DPP v Fenton (a pseudonym)

[2022] VCC 1572

IN THE COUNTY COURT OF VICTORIA
AT SHEPPARTON

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID ALLEN FENTON (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Shepparton
DATE OF HEARING:	8 September 2022
DATE OF SENTENCE:	14 September 2022
CASE MAY BE CITED AS:	DPP v Fenton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1572

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence: Imprisonment, Total Effective Sentence 7 years. Non-parole period 4 years and 6 months. Sex Offenders Register for life.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Kaiser
For the Accused	Mr Z. Menon

HIS HONOUR:

1David Allen Fenton[1], you have pleaded guilty to two rolled up charges of rape.  Each charge represents three separate actions or allegations of penile/vaginal and digital/vaginal rape.  The facts of your offending are set out in Exhibit A, the

[1] A pseudonym.

Prosecution Plea Opening.  I was informed by your counsel I could treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein.

2Very briefly stated, between February and April 2016 on three separate dates you went into the bedroom of the complainant.  You forced yourself upon her, inserting your penis into her vagina without her consent.  On two later occasions you inserted your fingers into her vagina as well as inserting your penis into her vagina.  She told you, 'No', on occasion, tried to fight you off and told you to stop.  You took no notice.  Your victim was six to eight months pregnant at the time.

3You were staying at her home in Railway Crescent, Kinawa[2], at the time and you had your own bedroom.  Your victim complained during the period of your offences to a male friend.  She was seen to be distraught and unable to speak.  Later she told him that she had woken to find you engaging in sexual intercourse with her.

[2] A pseudonym.

4In June 2019 your victim went to the police.  You were arrested on
16 November 2019 and made a no comment record of interview.  A committal was held in 2021 and you pleaded guilty to these negotiated accounts in
May 2022.

5You have admitted a prior criminal record.  On 3 May 2012 at
a Tasmanian Court[3] you were sentenced to nine months' imprisonment for rape.  You were placed on the sex offenders register with reporting conditions for four years.  You had previously been sentenced to
two months' imprisonment, wholly suspended for sexual intercourse with a person under 17 years of age at the same court on 7 February 2011.  Your rape offending breached that suspended sentence, and you served the two months of what was activated and served cumulatively to the rape sentence.  In

[3] A pseudonym.

December 2015 you were fined $500 for failing to comply with your reporting conditions as to your residential address and for bail contraventions.

6Your victim and her daughter each filed victim impact statements.  Your victim suffers panic attacks at night.  She has been diagnosed with an emotional detachment disorder and PTSD.  She is concerned about the estrangement from her daughter and the effect her condition has upon her six-year-old son.  She does not go out; she lacks trust and experiences fear.  She has become a recluse.  She feels isolated and destroyed by your crime.  She is medicated to assist with her anxiety and says, 'I will never be able to forget what he has done.  I just have to live with the psychological and emotional scars this has left me with'.  'I am definitely not the same person I was'.

7She is clearly very seriously damaged by your offending.  Her daughter feels guilt for introducing you to her mother and allowing you into her mother's life.  She left home rather than endure the way you treated her mother.  I take the victim impact statements into account in sentencing you.

8You are now 31 years of age, being born in June 1991.  You fall to be sentenced as a serious sexual offender on both charges.  Because of the terms of the legislation, I must regard protection of the community from you as the paramount sentencing consideration.  To achieve that result I can impose a disproportionate sentence.  The prosecution concede there is no need to impose a disproportionate sentence in this case as I can properly protect the community with the sentences otherwise available to me.

9I order that it be recorded in the records of the court that you have been sentenced as a serious sexual offender on both Charges 1 and 2.

10Your personal history is set out in both the submissions of your counsel,
Exhibit 1, and the report of psychologist, Alison Maynard.  You grew up with your mother and stepfather, who was in the fire protection business that saw you move around between Tasmania and New South Wales and

[4] A pseudonym

South Australia.  You stayed very little in the one place.  Your stepfather, according to you, was abusive towards you when you were young, and he physically assaulted you up until the time you were able to fight back.  You claim to have had a medical condition at birth that saw you unable to speak for many years and you said that you could hear people talking but could not talk yourself until you were eight years of age.  You claim to be a very angry child and to be diagnosed with ADHD and medicated for that.  Currently your mother is resident in a town in Western Australia[4], where she works as a hospital orderly, and you have a close relationship with her.

11You moved frequently, as I said, as a boy, and you did not have any consistency at school.  You went to a special school for a period of time.  In Year 12 you dropped out in your first week of school.  You went to a TAFE after leaving school and got some certificates in vehicle mechanics, diesel engines and spray painting.  You worked intermittently on farms and have had a good work ethic, which you say you inherited from your father.  Somewhere you had an accident, and it allegedly broke your spine and crushed two discs and injured your knee, and this limits your movements now.

12You have a son, Jakob[5], from your victim in this case.  You have a daughter from your current partner, and you have a son, aged 12, named Jax[6], from an ex-partner from the past.

[5] A pseudonym

[6] A pseudonym

13You have been in a relationship with Krystal[7], the mother of your third child, since 2018/19.  You missed the birth of your daughter because you have been in custody.  You have had substance abuse issues throughout your life.  You claim to use cannabis to manage the pain you have in your back.  You have been drinking alcohol problematically since you were a child and you have used methylamphetamine, ecstasy and MDMA.  You GHB regularly and abuse Xanax.  You claim to have ceased using ice once you started your relationship with Krystal.  You have been tested whilst you were in custody and the drug screen provided was negative for drugs.

[7] A pseudonym

14You claim to have experienced anxiety and depression for many years and that when you become anxious you easily escalate into anger.  It is clear you do have an anger management issue.

15Your hypervigilant symptoms of PTSD were prominent with issues around restlessness, feeling aggressive, being jumpy, angry, insomnia, irritability and finding it hard to concentrate when you were examined or spoken to by
Ms Maynard.  She says that you do reach the diagnostic criteria for PTSD. She also says that you present with significant difficulties relating to
emotional dysregulation and that you have significant interpersonal difficulties and struggles to have formed the strong sense of self-identity.  These issues are likely to make your time in custody more difficult for you.  You are prone to sudden mood changes, self-harming, impulsivity, and other unstable relationships.  It is clear that your use of ice aggravated these issues.

16Ms Maynard reported that you present with a range of symptoms that could be an overlap of ADHD, complex PTSD, borderline personality disorder and development disabilities.  You suffer from social anxiety and
depressive symptoms.  You have a stimulant addiction to methylamphetamines, and you have anger issues to which I have referred.

17Significantly, when you spoke to Ms Maynard, she reports that you were not able to admit to her your guilt about the current offending.  In making an assessment of your future risk in that regard your psychological adjustment to the issues that confront you, she identified you as being a high risk of offending, or a high-risk offending factor.  You were in denial as well in relation to your prior history in Tasmania, to which I have referred.

18Since being in custody you have attended counselling and ceased drug use.  Your prospects for rehabilitation depend entirely on your maintaining abstinences for illicit drugs, managing you anger and completing a
sex offender's course to deal with your offence denial.  To your credit, you have completed courses relating to alcohol abuse, cannabis abuse, ice abuse and an emotional thinking course.

19In sentencing you I take into account, firstly, your pleas of guilty.  You pleaded guilty after the committal to what is clearly a negotiated indictment.  The form of that indictment creates sentencing difficulties for this court.  As recognised by the Court of Appeal in Barnard [2022] VSCA 42. You are nevertheless entitled to a reduction in sentence to reflect your plea of guilty. You have spared the community the time and expense of a criminal trial and, significantly, spared your victim the trauma of giving evidence at a trial. Your plea of guilty has increased value because of the nature of your offending and the relief it offers to your victim.

20Finally, your pleas of guilty have greater value because of their assistance to the justice system in the time of the COVID-19 pandemic.  The system has been severely damaged, and your pleas have facilitated the course of justice.

21Secondly, I take into account your troubled and disrupted childhood in a general way, as submitted by your counsel.

22Thirdly, I accept that your time in custody has been, and will continue to be, more onerous for you because of:

(a)your personality issues that may see you in conflict situations;

(b)the effect of COVID-19 on time in custody.  You have been in custody for nearly three years, enduring the effects of the pandemic, lockdowns, difficulties with courses and programs, lack of visits, and these issues are likely to be ongoing; and

(c)your increased isolation because of your separation from your family, who live in Western Australia.

23Fourthly, I also take into account that you have waited three years to have this matter finalised and the uncertainty as to your future hanging over your head.

24Your offending represents a mid-level example of the offences of rape.  Of the three separate incidents covered by the two charges, the third incident, in my view, is the most serious as it involves more offences and greater violence.  Because the charges are representative of the type of offending rather than reflecting individual offences, I am required to assess your offending in a total fashion and somewhat arbitrarily divide your culpability between the
two charges.  Both the prosecution and your counsel agreed that this was the only way the court can deal with the indictment drafted in the way it is.

25Although there is a presumption of cumulation of sentence because of the serious sexual offender provisions of the Sentencing Act, both your counsel and the prosecution agreed that the way the indictment is fashioned requires me to treat your three separate incidents in a totality fashion.  This is not, in my view, satisfactory.  However, the court must do the best it can to properly deal with your offending and it is clear that you consented to, or indeed negotiated, the indictment to be settled in the way it is as part of the plea package with the prosecution.

26I have had regard to the submissions of your counsel in Exhibit 1 as to the circumstances of your offending and principles of totality.  Would you stand up, please?

27On both charges you are convicted.  On Charge 1, the rolled-up count of rape, you are sentenced to be imprisoned for five years.  On Charge 2, the rolled-up count of rape, you are sentenced to be imprisoned for five years.  I order that two years of the sentence on Charge 2 be served cumulatively on the sentence imposed on Charge 1, which I declare to be the base sentence.  That is a total effective sentence of a term of imprisonment of seven years, and I order that you serve four years and six months of that sentence before being eligible for parole.

28I declare 1032 days of that sentence have been served by way of PSD.

29And pursuant to s6AAA of the Sentencing Act I indicate that but for your pleas of guilty I would have imposed a term of imprisonment of 11 years with a
non-parole period of seven years, six months.

30Pursuant to the Sex Offenders Registration Act 2004 registration is discretionary pursuant to s11(1) because you have been convicted of
Schedule 3 offences.  Pursuant to s11(3) of the Act I can only make an order if I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons or to the community.  Because of your relevant prior history your status as a serious sexual offender, as I said, the prior history of sexual offending, the repeated nature of the offences committed in the offending before me for which I am to sentence you, and the way in which you deny
sexual offending to psychologist, Alison Maynard, I am satisfied beyond reasonable doubt that you represent such a risk.  In paragraph 46(b) of
Exhibit 2 and paragraph 66 of her report she concludes:

Mr Fenton had difficulty admitting any of his sexual offending with the writer and spoke of his partner, who had alleged rape, both the current charge and the historical charge, that they had been manipulating him because he had sought custody of the children.  Mr Fenton would benefit from attending a
sex offenders’ program in order to build his level of insight about his offending and learn to take responsibility for his offending.

31I am satisfied beyond reasonable doubt that you represent the risk and I order that you be placed on the register, and you report for life.  Are there any other orders required?

32COUNSEL:  No, Your Honour.

33HIS HONOUR:  All right.  I will terminate the links.  Thank you.

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