Director of Public Prosecutions v Ford

[2016] VCC 1481

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02172

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON LEE FORD

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June, 11 July, 26 September 2016
DATE OF SENTENCE:	7 October 2016
CASE MAY BE CITED AS:	DPP v Ford
MEDIUM NEUTRAL CITATION:	[2016] VCC 1481

REASONS FOR SENTENCE
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Subject: Criminal law - sentence             

Catchwords:   pleas of guilty to one charge of persistent sexual abuse of a child, one charge of producing pornography and one charge of possessing pornography – very late plea in respect of first charge – child aged 14-15 – significant age difference – 14 month period of offending – impact on complainant - offender suffers chronic back pain from work injury – requires surgical intervention – depression – significant pain in custody – some medication for pain and anxiety reduced or terminated – denied access to pain specialist who has been treating him.

Sentence: 4 years and six months, with non- parole period of 18 months.        

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms L Taylor	OPP
For the Accused	Mr S Kenny	Stary Norton Halphen

HER HONOUR:

1Aaron Lee Ford, you have pleaded guilty to one charge of persistent sexual abuse of a child under 16,  one charge of producing child pornography and one charge of possessing child pornography.

2The complainant was a girl you came to know through her family.  Sometime after her fourteenth birthday in February 2013, you began offending against her and this continued until April 2014, soon after she turned 15.  At those times, you were aged between 32 and 33.

3During 2011, you had moved into a house with a friend, a man who was the complainant's cousin and he introduced you to her.  Also living there was an older man who was a long-time friend of the complainant and her family. 

4In 2012, you moved into a bungalow at the same address and it was in this context that you came to be trusted in the company of the complainant.  You began spending a lot of time with her, including taking her to and from school.  You told her you loved her and asked her out and you bought her flowers.

5She told you it was wrong because of the age difference between you, but you told her that age did not matter to you.  You knew that she was under 16 at the time. 

6Charge 1, the charge of persistent child abuse is based on five offences arising from four separate occasions.  On the first of those occasions, two incidents occurred and together they make up what are described as acts (a) and (b). 

7Act (a) occurred in 2013, when the complainant was aged 14 and in Year 8.  She wagged school and went for a drive with you in your car. You asked her for sex and initially you pulled your pants down and masturbated.  This is the act of committing an indecent act with a child under 16.  You asked her to pull down her pants, which she did, and wearing a condom, you inserted your penis into her vagina.  That is the act of sexual penetration of a child under 16.  You caused her pain and you eventually stopped.  She had been a virgin before this incident.

8On another occasion in 2013, you took the complainant in your new car to a beach and to the Enchanted Maze Garden.  On the drive home, you suggested having sex to christen the new car, to which the complainant said "No" but then agreed.  You got on top of her in the front passenger seat and wearing a condom, inserted your penis into her vagina.  This is act (c), sexual penetration with a child under 16.  Again, this caused her pain and you stopped and drove home.

9On another occasion that year, the complainant, her mother, sister and you, stayed overnight with the mother's cousin.  During the night he came into the room where you were all sleeping in sleeping bags and found you and the complainant in the same sleeping bag.  He confronted you and asked what was going on.  You replied that the complainant had had a bad dream and you were comforting her.  The complainant's mother was informed of this the next morning and she also confronted you and you gave her the same answer, which it seemed she accepted. 

10In February 2014, a few days after the complainant's fifteenth birthday, you took her to an event called "White Night" in the city.  On arriving back at your bungalow at 2.30 am, you told her she could stay the night and she offered to sleep on the floor.  Together you watched a movie and you then asked her if she wanted to have sex.  She said "No", but then relented when you continued to ask.  She said it had hurt previously and you told her that after a while it wouldn't hurt.

11You got onto your bed and both removed your clothes and you inserted your penis into her vagina.  Again this caused pain and you stopped.  The complainant was not sure whether you used a condom on this occasion.  This was act (d), as part of Charge 1.

12A short time after the White Night excursion, the complainant was again in your bungalow where you were painting each other with paint.  You drove into the city and back and then you suggested having sex.  The complainant told you that it hurt and she did not feel like it.  You asked her again and she reluctantly agreed.  You then penetrated her vagina with your penis.  When you stopped, she went to sleep in another room.  This was the basis for act (e), part of Charge 1.

13In March 2014, the complainant disclosed your offending to her mother.  She told her that you had offered her a new phone and a holiday in America in exchange for sex.  The complainant and her mother reported the matter to the police later that month and the complainant took part in a VARE recording.

14A few days later, you sent two emails to the complainant's school email address saying you were hurt by her avoidance of you and you were suicidal and saying in effect, that you would not contact her again, nor was she to visit you.

15The complainant then took part in a second VARE, disclosing further sexual activity with you.  In the following few days, you sent further emails to her, begging her to tell you herself that she did not want to see you again.  Soon after that, you were arrested and you were interviewed by the police.  You denied the allegations of sexual activity and appeared to be trying to give the impression that your relationship was only one of friendship.

16Your home was searched and analysis of the computer seized disclosed hundreds of photographs of the complainant, including images of sexual activity, in which the complainant was fully clothed, but she was holding a dildo in sexual poses.  You were interviewed a second time and admitted to having taken those photographs.

17You are now aged 36, a single man who has a very limited criminal history of no relevance to these charges.  References from your mother and two friends indicate that you were a person of good character until you committed these offences.  You have a good work history, only ended by your back injury.  You have been assessed as not meeting the criteria for a diagnosis of paedophilia. 

18You were raised by your mother and grandparents and have never known your father.  As an infant, your early development was delayed and you suffered from severe asthma  When you were about eight years old, your mother re-partnered and that man raised you as his step-son and you remain on close terms with him and your mother.

19You had some learning difficulties at school and were subjected to bullying, and it seems you were diagnosed with mild Asperger's Syndrome during those years.  You left school during Year 11, and after working at McDonalds, you went to Sydney to learn glazing with your grandfather and worked in that industry for nine years in Queanbeyan New South Wales.

20You then came to Melbourne in 2010 and worked as a glazer.  But soon afterwards, you unfortunately suffered a serious back injury at work and have been unable to work since then.  Treatment of that injury has required a significant regime of medical treatment ever since. 

21As recently as July this year, you underwent a trial procedure involving the insertion of a spinal cord stimulator to treat your chronic back pain.  The trial was successful, but the permanent treatment which is to follow has been delayed pending further WorkCover approval, even though it seems liability has been accepted and you have received a payout.  Hence you are facing a term of imprisonment without having had this necessary treatment. 

22Details of your injury and treatment are set out in letters from your doctors confirming the lumbar spine injury and symptoms of depression said to derive from the effects of the injury.  You were seen by Dr Aaron Cunningham in July this year and he reports that a diagnosis of adjustment disorder, with mixed anxiety and depressed mood has resulted from your injury.  To be more specific, you present with chronic severe depressed mood with features of panic and anxiety.

23You told Dr Cunningham that your offending was motivated by your sense of loneliness, but Dr Cunningham said that any connection between your adjustment disorder and the offending is obscured by the impairment caused by medication and chronic pain.

24He also suggested that there is a positive outlook on your future, tending to indicate a reduced risk of reoffending.  That is to say, your acknowledgement of the wrongfulness of your behaviour, your stable accommodation and the support of your mother and your engagement with  mental health support. 
Dr Cunningham states as follows:

"In my opinion, Mr Ford would have a more onerous experience of imprisonment, relative to an individual without an adjustment disorder with mixed anxiety and depressed mood".

25He goes on to say that you would struggle to receive all the medications in prison that are prescribed for you.  He considers you would be vulnerable because of your physical condition and your depression would likely escalate leading to the risk of suicide.  Elsewhere in his report, he relays your history of suicidal ideation, both recently and in the past.

26Finally, Dr Cunningham considers that you would benefit from engaging with ongoing mental health and medical intervention in the community, which would aim to improve your pain management and mental health.  This, together with increasing your pro-social community connection, would reduce the risk of reoffending.

27These are very serious charges which are punishable by 25 years imprisonment for Charge 1, ten years for Charge 2 and five years for Charge 3.  People as young as 14 and 15 are not considered by the law to be mature enough to make decisions about sexual activity and at that age, they are vulnerable to manipulation of the sort you utilised in getting the complainant to agree to have sex.

28In this case, not only did you manipulate this girl's will, but you also abused the trust placed in you, by her mother and others.  Some of your answers to questions put by the police in your record of interview indicate that you knew that the complainant was a vulnerable girl and you exploited her vulnerability and immaturity.

29It is important that you are punished appropriately for what you did and also that others understand that severe punishment will be metered out to those who offend in the same way in order to deter its future occurrence.  At the same time your punishment must be tempered by your circumstances.

30The day before your trial was to begin, you indicated that you would be pleading guilty to all three charges, although you had previously indicated a plea of guilty to Charges 2 and 3.  In effect, the plea to the charge of persistent sexual abuse of a child was as late a plea as it could have been.  It meant that the complainant, who is now aged 17, had prepared to give evidence and was expecting to do so the following day.

31Although she did not have to go through the ordeal of being cross-examined, she was very apprehensive about it and she stated in her victim impact statement that the thought of it triggered depression, anxiety and insecurity.  She was worried that she would not be believed.  She missed school and work to attend meetings related to the court proceedings and each time she suffered increased anxiety and loss of sleep.

32A plea of guilty usually carries with it a discount on the sentence imposed because of its utility in avoiding a trial, saving the witnesses from having to give evidence and generally facilitating the criminal justice system.

33The lateness of your plea means that although it avoided the need for a trial, and so the complainant did not have to give evidence at all in court, her obligations prior to that and her apprehension about coming to court amounted to a considerable burden upon her that could have been avoided had you entered your plea at an earlier stage.  It follows that the discount to which you are entitled is to be reduced, insofar as the sentence for Charge 1 is concerned.

34A plea of guilty is often accepted as an indication of remorse on behalf of the offender, and so it can be an additional mitigating factor.  Your denials of your conduct and the lateness of the plea, suggest a lack of remorse and a lack of awareness at the wrongfulness of your behaviour.  But when Dr Cunningham assessed you in July, you told him you were horrified at your behaviour, that it was disgraceful and you knew that there were laws to protect children.  You have also expressed remorse to your mother who conveyed this in her letter to the court.  While this does not sit well with the lateness of a plea, I accept that you are remorseful and sorry for what you did.

35Other mitigating factors which I take into account are your medical problems, specifically your chronic pain and the need for specialist treatment as already described.  Although your own doctor, who resides and practices in the ACT, would not be able to perform the procedure whilst you are in custody, it seems that another Melbourne-based physician would be able to.

36In the meantime, pending the surgery, you have been prescribed a large number of medications, some of which are, as I understand it, chemical narcotics and include others of a type often abused and therefore likely to be carefully scrutinised in prison, if permitted at all.[1]

[1]According to Dr Cunningham’s report, the prescribed medications are: Pristiq, Panadeine Forte, Oxynorm, Targin, Valium, Somac and Temazepam.

37According to enquiries made by your counsel, such medication may be permitted in prison.  There is no policy excluding them.  However, as of today, you are not being prescribed Valium, Temazepam or Panadeine Forte.  Your dosage of Oxynorm and Targin has been reduced and you report to be suffering increased pain and anxiety and lack of sleep.

38Your instructions to your counsel are that you have advised the prison medical authorities of the name of your general practitioner and that has been noted, but the authorities refuse to take the name of your pain specialist.  Consequently, you do not have the benefit of that expertise at present.

39As far as punishment is concerned, the gravity of the offending requires the sentence to deter others and to deflect the community's abhorrence at men having sex with young girls, particularly where there is a significant age difference, as there was here.

40You are described as an immature man, owing to the difficulties connected with your early development and current mental health problems, but that is not a matter of great weight in the context of all the circumstances.  Your counsel submitted that your offending should be placed at the lower end of the range of seriousness for this type of offending, but the prosecution's submission was that they should be placed at the mid-level of that range.

41The exploitation of the complainant took place over 14 months and has had a serious long term effect on her.  It is clear from her victim impact statement that her general wellbeing has been adversely effected and she states that she has seen a psychologist regularly.

42Her concentration at school and work has been effected.  Her self-esteem is low and she stated that her relationship with her mother has been ruined.  That is confirmed by her mother in her victim impact statement, in which she said the offending has had a huge impact on her relationship with her daughter, and has also affected her own health and the family now has a very limited social life.

43This evidence of the impact of what you did, together with an objective assessment of the gravity of the offending, places it in my view, at the mid-level of the range, rather than towards the lower end. 

44Turning now to the risk of reoffending.  It is somewhat reduced by the protective factors identified by Dr Cunningham, as well as the lack of any indication of paedophilia and your previous good character.  Your need for ongoing medical treatment is also a protective factor.  Accordingly, your prospects for rehabilitation are likely not unreasonable, but specific deterrence does have some, albeit limited, role to play in your sentence. 

45The only appropriate disposition is a term of imprisonment, the length of which must be determined, bearing in mind the matters to which I have already referred, as well as having regard to current sentencing practices as far as possible, and the maximum sentence applicable.

46I note that you are to be sentenced as a serious sexual offender in relation to Charge 3, but the prosecution does not seek a sentence that is disproportionate to the gravity of the offending in order to protect the community.

47I was referred to the relevant sentencing snapshots.  That which applies to Charge 1, reveals that the median sentence since 2009 is six years imprisonment, with the average being five years and five months.  I was also referred to a number of authorities in which appropriate ranges for similar offending are discussed, but the proviso applies that comparable cases are often not very helpful.

48I place significant weight on your medical condition and the pain you are suffering, with the need for carefully regulated medication, which appears in the past to have been quite successfully managed through specialist care.  That is no longer available to you, and so your experience of prison is made more difficult for you than for others who do not suffer in the same way.  That is a matter to be taken into account according to authorities to which I have been referred.

49Mr Ford, I am going to sentence you now, but you need not stand if that is difficult for you.  Taking all these matters into account, I sentence you as follows.  For Charge 1, persistent sexual abuse of a child, four years imprisonment. 

50For Charge 2, production of child pornography, 15 months. 

51For Charge 3, possession of child pornography, 12 months.

52The sentence for Charge 1 is a base sentence and I order that three months of the sentences for Charge 2 and for Charge 3, be  served in cumulation upon the base sentence.  That results in a total effective sentence of four years and six months.

53I order that you serve a minimum period of 18 months before being eligible for parole.  That provides for a long period of parole, in order that your rehabilitation be addressed while under supervision.  The moderate period which you must serve before then takes into account the difficulties caused by your health, which are likely to make imprisonment more onerous for you, more so than for others.

54You have spent ten days in pre-sentence detention and I declare that to be reckoned as time already served.  I shall cause that to be noted on the court record. 

55If you had pleaded not guilty to these charges, I would have sentenced you to five years and six months imprisonment with a minimum period of two years and six months.

56The Sex Offender's Registration Act requires that you be registered and must supply your details every year for the rest of your life, once you are released from custody. 

57There are applications by the prosecution for ancillary orders as follows: for a forensic sample of saliva to be obtained under s.464ZF of the Crimes Act, and for orders for forfeiture and disposal of the computers and pornographic material.

58I have noted that those orders will be made unopposed and I simply have to advise you Mr Ford that the police have the power to use reasonable force to obtain the forensic sample, but I trust that will not be necessary. 

59Are there any other matters first of all Mr Kenny?

60MR KENNY:  Not from me, Your Honour.

61HER HONOUR:  Thank you.  Ms Taylor?

62MS TAYLOR:  No, Your Honour.

63HER HONOUR: 

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