Director of Public Prosecutions v Frederickson (a pseudonym)

[2016] VCC 203

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALAN JAMES FREDERICKSON[1]

[1] A pseudonym

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2016
DATE OF SENTENCE:	7 March 2016
CASE MAY BE CITED AS:	DPP v Frederickson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 203

REASONS FOR SENTENCE
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Subject:
Catchwords: Pleaded guilty to one charge of sexual penetration, and three charges of committing indecent act of child under 16 - previously convicted for assaults against children – had paedophilic disorder and was aware of it at time of offences – still undergoing sentence for other offences – Sentenced as a serious sexual offender
Legislation Cited: s.6E of the Sentencing Act; Sex Offender Registration Act
Sentence: Total effective sentence of 5 years 2 months imprisonment, with a non-parole period of 3 years 8 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Di Pietrantonio	OPP
For the Offender	Mr. A Pyne for plea Ms Z. Broughton for sentence	VLA

HER HONOUR: 

1Alan Frederickson[2], you have pleaded guilty to one charge of sexual penetration of a child under 16, and three charges of committing an indecent act with a child under 16. The child involved was aged 12 years at the time of the offending committed against him, therefore all of the offences have a maximum sentence of ten years’ imprisonment.

[2] A pseudonym

2I sentence you on the basis of the agreed summary[3].  In brief, between June and November 2010, on two consecutive days, you sexually abused your 12 year old nephew, Peter Agoda[4], son of your brother. His parents had invited you to stay with them while you recuperated from a broken leg.

[3] Exhibit A

[4] A pseudonym

3On the first day, Peter was seated with you on the couch covered by a doona; the rest of the family were at home. You massaged Peter’s shoulders and back under his top, and then rubbed his nipples for about 20 seconds until Peter felt awkward and left (Charge 1 – indecent act).

4The next day, only you, Peter and his mother were at home, and she was ill in bed in her room. Peter was again seated on the couch with you and after massaging him, you masturbated him until he ejaculated (Charge 2 – indecent act).

5You then told him to check whether his mother was asleep. He checked, she was, and he returned to you in the lounge room. You instructed him to stand in front of you, pulled down his pants and placed his penis in your mouth, performing oral sex for about 5 minutes (Charge 3 – sexual penetration). 

6You then made Peter rub your erect penis on the outside of your clothing for the same amount of time (Charge 4 – indecent act).

7The next day, Peter bravely spoke up and told you he did not want to do it anymore.  Given your paedophilic disorder, it is to your credit that you did not persist, and you never sexually abused Peter again.

8However, while there are some features missing that would make your crimes more serious, such as there being no gratuitous violence or threats, and the short period over which the offences occurred, the behaviour you did engage in is still serious.

9Your crimes are made more serious by the following facts:

·    you grossly breached the trust that Peter’s family placed in you, repaying their kindness by abusing their son;

·    you grossly breached the trust that Peter had in you as his uncle;

·    you abused him in his own home, a place where he was entitled to feel safe;

·    you abused him in a brazen way on the first occasion when others were in the home;

·    you ensured you would not be disturbed the next day by making Peter check that his mother was asleep before committing the most serious of your abuses – the penetration; and

·    you were almost three times his age, as you were 35 years old and he was aged 12.

10Further, you were well aware that what you were doing was wrong.  In 1995 you were first convicted of committing sexual offences against children, receiving for a number of indecent assault and indecent act charges, an intensive correction order and a community based order, which you breached. In 2001 you were sentenced by another judge of this court to eight years’ imprisonment with a minimum of four years for sexual offences against another young nephew, your sister’s child[5].  He was aged six and a half to seven and a half at the time. You were convicted of maintaining a sexual relationship with him, as the offence was then called, as well as specific offences of sexual penetration and indecent act committed against him.  There was also a charge of possession of child pornography relating to material involving boys aged 10 to 16 years.

[5] Sentence of Her Honour Judge Rizkalla dated 24 July 2001 – part of Exhibit D.

11At the time of that sentence being passed, you were considered by the sentencing judge to be relieved at being caught, and willing to have treatment for your uncontrolled compulsion to undertake such behaviour. You later undertook the Sex Offender’s Program while in custody, and were under the direction of Forensicare on your release, receiving anti-androgen medication to lower your sexual impulses.

12So you were well aware of your paedophilic disorder at the time you committed the offences against Peter. Your anti-androgen medication was stopped in March 2010 by your general practitioner. You had been discharged from Forensicare to his care, and he formed the view that the side effects were sufficiently serious to take you off the medication, at least temporarily.  Your counsel told me that you were concerned that this would increase your risk of re-offending and that as at the date you re-offended, you had contacted Forensicare about re-attending there and had apparently just received a letter from that organisation.

13Not only did you re-offend by committing sexual offences against Peter sometime between June and November in 2010, it turns out, that from at least March, exactly the time when you stopped the medication, you committed offences of possession of child pornography and using the internet to access and transmit such material, and to procure and groom children under 16 for sexual activity. On 29 July 2011, you were sentenced by another judge of this court on these offences to an overall sentence of 7 years 8 months with a minimum term of 4 years 10 months[6].  You are still undergoing that sentence, but completed the non-parole period at the end of September 2015. Parole was denied because the offences I am dealing with today were pending by then.

[6] Sentence of His Honour Judge Gullaci dated 29 November 2011 – part of Exhibit D.

14I received statements from Peter and his mother outlining for me the impact your crimes have had on them. I did not need those statements to tell me what is obvious – they have suffered considerably as a result of your criminal acts.  However, in their own words, they have set out the immense impact your betrayal of their trust has had. It seems from what they say that Peter found out about your criminal history, and he blamed his mother for not protecting him.  She naturally, also blames herself.  Their relationship has suffered great damage, and Peter is finding it very difficult to cope.

15As I said in court to Ms Agoda, the only person who is to blame, the only person who is guilty, is you.  Peter demonstrated great courage in speaking up and stopping any further abuse. Of course that was not his responsibility; you as the adult had the responsibility not to abuse him. But the fact that Peter did speak up, and the fact that the abuse did stop, is a sign of his bravery and resilience.  I express the hope that with this case now completed, Peter and his mother will be able to move forward in their recovery. I wish them both well.

16Balanced against the seriousness of your offences and your significant criminal history, there are some matters that I must take into account in your favour. 

17The first of these is the fact that you have pleaded guilty.  You are entitled to have that fact taken into account in your favour, and I do so. Because of your plea, the community has been spared the time and cost of a trial and Peter and his mother have been spared the ordeal of giving evidence in your trial.  I can tell you that the sentence I intend to impose is less than would have been imposed had you been found guilty after a trial.

18I also take into account in your favour that you stated your intention to plead guilty to these charges at an early time in the criminal process at a committal mention. This shows a willingness to facilitate the course of justice.

19However, I treat your plea of guilty as only a small sign of remorse, because you told Dr Gee, a forensic psychologist who provided a report to the court[7], that you were only guilty of “sitting with [Peter] on the couch…similar MO to last time…but think he’s been coached…” and said you believed you did not commit the offence, but thought it was plausible.

[7] Exhibit 2

20Next, I take into account your personal circumstances, which were outlined by your counsel, and details of which are also found in the report of Dr Gee.  You are now aged 42 years. While your early life was relatively stable, growing up with both parents, and a brother and sister, later your older brother sexually abused you and, apparently also abused your sister. When you later reported to a teacher what your brother had done to you, the teacher apparently sexually abused you too.  I accept that this abuse has had a major impact on you, although it must be said that not every person who is sexually abused as a child becomes a sexual offender. The family became dysfunctional and severely affected as can be seen by the facts that the sister who was abused by your brother is the mother of the first nephew you abused; and your brother has apparently been dealt with by a court for sexually abusing his daughter, the sister of Peter, the second nephew you abused.

21Probably because of your own abuse, you had difficulty understanding what your sexual preference was, and at school you were bullied because of your homosexuality. You left school at Year 10 and began but did not finish an apprenticeship as a printer. You did however, successfully complete an apprenticeship as a chef, working for a number of years at the Hyatt Hotel, and as head chef at a winery in Western Australia.  You have also worked as a truck driver. You managed to attain this work history, even though you have also had mental health problems, including making a number of suicide attempts and having psychiatric admissions.

22Your work history was also interrupted by your offending which began when you were aged 19. Apart from sexual offences, you have been dealt with for dishonesty offences. In total, you have been dealt with for 39 criminal offences between 1993 and 2006, which are prior convictions for this sentence to be imposed today, plus you were sentenced in 2011 for the 7 sexual offences I earlier referred to. It is conceded on your behalf that you must receive a prison sentence today. It will be your fourth term of imprisonment actually served in 15 years.

23In 2009 when you were paroled from the sentence received in 2001, you lived first with your mother, with whom you are still close.  She became ill and moved into a nursing home.  You began working as a volunteer at the home, including as a bus driver for outings, but you did not report this activity in keeping with your obligations as a registered sex offender, and this led to the four charges dealt with in 2011 at the magistrates’ court under the Sex Offenders’ Registration Act.

24You have been diagnosed with bipolar disorder and post-traumatic stress disorder, the latter arising from your experience as a victim of sexual abuse and, while in custody, you are prescribed Effexor. You have of course also been diagnosed with a paedophilic disorder, which in the past has been managed by anti-androgen medication as I mentioned earlier.  Dr Gee is of the view that you have only partial understanding of the risk you pose to young boys, but despite that, you are accepting of the need for further intervention, including medication, to manage that risk. Dr Gee, using tests available to him as a psychologist, assessed you as being of moderate-high level of risk. My own assessment, as the sentencing judge, is that you are at least at that level of risk, if not more, and your prospects for rehabilitation are very guarded, for the reason that past treatment has had limited effect in the long term.

25Given your background and history, it is no surprise that Dr Gee is of the view that your functioning is impaired by a number of complex conditions which affect your ability to function effectively in society and create positive relationships with people.  Your counsel submitted that these difficulties mean that imprisonment would weigh more heavily on you than a person in normal health. I have had some trouble accepting that proposition, given that you told Dr Gee that you would deal with another sentence of imprisonment by ‘rolling with the punches’, and ‘just settling in’. In the end, however, I have decided that I will give this factor some weight in your favour in deciding the length of the sentence to be imposed.

26You are to be sentenced for all of these offences as a serious sexual offender, having been convicted of other relevant sexual offences in the past. As a result, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed today.  In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offences.  I do not intend to do that, because the prosecution have not asked for it, and because the offences occurred over a very brief period.

27Because of your status as a serious sex offender, it is also necessary for the sentences I impose today to be cumulative one on the other, and on the sentence you are undergoing, unless I order otherwise. I do propose to order some concurrency between the sentences committed against Peter, because they occurred on two consecutive days and the last three offences occurred during the one occasion, and the prosecution concedes this to be appropriate.  Taking into account the matters in your favour, I have decided to also order some concurrency of today’s sentence with the sentence you are undergoing, because of the need for the sentences combined to reflect the totality of your offending.

28However, I have kept in mind that the scope for applying the principle of totality is limited by the law relating to cumulation of sentences imposed on serious sex offenders[8]. I have still considered the need for today’s sentence to reflect to an extent the totality of your offending between March and December 2010: that is, two charges of using a carriage service to access child pornography, two charges of using a carriage service to transmit child pornography, a charge of each of using a carriage service to procure and to groom a child, possession of child pornography, a charge of sexual penetration against a 12 year old boy, and three charges of indecent act against him – a total of 11 sex offences involving children committed by you in 2010.

[8]HMcL  v R (2000) 174 ALR 1 at [76]

29Further, while no-one expects an offender to walk into a police station and confess to a serious crime, you had an opportunity to bring this matter to the attention of the authorities in December 2010, shortly after committing the offences against Peter, when you were interviewed about the offences involving the internet. If you had done so, you had the opportunity to receive the full benefit of concurrency between the sets of offences.

30I have also taken into account the importance of deterrence in this case. That means that by my sentence of you, I must try to deter other men from committing sex offences against children, which the community rightly expects a court to sternly denounce.  Further, my sentence must seek to deter you from re-offending because of the risk you still pose.

31Stand up please, Mr Frederickson.

32You are convicted and sentenced as follows.

33Charge 1 – Indecent act – 10 months’ imprisonment;

34Charge 2 – Indecent act – 2 years 6 months’ imprisonment;

35Charge 3 – Sexual penetration – 5 years’ imprisonment;

36Charge 4 – Indecent act – 18 months’ imprisonment.

37The sentence on Charge 3 is the base sentence. In the terms required by s.6E of the Sentencing Act, I direct that eight months of the sentence imposed on Charge 1, and the whole of the sentences imposed on charges 2 and 4, be served concurrently with the sentence imposed on Charge 3. That makes an effective sentence on this indictment of five years two months’ imprisonment.

38I direct that it be noted in the records of the court that you have been sentenced on all charges as a serious sex offender.

39If you had not pleaded guilty, but had been found guilty of these offences after a trial, the sentence I would have imposed is eight years’ six months’ imprisonment.

40I direct that two years four months of the sentence imposed today be served cumulatively on the sentence imposed on 29 July 2011 by His Honour Judge Gullaci. Adding those together that makes a total global effective sentence of ten years’ imprisonment.

41I propose to set a non-parole period.  Having regard to the factors I have referred to in these remarks, to the global total effective sentence I have just announced, and allowing for the period you have already served on the sentence imposed on 29 July 2011, including the whole of the non-parole period, I fix a non-parole period in respect of today’s sentences of three years’ eight months’ imprisonment.  That non-parole period starts today.

42For completeness, I confirm that the declaration as to pre-sentence detention made by His Honour Judge Gullaci, continues to apply.

43Just take a seat, Mr Frederickson.  Is the sentence clear, Ms Broughton?

44MS BROUGHTON:  Yes, Your Honour.

45HER HONOUR:  Ms Di Pietrantonio?

46MS DI PIETRANTONIO:  Yes, Your Honour.

47HER HONOUR:  And there are no further orders required?

48MS DI PIETRANTONIO:  No, Your Honour.

49HER HONOUR:  Thank you.  Yes, Mr Frederickson may be removed.

50(Offender removed.)

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