  It also involved you showing her pornography, and handcuffing her for a time, removing them she told you she did not like it.

16The second occasion occurred after the separation from Leia, and around about the time of the first police involvement.  You took Aria to Melbourne to see a boxing event.  Although you told Leia that the two of you stayed at an Ibis hotel in Carlton, in fact, you took her, as what would appear to be a treat to stay at the Intercontinental Hotel.  You gave her money to buy lingerie for the night. You performed oral sex on her. The specified act involved engaging in penile/vaginal penetration and ejaculating inside her.  For reasons that are somewhat unclear to me, the first of the acts, that is the performing of oral sex on Aria is this time, not a specified act for the charge, but relied upon as an uncharged act.

17The third occasion relates to the time that the police were called, when Aria was found in your room by her mother.  Despite your denials at the time, you have now admitted you did have sex with Aria on that occasion, giving wise to a specified act of penile/vaginal penetration. Ms Tittensor warned me repeatedly that I must avoid double punishment in respect of this because this was, of course, the precipitating occasion for what ultimately became the grooming charge.   There is no overlap between the conduct the subject of the grooming charge. That was evidenced by messages on your phone in the two weeks before you were caught with Aria in the bedroom. Nor is there any overlap between the breach of intervention order charge which covers the time between the first and second police intervention in November 2018.  That relates to phone calls from what were described as burner phones in the two weeks after that first police attendance. This third occasion relied on for the persistent sexual abuse of a child under 16 is the act of penile/vaginal penetration occurring on the day the police called by Aria’s mother. It unknown to the police at the time and unacknowledged by either you or Aria and therefore not the subject of the grooming or breach of intervention order charges. 

18The fourth occasion occurred after the second police interview in respect of breach of the FIVO in late November 2018.  By then, you were not only subject to that intervention order, but, having been charged with the grooming and breach of intervention order offences, it was also a condition of your bail, that you not have any contact with Aria.  Although still living with your brother at the time of this fourth occasion, after you had been required to move out of the family home because of the terms of the intervention order, you had rented a house through Airbnb and made arrangements for Aria to meet you there.  It was there on that occasion, in the rented Airbnb house that you engaged in the last act of penile/vaginal penetration that is the last specified act for this charge.

19The agreed summary details further uncharged acts of sexual penetration in the 12 month period after that last specified act, at the rental properties that you stayed in between the end of December 2018, (after moving out of your brother's house) and December 2019. What is up to the time you were sentenced for the grooming and breach of intervention order charges.  The last sexual activity that Aria can recall, occurred only days before you were sentenced in December 2019.  Again, it is clear this is relied on for context. 

20The persistent breach of a family violence intervention order charge which by definition is confined to a one month period is framed around the period  16 February to 15 March 2020.  You were in custody during that whole month.  In that month, you sent eight letters to Leia, in which you directly addressed Aria and sent messages to her.  The communications in those eight letters were in flagrant breach of the non-contact condition of the family violence intervention order.  By the time you had been sentenced to the four month term of imprisonment the original interim FIVO had been replaced, in a court hearing in September 2019 at which you had been present, by a two year order.  The conditions included no contact, directly or indirectly, and no communication directly or indirectly, with Aria.  The conditions of that final order had been explained to you when you were at court, just as conditions of the interim order had previously been explained to you. 

21Up until the time of Aria’s disclosure to Leia just before your scheduled release date from that term of imprisonment, you had maintained to Leia that there had been no sexual activity. Aria had maintained her silence. Leia had believed you.  As a result, she had facilitated contact between you and Aria before you were imprisoned, and whilst serving your sentence, because of that belief and your denials. She had therefore been, as you wanted, passing your letters on to Aria so that she could directly read your communications with her. 

22The summary of those communications in the agreed summary of facts runs to six pages.  You used code, blandishments, promises and what could only be seen, from the perspective of time and knowing the truth, as emotional blackmail to continue your hold over Aria and keep her silent and complicit.  Although the charge is confined to the statutory one month, the agreed summary contextualises this by revealing the extent of face-to-face contact from the time you were first subject to the interim family violence intervention order, through to the making of the final intervention order and up until the time you were imprisoned, and the sexual activity occurring during that time. 

23This bare recitation of the facts upon which these two charges are based, is sufficient of itself to show what serious examples of these two serious offences your conduct constitutes.

24This was a gross, profound breach of trust by a person who stood as a father figure to a child who he had treated as his child since he moved in with her older sister, when she was only seven or eight.  It was emotionally manipulative, and made worse by the material benefits you provided.  You made Aria believe that the food, gifts and other favours that you provided her were dependent on her compliance with your sexual wishes.  You made her also believe that the continued financial, emotional and material support of her family was dependent upon her compliance with your sexual and emotional predation.

25Other features that add to the seriousness of the offending are the duration of the offending, the number and nature of the acts including at least one of unprotected sex, exposing Aria to the risk of pregnancy and sexually transmitted disease, your persistence even after police intervention and court orders directing you to stay away from her, and your persistent and varied efforts to conceal your contact with Aria by lying and denying, as well as arranging alternative places to meet and using burner phones to conceal the fact that you were having contact with her. 

26The persistent breach of a family violence intervention order is also a serious example of its type, not just because of the number, length and content of the eight communications in that one month period, but seen against the course of conduct and uncharged acts from the time you were first ordered to leave her alone, and the number of court orders that you persistently and deliberately flouted.

27That these are serious examples of serious offences was not challenged, indeed was acknowledged by your counsel. 

28I agree with prosecution submission (again, something understandably not challenged by the defence) that your moral culpability in respect of both offences is high.

29As the very helpful report of Dr Barth. which was provided by your lawyers in support of their sentencing submissions notes, that he estimates your intelligence to fall in the normal range and there are no indications of any form of thought disorder or psychosis. 

30It is clear, therefore, that subject to matters personal to you, denunciation, deterrence, both general and specific, and just punishment loom large in the sentencing mix. 

31Before turning to what was relied upon and carefully and comprehensively presented by your lawyers, let me deal briefly with the fact that this is a standard sentencing offence.  It is clear that the standard sentence of 10 for an offence, which considering the objective factors only, is of mid-range seriousness, is another yardstick, like the maximum sentence, which must be taken into account in fixing on the appropriate sentence in the circumstances of your case, having regard to the circumstances of the offending itself.  

32The standard sentencing scheme specifically preserves intuitive synthesis in sentencing.  Other sentencing principles such as current sentencing practices,  as affected by the standard sentence regime, totality and parsimony remain applicable.

33In dealing with the matters personal to you, I was greatly assisted not only by the written and oral submissions presented by your counsel, but also by the report of Dr Barth.  I will now turn to that, because it deals with your personal circumstances as well as other matters, before dealing with the specific legal submissions made by your counsel. 

34You were, at the time of the offending, in your early to mid-50s and you are now 57 or maybe have turned 58, given the amount of time this matter has been before the court.  You are a mature man.  You have been married previously for a considerable period and have three adult children.  You appear to maintain a good relationship with your former wife and with your sons.  Your elderly mother is still alive, although in poor health, and it would appear you maintain a good relationship with her as well.  Your upbringing seems relatively unremarkable and you had a very good and solid history of engagement in, first of all, salaried work and then in establishing your own apparently very successful business in providing support, equipment, plant and the like to major infrastructure projects.  Indeed, it was in that context, it would appear, that you first met Leia. She went to work for you as a 15 year old work experience student in your business. 

35I have already noted that Dr Barth identifies that your cognitive functioning is intact.  You were oriented in time, person and place.  There is no form of thought disorder or psychosis and you are estimated to have intelligence falling within the normal range. 

36Dr Barth assessed you on three occasions in 2021 and 2022.  First in October 2021, then on 10 November 2021 and then again on 16 March 2022. His report is dated 3 May 2022. So it is a comprehensive assessment over a period of time. The last assessment is May 2022, so about eight or nine months ago.   Nonetheless, I accept much of what he says is still current and applicable.

37

In particular, what he noted of your mental status and your psychological assessment was an intense emotional reaction to the legal predicament that you are facing.  He noted you described the typical emotional and behavioural symptoms of depression and anxiety and noted that that had led you to withdraw from most social contact causing you to lapse into what he describes as a state of resentful brooding, irritability and sullen despondency when ruminating on your legal status.  You also reported what Dr Barth described as noteworthy

anxiety-related symptoms and he noted that you have become preoccupied with the impairment caused by the injuries, the significant and serious injuries that you suffered in a cycling accident in August 2021, after your release from custody and before sentencing in respect of these offences.  He noted your preoccupation with the impairment and your fixation with the potential impacts for your health in the future.  On the material presented to me, that seems to be a continuing state. 

38So far as your sexual adjustment was concerned, Dr Barth noted that you expressed pro-social views regarding children and sex but identified two areas of particular concern. In his assessment of a sexual adjustment, he reported:

Firstly, from my discussion with him, it was clear that while he identified his dominant orientation as being towards female age peers, he clearly attributed a very distorted view of the sexuality of the complainant.

39He then described, in particular why that was and said:

These thoughts are often referred to in the sexual offending research literature as offence-supporting cognitions, which are distorted thoughts and attitudes that serve to motivate and justify sexual offending.  Clearly, Mr Foggitt endorsed prominent offence-supporting cognitions about the complainant's sexuality during the period of his offending.  Secondly, Mr Foggitt had significant difficulty delineating between healthy familial affection with the complainant on the one hand, and romantic or erotic feelings for her on the other.  This represents a fundamental difficulty in maintaining appropriate inter-personal boundaries and also affects Mr Foggitt's inter-personal dependency.

40He concluded this section of his report by saying:

In the sessions with me, while it was apparent that Mr Foggitt had made some formative progress in challenging his offence-supporting cognitions, it was clear that considerable therapeutic work remains ahead of him if he is to gain a more detailed understanding into his behaviour.  More specifically, while Mr Foggitt expressed remorse and guilt for his offending conduct, he also continued to resort to describing the complainant's purported sexual promiscuity as an explanation for his offending behaviour.  There is an unequivocal need for Mr Foggitt to participate in specialist sex offender treatment to address the problematic features of his interpersonal and sexual adjustment.

41I want to make it very clear here, that although Dr Barth refers to the complainant's purported sexual promiscuity, whether that was his phrase or yours, I am not making any such judgment or assessment of the complainant.  I adopt without reservation what Dr Barth had said about the offence-supporting cognitions and the way you had used, the fact that you had a belief that the complainant was sexually active with boys her own age, to justify your own behaviour.  It is no justification, and there is certainly no basis for any value-judgment or assessment, or description by use of a word like, 'promiscuity'.

42Dr Barth carried out a risk assessment using well-known and well respected assessment tools for the risk of recidivism for sexual offenders, the Static 99R and the RSVP, and he concluded that you were at a moderate risk of re-offending.  On the Static features, you presented as a low risk of sexual recidivism considering historic factors alone.  On the RSVP the rating was that of moderate risk and Dr Barth concluded that overall, taking into account the whole assessment, that your risk of reoffending was properly to be classified as moderate. 

43Dealing with the RSVP, he said this:

The main factors which elevate Mr Foggitt's risk are that the offending was committed over an extended period, there was an escalation in his sexual behaviour to encompass repeated acts of sexual penetration and there was a psychological coercion involved which allowed Mr Foggitt to continue developing a sense of closeness with the complainant.  Furthermore, Mr Foggitt's behaviour was underpinned by prominent offence-supporting cognitions regarding his distorted view of the complainant's sexuality, his insight into his offending remains limited and he has previously failed to abide by a family violence intervention order.  These factors increase his risk.

44On a more positive note Dr Barth said:

Mr Foggitt does not have a history of entrenched sexual deviance.  There is a lack of any significant behavioural issues in his background, including a history of sexually obsessive behaviour or difficulties with impulse control.  There was no concomitant violence involved in his offending conduct.  These factors mitigate his risk to an extent.

45He concluded that your risk of reoffending was most relevant within an intra-familial context or with a similarly close under-age female and that the risk could be reduced further with the completion of a specialist sex offender treatment program. 

46He concluded that, as of May 2022, that your current legal situation had precipitated a particularly intense bout of reactive depression and anxiety, exacerbated by your physical injuries and complications encountered during your rehabilitation from that post-offence accident to which I will refer in more detail soon.

47The intensity and duration of your symptoms of reactive depression and anxiety were such as at May 2022 in Dr Barth's opinion to warrant a diagnosis of adjustment disorder with mixed anxiety and depressed mood. I am prepared to infer having regard to the evidence before me, that that state continues therefore I accept Dr Barth's opinion that there is a risk that your mood could deteriorate under circumstances of further stress and that you have a need for ongoing professional treatment.

48Dr Barth also concluded that you had previously displayed an ego-centric and superficial approach to relationships, which had contributed to difficulties in achieving healthy adult intimacy.  He repeated in his conclusions and his professional opinion, the dissonance between your description of your sexual orientation as being attracted to female age appropriate peers,  the concern that you viewed the complainant as being much more sexually and emotionally mature than was accurate, your confusion of filial affection with erotic attraction with the complainant, and your lack of clarity with regard to inter-personal boundaries in an inter-familial context.  He concluded that your highly dysfunctional attitudes formed the basis for your prominent offence-supporting cognitions about the complainant's “sexual promiscuity”, again that word used in that context, but not adopted as a value judgement by me. 

49Dr Barth concluded that although you had expressed guilt for your offending, your insight into your behaviour remained undeveloped.  He said:

It is imperative that he participates in a sex offender treatment program at the earliest opportunity.

50I endorse that without reservation and strongly urge the Corrections authorities to ensure that you are, as soon as possible, assessed for suitability for participation in a sex offender treatment program and I encourage you Mr Foggitt to take advantage of any opportunities you are offered to participate in such a program. 

51So far as sex offender treatment was concerned, Dr Barth said that it should focus on assisting you to gain insight into the emotional, inter-personal and sexual factors which motivated your offending and intensive psycho-education regarding the normative sexual development of under-age females to enable you to comprehensively address the offence supporting cognitions which underpinned your conduct.  He said:

Improving [your] understanding of mature adult sexual intimacy and developing a solid relapse prevention plan should encompass a prominent feature of any intervention.

52And again, I can only give that my unqualified and strong support. 

53Dr Barth also said you need mental health treatment to address your depressive  symptoms and anxiety.  He expressed concern that as of May 2022, you were reporting suicidal ideation and he notes that you would benefit from ongoing psychological intervention to stabilise your symptoms in the medium term.  Again I endorse that strongly and without reservation and alert the Corrections authorities to the need to ensure that you have access to psychological and psychiatric supervision and treatment at the earliest opportunity, and continuing throughout your time in custody.

54Finally, Dr Barth in his concluding comments and recommendations, returned to your emotional reaction to your legal matters.  He noted that you are likely to be a relatively vulnerable prisoner because of your emotional reaction to the charges and he said that was particularly so having regard to your limited coping skills,  your depressive and anxiety-related symptoms and your current physical impairment.  He expressed concern that you will be at risk of further deterioration in mood and noted that it would be very important for appropriate supports to be put in place.  He said you would benefit from close support throughout the duration of any time in custody and also during your eventual transition back into the community. Again,  I can only lend  what authority I have by reason of my office and the materials presented to me in the role I perform, to urge the Corrections authorities to carefully consider everything in Dr Barth's report and to implement his recommendations. 

55That then provides much of the framework or the context for the evaluation of the sentencing submissions presented on your behalf.  You pleaded guilty at a relatively early stage and I accept that that should and must be taken into account, and given considerable weight. I was a relatively early plea of guilty. The complainant was, as a result, spared the indignity of being cross-examined and challenged on the truthfulness of her account. Your plea of guilty vindicates her truthfulness. She has been spared the ordeal of having to relive the events by having to give evidence and be cross-examined. 

56It clearly has a utilitarian effect in terms of advancing the interests of justice and not adding to the delay and backlog the court is experiencing, not only generally, but as a result of COVID.  I also accept in the circumstances that subject to the qualifications expressed by Dr Barth, that it is indeed to be taken as further evidence of your remorse for your conduct. 

57There has been considerable delay in this matter coming finally to hearing.  Although some of it is of your own making, by the lies you told when first confronted by police about your conduct, and these charges only coming to light when Aria finally had the courage to come forward and say what had actually happened. The delays since then have been largely not of your making.  Some of them have been what I would call just the systemic delays associated with having charges of this nature find their way, even where there is a relatively early plea of guilty, through the court to a plea. 

58But most significantly, there has been considerable delay by the vacating of your original plea date and then by the adjourning of sentencing for extended periods, many months each time, in order to enable you to undergo surgery or to consider what appropriate surgery you should undergo to address the significant injuries that you suffered in the 2021 cycling accident, and also to enable you to have the rehabilitation associated with that surgery in the community and with the benefit of Transport Accident Commission-funded care that you were entitled to. 

59So whilst at one level one could say there was a compassionate intervention to allow those adjournments for that treatment to occur, nonetheless it has added over 12 months to the time that this matter has been before the court before sentencing. This was not at a time where you have been able to enjoy yourself at liberty. You have been involved intensive surgery and rehabilitation and have experienced considerable pain and disability, and anxiety associated with the appreciation of the permanent or at least long-lasting effects of the injuries you suffered in the cycling accident.  So all of that delay and the pressure hanging over your head, are matters that are properly to be taken into account as oppressive circumstances not of your making and which should reduce the sentence otherwise imposed. 

60I accept that you had got to the age of your early 50s without any previous convictions and you are properly to be regarded as a man, apart from this, of good character. 

61Given the circumstances in which the grooming and the breach of the intervention order charges came about and the circumstance of disclosure, I treat you as a first offender for the purpose of this sentence.  It is artificial in the extreme to try and deal with any of the sentence for the other matter as constituting a prior for some narrow slice of a course of conduct charge, and therefore you get the benefit of being a person of good character up until the time this offending came to light.

62That is significant, not only because you are entitled to have past good character taken into account, but also because it affects the assessment of your prospects for rehabilitation.  You have shown, apart from this, pro-social attitudes, a capacity to work, a capacity to be a good father to your other children, and to still enjoy their love and support.  That, together with the support you continue to have from your family, your intelligence and the lack of any psychosis means that your prospects for being able to engage in rehabilitative services and rehabilitative programs should be assessed as good.

63I also accept, and this is the significant matter that was relied upon in the plea in mitigation, that there is a considerably increased burden of imprisonment that you will suffer by reason of a combination of your current mental health state, the reactive depression and anxiety caused partly by the fact of being charged and facing a term of imprisonment, and compounded by the consequences for you of the injuries that you have suffered as a result of that cycling accident. The ongoing disability,  dealing with the pain, your significantly impaired mobility and the likelihood that you will not get back to the position you were in before the accident that also clearly had had a significant impact on your mental health. It will also have a significant impact on the manner in which you serve your term of imprisonment.  Imprisonment will be more burdensome for you, not only because of your mental state, but also because of your significantly limited mobility and the restrictions on what you can do as a result of that accident. 

64Let me come then to the accident.  You were hit by a truck when riding a bike and suffered significant spinal injuries.  You suffered a paralysis initially and over time, were fortunate to regain the use of your limbs.  However, your balance and your mobility have been severely impaired.  You have suffered an injury to your cervical spine which involved impingement upon your spinal cord and in addition to that, either unrelated or triggered by it, you have been diagnosed with significant lumbar spine degeneration which has added significantly to the pain and impairment of mobility that you have suffered since the accident. 

65The reports from your treating surgeon, Mr Hamadi, indicate that whilst the outcome from the two surgeries that you have had has been good, you are going to be left with impaired mobility, and in his opinion which I accept, you will continue to need mobility aids, a motorised wheelchair, a scooter and a wheeled walking frame to assist you to move. You cannot walk any distance and you are unsteady because of the impact on your mobility of the cervical spine injury. Your unsteadiness leads to a significantly high risk of fall and further injury. I have been presented with, and accept evidence of the falls and subsequent injuries that you have had since the accident.  One of those falls was sufficiently severe to have to put off the second surgery for which I had granted the second adjournment of this plea hearing.  You suffered injuries to your ribs and chest which caused significant pain, discomfort and a risk of pleural compromise if you undertook further surgery too early.  Mr Hamadi in his most recent report, notes that the lumbar spine decompression was successful in that it has significantly reduced or alleviated the pain and the burning sensation that you had been experiencing.  But he notes that your mobility remains impaired because of the cervical spine injury. The risks of performing further surgery outweigh any potential benefits. So in effect, he says that whilst physiotherapy and hydrotherapy will be of assistance to ensure that you do not suffer further muscle wastage, and in keeping some mobility, that your mobility is unlikely to improve beyond that which it is now. The risk of paralysis were further surgery to be done in the hope of alleviating some of those symptoms outweighs the likely benefit that you would gain. I accept not only is imprisonment going to be more physically burdensome as a result, but the impact of having to deal with this restriction in mobility is something that will have a psychological effect on you that also must be taken into account. 

66This impaired mobility also means that the circumstances in which you will be held are restricted.  That is, that there are fewer places in prison where a person with your limited mobility can be safely housed, and so the options for housing you across the prison system are more limited compared to prisoners who do not suffer from the injuries and the sequelae that you suffer from.  All of that clearly adds considerably to the burden of imprisonment and means there must be a further reduction in the sentence otherwise appropriate.

67You also have other physical health issues, diabetes and tachycardia.  Both of those need regular and proper monitoring and whilst they should be conditions that can and should be managed within the prison system, I accept that the anxiety caused by a concern that you may not get proper care, and anxiety compounded, it would appear, by the experiences you have had since your remand in custody last week, also adds to the burden of imprisonment and to the compounding of your anxiety and depressive symptoms. That also is to be taken into account.

68I have already urged the Corrections authorities to take into account the report of Dr Barth and ensure that your mental health is properly assessed and cared for,   and that you are assessed for, and given the opportunity to participate in a sex offender treatment program at the earliest opportunity.  In addition to that, although it should not have to be said, I urge the prison authorities to ensure that your physical health, whether it flows from your impaired mobility,  diabetes, tachycardia or any other condition, is properly managed, monitored, assessed and treated.  You are entitled, like every other prisoner, to the same level of health care that a person at liberty in the community is. And I can only say that it is the expectation of everybody who participates in the criminal justice system, that the human rights of prisoners are not ignored.  It is not acceptable for prisoners’ physical or mental health, to be untreated or treated less favourably than those liberty in the community. 

69Turning finally then to your prospects for rehabilitation.  I consider them to be reasonable and I say that having regard to what I have quoted at such length from Dr Barth's report and the combination of your underlying intelligence, your capacity as you have shown throughout your life to engage in meaningful work and to have and maintain meaningful relationships with family and friends. Apart from the reservation about the inappropriateness of your behaviour and your lack of understanding of appropriate boundaries in respect of Aria and the inter-personal deficits that have led to your, what Dr Barth described as the superficial approach to a mature adult intimate relationship,  you clearly have the capacity, should you choose to do so, to engage in appropriate treatment and reflection.  If you do that on your return into the community you should be able to live an offence-free life.  Your only risk appears to be that of sexual offending. It is because of the reservations expressed by Dr Barth that I count your prospects for rehabilitation as reasonable rather than any higher. 

70I was given a table of comparative sentences, and as both counsel conceded it is useful even if only to serve as confirmation of the proposition that each case is different and must be considered by reference to its own facts and circumstances. 

71Taking all of that into account then, and understanding that intuitive synthesis is just that, I have fixed on a sentence that I consider as best as possible reconcile those irreconcilable matters that are thrown up in this case, and in cases of this nature.

72Wayne Foggitt, on both charges to which you have pleaded guilty, you are convicted. 

73On Charge 1 of persistent sexual abuse of a child under age 16, you are sentenced to be imprisoned for a period of eight years. 

74On Charge 2 of persistent breach of a family violence intervention order, you are sentenced to be imprisoned for a period of 12 months and I direct that six months of that be served cumulatively upon the sentence on Charge 1. 

75That makes a total effective sentence of eight years and six months and I fix the period of six years and six months as the time that you must serve before being eligible for parole.  I declare that you have spent 23 days in pre-sentence detention attributable to these charges and direct that they be counted and reckoned as part of the sentence already served.

76I declare pursuant to s6AAA of the Sentencing Act that but for your pleas of guilty I would have sentenced you to a term of imprisonment of 15 years and set a non-parole period of 12 years.

77Pursuant to the Sex Offender Registration Act, having regard to the charge of persistent sexual abuse of a child under 16, that being a Class 1 offence, you are required to comply with the reporting obligations under that Act for life, and I make that declaration accordingly.