DPP v Feltham

[2018] VCC 1187

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01894

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM FELTHAM

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 August 2018
CASE MAY BE CITED AS:	DPP v Feltham
MEDIUM NEUTRAL CITATION:	[2018] VCC 1187

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Y. Giannopoulos	Office of Public Prosecutions
For the Accused	Mr J. Jassar	Joseph Bourke Law

HIS HONOUR: 

1In 2014, you were charged with sexual offences which were to be heard in the Geelong Magistrates' Court.  You engaged very competent lawyers who negotiated a plea deal on your behalf with the police prosecutors.  The plea was listed to be heard on 29 July 2015.  Your lawyers asked you to obtain written testimonials that could be put before the magistrate to mitigate penalty.  You forwarded letters to your lawyers who appropriately sent them on to the prosecutor and the court in advance of the plea.  This occurred in 27 July 2015.

2What was quickly discovered by the very astute police prosecutor was that some of the letters were fabricated.  Precise details of the fabrications were as follows:  (1) a letter dated 8 September 2014 purportedly signed by a Mr Frank Howard, a senior employee with the City of Greater Geelong.  It was this letter that gave rise to the prosecutor's suspicions, the reason being that one of your sexual offences arose at a City of Greater Geelong site where you were contracted to provide maintenance services. 

3You and your company had for some time provided services for the City of Greater Geelong.  In fact in August of 2014, you had approached another City of Greater Geelong employee to provide a reference for what you said was a civil proceeding and dispute with someone you had done work with.  You in fact drafted the reference and the City of Greater Geelong employee signed it, understanding what it was to be used for.  That is, in the civil proceeding.  In July of 2015, you used this letter and the letterhead to, as it were, photoshop the first employee's name off and insert the more senior employee, Mr Howard.  His name was on the letter. 

4Mr Howard knew nothing of the letter.  Indeed he was aware of the sexual offending because of the circumstances and would not have provided a reference had he been asked.  Beyond the attempt to deceive the magistrate, the potential embarrassment or worse for the employee makes this a serious example of this offence.

5The second false reference was a letter dated 17 April 2015 purportedly from a Mr Brian Alexander, a one-time facilities officer at Victoria University.  You had provided services for Victoria University contracted by Mr Alexander over five or so years up till 2015.  Mr Alexander had retired from the university on 27 March 2015.  Prior to his retirement, he had provided two business references to you in April of 2015 and earlier in February of 2015.  You added to and embellished those references.  Mr Alexander did not prepare or sign the actual letter that was given to your lawyers to be ultimately tendered on your plea.  His earlier letter was altered by you.

6The third letter was also particularly concerning.  It was a letter dated 1 August 2014 purportedly signed by a Steven Poole, manager of maintenance and projects at an organisation called Active Community Housing.  Mr Poole did not write the reference and knew nothing of you.  In fact he had left Active Community Housing in February of 2014.  His job was taken thereafter by your brother, Peter.  You did, it seems, do some work for that organisation arranged by your brother once he had replaced Mr Poole. 

7After your arrest, the police seized and examined your computer which revealed emails to and from your brother discussing creating the false reference.  This last example reveals your planning and cunning but all letters show premeditated and deliberate conduct.  The three false character references were the particulars of a single charge of attempt to pervert the course of justice.  You pleaded guilty to that charge on 31 May 2018 at the County Court sitting in Geelong.

8There had been a significant delay in the matter getting on as you were, from time to time, unrepresented and unable to pay for a lawyer and Legal Aid was problematic.  I also consider that you were simply not facing the reality and the consequences of your offending, but ultimately you have funded a plea hearing.  It should be noted that the sexual offences were ultimately dealt with by a magistrate who imposed a fine and a community corrections order.  You have completed that community corrections order satisfactorily including a sex offenders program.

9In assessing the gravity of your offending and your moral culpability, it should be noted that your conduct was a blatant attempt to falsely persuade a magistrate to consider your circumstances more favourably.  Your intent was to achieve a lower penalty than might otherwise have been the case.  Magistrates have great numbers of cases to deal with each day.  They have to make quick but very important decisions based on materials they may only have had for moments or a short time.  Great reliance is placed upon the legitimacy of documents tendered on a plea.  Rarely are witnesses called to give oral evidence and be tested by cross-examination or scrutinised by the magistrate.  Time does not allow for that.  Thus your offending was serious.  It had the tendency to compromise the justice system and lower the all-important public confidence in the criminal justice system.  Sentencing as part of the justice system particularly concerns the public.  Confidence in the sentencing process is paramount. 

10All that said, in the most part the references were written by someone who knew you and had provided the reference for other purposes.  The last mentioned letter involving a community agency where your brother worked was more contrived.  You said that you used the previous manager's name because you were worried that if it were above your brother's name or if your brother's name was on the letter, that would not have had the same impact. 

11Your brother did not himself get off scot-free for this.  He was charged with making a false statement and given a 12-month adjourned undertaking without conviction in the Magistrates' Court. 

12As to your moral culpability, it has already been noted that you engaged in deliberate and planned conduct to fabricate the letters.  I accept you were in real fear that you would be imprisoned given your prior but old similar offending.  You were at a low end with the publicity of the sexual offending causing significant problems for you in maintaining your business.  Yours was a desperate attempt to improve your plea in mitigation.  Your moral culpability was high but I have a real sense now that you are insightful as to the wrongfulness of your conduct.

13Obviously the primacy sentencing purposes are denunciation and deterrence to you but especially to others who may be minded to undermine the system of justice. 

14As to your personal circumstances, you were 59 at the time of the offending and are now 62.  You have been married for over 41 years.  Your wife has had some difficulties with her health, causing the two of you significant stress and worry.  You raised three daughters who are now adults.  Your upbringing was difficult.  Firstly your father was an alcoholic, he was violent and directed anger towards your mother, yourself and your siblings.  Your mother and father separated when you were 15.  Prior to that, when you were just 10 or 11 years old, you were regularly sexually abused by a predator neighbour.  There were other inappropriate sexual encounters with another neighbour when you were in your teens. 

15You first exposed yourself in public while still an adolescent.  You have been before the courts for wilful exposure, twice in 1979 in your 20s and once in 1985.  You received bonds and fines.  You also have prior convictions for dishonesty, the most concerning being in 1991 when a judge of the County Court sentenced you to 15 months' imprisonment with a minimum nine for 18 charges of theft.

16After leaving school at Year 11, you worked at many and varied jobs.  Technician at the predecessors of Telecom or Telstra, a salesman in building supplies, heaters.  You operated businesses.  You worked in construction in Queensland through the 1990s, returning to Melbourne in 2000 to establish a business with your brother managing height safety in the building industry.  You fell out with your brother and moved into the construction industry before establishing your own business providing height and safety in the construction and maintenance fields.  It was while operating this business that your sexual offending occurred.  This business has deteriorated as a consequence of your reputation being tarnished.  You have been left with significant debts and the business is in liquidation.

17Your relationship with your wife also suffered throughout this time.  Recently you have been employed by your son-in-law in the same field of general maintenance.  This job is important to you in re-establishing yourself financially and also in terms of your self-esteem.  Working hard is important to you and your work history is very much to your credit.  Should you be gaoled, you will lose this work, a matter of no small moment given your current poor financial position and the steps that you have taken to re-establish yourself as a contributing member of the community.

18You have undertaken lengthy psychological treatment from both Ms Pamela Matthews from May 2014 for 20 sessions and then twice in 2017.  You saw her for medico-legal purposes, that is, so she could prepare a report for this plea.  Also, you are now treated by Dr Smith, a psychologist who has expertise in treatment of sex offenders as well as the more general conditions such as anxiety and depression which you have.

19Both report that you have developed insight into your offending and the need for you to manage your stress and anxiety and all the significant residual psychological problems that arise from your traumatic experience as a very young child.  The psychologists' material, I have read and has been helpful to me in understanding your motivation and how you are now in a better psychological place.

20Dr Smith wrote: 

"Mr Feltham is continuing to consult me and is well-engaged in the therapeutic process.  In terms of prognosis, it is my opinion that Mr Feltham's mental health is likely to remain positive and stable with regular therapeutic input.  Mr Feltham is genuinely motivated to continue to address the contributory factors to his offending behaviour to ensure that it does not reoccur.  As noted, Mr Feltham has learned to value himself and is committed to rebuilding a career and future.  Thus Mr Feltham has been able to conceptualise his life post-offending in positive terms.  Moreover, Mr Feltman's remorse for the harm he has caused is both genuine and profound."

21In addition to the matters I have just mentioned also a matter raised in mitigation is you provide significant assistance to your brother's ill wife.  They are heavily reliant upon you because of their ill health and difficulties and your efforts to help them are important.  That would be lost and things hard if you were gaoled.  It does not reach the point of exceptional circumstances but it is another factor that gives insight into your current character, that is, someone who does contribute to those you care for.

22Your counsel urged that I impose a community corrections order.  He referred to the important guiding appellate decision of Boulton v The Queen.  He did so in emphasising that a community corrections order can simultaneously punish and rehabilitate.  He referred to Boulton and other earlier cases where the courts made clear that a non-custodial sentence can operate as a deterrent to others.  There is no issue about the principles.  It is the application of them in this case. 

23The prosecution contend that I ought to impose some immediate imprisonment.  Reference was made to other cases of attempts to pervert the course of justice where an offender produced fabricated letters to a court seeking to obtain a lesser sentence.  In those cases, the appellate courts reduced the sentences at first instance, reduced the sentences of imprisonment.  But overall, it can be seen from those cases that terms of imprisonment, some with community corrections orders, have generally been imposed in those cases of attempting to pervert the course of justice.  The cases referred to are Saleem and Zotos.  Thus the submission made by your counsel for a community corrections order alone does seek a particularly lenient sentence.

24It should be noted in the cases of false letters being tendered on a plea - in the cases that I have mentioned - the offenders had far more extensive and immediate criminal histories than you.  Indeed in one case, the false letters tendered were to establish that exceptional circumstances existed as was required by that offender to avoid a suspended sentence being restored.  On examination of those two cases, Saleem and Zotos, and all the circumstances of the offending and the offenders, they were more grave than is the case here.  Those cases are important but they do not establish nor did the Court of Appeal intend that they establish that gaol and gaol alone is the only penalty available for this type of offending.

25As the High Court has made clear in Dalgliesh, sentencing judges must exercise their broad sentencing discretion by considering and applying individualised sentencing.  Consistency between cases that have some similar features in respect of the offending conduct is important but what is most important is that the particular circumstances of the offending and the unique circumstances of the offender are at the heart of the process of instinctive synthesis.  As part of the synthesis of those matters, I must consider the provisions also of the Sentencing Act. 

26Here, a central factor is the obligation that I do not impose imprisonment on anyone unless I am satisfied that it is only by a sentence of imprisonment that all the sentencing purposes would be properly met.  I have endeavoured to make clear that the prominent sentencing purposes here are denunciation of your attempt to undermine the criminal justice system, also the need to deter others from such conduct and the lesser but still important need to deter you from offending, and also the need to establish conditions that further facilitate your reform. 

27I consider that you have taken significant steps to reform and I have confidence that you will stabilise and move further towards permanent reform.  I have given this matter - and understandably the issue of whether some imprisonment or no imprisonment - I have given that much anxious consideration.  At first I considered there was little option but some gaol.  However, after as I said anxious consideration and examination of new material from Dr Smith, and re-examination of all the material, I have come to the conclusion by a bare margin that all sentencing purposes can be met by a lengthy and onerous community corrections order alone, and therefore imprisonment is not required or permitted pursuant to s.5(2)(I)(4). 

28Doing the best I can, I consider the just and appropriate sentence in this case is as follows.  For committing the crime of attempting to pervert the course of justice, you are convicted and placed on a community corrections order for two years and eight months.  Conditions that will apply to you other than the mandatory conditions are that you must do 200 hours of unpaid community work.  You must be under the supervision of the office of Corrections and you must undergo assessment and treatment for psychological matters. 

29I do not propose to include that you must do other programs that might reduce the risk of reoffending in the sense that you ought to do a sex offenders course.  In this case, you have done one but also this case is not one that gives rise to risks to the community in respect of your sex offending.  That was dealt with by the magistrate and appropriately so.

30That sentence that I have imposed also reflects the reduction because of your plea of guilty.  As will be seen shortly, it is a palpable reduction but your plea of guilty was not an early one.  I have outlined your own difficulties in financing a trial or a plea but nonetheless the reduction is not as it would have been had you pleaded guilty at an earlier point which I must say you should have done.

31Had you pleaded not guilty and been found guilty of this offence, I would have imposed a sentence of 12 months' imprisonment together with a 16-month community corrections order.

32Are there other consequential orders?

33MS GIANNOPOULOS:  No, Your Honour.

34MR JASSAR:  No.

35HIS HONOUR:  Thank you.  Is there anything else required?

36MR JASSAR:  No, sir.

37HIS HONOUR:  Thank you.  A document has to be produced and you will have to sign it.  Mr Jassar may have to be in another place shortly and he can ‑ ‑ ‑ 

38MR JASSAR:  I'm fine so I don't have to be there.

39HIS HONOUR:  You don't?  Settled it?

40MR JASSAR:  No, they couldn't find a magistrate for the two-day committal.

41HIS HONOUR:  Come to this court and we'll give you very brief certain cross-examination of the witnesses' account about the issues that count.

42MR JASSAR:  I was prosecuting that matter, Your Honour, I told my friends that but they still want to go ahead with the committal, so - yes.  It's unbelievable but we did offer them that.

43HIS HONOUR:  Do you have all your witnesses?

44MR JASSAR:  Pardon?  Yes, yes.  There were three other witnesses remaining and ‑ ‑ ‑

45HIS HONOUR:  Plenty of people put to - who must think the justice system is going well.

46MR JASSAR:  Yes.  They were very disappointed, Your Honour, it was a very serious home invasion with a terrible bashing.  Yes.

47HIS HONOUR:  We've distracted ourselves from you, Mr Feltham.  The community corrections order which will befall you shortly - you know much of this, you have just completed one - but it works this way.  It will be for 32 months starting on 2 August 2018 and ending on 1 April 2021.  It is of some length, appropriately so in the circumstances of the seriousness of the offending.  The mandatory terms that apply to all community corrections order are that you must not commit another offence for which you can be imprisoned during the time the order is in force. 

48Mr Feltham, I have indicated my confidence in you that you have woken up and will not commit offences.  You are still in - as I understand it - difficult financial circumstances.  If you are tempted in any way to deal with those set of circumstances by what you might think is a minor offending in relation to dishonesty or the like, what will occur is you will be caught.  You will be brought before a court that will deal with you for that.  Much more importantly, you will come before me and do not doubt that I would without there being very powerful compelling reasons send you to gaol for a lengthy period of time.  Do you understand?

49OFFENDER:  I do, sir.

50HIS HONOUR:  Thank you.  You must comply with the obligations under the regulations that govern these things.  That will be photographs and other identifying things.  Corrections will ask, if you just cooperate.  Most of these conditions are about cooperation, so you must report to and receive visits from the office of Corrections.  You must report to a community corrections centre there in Box Hill - the address is here - within two clear working days of this order starting.  You must let them know if you change your address or your job.  You cannot leave Victoria without getting permission and you must obey all lawful instructions and directions. 

51The conditions that apply particularly to you are that you must perform 200 hours of unpaid community work over the 32 months.  That is not voluntary and you turn up when you like and when you have got a bit of time off your other work programs.  You turn up every time they say, stay until the hours are gone, do it as quickly as you can and get on with your life.  But it must be done.  Do you follow?

52OFFENDER:  I do.

53HIS HONOUR:  You must be under the supervision of the community corrections officers for the whole period.  That means that they will engage with you, they will have meetings with you throughout that whole time to see how you are travelling.  It is part of the involvement or the punishment in the community if someone is and will require you to be subject to their supervision. 

54Also you must undergo any mental health assessments and treatment that you are directed to do.  That will dovetail in, I have got no doubt, with the treatment with that you are undergoing with Dr Smith but you have got to maintain that as far as they ask you to.  Do you follow?

55OFFENDER:  I do, Your Honour.

56HIS HONOUR:  If you sign that, it will bring the matter to an end.  Come out of the dock.

57(Community corrections order signed and acknowledged.)

58Is there anything further required?

59MR JASSAR:  As the court pleases, thank you sir.

60HIS HONOUR:  Thank you, adjourn.

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