Director of Public Prosecutions v Snow
[2020] VCC 146
•25 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STANLEY SNOW (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 12 February 2020 | |
DATE OF SENTENCE: | 25 February 2020 | |
CASE MAY BE CITED AS: | DPP v Snow | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 146 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Sonnet | Solicitor for the Office of Public Prosecutions |
| For the Offender (Plea) (Sentence) | Mr J. Lowy Mr L. McPhie | McFarlane Criminal Lawyers |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1 I just want put on record on the transcript at some stage after the plea hearing, I sent a request to the prosecution and the defence for some further details in relation to what I will briefly summarise as 'same incident' episodes of offending and I received a document from Mr Sonnet which indicated that it was a joint document, joint submissions and that was dated 17 February 2020. So we will mark that as Exhibit F.
2 #EXHIBIT F - Document from Mr Sonnet.
3 And I received today correspondence from the barrister, Mr Julian Lowy, who was here the last time for the defence basically confirming, agreeing with those submissions so we have got that in writing dated 24 February.
4 #EXHIBIT E - Summary of Prosecution submission on sentence dated 11/2/20.
5 Stanley Snow,[1] you have pleaded guilty to five charges of sexual assault of a child under 16, three charges of sexual penetration of a child under 12 and one charge of persistent sexual abuse of a child under 16. The maximum penalties applicable are: sexual assault of a child under 16, 10 years’ imprisonment; sexual penetration of a child under 12, 25 years’ imprisonment and persistent sexual abuse of a child under 16, 25 years’ imprisonment.
[1]A pseudonym.
6 There are three victims of your offending; Hugh Ferry,[2] Rachel Ferry[3] and Lyndsey Ferry[4] - I just digress. I will be referring to the complainants and the various parties in this matter by initials. That is done because we do not identify the victims' names so I don't want anyone to think that's an offensive way of doing it, that's how we do it. It will be further anonymised by the time it's published so that they'll be no way you can identify the names of the victims so if I refer to them by initials no offence intended, that's what we do, to save the names being out there.
[2]A pseudonym.
[3]A pseudonym.
[4]A pseudonym.
7 Start again. There are three victims of your offending; Hugh Ferry, Rachel Ferry and Lyndsey Ferry and your offending arises from events which took place between 1 July 2017 and 3 April 2018.
8 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes for me to simply state the facts of this case, in my opinion, are most serious and disturbing. Your behaviour was obviously unacceptable.
9 I turn to a background to your offending.
10 At the time of it you were between 27 and 29 years of age and are 30 at sentence.
11 Hugh Ferry was between 12 and 13 years of age at the time of your offending and is currently 14 years of age.
12 Rachel Ferry was between 8 and 9 years of age at the time of your offending and is currently 11 years of age.
13 Lyndsey Ferry was between 5 and 6 years of age at the time of your offending and is currently 8 years of age.
14 The three complainants are siblings and lived with their mother, Virginia Ferry,[5] and their stepfather, Lance Snow.[6] The complainants all had developmental issues/cognitive impairments to varying degrees.
[5]A pseudonym.
[6]A pseudonym.
15 You committed this offending against the three complainants at your home when the complainants were staying overnight in your care.
16 By way of general background, the mother of the three complainants, Virginia Ferry, had been in a relationship with Lance Snow, your uncle, for approximately five years. Ms Ferry and Mr Snow had a good relationship with you, lived close to you and saw you approximately four to five times a month. The complainants regarded you as their cousin.
17 Hugh Ferry visited you approximately seven times and slept over by himself on three occasions. Rachel Ferry slept over on approximately four occasions, and Lyndsey Ferry slept over at your home on two occasions, once with both Hugh and Rachel, and once with Rachel.
18 In your interview with police you found it difficult to recall when your inappropriate behaviour started. You said you had known the complainants for four years, and that sleepovers were a more recent occurrence. You felt all the incidents occurred in the 12 months prior to interview.
19 I turn to Charge 1, involving Hugh Ferry.
20 Hugh Ferry stayed overnight at your home on his own when he was 12. During the night, you were sitting in your recliner chair in the lounge room. You told police that Hugh had his pants partway down and was masturbating his own penis. Hugh then sat on the armrest of your recliner chair where you were sitting and you grabbed Hugh’s penis and masturbated it. After the offending stopped, you told Hugh you were sorry.
21 Turning to Charge 2, you told police that, within weeks, Hugh was at your home again and Hugh slept in your bedroom in your bed. At some time during the night Hugh began masturbating his own penis and Hugh said to you “you do it”. You then masturbated Hugh’s penis. Hugh told you to stop and you did.
22 Charge 3 relates to an occasion when all three complainants were at your house. Hugh was in the lounge room sitting on a chair, you in your recliner chair. You pretended to fall asleep.
23 Hugh began looking at pornographic videos on his phone and you saw Hugh masturbate his own penis while watching the videos.
24 You moved from your chair and sat beside Hugh, and masturbated his penis until he ejaculated. While you masturbated his penis, you told police you exposed your penis and masturbated at the same time. This is relied upon by the prosecution as "other sexual misconduct, not charged".
25 Hugh Ferry spoke to police in a VARE on 5 April 2018, when he was 13 and told police he had been staying over at your house for around a year. Hugh denied any sexual misconduct between he and you.
26 I turn to your offending involving Rachel Ferry. At the time of the VARE interview with Rachel Ferry on 5 April 2018, she was 9 years of age. Rachel identified three occasions when you had been "rude". Once, when she stayed overnight with Hugh at your home, once when she stayed overnight with both Hugh and Lyndsey, and once when she stayed overnight only with Lyndsey.
27 Charge 4. All three complainants were staying at your house, Lyndsey and Rachel watching a movie. During the visit, Rachel described you as “being rude” when in the bedroom, “touching my rude spot and all that stuff going faster and faster”. Rachel said that you used your pointing finger and it was the same as you did to Lyndsey. In describing what happened to Lyndsey, Rachel said “Stanley had his finger in Lyndsey’s rude spot going like faster and faster”. That you told Lyndsey to “open your legs so you could get further to her pee spot”. Rachel described that when you did it to her, it went for 3 or 4 minutes and it hurt (Charge 4). Rachel told you not to do it and you stopped.
28 Throughout the evening you touched Rachel on her vagina again when she had her clothes on (relied on as other sexual misconduct not charged).
29 Charge 5 is a representative charge encompassing two incidents (R v CJK[7] applies). On one occasion, Rachel stayed overnight with you, and her brother Hugh. You told police Rachel went into your bedroom to watch a movie with you. That was the first time you said you had done anything inappropriate with her. You asked Rachel if you could touch her on the vagina. She said “OK, and just this once”. You then moved her pants and underpants down to her knees and rubbed Rachel’s vagina with your finger. Your finger did not go inside the lips of her vagina. Rachel told you “no”, and you stopped. Rachel then touched your penis and masturbated it (other sexual misconduct not charged).
[7](2009) 22 VR 104 (‘CJK’).
30 Turning to the second incident relevant to Charge 5, this occurred on an occasion when Rachel and Hugh stayed overnight. Rachel asked to play with your iPad and you told her “only if you let me touch your rude spot”. Rachel said “no”, however you continued to ask. After a while, you pulled Rachel’s pants and underwear down to her feet and touched her on her vagina. Rachel pulled her pants quickly back up. You said “well no iPad then”.
31 On that occasion, Rachel then went into the lounge room and told Hugh you were doing rude stuff. Hugh told her “stay here, you’ll be safe with me” and “Don’t tell mum and [Lance Snow], otherwise we won’t be able to stay there”.
32 Throughout the evening you called out to Rachel from your bedroom, asking her to come in the room to play with the iPad. Rachel went back into the bedroom and told police “I didn’t have a choice”. You were lying on your bed with your pants down to your knees. Your penis was exposed (other sexual misconduct). Rachel told you to pull your pants up or she would tell her parents. You told Rachel to promise not to tell.
33 When Hugh spoke to police, he described an occasion when Rachel told him that you were “playing with her rude spot … making her touch his rude spot too”. Hugh was watching a movie in the lounge and he told Rachel not to go back into the room. She sat for 5 minutes before returning to the bedroom. That Rachel slept in the bedroom with you, and at some point during the night or early morning Hugh and Rachel went into the bedroom and saw you with your pants down and penis exposed (other sexual misconduct).
34 Hugh also told police of an occasion when Rachel came out and told him she saw “Stanley had his pants down … [Lyndsey Ferry] was in bed with him”.
35 I turn to your offending involving Lyndsey Ferry.
36 Charge 6 is a representative charge encompassing two incidents and the sentencing principles in CJK applies. I note in correspondence received from both counsel dated 17 February 2020 following my request for identification of any offending that would attract the ‘one transaction’ rule, the first incident alleged in Charge 6 and Charge 7 occurred in the same episode.
37
Charge 7 is a ‘rolled-up’ charge encompassing two separate incidents.
R v Jones[8]applies.
[8][2004] VSCA 68.
38 Regarding Charge 6, the charge reflects two different occasions when offending occurred.
39 Regarding Charge 7 the acts occurred simultaneously.
40 The first time Lyndsey Ferry stayed over was when Hugh was present. You picked the two children up in your car and took them to your home. You got some movies to watch over the weekend.
41 Lyndsey Ferry was watching cartoons in your bedroom on your TV. Hugh was in the lounge room. Lyndsey was lying on your bed. You lay next to her on your side.
42 You told police you asked if you could touch Lyndsey, and started to touch her over her clothing on her stomach and genitals. That Lyndsey pulled her pants down and you touched her with your finger, inserting your finger between the lips of her vagina (first incident relevant to Charge 6). You exposed your penis and Lyndsey put her hand onto it and masturbated it (other sexual misconduct).
43 You told police you thought you asked Lyndsey to lick your penis and that Lyndsey then licked the side of your penis. She did not put your penis into her mouth (Charge 7, sexual assault of a child under 16, first incident).
44 You then licked Lyndsey’s vagina, but not the inside lips of her vagina. You told her to promise not to tell and Lyndsey agreed (second incident Charge 7).
45 Turning to the second occasion relevant to Charge 6. All three children were staying overnight at your home. You said Rachel Ferry and Hugh Ferry were in the lounge room, and Lyndsey Ferry in the bedroom watching a movie. You were lying on the bed with Lyndsey Ferry and went out to the lounge room for a period of time before returning to lie next to Lyndsey Ferry. You began to rub her vagina, inserting your finger between the lips of her vagina (Charge 6 second incident). You then licked Lyndsey’s vagina around the inside of the lips of her vagina (Charge 8).
46 Charge 9, encompasses seven incidents (three on the same occasion).
47 On Good Friday 2018, the family were packing their house to move to Queensland. Ms Ferry spoke with you on the phone and you asked to have the children stay with you over Easter as it would be your last chance to see them before they left. On 1 April 2018 (Easter Sunday), you picked up Rachel and Lyndsey. Rachel cried and told her mother she did not want to go.
48 You bought McDonalds and rented movies to watch over the weekend.
49 On the first day, you put the shower on for Rachel. While she was in the shower you returned to your bedroom. You said Lyndsey removed all her clothes and lay on your bed on her back. You removed your pants to your knees, exposed your penis and laid down next to her. Using your right hand, you touched her vagina and inserted your index finger into her vagina. This is the first incident relevant to Charge 9.
50 You told police you “probably said something” and Lyndsey then touched your penis. Your penis was erect and Lyndsey masturbated it for approximately a minute. You then rubbed Lyndsey’s vagina, inside her vagina (the second incident). You also said you licked Lyndsey’s nipple (other sexual misconduct).
51 On the next occasion, you had both Rachel and Lyndsey sit on your knee on a recliner chair on either side of you facing outwards. You then used your hands to touch each child on the vagina. You told police you inserted a finger from one hand inside the lips of Lyndsey’s vagina (Charge 9 third incident) and also used a finger of your other hand inside the lips of Rachel (Charge 10).
52 Your penis was erect. It lasted for “seconds” before Rachel said she was going to put her clothes back on. The two children continued to watch movies before going to sleep in your bed. You slept on one side of the bed in your underwear and singlet.
53 The next morning, Rachel was in the shower. Lyndsey got up and put her damp nappy in the bin, leaving her with only her t-shirt on.
54 You and Lyndsey were in your bedroom together. You told police you removed your pants and Lyndsey took off her clothes. You rubbed her vagina with your fingers, moving inside the lips of her vagina (Charge 9 fourth incident).
55 You then lay on your back on the bed. Your pants were down and your penis was erect. Lyndsey sat on top of you, straddling you with her legs. Lyndsey was moving and you rubbed your penis on her vagina, inserting the tip of your penis between the lips of her vagina (Charge 9 fifth incident).
56 You then moved so that you were standing next to the bed, with Lyndsey in front of you with her legs dangling off the bed. You rubbed your penis in-between the lips of her vagina (Charge 9 sixth incident).
57 Lyndsey got up to leave the room. You told police, when she was not looking, you masturbated and ejaculated (other sexual misconduct). That at some time over that weekend, Rachel was in the lounge room. You were on your bed in your bedroom with Lyndsey. You asked Lyndsey if she wanted you to lick her vagina. You told police Lyndsey said “yes”, so you licked the front of her vagina, but did not insert your tongue between the lips of her vagina (Charge 9 seventh incident).
58 You said on an occasion Lyndsey licked your penis (other sexual misconduct), but were unable to recall the circumstances of that offending.
59 When Lyndsey was six years of age, she participated in a VARE, and during that she disclosed a variety of sexual conduct by you, including:
· That she was sitting on you naked, also running around the house naked. That on an occasion when you were on top of Lyndsey, she felt your rude part against hers and your pants were down to your ankles. That she had seen your penis more than twice. That you had discussions with her about touching your penis. She recalled two occasions when you told her to get naked and that you had touched her rude part and she demonstrated that with her finger. She said the rude things happened all the time.
60 In the VARE recording, Rachel Ferry described what she saw in relation to Lyndsey.
· When Rachel was in the shower, Lyndsey said to her “you’re not coming in Stanley’s room ‘cause we’re doing rude stuff”.
· That Lyndsey walked into the room and “Stanley had his finger in Lyndsey’s rude spot going like faster and faster”. Rachel heard you say “open your legs, open your legs wide”. Rachel saw Lyndsey’s knickers were down to her feet.
· When Rachel later went into the bedroom, she saw Lyndsey sitting on top of you on the bed, and Lyndsey was touching your rude spot “yanking” it. Your pants were down.
· Rachel heard Lyndsey ask you to pull your pants down, which you did.
· Lyndsey ran around the house naked, and Rachel saw Lyndsey touch your penis in the lounge room, when you were sitting in your arm chair with your pants down.
61 You returned Lyndsey and Rachel to their home on 2 April 2018 (Easter Monday).
62 At the house, Lyndsey commented to everyone that she ran around your house naked and sat on your lap when she was naked.
63 Virginia Ferry looked at you. You had your head down as you did, I note, during the entirety of your plea hearing.
64 On 3 April 2018, Ms Ferry was in the car with Rachel and Lyndsey. Lyndsey started talking about being naked at your house and told her mother she sat on your knee naked, that you pulled your pants down and told her to sit on your penis, which she did.
65 Virginia Ferry asked whether you had done anything to Rachel. Rachel said you touched her rude spot and demonstrated by moving her index and middle finger sideways. She told her mother she told you to stop but you would not.
66 Rachel repeated to Lance Snow what she had told her mother and added that it had also happened when all three of the children visited. That she had told Hugh what happened at the time, and he had told her to stay in the lounge room with him. That she had seen Lyndsey in bed with you, and that you did not have pants on.
67 When they arrived home, Virginia Ferry and Lance Snow spoke with Hugh, who said Rachel told him that you touched her rude spot when they stayed there. Hugh believed they would get in trouble if he told his parents and he started crying.
68 Virginia Ferry and Lance Snow then tried to contact you, but you did not call back. A series of text messages were exchanged and on 4 April 2018, Lance Snow sent a message to you:
“U have no choice in this matter u have to get on the phone its important as fuck as we have been told shit by the kids that u have done. If you don’t call we are going to the police”
69 Ms Ferry and Mr Snow reported the matter to police on 4 April and on 5 April the children participated in VARES.
70 On 5 April, you sent the following message:
““I know you both probably don’t want to talk to me now. I do hate myself for what happen, I don’t know why I did it I am sorry. I’m going to find some counselling. I am sorry [Virginia Ferry] and [Lance Snow]”
71 You were interviewed at the Morwell Police Station on 22 April 2018 and made, as described by the prosecutor Mr Sonnet, significant admissions to your offending. I accept that is so.
72 There are a number of aggravating features of your offending as I discussed with both counsel. There are three complainants and your offending occurred on a number of occasions, over approximately 10 months. There was a significant age difference between yourself and the complainants. The three complainants had developmental/cognitive issues. Your offending involved a breach of trust of the complainants and also breached the trust of Ms Ferry and Mr Snow. Some of your offending also occurred in the presence of other complainants. Pressure was applied to them in that they “not tell” anyone about your offending and there was an aspect of ‘grooming’ over time leading to the penetration charged. Incentives were also offered, e.g. “well, no iPad then”.
73 Although not an aggravating feature, you persisted with offending on occasions after being told to ‘stop’.
74 Your offending was, in my opinion, very serious indeed.
75 As at 12 September 2019, you had spent 153 days in custody pursuant to s18(4) of the Sentencing Act 1991 (i.e. up to and including 11 February 2020).
76 You do not have any prior convictions. In that regard, the prosecution were not relying upon s5AA Sentencing Act 1991, conceding your offending involved use of your familial position to commit these offences rather than your good character. I agree. Mr Lowy did not urge the contrary.
77 A Victim Impact Statement was before me from Virginia Ferry. From the contents it is clear the victims of your offending and their family have suffered considerably as a result of your offending and I shall return to that later in these sentencing remarks.
78 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so. By your pleas of guilty you have spared the Court the time and cost of a trial, and have also spared the victims of your offending the ordeal of having to give evidence upon your trial.
79 The prosecution filed a chronology. You were charged on 18 October 2018 and thereafter the matter was mentioned a number of times at the Magistrates’ Court. A final directions hearing occurred on 2 August 2019, with Intermediary assessments of Lyndsey, Rachel and Hugh occurring on 21 and 22 August 2019.
80 On 12 September 2019, you were arraigned on these charges, pleading guilty to them and the 30 September 2019 trial date was vacated. The matter proceeded to this plea hearing.
81 Mr Lowy elaborated upon that chronology. At the time you entered your pleas of not guilty at the Magistrates’ Court you were unrepresented. Your current solicitor then appeared as a ‘friend of the court’, and later became your solicitor in this matter.
82 A number of funding mentions occurred and in August 2019 possible mental impairment was ‘flagged’.
83 I accept that, whilst your plea of guilty was not entered at the earliest opportunity, it was entered consistent with the chronology provided by Mr Lowy.
84 You also made extensive admissions in your record of interview and there was, as submitted by Mr Lowy, ‘some inevitability’ that there would be pleas of guilty.
85 I accept as does the prosecution your admissions resulted in many of the charges and am aware of the difficulty the prosecution faces in proceeding with charges such as these to trial, absent admissions by an offender.
86 The prosecution conceded your admissions, despite not being early, attracted a significant sentencing discount.
87 The prosecution submitted Charges 9 and 10, fell within the standard sentencing regime (s5A and s5B of the Sentencing Act 1991).
88 The standard sentences fixed are:
89 Sexual penetration of a child under 12 – 10 years’ imprisonment
90 Persistent abuse of a child under 16 – 10 years’ imprisonment.
91
The prosecution also submitted Charges 4, 6, 8, 9 and 10 were Category 1 offences (Sentencing Act 1991) and pursuant to s5(2G) of the Act I must make an order for imprisonment for a Category 1 offence committed by an adult.
Mr Lowy agreed such applied when sentencing you.
92 Turning to the serious sex offender provisions upon conviction and a sentence of imprisonment being imposed on Charges 1 and 2, the prosecution submitted you fell to be sentenced as a serious sexual offender on Charges 3 to 10 inclusive. Mr Lowy agreed such applied to you.
93 I discussed s.6D and s.6E Sentencing Act 1991 at some length with counsel and cases including R H McL v The Queen[9] and Gordon v The Queen.[10] See also Matheas v The Queen,[11] in which Tate AJA referred to Gordon v The Queen[12] and DPP v Bales[13] and stated:
'(when s.6E is enlivened)…there is a need to ensure that the totality principle is not applied in a manner inconsistent with the legislative purpose of s.6E, that is, full effect is not to be given to the totality principle as though s 6E "was not on the statute book". The weight to be given to the totality principle is to be moderated to ensure consistency with legislative purpose'.[14]
[9](2000) 203 CLR 452 (‘R H McL’).
[10][2013] VSCA 343.
[11][2017] VSCA 330 (‘Matheas’).
[12][2013] VSCA 343.
[13][2015] VSCA 261.
[14]Matheas [50].
94 See more recently Zhao v The Queen[15] and Mush v The Queen.[16]
[15][2018] VSCA 267 (‘Zhao’).
[16][2019] VSCA 307 [89-91].
95 s.6D: When sentencing you and determining sentence I must regard the protection of the community from you as the principal purpose for which the sentence is imposed.
96 The prosecution were not urging a disproportionate sentence and I am of the opinion I can sentence you without the need to impose a disproportionate sentence.
97 Turning to the Sex Offenders Registration Act 2004, you are to be subject to registration under that Act for life. Charges 4, 6, 8, 9 and 10 are Class 1 offences and Charges 1, 2, 3, 5 and 7 are Class 2 offences. Mr Lowy agreed such classification and duration applied to you.
98 Your counsel, Mr Lowy, prepared a written Outline of Submissions for your plea hearing and addressed them during the course of it.
99 Mr Lowy conceded the very serious nature of your offending. It is. Such was an appropriate concession.
100 Mr Lowy referred, at age 30, and lack of prior criminal history.
101 Regarding your offending, you instructed you do not know why you did it. That you try not to think about it, and were distressed by it.
102 Turning to your background and history, you were an only child, raised by your mother. You disclosed to Dr Barth, whose report I shall refer to in a moment, that your father molested you when you were four.
103 You have two half siblings, with whom you have little contact.
104 You left school in Year 10, having always struggled academically. You described school as terrible as you were bullied.
105 You began work as soon as you left school and have had a good work history, initially working in your uncle’s timber yard, then moving on to other jobs, including cleaning, maintenance and security.
106 In the two years prior to your remand for this offending you were working six days a week as a truck driver, mainly interstate driving and occasionally as a pilot escort for oversized loads. You enjoyed that work.
107 You had lived independently from approximately age twenty. You maintained a close relationship with your mother, and she visits you regularly in custody. Your mother was in court to support you at your plea hearing, as I understand it, was a family friend.
108 I was also told you had worked as a volunteer with the SES in 2016, and as a coast guard at Port Albert approximately 5 years ago.
109 Prior to being remanded, you described your alcohol consumption as basically getting drunk once a week with your workmates at the pub. You did not use drugs.
110 You were involved in a serious motor vehicle collision in 2008 and hospitalised for three months. Your spleen had to be removed and you take antibiotics daily as a result, as I understood it, receiving that medication in custody. You also have high blood pressure, for which you were medicated and described your sleep as very poor. It seems you have sleep apnoea.
111 In custody you were previously employed making number plates, but due to your lack of sleep you were no longer working, spending most of your time in your room and depressed.
112
Mr Lowy referred to the report of Dr Evrim March, to which I shall shortly refer, who opined that your intellectual functioning was in the low-average range.
Mr Lowy described you as ‘unsophisticated’.
113 Mr Lowy referred to Dr Barth’s diagnosis of Adjustment Disorder – with depressed mood and prominent features of Avoidant and Dependent Personality Disorders. I discussed that assessment in particular relevant to the applicability or otherwise of R v Verdins & Ors[17] and the transcript will reveal that discussion. In my opinion Verdins principles, following examination are not enlivened (Binse v The Queen[18]). Mr Lowy did not urge the applicability of Verdins.
[17](2007) 169 A Crim R 581 (‘Verdins’).
[18][2016] VSCA 145 [70].
114 Dr Barth referred to your current emotional distress, dysfunctional personal adjustment, poor coping skills and your remedial social skills as making it difficult to adjust to a custodial sentence. He opined you would be at significant risk of further deterioration in your mood in the immediate aftermath of being sentenced, and would require close monitoring. You would also, he opined, be of elevated risk for episodes of mood disturbance in custody. Prison was likely to be particularly burdensome for you (Report of Dr Barth, paragraph 57).
115 Whilst I have determined Verdins principles do not apply, I do accept on the reports before me from Dr Barth and Dr March, consistent with general sentencing principles you will find your time in custody more burdensome than other more mentally and physically abled prisoners and have mitigated your sentence to a degree to reflect that.
116 Turning to sentencing considerations, Mr Lowy conceded the need for deterrence when sentencing you.
117 Mr Lowy relied heavily upon the number of admissions made in your Record of Interview which he urged formed the basis of Charges 1, 2 and 3 in respect of Hugh Ferry, the first incident relevant to Charge 5 also Charge 10 regarding Rachel Ferry, and Charges 7, 8 and 9 regarding Lyndsey Ferry. He urged your admissions to that offending entitled you to a significant discount, as there was otherwise no basis for many of the charges on the Indictment. I have also referred to this previously in these sentencing remarks and the prosecution concession in that regard.
118
Turning to your risk of future sexual offending, Mr Lowy referred to Dr Barth’s assessment that you fell into the moderate risk category, with some prospect of further reduction in your future risk profile should you undertake intensive and appropriate courses in custody directed to sexual offending in particular
(Dr Barth’s report paragraph 56).
119 Mr Lowy urged you had significant protective factors in the community, including a history of sobriety, an excellent work history and close relationship with your mother.
120 Turning to disposition, Mr Lowy urged you be considered for a longer period of parole to assist with supervision to decrease your risk of further offending. He urged I not impose a crushing sentence.
121
I turn to the report from Dr Barth, psychologist, dated 3 February 2020
(Exhibit C). Further details were provided in that report relevant to your background and history, much of which was contained within Mr Lowy’s written submissions.
122 You described in detail the incident that allegedly occurred when you were four years of age involving your father. Dr Barth described your relationship with your father as very detached and superficial in your adult years and that you had not had any contact with him in approximately the last 18 months. The conflicted relationship with your father, you said, contributed to your anxiety, sadness and feelings of worthlessness, feeling rejected and unwanted by him. You described, however, a close relationship with your mother.
123 At school, you required the assistance of a teacher’s aide from a young age. Dr Barth noted reports from Dr March of assessments undertaken when you were 10 and 14 years of age, which indicated your intellectual functioning was within the borderline range. You were also reportedly diagnosed with Autism Spectrum Disorder and ADHD.
124 Regarding your offending, you were unable to provide a description of the thoughts and feelings that accompanied it, becoming distressed when asked for details “when pressed further”. You were unable to provide any coherent explanation for it, nevertheless, expressed shame and remorse for it. It concerns me that you have not, to date it seems, been able to discuss your offending and therefore your level of insight into your offending is not clear. Perhaps with counselling you will obtain insight and address your offending behaviour.
125 Turning to the mental status examination, you were, not surprisingly, distressed regarding your future prospects due to the seriousness of this offending. There were symptoms of poor self-esteem and feelings of worthlessness. During the assessment process, Dr Barth opined a current diagnosis would be Adjustment Disorder with Depressed Mood. You remained at risk of further deterioration in mood and required ongoing psychological treatment and support.
126
Turning to your cognitive functioning, Dr Barth referred to the reports of
Dr March (August 2019) which indicated your intellectual functioning fell with the low-average category. Dr March however concluded you did not suffer with an intellectual disability or any deficiencies in your ability to understand the wrongfulness of your behaviour. As I discussed with counsel you knew your offending was wrong at the time, including evidenced by your urging they not tell anyone of your offending.
127 Consistent with those previous assessments, Dr Barth estimated your intelligence fell in the low-average range. He also concluded you had symptoms indicative of prominent features of Avoidant and Dependent Personality Disorders, narrowly failing to meet the diagnostic criteria for a Personality Disorder (paragraph 41).
128 You denied any attraction to prepubescent children, although Dr Barth noted, as do I, your offending behaviour is extremely concerning and Dr Barth referred to significant issues with your sexuality. In addition you had difficulties establishing and maintaining close intimate bonds with adults.
129 You had difficulty providing information regarding the “noxious” impact sexual abuse had on children, although you knew it was wrong and that “they don’t know anything”.
130 In the opinion of Dr Barth, your offending behaviour indicated severe psychosexual pathology, specifically the presence of deviant sexual cognitions regarding the three complainants and a grossly distorted concept of sexual boundaries on your part. He urged, as do I, you participate in intensive and comprehensive sex offender treatment programs.
131 Turning to your risk of future sexual offending, Dr Barth utilised the Static-99R and RSVP Assessment Tools and concluded you fell in the moderate-risk category.
132 With completion of treatment and the protective factors of sex offender registration, it was likely he opined your overall risk of recidivism may ultimately be reduced.
133 I discussed the report of Dr Barth with Mr Lowy.
134 There was also a report before me from Dr Evrim March, clinical neuropsychologist, dated 21 August 2019.
135 An assessment was made by her on 14 August 2019. The purpose was to clarify any Acquired Brain Injury, ADHD, and cognitive impairment. Dr March noted a 2009 neuropsychology report conducted when your 14, which assessed you as having a borderline intellect, just above intellectual disability level.
136 Regarding the bus collision in 2008, neuropsychology opinion at that time was that your pre-existing (developmental) cognitive difficulties were similar to those noted in your younger years and had persisted post-accident, therefore it was difficult to attribute cognitive difficulties to a traumatic brain injury. She concluded that the traumatic brain injury as a result of the collision did not appear to be severe according to the records available to her, mild to moderate severity at best.
137 Regarding the motorcycle collision in 2016, in the opinion of Dr March, you likely had a mild concussion of mild significance.
138 Dr March noted you were reluctant to talk about a number of matters, including your offending, and as such it was not pursued.
139 Dr March concluded following testing, you did not have an intellectual disability, however assessed your overall intellect at the low-average level (of your age group). Importantly, no impulsivity, and an adequate ability to reason. She concluded your specific cognitive difficulties were not severe enough to affect your reasoning.
140 Addressing your rehabilitation, Dr March concluded such partly depended on the level and nature of your insight into this offending and understanding the ramifications of it. Your prospects, she urged, would be enhanced by psychology and social work input in prison (see Report pages 14 of 18).
141 Your mental state would impact on your ability to engage with rehabilitation. You would struggle in group programs (page 14). You would also benefit from engaging in hands-on tasks and duties in prison. It was likely you would participate in programs offered for rehabilitation.
142 I turn to the Victim Impact Statement and Addendum to it from Virginia Ferry. The statement is eloquent and it is difficult to do justice to the contents of that statement in these brief sentencing remarks. I have, however, read the Victim Impact Statement and attached documentation.
143 Ms Ferry referred to the stress that had resulted from your offending to she and her family, which also involved the court process. She referred to the anguish travelling from Queensland to prepare for a trial, that was cancelled at the last minute, after two days of the children meeting a team of specialists. She isolated herself and the children, too scared to let the children play sport, unless she could be there the whole time in case something bad happened to them.
144 Anger had consumed her. She hated everything. She was always exhausted. She had lost family members and friends, as they blamed her for what happened. Attending various court meetings, and talking about your offending had been emotionally and financially draining on her. She felt she had failed her children.
145 She had emotional meltdowns since your offending, missing her old home, life and friends. She felt like she was just grieving.
146 She had been consuming alcohol almost daily to help her get some relief from what she described as “this hell” which was her new life.
147 She saw flashes of your offending against her children, particularly when she was trying to sleep. It took her two hours to shut her brain off and be able to relax sufficiently to fall asleep.
148 She was unable to work or study because she could not trust anyone to look after her children. She even worried about them when they were at school.
149 She suffered from anxiety since finding out what happened to her children and had difficulty parenting and talking with them about issues regarding your offending.
150 Your offending had left her financially drained, including not having any money left over to do anything her children enjoy, or going on outings.
151 She felt they would never move forward and that this “horribleness” would be with them forever.
152 She was frightened about what the future held for herself and her children. She could not fathom the idea of ever having anyone in their lives, because she did not trust anyone.
153 She described the impact of your offending on Lyndsey Ferry who was not mentally or emotionally able to complete a Victim Impact Statement due to her disability.
154 Ms Ferry described the difficulties raising three special-needs children and how her workload has doubled in relation to the care of them, as she has three children who were now sexually abused, who needed to attend appointments, not just as special-needs children, but as victims.
155 After she was told what had happened, Ms Ferry went into a state of shock and disbelief and could not function. That was the start of her life deteriorating. She lost their life and their home, as the children were too scared to live there. She lost income and went into flight mode, and had to remove her children from where life used to be happy for them.
156 Ms Ferry described herself as depressed a lot of the time and that she did not believe life would ever be happy again. She was always on alert, and blamed herself for trusting someone else and letting her children away from her.
157 In an addendum to that Victim Impact Statement Ms Ferry wrote that since your offending Lyndsey had been ‘acting out’ sexually as described in that statement.
158 There was a psychological assessment attached to the Victim Impact Statement relevant to Lyndsey Ferry dated 28 October 2011, prepared by Tracey Morris. That report described Lyndsey’s developmental/cognitive impairment relevant to Exhibit A, paragraph 5. I also had reports from Dr Ghosh relevant to Hugh and Rachel addressing Exhibit A, paragraph 5.
159 A number of authorities have referred to the effects upon a victim of sexual offending including DPP v Toomey,[19] in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[20] (allowing of course, as I do, for the difference in factual circumstances in those cases to the present case). The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
[19][2006] VSCA 90.
[20][2003] VSCA 109 [17-18].
160 Mr Sonnet in his submissions for the prosecution on sentence referred to your record of interview and admissions.
161 Mr Sonnet referred to the profound impact upon the victims of your offending, in particular the sexualised conduct displayed by Lyndsey Ferry since your offending.
162 Mr Sonnet referred to the Standard Sentencing Regime (relevant to Charges 9 and 10). and this was discussed with him.
163 In that regard, I was directed to Brown v The Queen[21] and three decisions of this court relevant to standard sentencing. In Brown the court referred to a number of relevant and applicable propositions when sentencing under this regime (Brown paragraphs 25 and 55).
[21][2019] VSCA 286 (‘Brown’).
164 I am required to identify the facts, matters and circumstances which bear upon the judgment I have reached as to the appropriate sentence in your case and I have referred to this in detail in my sentencing reasons and remarks.
165 The sentence I have passed is less than the standard sentence for the offences in Charges 9 and 10. In so determining I have taken into account all of the matters I am required to consider under s5(2) of the Act, including the standard sentence for the two offences before me (Charges 9 and 10). I have taken into account any mitigating factors which apply to your offending. By the process of instinctive synthesis I have arrived at the sentence I will in a moment announce.
166 Mr Sonnet also filed a summary of Prosecution submissions dated 11 February 2020 (Exhibit E) which included submissions on sentence, which were discussed during your plea hearing.
167 Mr Sonnet submitted regarding the report of Dr March you did not have an intellectual disability, rather your intellect was assessed as low average. That your developmental cognitive limitations were not significant.
168 Regarding Dr Barth, Mr Sonnet referred to you as not being assessed as having a personality disorder.
169 That your impairment would likely to be burdensome due to your mood disturbances, and could be taken into account consistent with general sentencing principles, not Verdins. I agree.
170 Turning to the gravity of your offending, Mr Sonnet referred to the seriousness of it, the maximum penalties applicable, and the aggravating features of it.
171 Your offending he urged fell in the mid-range of gravity, involving multiple sexual acts against three very young children. I agree.
172 He urged the three complainants were all vulnerable due to their age and cognitive limitations. I agree.
173 There was a breach of trust in your offending. I agree.
174 You were also aware on occasions the complainants did not want to engage in the acts. I agree.
175 That on occasion you told them not to tell anyone, and performed acts in exchange for favour. I agree.
176 That some of the offences were committed in the presence of others. I agree.
177 Your moral culpability he submitted was high. I agree.
178 There had been a profound impact on the family. I agree.
179 You did not have a significant mental impairment. I agree.
180 He submitted a substantial term of imprisonment was warranted in all the circumstances. I agree.
181 Turning to your rehabilitation prospects I have at best guarded optimism. I do however note your lack of prior convictions or any subsequent offending for that matter. That this offending occurred in a ‘familial setting’. However by so stating I am not suggesting such offending is not serious, however there are unlikely to be such opportunities presented to you within your family in the future. Whilst accepting you have expressed remorse for your offending you lack insight into it and have been reluctant to discuss it and are yet to receive counselling/treatment. Your ability to participate in and gain benefit from counselling, given the contents of the reports before me, also causes me some concern.
182 When sentencing I must however seek to maximise your chance of rehabilitation as they may be.
183 As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as general deterrence which is of considerable importance in a case such as that.
184 The courts have repeatedly referred to the ‘heinous’ nature of sexual offending against children, particular by those entrusted with their care. It is perhaps not necessary to refer to the many, many cases where such principles have been repeatedly stated.
185 There is also the need for specific deterrence when sentencing you given the offending involved three complainants and over a period of time (not a ‘one off’ occasion).
186 I must also consider the protection of the community from you and bear in mind the likelihood of your re-offending. Your lack of explanation for your offending and lack of counselling to date to address your offending causes me concern.
187 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
188 In sentencing you I take into account the principle of totality as referred in R H McL and subsequent authorities which have referred to that and s6D/6E Sentencing Act 1991. Also I take into account your admissions to this offending.
189 I sentence you as follows so can you stand up, thanks.
190 On Charge 1 you are convicted and sentenced to 14 months’ imprisonment.
191 On Charge 2 you are convicted and sentenced to 14 months’ imprisonment.
192 On Charge 3 you are convicted and sentenced to 14 months’ imprisonment.
193 On Charge 4 you are convicted and sentenced to 3 years 6 months’ imprisonment.
194 On Charge 5 you are convicted and sentenced to 2 years 6 months imprisonment.
195 On Charge 6 you are convicted and sentenced to 4 years imprisonment.
196 On Charge 7 you are convicted and sentenced to 2 years imprisonment.
197 On Charge 8 you are convicted and sentenced to 3 years 6 months imprisonment.
198 On Charge 9 you are convicted and sentenced to 6 years imprisonment.
199 On Charge 10 you are convicted and sentenced to 4 years imprisonment.
200 Are you with me so far, counsel?
201 COUNSEL: Yes, Your Honour.
202 HER HONOUR: I'm talking about writing it down. Yes, all right.
203 COUNSEL: Yes.
204 HER HONOUR: We'll keep moving.
205 Charge 9 is the base sentence and I direct the following regarding cumulation and concurrency.
206 On Charge 1, I direct 4 months be served cumulatively on Charge 9.
207 On Charge 2, I direct 4 months be served cumulatively on Charge 9.
208 I now sentence relevant to serious sex offender provisions so the wording will change, be aware, counsel.
209 On Charge 3, I direct 9 months be served concurrently and 5 months cumulatively upon Charge 9.
210 I take it you're following me.
211 COUNSEL: Yes.
212 On Charge 4, I direct 2 years 6 months be served concurrently and 12 months cumulatively upon Charge 9.
213 On Charge 5, I direct 1 year 11 months be served concurrently and 7 months be served cumulatively upon Charge 9.
214 On Charge 6, I direct 3 years be served concurrently and 12 months be served cumulatively upon Charge 9.
215 On Charge 7, I direct 16 months be served concurrently and 8 months cumulatively upon Charge 9.
216 On Charge 8, I direct 2 years 8 months be served concurrently and 10 months cumulatively upon Charge 9.
217 On Charge 10, I direct 3 years be served concurrently and 12 months cumulatively upon Charge 9.
218 For clarity the orders for cumulation are upon each other and upon the base sentence. For further clarity there is if necessary some ‘compression’ of the orders for cumulation to reflect in particular your admissions to your offending as conceded by the prosecution.
219 This results in a total effective sentence of 12 years 2 months imprisonment and I direct you serve 8 years and 9 months before you are eligible for parole.
220 I direct it be entered into the records of the court you have been sentenced as a serious sexual offender on Charges 3-10 inclusive.
221 Have a seat.
222 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 166 days (I want this checked) in custody by way of pre-sentence detention up to and including yesterday, 24 February 2020, and I direct that be entered into the records of the court subject to checking that with counsel in a moment.
223 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these offences and been found guilty of them I would have sentence you to 18 years imprisonment and set a non-parole period of 15 years.
224 I have directed you be subject to the Sex Offenders Registration Act 2004 and my associate in a moment will approach you with documents to sign simply acknowledging receipt of the paperwork. You are not being asked to sign and accept being on the order. I make the order. I have made the order. You are only being asked to sign for the relevant paperwork. If you don't want to sign it, that's fine but she has to ask it.
225 No other orders were sought by the prosecution.
226 Now first things first, anyone want help with the figures. I'm not asking if you agree with them or not, do you want me to clarify any of the figures?
227 MR SONNET: No, we're just going to double check the cumulation.
228 HER HONOUR: Yes, do that. PSD?
229 MR SONNET: 166, that's agreed.
230 HER HONOUR: Up to and including yesterday, excellent.
231 MR SONNET: That's agreed.
232 HER HONOUR: I think I've covered everything else
233 MR SONNET: Yes.
234 HER HONOUR: I've made a declaration in relation to charges 3 to 10 inclusive, serious sex offender. I've covered everything else. Were there any other orders sought by the Crown?
235 MR SONNET: No, Your Honour.
236 HER HONOUR: Right. Now I'll give you a couple of minutes to check the maths. As I say all you're doing is checking the maths, I'm not asking if you agree with the sentence. Do you follow?
237 MR SONNET: Yes, Your Honour, and the figures add up.
238 HER HONOUR: The figures up add. That's what I wanted.
239 MR SONNET: That's correct.
240 HER HO9NOUR: How about you, Mr McPhie? Are you okay with the figures?
241 MR McPHIE: Yes, Your Honour.
242 HER HONOUR: Again I'm not asking if you agree with them, just it all adds up?
243 MR McPHIE: No, I appreciated that. Yes.
244 HER HONOUR: Anything you're not clear about?
245 MR McPHIE: No. As far as I can see, they're good.
246 HER HONOUR: Great, well done. All right, now my associate is going to wander down the back to your client and ask him to sign the paperwork.
247 MR McPHIE: Yes.
248 HER HONOUR: If he doesn't want to sign, that's fine, she's got her job to do. So there's no point getting nasty with her. Okay. I'm not suggesting you would.
249 MR McPHIE: No, of course not. Is Your Honour content if I approach?
250 HER HONOUR: Yes, feel free.
251 MR McPHIE: Thank you, Your Honour.
252 HER HONOUR: Thanks, Mr McPhie. Thanks for that. If you just wait a minute a copy of the paperwork will be happening. All right, well I'll just put that on the transcript, he did not want to sign the acknowledgement, that's his right, she's got a job to do. Do you follow? She, my associate.
253 MR McPHIE: Yes, of course, Your Honour.
254 HER HONOUR: That's on the transcript, it's his choice. The orders still apply so just so long as you can make that clear to him. It still applies
255 MR McPHIE: Yes, Your Honour. Certainly, Your Honour.
256 HER HONOUR: Yes, that's all right. Thank you, Mr Snow you'll need to leave if you wouldn't mind, thank you.
257 MR SONNET: As Your Honour pleases.
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