Director of Public Prosecutions v Foster

[2018] VCC 1785

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01721

DIRECTOR OF PUBLIC PROSECUTIONS

V

RICHARD FOSTER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2018
DATE OF SENTENCE:	1 November 2018
CASE MAY BE CITED AS:	DPP v Foster
MEDIUM NEUTRAL CITATION:	[2018] VCC 1785

REASONS FOR SENTENCE
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APPEARANCES: For the Director of Public	Counsel	Solicitors
Prosecutions	Ms P. Thorp	Office of Public Prosecutions
For the Accused	Mr J. McLoughlin	Victoria Legal Aid

1HIS HONOUR: Richard Foster you have pleaded guilty to one charge of grooming for sexual conduct, and one charge of possession of child abuse material. Those crimes carry maximum penalties of ten years imprisonment respectively. Firstly, pursuant to section 464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.

2Secondly, because of the nature of the offending that you have pleaded guilty to, you will be placed on the Sex Offenders Register and I advise you the reporting period will be for a period of 15 years, and I will just ask you to acknowledge receipt of that. 

3If you wouldn't mind going down with my associate please, Mr McLoughlin.

4MR McLOUGHLIN:  Yes.  I've observed it before others - other judges of this court, that very often prisoners don't want to take those documents back with them for obvious reasons.

5HIS HONOUR:  Well, I haven't got any choice.

6MR McLOUGHLIN:  No.

7HIS HONOUR:  The Act says must.

8MR McLOUGHLIN:  Yes.  The problem is that if you take it back with you to a prison it immediately identifies you to other prisoners ‑ ‑ ‑

9HIS HONOUR:  Well, I understand – I know, but I just assumed they threw them away.

10MR McLOUGHLIN:  Yes.

11HIS HONOUR:  As soon as they got outside.

12MR McLOUGHLIN:  Well, I think that's right, Your Honour.

13HIS HONOUR:  Yes.  That was my assumption, yes.  You are now 46 years of age, and you pleaded guilty at the earliest reasonable opportunity and made full and frank admissions.  I accept that your plea of guilty is certainly now accompanied by appropriate remorse and you must of course get the utilitarian benefit of that plea of guilty.  You in fact have, subsequent to your plea of guilty in this matter, provided an apology and I accept from the material before me that indeed you feel a great sense of shame in regard to the offending that you have perpetrated.

14The nature of the offending is contained in the Crown's summary and as during the course of the plea I do not propose to go into great detail about that, and I certainly in these situation will certainly be annexing the Crown opening to these, my sentencing remarks.  I have no intention of reading out the nature of the conversations that occurred between you and the complainant.  You, as I said, are now 46 and were 44 at the time of the complaining.  The complainant, who was 12 years of age, was attending a primary school in New South Wales.

15For reasons of anonymity, obviously, in these circumstances I do not refer to her name.  For some time prior to these offences, indeed years, you had spent time on various social media sites contacting and conversing with children aged under the age of 16 in a sexual manner.  That does not aggravate this offending but it certainly puts it in a situation where it cannot be treated as having been in total isolation.  On 1 May 2018 you posted messages to the complainant on a social media application called Musical.ly that allows users to upload video images of themselves singing songs and allows users to post comments about other users.

16On 1 May 2018 you sent messages from your account to the complainant's account that stated that she had a gorgeous smile and her eyes were beautiful and you could stare at her smile all day.  As I said, there are some aspects of this which concern me and I am simply going to annex the Crown opening for the greater detail that it contains.  In any event you asked the complainant to allow you to contact her via Facebook, which you did.  On 2 May many emails were sent between you and her, and on 3 May similar things occurred.

17And it was on 3 May that she told you that she was 12 years of age and it is clear from the subsequent texting or messaging that you were aware of that.  The messaging went on for a period of some days and the content of it is disturbing to say the least.  It is a serious example of this sort of sexting or texting or whatever you want to call it, where you were well aware of the age of the complainant and indeed had seen photographs of her.  Photographs of – indecent photographs or pornographic photographs of yourself were sent to her.

18And there had been, albeit whether it was going to occur or not, suggestion of meeting and there was going to be a live visual sexual contact between the two of you to have happened within a relatively short period of time.  And as I have said, that is the sole detail I am prepared to go into in a public scenario so far as this is concerned, but obviously anyone with a genuine interest can take it further.  The offending, as I have said, is serious.  It calls for the application of general and specific deterrence and I am well aware of the authorities that Madam Prosecutor presented on behalf of the Crown.

19It is a situation which does require denunciation and appropriate punishment, and it would appear on the face of it at least an element of community protection, though I suspect that the apprehension and time in gaol and various other factors have reduced that danger to the community.  The offending, bearing in mind the previous matters, has to be regarded as predatory.  There is a very significant indeed age difference, and whilst the contact was not physical it was certainly going to be visual at least, though I do not sentence on the basis that there was any real intention to meet the complainant or to perform any physical acts.

20I have before me in this situation, as is often the case, a victim impact statement from the – effectively from the family of the complainant and that victim impact statement eloquently describes the dreadful consequences that such offending can have, not only on the complainant but on the entire family.  It talks about the anger, distress and as is so often the case needless guilt that is felt by the various members of the family while they struggle to come to terms with the consequences of this offending.

21I also have in your situation, Mr Foster, a reference from your wife.  You have very seriously damaged more than the family of the complainant.  You have basically ruined your own.  She said,

"When Richard was arrested my world came crashing down.  It was an utter shock that my husband, the man I trusted absolutely, would do such a crime.  I had to call his family in the UK and together we were inconsolable.  It is the single most difficult thing I have ever done.  We were all devastated.  We have been supporting each other since his arrest and thankfully remain a close family.  I am shocked to think that my husband committing this type of crime, it was the last thing I would have ever expected him to do."

22In other words your conduct has made a dreadful mess of a lot of lives, Mr Foster, and in those circumstances a period of imprisonment is inevitable.  Very helpful, if I may say so, submissions were made by both the Crown and your counsel in regard to the disposition and it is agreed by each of the parties, though that of course is not binding on me necessarily, that a disposition of gaol to be followed by a community corrections order was within range and that was discussed.  You have now been in custody for some 155 days.

23I have had the opportunity of looking at, for what it is worth, sentencing practices and comparable cases and had the very direct submission of your counsel as to what an appropriate sentence would be.  Having looked at those matters and considered them over the last few days, I think that Mr McLoughlin's submissions are accurate and they are submissions which are not demurred to by the Crown.  So, that is the disposition I will be imposing, that you were assessed for a community corrections order and I found you to be suitable.

24That community corrections order will not have work hours attached to it because it seems to me that where a gaol sentence has been undergone, and there is still more gaol to go, that that is somewhat gratuitous.  As a result of this community corrections order that I am going to impose, if you agree you will have to do the sex offenders program pursuant to it.  Though for reasons I will outline in a moment that may of course never come about. 

25In terms of determining the length of the prison sentence to be imposed, I look at matters personal to you.  Tendered on your behalf were a significant number of reports and references from your parents, from your wife, from your children, people who you work with.  It is clear that around the period of 2016, 2017 you, because of various matters, were suffering from depression.  Not to the level of Verdins but nevertheless it is in that background that all this occurred.  You were born and married in England, with your wife coming out to Australia with you with three children.

26You were married at a very young age.  Your history is outlined in Mr McLoughlin's submissions and can be dealt with in relatively short compass.  You upon arriving in Australia have always worked.  You have had your own business, scaffolding – or roofing, sorry, and that is clearly going to fail, and as I understand it may well have already been wound up.  You have three sons, Andrew, 25; Hayden, 23; and Thomas, 19.  You have no prior convictions and you have worked all your life and endeavoured to be a father to those children.

27What has happened is that your eldest who is 25 has in fact been sentenced by me to a very significant period of imprisonment for armed robbery, as I recall, and will be deported back to England.  You may well be deported as well.  Your youngest son has significant emotional difficulties and if you were to be deported and he was to remain in Australia your wife will stay with him.  That would end up in a situation with you and your disaffected son in England, your wife out here on her own with no relatives other than the son that needs her emotional support.

28Those matters do not give rise to exceptional circumstances for the purposes of this sentencing.  I  sentence you on the basis that you will undergo the balance of this sentence and, if you are not deported, the community corrections order under the knowledge that that is a scenario that you have created.  The reports on your behalf basically say that this was an escape into a – on your part, a fantasy world for a raft of reasons which I do not really need to go into. 

29Dr Gee outlines very clearly the nature of your personality and the difficulties – simplicity, if you like, the way you have seen the world.  He takes the view that you had in all the circumstances a diminished comprehension at the time that this was occurring.  That may well have been correct.  I am satisfied that you now understand the evil of what you have done.  The risk of you reoffending is described in those reports as average, and I would have thought that that is probably the case.  If you were to offend again in this way the sentence imposed would be very significant indeed.

30The prospects of your rehabilitation are really up to you and are in the hands of others, I suspect.  I have already indicated the nature of the risk of reoffending.  I have taken into account all those matters involving your position vis-à-vis your family.  The dreadful consequences to the complainant and her family, and the supportive matters that you have – do still have support.  Your children visit you sometimes in gaol, I am told, and you always had a good work ethic.

31It remains the case that a custodial sentence must be imposed.  I have taken into account all the matters raised in the submissions of your counsel, and which have been tendered, and I have taken into account all the matters contained within the sentence submissions of the learned prosecutor.  You have undergone gaol so far in protection and you are obviously using your time well there, and I am told by your counsel that you have been working as a carer in the Erskine unit at Ravenhall which is for people who are mentally disturbed.

32At least you are starting to show some sort of recognition and attempt to rehabilitate and make some sort of amends, if that is ever possible, for what has occurred.  In any event on those two charges you are sentenced to an aggregate period of imprisonment of nine months, but if you agree upon your release from prison you will be then placed upon a four year community corrections order.  That community corrections order will be with conviction, which is a form of punishment in itself.

33The conditions on that will be:  (1), of supervision; and (2), that you are to undergo programs to reduce reoffending which will incorporate - if you remain in the country and are not deported - which will incorporate the sex offenders program, which as I am well aware takes up a lot of hours and a lot of time and in one sense is a deprivation of liberty in itself.  I direct that 155 days be reckoned as having been served under this sentence.

34And pursuant to section 6AAA of the Sentencing Act say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of 18 months with a minimum term of nine.

35COUNSEL:  As Your Honour pleases.

36HIS HONOUR:  All right.  Yes.  Thank you.

37MS THORP:  Your Honour, there was one matter.

38MR McLOUGHLIN:  He needs to sign the (indistinct).

39HIS HONOUR:  Yes.

40MS THORP:  Your Honour, when you were talking about the offending, you've said that he asked the complainant to allow him to contact her via Facebook, it was actually FaceTime, which is a face to face ‑ ‑ ‑

41HIS HONOUR:  That's what I meant, yes, sorry.

42MS THORP:  Yes.

43HIS HONOUR:  Yes, I'll amend that when it comes back.

44MS THORP:  Thank you, Your Honour.

45HIS HONOUR:  My lack of knowledge.

46MS THORP:  I understand, Your Honour.

47HIS HONOUR:  All right.  That community corrections order will commence upon release.  I must advise you, Mr Foster, that should you go onto that order and breach it, and breach it by offending of this nature, I think you've got a pretty good idea how long the gaol sentence will be.  All right.  Yes, thank you, take him down.  Thanks, Mr McLouhglin.  Thanks, Ms Thorp.

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