Director of Public Prosecutions v Fyfe (a pseudonym)

[2020] VCC 2107

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICAH FYFE (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2020
DATE OF SENTENCE:	8 December 2020
CASE MAY BE CITED AS:	DPP v Fyfe (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 2107

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – general deterrence – specific deterrence – sexual penetration of a child under the age of 16 – plea of guilty

Legislation Cited:                Crimes Act 1958; Sentencing Act 1991; Sex Offender Registration Act 2004

Sentence:Five years and four months imprisonment with a non-parole period of three years and eight months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. B Sonnet	Office of Public Prosecutions
For the Accused	Mr P. Smallwood	McFarlane Criminal Lawyers

HIS HONOUR:

1Micah Fyfe[1], you have pleaded guilty to one charge of sexual penetration of a child under the age of 16, the maximum penalty for which is a term of imprisonment of 15 years.  The offence is also subject to the standard sentencing regime.[2]  The standard sentence for the offence of sexual penetration of a child under the age of 16 is a term of imprisonment of six years.

[1] A pseudonym.

[2]Sentence Act 1991 (Vic) ss 5A and 5B.

2Tendered on the plea as Exhibit 1 was an Agreed Summary of Prosecution Opening, dated 2 March 2020, which set out the detail of your offending.

Circumstances of Offending

3In brief, the circumstances of your offending were as follows.

4You had been resident in Bali since 2014.  In mid-2019, you came back to Australia to renew your passport and were living at your parents’ home.  Your parents had, for many years, opened their house to children less fortunate than you.  They offered the refuge of a stable and loving home environment to children in need.  Some children stayed only a few weeks in temporary respite care.  Others had longer placements, while yet others were subject to long-term fostering and became part of your blended family.

5Your victim in this matter, Elijah Cross[3], was born in May 2005 and was aged 14 at the time of your offending against him.  He had been a student at the local school at which your mother taught.  You first met him through your work as a teacher’s aid at the same school.  Elijah was then in Grade 2, aged eight or nine.  He had been placed by the Department of Health and Human Services into the temporary care of your parents.  Notwithstanding this placement, your parents went on holiday to Bali, leaving Elijah in your care.  It is not clear to me whether this was with the express approval and knowledge of the relevant authority, or was rather merely an informal arrangement between your parents and yourself.  What is clear, however, is that at the material time you had effectively assumed care and responsibility for Elijah.

[3] A pseudonym.

6You and Elijah shared a bedroom.  Elijah would perform various household chores for which he would be paid by you the sum of five dollars a week.  On 21 September 2019, at around 9.30 pm, you and Elijah were both in the bedroom playing on an iPad.  You were seated next to each other on Elijah’s bed.  You then removed all of your victim’s clothes and your own, telling Elijah that he had a “big dick”, you then masturbated him with your hand for approximately five minutes.  This is an uncharged act providing context for the offence to which you have pleaded guilty. I make clear that it does not in any way aggravate that offence.

7As Elijah was lying face down on the bed, you spread his legs apart and, using your saliva as lubrication, penetrated his anus with your penis for approximately 10 minutes (Charge 1).  You did not use a condom.  You withdrew and ejaculated on the bedding.  Elijah describes the act as being painful, the pain lasting for the following two days.  He noticed some semen on his blanket and asked you what that was.  You told him it was sweat, but took the blanket and washed it in the laundry.  You gave Elijah a soft drink and told him never to tell anyone about what had occurred.  Shortly thereafter, you gave him $50.  Not long after the event, Elijah wrote in his diary that you would pay for what you had done and that he would complain to the police.

8Following his disclosure to authorities, you were arrested on 7 October 2019 and you participated in a record of interview.  In that record of interview, you admitted the act of sexual penetration.  You stated that you thought Elijah was 15 and a half (which you had believed to be the age of consent) and not 14, and that you did not have any conversation with him about his age until after the act had finished.  Further, you believed that alcohol and loneliness played some part in your decision-making, and you accepted your knowledge of Elijah’s learning disability and that he was, at the relevant time, in your care.  You repeatedly stated that you had made a big mistake.

9Elijah provided a short Victim Impact Statement (Exhibit 2), in which he wrote:

“It makes me feel sad, it did make me angry and sad, sometimes I think about what you did to me.  I can’t really sleep at night, I have nightmares about what happened.  When it happened, I had to move to a new place, I don’t like moving.  I can’t trust people now, I find it hard to trust people.  I am trying to enjoy my life now, but trying to move on is hard.”

10Your mother has also written of how she and your father feel publicly shamed in the local community, because of your actions.  Your mother has lost friendships and, with her husband, has moved to another town to avoid the opprobrium of their community, of which they were once respected members (Exhibit 8).

11While such matters cannot be permitted to overwhelm the sentencing exercise, there can be no doubt of the devastating and traumatic impact of your offending upon both your victim and upon those who love you still.

Personal Circumstances

12As to your personal circumstances, you were born in September 1989 and were 30 years of age at the time of this offending.  You are now 31 years old.  You have no relevant priors.  You are one of six siblings.  Your parents fostered multiple children during your upbringing. Apart from minor surgical intervention, your childhood was unremarkable.  You identified as gay during early secondary school and were, in consequence, bullied by other students, a fact with which you struggled.  You left school after Year 10 and commenced an apprenticeship in building and construction, which apprenticeship you did not complete.  You left home when 18 years old.  You have had an inconsistent work history, in part, due to your abuse of alcohol.  You recognise, your past unhealthy alcohol dependence and, I am told, now only consume alcohol on rare occasions.

13In 2014, you moved to Bali, making a living, as I understand it, by making small loans.  You have had four significant intimate relationships with people of both genders and are currently in an intimate relationship.  In Bali, you have domestic staff with whom you are particularly close.  Whilst on remand, you have completed a number of courses, a bundle of certificates for which were tendered on your plea as Exhibit 9 GWR.

14Tendered on the plea as Exhibit 5 GWR, was a report from Mr David Ball, forensic psychologist, dated 18 February 2020.  Mr Ball notes that you engaged in a clinical interview and provided an “adequate, if rambling, personal history and account of himself.  He reported being prescribed an unknown antidepressant and mood stabiliser.”  Mr Ball found no evidence of psychotic ideation, hallucinations or delusions and no evidence of thought disorder or disturbance. Mr Ball estimated your IQ to fall within the normal range.

15You reported to Mr Ball past diagnoses of Attention Deficit Disorder (ADD) and Attention Deficit Hyperactivity Disorder (ADHD) and that you had struggled in the past with undiagnosed Bipolar affective disorder.  Medical records (Exhibit 6 GWR) indicate past treatment for ADHD, but are silent as to any other diagnosis.

16You told Mr Ball that you considered your childhood to be a struggle, explaining that your younger brother Kyle[4] is autistic and that:

“Mum and Dad had more time for "the fosters" than us.  I think because they were more damaged, but it pushed the rest of us to the side because it was a never-ending stream of kids, we never got to the front line so to speak.”

[4] A pseudonym.

17You explained your offending to Mr Ball, in the context of alcohol abuse and “missing my friends and overseas family.”  You stated you believed your victim to be of the age of consent.  You were unable to offer meaningful insight when asked about being in a position of care, trust and supervision of your intellectually impaired victim, Elijah, at the time of the incident, stating: “I was aware he went to a special school but didn’t know the reason.”

18Significantly, Mr Ball noted:

“He expects the world to provide him with recognition and even adoration for his achievements and provide him with the material comforts that he believes he is entitled to ...... Because he feels ill at ease in social situations and lacks interest and understanding in interpersonal relationships, his relationships appear to be largely superficial and based on his self-interest.  When faced with intense problems in areas of special vulnerability, Mr [Fyfe] is most likely to experience a sense of helplessness and hopelessness.”

19Mr Ball's opinion was that you met the diagnostic criteria for Narcissistic Personality Disorder, stating:

“In my view, Mr [Fyfe] is of an age where the narcissistic features of his personality may not be moderated or remitted.  There is currently no evidence based treatment for narcissistic personality disorder.”

20Assessment tools and clinical judgment led Mr Ball to consider that you present as a low to moderate risk of reoffending.  Mr Ball stated:

“The features associated with Mr [Fyfe’s] lifestyle which increase his risk of recidivism are his narcissistic personality features, the nature of the alleged offences, history of alcohol abuse, poor compliance with medication and lack of STRmix offender treatment in the community.  Mr [Fyfe] is likely to present with a number of challenges in terms of his safe management in the community.”

21Successful sex offender treatment and alcohol relapse prevention treatment are both mandated and, it seems to me, required as a foundation for your safe management in the community.

Submissions of Counsel

22Mr Sonnet, on behalf of the Director, correctly submitted that general deterrence and denunciation were the primary sentencing purposes enlivened in your case.  There was also a clear need for specific deterrence, particularly in light of your personality features.  The offending was, he submitted, objectively serious.

23In support of this submission, he relied, amongst other things, upon the age of your victim, the disparity in age between he and yourself, your victim's particular vulnerability and the gross breach of trust that your offending constituted.  He submitted that your moral culpability remains high, even though you were disinhibited by alcohol.

24He submitted that I should find that your victim did not consent to being penetrated, thereby increasing both the gravity of the offence and your culpability for it.

25He submitted that your plea of guilty had been entered at a relatively early stage of the proceedings and accepted that your early plea of guilty, the admissions in your record of interview and the comments made to friends and family were clear evidence of your remorse.

26He further accepted that should you successfully complete relevant programs whilst in custody, there were sound prospects for your rehabilitation.

27He submitted, again correctly, that a term of imprisonment with a non-parole period was the only appropriate sentence available to the court.

28Mr Smallwood, learned counsel on your behalf, in brief, but admirably succinct submissions, accepted the gravity of your offending and that sentencing purposes of general and specific deterrence and denunciation were to the fore. He rightly described Elijah Cross’ Victim Impact Statement as moving, providing a clear and direct insight into the impact of your offending upon him.  In mitigation, he relied upon the following matters.

29Primarily your plea of guilty, which indicated at a committal mention in early 2020, brought with it more than a mere utilitarian benefit to the community of saving the time, cost and trauma of a trial.  Because of your early plea, your victim had no need to contemplate giving evidence about such traumatic and intimate matters.  This was a significant factor in mitigation which I required recognition. I agree with that submission.

30He further submitted that your plea of guilty and your admissions in the Record of Interview reflected your acceptance of responsibility, your willingness to facilitate the course of justice and your remorse.  I am prepared to accept that you now regret your actions and recognise the impact of your offending upon both your victim and your family.

31He submitted that your time on remand has been onerous.  You have not been able to receive personal visits since March 2020 and you will continue to be physically isolated from your family in custody.

32As for your prospects of rehabilitation, Mr Smallwood submitted that you have the continued support of your family, which together with the courses and programs already completed by you whilst on remand and your preparedness, as I understand it, to meaningfully engage in offence specific treatment, all bode well for your rehabilitation.

33Whilst accepting that a term of imprisonment with a non-parole period was the only appropriate disposition, Mr Smallwood reminded me of the overarching principle of parsimony, requiring a sentence no greater than is necessary to achieve the relevant sentencing purposes.

Objective Gravity

34Mr Fyfe, sexual offending against children will always be viewed as most serious offending.  There has been a growing recognition by the courts of the lasting impact that such offending has upon children and how it can often lead to lives that are not fully lived.  Children who have been sexually offended against have had their innocence and their sense of self stolen from them.  They can blame themselves for acts committed against them by adults and for which acts they are completely without blame.  They struggle to engage in healthy relationships.  They struggle to find their place in the world.  Crimes against children are crimes against our common future and our common humanity.  The courts have repeatedly stated that they will do everything within their power to protect children.

35There is, in addition, an absolute prohibition on sexual activity with a child, which is founded upon a presumption of harm.  The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.  It is indeed for this reason that a child’s consent, if present, is more accurately referred to as apparent or ostensible consent.  Even though a child may be physically able to engage in sexual activity, they are not emotionally or intellectually ready to navigate the world of sexual intimacy. 

36They can experience lasting confusion as to their sexual identity, particularly if sexually aroused during the offending against them.  Sexual activity between adults and persons under the age of 16 can have a lasting impact upon the emotional and psychological well-being of the victims of such offending.  Those who exploit their relationships with children, so as to gain sexual satisfaction, can expect to be severely punished if and when they come before the courts.

37You had first met Elijah Cross when he was in Grade 2 and you were a teacher’s aide at the school which he attended and where your mother was a teacher. Although not at that time his support worker, you must have known of his intellectual disability.  He had been placed temporarily in your parents' care by the Department of Health and Human Services.  He was a child without the benefit of the secure, stable parenting, such as you enjoyed.  The very fact of his placement in your parents’ care must have made clear to you his vulnerability.

38When your parents went on holiday, he was either expressly or impliedly left in your care.  I am satisfied, on the material before me, that you were in a quasi-parental role in relation to Elijah at the time of your offending against him. You were a 30 year old man, who had experience of intimate relationships and experience of sexual expression.  He was but a vulnerable child.  Instead of discharging your duty of care, as was expected of you by your parents, and demanded of you by all tenets of decency and social responsibility, you reduced him to the status of a sexual object, of a mere vessel.

39The precise role that loneliness and/or alcohol played in your acts cannot, and need not, be sensibly determined.  I find that your actions were driven quite simply by your desires.  You felt the need for some sexual satisfaction and your victim was present, within reach and convenient for you.  You could make him do your bidding and did so.

40You engaged in anal penetration where you were the active and he the passive participant.  You did not use a condom, thereby exposing him to the risk of a sexually transmitted infection.  The act was not fleeting in nature.  It was a painful act, the pain of which lasted for two days.  In an attempt to purchase Elijah’s silence, you paid him the sum of $50.  You knew full well that what you were doing was wrong.

41Your offending represented a gross and egregious breach of the trust placed in you, by both your victim and by your parents, whose reputation in their community has been destroyed by your actions.  I cannot find that you knew Elijah’s exact age.  I am, however, satisfied to the requisite criminal standard, that your victim did not give meaningful consent to your penetration of him, and that you knew both of his intellectual disability and that he was a child under the age of 16 at the time of your offending against him.  Your moral culpability - that is Mr Fyfe, the extent to which you can be held personally responsible for your actions and for their consequences - is high.

42Mr Fyfe, in sentencing you, I must have regard to a range of different factors. I must give effect to principles of both general and specific deterrence.  That is, I must deter others from behaving as you did, sending a message from this Court to the outside world and I must consider the need to deter you from any repeat of such behaviour.  I must express the community’s denunciation of your conduct.  I must consider the need to protect the community from you.  I should promote, if possible, your rehabilitation.  I must take into account the impact of your offending upon your victim.  I am also required by law to pass no greater a sentence than is necessary in all the circumstances of the case.  I must try to balance your personal circumstances, with the circumstances of your offending.

43Finally, in addition to the above matters that I am required to take into account under the Sentencing Act 1991 (Vic), I must also take into account that the offence of sexual penetration of a child under the age of 16, is a standard sentence offence. I must therefore have regard to the standard sentence of six years’ imprisonment and have regard to current sentencing practices under that sentencing regime.[5]  The prosecution submitted that your offending was in the mid-range of seriousness for offending of this kind.  Your counsel did not seek to persuade me otherwise.

[5]Crimes Act 1958 (Vic) s 49B(3); Sentencing Act 1991 (Vic) ss 5A and 5B.

44Clearly, with offending of this nature, denunciation, general deterrence and specific deterrence are the primary sentencing purposes.

45Mr Fyfe, in sentencing you, I have had regard to all the matters urged upon me by your counsel.  In particular, I have had regard to the value of your plea of guilty, which, entered when it was, is substantial.

46I accept that you express regret for your actions and that such expressions are genuine.

47Although your response to treatment is not yet known and, importantly, your prospects for rehabilitation must, in my view, be seen in the light of Mr Ball’s diagnosis of your narcissistic personality traits, I find there are grounds for guarded optimism, given the continued support of your family and the programs and certificates you have obtained whilst on remand.

48I further recognise that this is your first time in custody, separated as you have been from your family, and I have regard to the particularly onerous nature of incarceration in the time of COVID.

49These matters enable me to pass a sentence that is below, to a certain degree, the standard sentence for this offence.  Nonetheless, as your counsel has conceded, and as you must be only too well aware, the only appropriate sentencing disposition is a significant term of imprisonment.

Sentence

50On Charge 1, sexual penetration of a child under the age of 16 years, you are sentenced to a term of imprisonment of five years and four months.  I direct that you must serve a period of three years and eight months before you are eligible for parole.

51Pursuant to s 6AAA of the Sentencing Act, had you not pleaded guilty you would have been sentenced to a term of imprisonment of six years and nine months, with a non-parole period of five years and four months.

52Pursuant to s 18(4) of the Sentencing Act, I direct that you have served 428 days of the sentences I have passed upon you and direct this be entered into the records of the Court.

53Pursuant to the provisions of the Sex Offender Registration Act 2004 (Vic), you are now a registrable offender, subject to the reporting conditions of that Act. The period of reporting is 15 years.

54I will make the Disposal Order sought.

55I will also grant the Non-Publication Order sought and I am going to make it for two years. 

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