Director of Public Prosecutions v Fricker

[2017] VCC 1327

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 17-00173

DIRECTOR OF PUBLIC PROSECUTIONS

v

EDWARD FRICKER

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	14 September 2017
CASE MAY BE CITED AS:	DPP v Fricker
MEDIUM NEUTRAL CITATION:	[2017] VCC 1327

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Mr C. Mylonas

Pages 1 - 6

 

 

HER HONOUR: 

1Edward George Fricker, you have pleaded guilty before me to one charge of indecent assault and one charge of sexual assault. The second charge, the charge of sexual assault is essentially in legal terms the same as an indecent assault but has been brought about as a descriptor by changes to the Crimes Act in 2015. 

2The facts underlying your offending are as follows:  It involved a young woman, Katherine Burton,[1] who was then aged in her late 20s who met you at a local hotel and accompanied you back to your home after you invited her there for a coffee.

[1] Katherine Burton is a pseudonym.

3Another person was present at the house where you offered to give the complainant a massage.  She lay down on the bed wearing her bra and knickers.  You began to massage her then lifted her pelvic area and placed your hands under her knickers rubbing the outside of her vagina on the skin.  These actions underlie Charge 1 on the indictment.

4The complainant pulled away and told you she did not like you doing that, dressed and left the house about ten minutes later.  It was made very clear to you both directly by the complainant and via a friend that she was not happy with what you had done but eventually, however, she resumed her friendship with you.  That friendship continued on between September 2014, when the first incident occurred, until 26 November 2015 when the second incident occurred.

5In that time, you and she had regular contact.  It appeared on the plea that you have a fairly sexual, a fairly liberal sexual outlook and the complainant was invited to participate in certain activities and she, to some extent, engaged in them by way of wearing corsets, a corset that you provided, wearing her school uniform but not engaging in any frankly physical sexual activity with you.  You gave her massages on a large number of occasions.

6On 26 November you rang the complainant and asked her to come to your premises where she lay face down and you began giving her a full body massage using baby oil.

7You asked her to turn over and you put baby oil at the top of her knickers and started rubbing her there then moved them to one side and started rubbing the sides of the complainant's vagina on her skin.

8The complainant lay there and said nothing.  You wiped her around the vagina with a tea towel and she got dressed and had a cigarette.  She told you she did not like what you had done and did not want to be touched around that area and that you in fact had been told not to touch her there.  She then left the shop. 

9The complainant drove to her parents place where she cried but did not tell her mother about what had happened.  Later in the evening she went to the home of a friend, relayed what had occurred and that friend urged her to attend upon police which she did that evening. 

10Ultimately, you were arrested on 23 December 2015 and in an interview with police agreed that you may have touched the complainant on the vagina over her underwear when you were giving her a rub down on the first occasion and that you were aware after that first massage that the complainant had made it clear that she did not want you to touch her vagina or breasts.

11The maximum penalty for indecent assault is ten years' imprisonment and the maximum penalty for sexual assault is ten years' imprisonment.

12This matter was finally settled shortly before a trial in this matter was due to take place.  I now turn to your personal circumstances.

13You are 56 years of age and have no prior convictions.  You were born in New Zealand, the youngest of 13 children, completed the equivalent of Year 11 there and undertook a trade certificate as a chef in which occupation you worked until about the age of 22.

14You then, in 1982 began working in the car industry where you remained employed on a consistent basis until 2014 undertaking a large number of roles including salesmen, valuer, buyer, had a negotiating role and a new car manager. 

15In 2002 you were sent by your then employer to Sydney to work there and ultimately you relocated to Melbourne in 2004 continuing your employment in the car industry.  You have permanent residency in Australia.  Along the way you have been married twice and have three daughters aged 21, 19 and 13.

16You commenced a relationship with a woman from this area in 2012 and in 2014 relocated to Portland where you entered the hospitality industry.  You ran a café in Portland, you also obtained the tender to run the Smelter Café and you also were involved in running a business around a coffee truck.

17This offending has had catastrophic effects upon you in terms of your occupation.  News of your offending got out in the town, patronage of your café declined to the extent that you were forced to close it in August of last year. 

18The Smelter closed temporarily putting an end to the business there and because of particular difficulties that you were undergoing you decided not to seek a further contract to run that. 

19For the first time in your life you have found yourself on Centrelink payments which however you are only entitled to receive for a six month period because of your residency status.  You are apparently confident however, that you will be able to obtain work in the future.

20It was submitted that I should not deal with you by way of a term of imprisonment to be immediately served.  It was submitted that this offending occurred in the context of a wider relationship with sexual overtones involving the complainant.  It was conceded that the complainant had made her position vis-à-vis that relationship extremely clear but that in the course of it, you had twice crossed the line. 

21The fact that you have reached the age you have as a gainfully employed person who has never been convicted of any criminal offence was also presented to me as a powerful reason for dealing with you in this way.  I had you assessed for suitability for placement on a community corrections order and it was the view of the assessor that you were a low risk of re-offending.

22I note that the prosecution has conceded that dealing with you by way of a community corrections order is within the sentencing range as a response to the offending to which you have pleaded guilty and I do propose placing you on that order.  I do so because you have entered a plea of guilty because of your prior and subsequent crime free and productive history and because of the nature, to some extent, of the relationship between you and the complainant notwithstanding that you transgressed on two occasions the understanding between she and you as to the confines of that relationship.

23In sentencing you I also take into account the victim impact statement which reveals a deep level of distress suffered by the complainant an amount of fear, depression and anxiety and sleeplessness.  These are entirely consistent reactions by the complainant as to offending of this kind.

24Nevertheless, as I have stated, it is my view that a term of imprisonment to be immediately served is not a sentence which is the only appropriate sentence in relation to this offending as required by s.5 of the Sentencing Act for the reasons I have outlined and I do propose to place you on a community corrections order.

25Could you stand up please, sir? On each charge you are to be placed upon a community corrections order for a period of 16 months.  Before I can place you on this order I must receive your consent and I must outline to you the conditions relating to a community corrections order.  They are that you must report to a community corrections office within two working days of the making of this order.  That is by Monday of next week.  Whilst on the order you must not commit any offence punishable by imprisonment.  You may not leave Victoria without the permission of the community corrections office.  You must report any change of address or employment to the community corrections office within 48 hours of the making of that order.  You must report to and receive visits from the community corrections office.  You must not attend upon the community corrections office under the influence of drugs or alcohol and I note that use of or abuse of alcohol or illicit drugs is not a feature in your life and not a matter to which the court need have regard.  Finally, you must obey all the lawful directions of the community corrections office. 

26As a part of these special conditions, I am going to order that you undertake 200 hours of unpaid community work.  You are to attend for programs designed to reduce re-offending and you will be placed on supervision.  Are you prepared to enter the order on those terms? 

27OFFENDER:  Yes, Your Honour.

28HER HONOUR:  Thank you.  Have a seat sir, we will just prepare the paperwork.  Is there anything else I need to attend to?

29MR O'DOHERTY:  We had asked for a forensic sample order, Your Honour.  We had asked for it and does Your Honour, I did not hear you announce that community corrections order was with conviction.

30HER HONOUR:  It is with conviction.

31MR O'DOHERTY:  Yes, thank you.

32HER HONOUR:  In sentencing you I also take into account that community corrections order is considered to be an order which contains punitive aspects and indeed it is my view that the imposition of a community corrections order carrying with it, as it will, a conviction will be a heavy burden for you to bear.  I have the power to place you on the sex offenders register.  It is a discretionary power, it is not urged upon me by the prosecution that I do place you on the sex offender register. 

33It is my view this offending took place in confined circumstances unlikely to be replicated.  I accept the assessment by the community corrections officer that you present a low risk of re-offending and in those circumstances do not propose to place you on the order.  Thank you.  Yes, I will get you to sign that.  Do we need to - I am not inclined, I do not think it is one of those cases where it would have been assistance in the resolution of this case or is - or that he presents as somebody who is likely to come before the court again.  Indeed, it is my view that it is most unlikely Mr Fricker would ever appear before a court again.  Thank you.

34Thank you very much.  We will adjourn until 9.30 tomorrow morning. 

‑ ‑ ‑