Director of Public Prosecutions v Foster

[2015] VCC 1375

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTIN FOSTER (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	30 September 2015
CASE MAY BE CITED AS:	DPP v Foster
MEDIUM NEUTRAL CITATION:	[2015] VCC 1375

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland
For the Accused	Ms S. McCrickard

HER HONOUR:

1Martin Foster[1], you have pleaded guilty before me to one charge of sexual penetration of a child under 16.  The facts underlying this offending are as follows.  The charge is essentially a representative charge which relates to a relationship, a sexual relationship you formed with a 15 year old girl and with whom you had a sexual relationship over about a two week period between August and October 2014.  You and she met essentially via social media, that is, Facebook, which proceeded to texting which proceeded to arrangements to meet. 

[1] A pseudonym

2You at the time were living in a bungalow at the back of your parents' house.  In the evenings she would sneak out of her parents' house, you would pick her up, you would drive around and then return to your bungalow where the sexual activity took place.  Ultimately it appears the complainant made some mention of the relationship she was having with you (you were 21 years old at the time as well) to a counsellor who according to the mandatory reporting conditions relating to sexual offending then reported the matter.  Police became involved. 

3You were interviewed by police on 6 November 2014 where you made full and frank admissions.  The complainant estimated that in this fortnightly period, you and she had sexual intercourse on about every second night which would amount to about seven occasions.  This was accompanied by (it is brought by the prosecution in the form of uncharged acts) touching her breasts, licking her vagina and so forth.  You estimated to police that sexual intercourse took place only a few times.  It does not seem that your estimation as to the frequency of sexual contact and hers are that far apart. 

4You entered a plea in this matter at committal mention.  It was an inevitable course, given the way you had conducted your record of interview, but it does mean that the complainant at no stage had been subjected to the trauma of cross-examination or giving evidence in court and you have saved the community the time and expense of a trial. 

5Further, in cases of sexual offending, confessional records of interview and pleas of guilty are to be particularly rewarded, the unfortunate experience of this court being that most persons who offend against children are extremely reluctant to admit what they have done and will fight conviction for such offending every step of the way, causing enormous personal trauma to the victim and costing the community a great deal of time and money.  I accept that your plea of guilty is one which carries with it a degree of remorse on your part and in my view you are entitled to a significant discount in the sentence I must impose upon you because of the manner in which you conducted your record of interview and then entered a plea of guilty at an early stage. No Victim Impact Statement was tendered in this case.

6You are now 22 years of age and unemployed.  You grew up in an entirely law abiding family.  You have a younger brother and a younger sister.  Your parents have always been employed.  I note from the plea material that your father at one stage went through a great deal of difficulty when he underwent an accident which put the family's plans to move to Western Australia on hold.  They already having undergone an amount of trauma prior to that after your father was retrenched from work and then had to take a job which meant he earned half his previous wage.  Your mother, it appears, has always had the occupation of being at home with the children.  No member apart from yourself has ever appeared before a court of law charged with a criminal offence. 

7You have a reasonable work history, you have been employed in various capacities since leaving school, not unusually changing from one area of work to another area of work in order to find out what best suited you.  You have worked as an apprentice baker, as a training baker, as a trainee in construction roof plumbing and as a trainee in construction building which was your last employment and where it appears you were exposed to workplace bullying.  This is a very unpleasant thing for a young man still finding his way in the world to undergo.

8The only thing of note, (it appears not to be particularly noteworthy) is that you were diagnosed with ADHD when you were in primary school and medicated for five years. 

9A report from psychologist David Ball, dated 12 June 2015 was tendered on the plea.  It was a helpful report in that it found that you had no psychological problems, do not present as antisocial, do not present as having mental illnesses such as psychotic symptoms or delusions.  You do not appear to be in the grip of substance abuse, either with alcohol or drugs.  Essentially this is quite a simple case.  That is, you are a young man who at the age of 21 had sex with an underage girl.  It should not have happened. 

10You were described by Mr Ball as presenting as rather an immature young man and that probably is the case.  Certainly after hearing the plea material and having a conversation with you in court, when we put the scenario up of your sister, aged 15, being in a similar relationship with a 21 year old and how you would react to it, it certainly seemed to strike you that that was extremely inappropriate and not something you would particularly approve of, were it enacted out within your own family.

11It was Mr Ball's view that you are most unlikely to reoffend and given your past history, your subsequent history, your family history, I am inclined to agree with him.  It is certainly my view that the sentencing principles applying to specific deterrence and protection of the community have no application in your case. 

12It was submitted that I should deal with you by way of a community corrections order.  This would seem appropriate in the circumstances and I note that this was not a course which was resiled from by the prosecution who also agreed it was appropriate in your case.

13Now, I do not propose to bring down a particularly complex community corrections order.  In fact, it is going to be a very simple one.  The only special condition will be that you undertake unpaid community work.  Your counsel informed me that once word of this offending got out and the fact that you were charged, you were subjected to a fair degree, as was your family, of nasty gossip and innuendo and this has also had the effect on you of making you reluctant to seek work and you are, I note, currently unemployed. 

14It was also indicated to the court that the parents of the victim do not want to see you gaoled but nevertheless I would imagine they are still unhappy and angry with your offending and the sort of community disapproval that you and unfortunately your family have undergone in the intervening period since you were charged will probably continue for some time and one immediate consequence will be that you may have to look further afield for employment opportunities.

15In any event, it is my view that you clearly do not require treatment for psychological issues or substance abuse and hence, as I have said, I propose to simply place you on an order which contains work hours.  Now, I can only place you on such an order with your consent so I need to explain what the conditions of the order are.  Could you stand up, please, sir?

16Now, a community corrections order is an order whereby you promise that during the condition of the - during the life of the order you will not offend.  If you do commit an offence whilst you are on this order, you will be brought back in front of me on a breach.  You can also be breached if you do not abide by the conditions attached to the order, is that clear?

17ACCUSED:  Yes, Your Honour.

18HER HONOUR:  All right.  I propose making a community corrections order for a period of 12 months.  Now, there are conditions that are attached to that, the first is whilst you were on the order as I have just said.  You must not commit any offence punishable by imprisonment.  Whilst you are on the order you may not leave Victoria without the permission of the community corrections office.  That does not mean you cannot go but you have to let the office know first and get their permission.  Third, you must report to the community corrections office within two working days of receiving this order which is by next Monday because Friday is a public holiday. 

19Whilst you are on the order you must report to and receive visits from the community corrections office.  You must inform the community corrections office of any change of address or employment within 48 hours of that change and you must obey all lawful directions of the community corrections office.

20I am going to add a special condition that you undertake 200 hours of unpaid community work.  Are you prepared to enter the order?

21ACCUSED:  Yes, Your Honour.

22HER HONOUR:  Yes.  Have a seat, sir, and we will just prepare the documentation.  Yes, you must be placed on the Sex Offenders Register for 15 years.  There is nothing I can do about that.  That is mandatory and your counsel will explain to you your obligations on the register.  Thank you.  As I am placing Mr Foster on an unpaid community - sorry, on a community corrections order, I am not required to make a declaration pursuant to s.6AAA.

23MR BUCKLAND:  That's fine.

24HER HONOUR:  I was just stating that because I have placed Mr Foster on a community corrections order, I do not have to make a declaration pursuant to s.6AAA.

25MR BUCKLAND:  No, I understand that, Your Honour.  The other - the thing I was just clarifying, you might have said something earlier but I didn't hear it in relation to 464ZF order, whether you're going to make it or not.

26HER HONOUR:  Yes, look, I am - in my view this is not one of those cases where an intimate sample should be provided.  It is - he has not offended before.  It is highly unlikely he will in the future and in the circumstances I am not prepared to make the order. 

27MR BUCKLAND:  Your Honour pleases.

28HER HONOUR:  It has broken down.

29ASSOCIATE:  Yes.

30HER HONOUR:  It has?

31ASSOCIATE:  Yes.

32HER HONOUR:  I will stand down.  We are going to have to print it out somewhere else I am afraid.  Thank you.  Do you need to go somewhere else, (indistinct), at all?

33ASSOCIATE:  Yes.

34HER HONOUR:  Yes.  All right.  Thank you. 

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