IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
BENJAMIN FRAZIER (A PSEUDONYM)		

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JUDGE:	HIS HONOUR JUDGE LYON	
WHERE HELD:	Melbourne	
DATE OF HEARING:	29 August 2024	
DATE OF SENTENCE:	2 September 2024	
CASE MAY BE CITED AS:	DPP v Frazier (a pseudonym)	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1406	

REASONS FOR SENTENCE
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Subject:						Criminal Law
Catchwords:
Legislation Cited:		Crimes Act 1958 (Vic); Sex Offenders Registration Act 2004 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:						Black v R [2022] VSCA 125; R v Verdins [2007] VSCA 102; 
Sentence:			40 months' imprisonment with a non parole period of 21 months  
					
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms F. Holmes	Office of Public Prosecutions	
			
For the Accused	Mr J. Portelli 	James Dowsley & Associates	

HIS HONOUR:
1	Benjamin Frazier, you have pleaded guilty to the following charges which carry the following maximum penalties.
2	Charge 1, sexual penetration of a child under the age of 16 contrary to s49B of the Crimes Act and carries a maximum penalty of 15 years' imprisonment.  In addition, the provision is subject to the standard sentence scheme which carries a standard sentence of six years.  Furthermore, you will be subject to the Sex Offender Registration Act to a maximum period of reporting of 15 years.
3	The second charge to which you have pleaded guilty is a charge of possession of a drug of dependence which carries a maximum penalty in these circumstances of one year's imprisonment, it being agreed by the Crown that the cannabis that you possessed was for personal use.
4	You have a criminal history which is relevant to your drug offending, but not relevant to the sexual offending.
Circumstances of Offending 
1	The Crown tendered the summary of prosecution opening as Exhibit A.  A summary of your offending is as follows.  
5	You are 48 years of age, and you are the victim’s paternal uncle.  You have been estranged from the victim and your family until December 2021 due to a breakdown in the relationship with your family.  The victim at the time of the offending was 13 years of age and attending high school.  When you re-bonded with your sister, the victim’s mother, you over time developed a strong and protective relationship of your niece, the victim, and she treated you as a friend and confidante.  
2	On 13 May 2023, which was a Saturday, the victim was at your home for a sleepover.  She was without her mother.  There was nothing unusual about this; you frequently spent time together.  After returning from a walk, the victim said that she would have a shower.  You said you would turn the taps on.  She said 'no, I'll do that'.  You returned soon after, complimented her on her body and asked to see her boobs.  She said 'no'.  She slept that night in your bed, which again I'm told was not entirely unusual, but whilst in bed you started touching her thighs and put your hand down her pants and touched her thighs and bottom and under her pants. You touched and penetrated the victim’s vagina with a finger for about two minutes.  She left your room shortly after that and said she wanted to go to sleep.  
6	She then made a Snapchat video call with friends and disclosed to friends what had occurred.  You then came into the room, which was witnessed by those on the Snapchat call, where you said 'can you come back to my room?' and said 'I promise I won't touch you'.  She remained in the other bedroom for the rest of the night.  The following morning, she spoke to another friend and disclosed to that friend what had happened.  
7	In counselling at her high school, which was an ordinary pre-arranged counselling session and not in response to this, she disclosed to the counsellor that she had been assaulted in an isolated once-off encounter with you on the Saturday night.
8	You were interviewed by police on 31 May 2023.  You admitted the offending.  You told police that you had been drinking alcohol before the offending and you stated, at least to your lawyers, that you had been also affected by cannabis that you had smoked.  In the course of the interview with police, you told the police of the offending.  You said 'It pisses me off.  Do you know how much I've been suicidal since this?  You're a fucking idiot.  Why would you ruin a relationship like that?  It was only because of her I started talking to my mum and I go and ruin it.  I'm a fuckwit.  I was drunk and I put my hand down her pants and put my finger in her.  To me it was like she was asking for it.  I was confused, I was drunk.  I didn't want to do anything like that.  What a dickhead'.  
9	Thereafter, it was submitted on your behalf and accepted by the Crown that you made full and frank admissions in your record of interview, that you pleaded guilty at the first opportunity and that your admissions and early plea should be viewed as a real marker of remorse.  You had not spent any time in custody until you were remanded in custody on Thursday 29 August.
Standard Sentence Principles  
10	I turn now to consideration the standard sentencing principles.
11	The scheme provides for a standard sentence for Charge 1, sexual penetration of a child under 16, of six years.  The Sentencing Act also provides that I must fix a non-parole period of not less than 60 per cent of the sentence unless I consider that it is not in the interests of justice to do so.
12	The standard sentence takes account only of the objective factors affecting the seriousness of the offence in question and is marked as the middle range of seriousness of that offence. Objective factors exclude consideration of matters personal to you as an offender or to a class of offenders.  Rather it is determined wholly by reference to the nature of the offending.
13	In determining the appropriate sentence for your offending, I must take into account the standard sentence as one of the factors relevant to the sentencing process. In this way, it is an additional factor to consider in the sentencing process.  Furthermore, I must not have regard to previous sentencing practices which are not standard sentencing scheme sentences.
14	This does not limit the matters which I must take into account or can take into account in determining the appropriate sentence.   Nor is it intended to affect what is known as the instinctive synthesis process.  The standard sentencing scheme may be considered as a guidepost in the sentencing consideration.   However, it is neither determinative, nor a starting point from which I must simply remain, go up or go down in my sentencing consideration.
Objective Gravity and Moral Culpability  
15	I now turn to the objective gravity and moral culpability of your offending.
16	The criminal law prohibits sexual offending, and specifically sexual offending against children, with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity.  There is and can be no question or issue about consent.  The prohibition and maximum penalty for its contravention is intended to deter others who may consider engaging in sexual activity with a child. 
17	The absolute prohibition on sexual activity with a child under the age of 16 presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm which is long-lasting and serious and manifests itself in both physical and psychological forms.  Therefore, the harm to your victim is presumed.  
18	In this case the victim impact statement made by your victim's mother makes it clear that the harm you caused to the child was actual and profound.  Her trust in others and presumption of relative safety with which we mostly go about our lives has been destroyed in her.  The victim impact statement of Taleisha was read to the court.   The experience of the courts shows that the harder, longer road to rehabilitation is usually experienced by victims of childhood sexual abuse and not the offenders.   In many cases the trauma is carried with them for the whole of their lives.  This may be the case here.
19	Your offending constituted a significant breach of trust on your part.
20	Your offending is therefore objectively serious, and must be met by deterrence, just punishment and with other sentencing factors.  I fully recognise that for your young victim, it was likely the most significant intrusion that she has ever encountered, and the duration of your offending would have seemed like an eternity. Nevertheless, it was, for sentencing purposes, a single instance and a single act of relatively short duration.  It is necessary to keep these factors in mind and in perspective when I impose sentence.
Personal Circumstances
21	You are 48 years of age.  You turn 49 in November.  
22	You were the third of four children in your family and you say that your life growing up in the south eastern suburbs of Melbourne was normal for the first 12 years.  
23	Your father worked as a carpenter and security guard and your mother was largely devoted to home duties.  From about the age of you turning 12, your father developed a friendship with the coach of the local cricket team and the coach, rather bizarrely I might observe, would stay over and stayed in your bed where you are convinced, and were convinced at your young age, that he perpetrated sexual abuse on your younger brother.  Your parents however and your brother for that matter, dismissed your concerns, but such was your upset with the situation, that you moved out of the family home at the age of 14 because you could not handle it any further.
24	You remained largely estranged from your mother and other family members for most of your adult life, as I say making contact only with your sister in about late 2021.
25	Your sister made allegations in 2001 that your father had sexually abused her as a child and your father then took his own life soon after that.  You did re-establish some contact with your sister in 2016, but it took until 2021 for that to deepen and since that time you have still had no contact with your mother or other siblings.
26	For your own childhood, you reported to Mr Newton, psychologist, that you were in trouble with teachers all the time and that you were a very active kid.  You report being a poor student academically.  In Year 8 in the first three months of the year, you attended three different schools and left school at the end of that three-month period at the tender age of 14.
27	You lived with friends but did not undertake any further education or vocational training.  After leaving school, you became a professional ten pin bowler for a period time until you were injured at about 19.  It appears that you enjoyed some considerable success in this field and were Victorian captain at one stage.  Since that time you have worked largely as an unskilled worker in manual positions and at the time of assessment you were working as a warehouse manager.
28	The report of the group general manager, speaks of you as an exceptionally dedicated, reliable and committed worker, delivering high quality work.  Your passion for your role was evident and you were proactive in your approach and displayed a willingness to take on additional responsibilities when necessary.  Such was your relationship with him that he provided not only a professional reference for you, but a personal reference which speaks of your qualities.  Your emotional depth and genuine care for others are qualities which he has witnessed repeatedly in interactions.  Your commitment to your friendship with him and your compassion for those around you he reported were truly commendable.
29	I received a reference from Sally Cook who speaks of you as always a true gentleman, kind, considerate and respectful, thoughtfulness to her family, helpful and reliable.  And then John French described you as a long-time friend of over 30 years, meeting during your cricket days and described you as a caring and loyal friend who is always there for him and others in his life.  Such was your care for your friends that you would help with school pick-ups of his son and provided support and it appears after care and weekend care when the child needed it.
Psychological Material
30	As part of your circumstances, you were assessed by Mr Patrick Newton, forensic psychologist, who provided a report dated 21 August 2024.  
31	You reported to Mr Newton a lengthy history of instability with your mental health, and a mental health summary was provided by Forensicare.  Turning to that report from Forensicare first.  I received the report of Cheryl Phillips, senior psychiatric nurse, who summarised your difficulties from 2010.  Going back to 1987, you registered with Alfred Psychiatry Services and you required six inpatient admissions between December 2005 to January 2011.  You have been registered with the Alfred, with the Frankston Hospital and with the Dandenong campus.
32	From 1987 to 2011, you were diagnosed with an emotionally unstable personality and it appears also borderline personality disorder.  Your mental health has been adversely affected by your harmful use of alcohol.  You have suffered long-term depression, adjustment and anxiety disorders and it appears also post-traumatic stress disorder, and in your early years you had a developmental speed or language disorder.  Your last contact with the public mental health system was with Monash Health on 8 November 2023.  Since the age of 14 you have not had the support or help of family in dealing with your mental health difficulties.
33	Notwithstanding the revelation in relation to your father, you became deeply depressed in 2001 at his death and you made attempts at suicide.  Your drug and alcohol use has been problematic since an early age.  You started smoking cannabis at age 14, soon after moving out from home.  You found that cannabis relaxed you and alleviated anxiety, but you soon became engaged in the daily use of the drug.  You began using alcohol in your early 20s and described to Mr Newton a pattern of heavy drinking through the week and particularly at high levels of weekends.  You reported to Mr Newton that you were intoxicated at the time of the offending.
34	Mr Newton reports that in describing the offending to him, you stated 
'I feel so remorseful and I can guarantee that I will never put myself in this position again.  I am so remorseful for what I've done.  I've hurt [the complainant[ in a way that I never should have done and I have broken the trust with her'.
35	Notwithstanding your long history of mental health issues, Mr Newton reports at the time of his report, that you were suffering from relatively mild symptoms of reactive psychological distress brought about primarily by the fact that you were understandably worried about your impending plea hearing.  Mr Newton considered that as at the date of the report, 21 August 2024, that he did not consider that you were manifesting any active symptoms of psychological disorder, rather the main factors influencing your conduct with the victim were intoxication with alcohol and cannabis.  
36	Now the flip side of that, the good side of that, Mr Frazier is that if you are not currently mentally ill, then that enhances the prospects that you will continue to develop insight into your offending and put you on the path to engage in rehabilitation from your offending.  
37	Mr Newton considers that you are not a psychologically sophisticated man.  He considers that your difficulties are exacerbated by your poor literacy, limited education and your concrete discourse.  He considers your substance abuse remained problematic to the point of your remand.  He considers that your lack of engagement in treatment means that you have little understanding if the issues that are caused by your abuse in alcohol and drug use.
38	In considering your offending, Mr Newton reports that you are prone to pursue relatively solitary recreational activities and you denied prominent feelings of loneliness notwithstanding that you have not had an intimate relationship for an extended period.  Mr Newton expressed some concerns about your insight.  He said that you were unclear about issues of boundaries and propriety in sexual interactions and that he felt that you were unsure of the power imbalance inherent in the relationship between you and the victim.  Nevertheless, two important observations should be made.  Mr Newton concluded that you would not meet the diagnostic criteria for paraphilia and it is clear that as an overall or overview picture you do understand that what you did was deeply wrong, a breach of trust for which you have expressed remorse, and a true desire to ensure that you never commit such offending again. 
39	Mr Newton concluded that you would be best assessed as posing a moderate risk of recidivism to further sexual offending, but that it is understood that you will undergo assessment for sex offender treatment whilst in custody and that these factors and your own developing insight should lower the risk of recidivism.
40	Mr Newton considers that your drug use has been sufficiently severe to meet the DSM-5 criteria, for a diagnosis of substance use disorder with regard to cannabis and alcohol, of a moderate level of intensity.  Mr Newton considers that your rehabilitation will be assisted in custody by your thought processes being clear of alcohol and drug use.  Nevertheless, he considers that your interpersonal style and poor social skills will make it more difficult for you to adjust to the custodial environment.  This is relied on by both the prosecution and the defence to submit that limb 5 of Verdins applies.  I will say more about that in a moment.
Sentencing Submissions 
41	Mr Portelli, who appeared on your behalf, submitted that in light of the nature of the offending committed by you against the matters that I have raised that limb 5 of Verdins would indeed be given weight in this case, he relied particularly on the excerpt I read from paragraph 65 of Mr Newton's report.  Mr Portelli also submitted that whilst he recognised from Mr Newton's report that there some problems with your insight, that you have, as I said, a deep acceptance of responsibility and understanding of wrongdoing and a true empathy for your young victim.  Mr Portelli submits that I should find there is evidence of significant genuine remorse and that whilst you face the imposition of a head sentence and non-parole period, I should sentence you to a period of imprisonment which is below the standard sentence of six years
42	Ms Holmes, who appeared for the prosecution, submitted that on the charge of cannabis possession, that you were found in possession of 19 bags of cannabis, but it was conceded the Crown could not say that it was not for personal use.  Accordingly, it is not a small amount of cannabis, so the maximum penalty of up to one year imprisonment applies. 
43	Ms Holmes submitted that notwithstanding the lack of submission on the subject by Mr Portelli, that I should find that the principles enunciated in the Victorian Court of Appeal case of DPP v Black apply.  So notwithstanding the first principle of Bugmy was not submitted to apply, your childhood background and deprivation must be taken into account to mitigate the sentence I impose on you.
44	Ms Holmes submitted that limb 5 of Verdins does apply and stated that nothing said by Mr Portelli, save what I am about to outline, was particularly in dispute.  As to the charge of sexual penetration, Ms Holmes submitted correctly in my view that this represented a serious breach of trust of a protected relationship.  The victim stated that she had lost her best friend.  However, Ms Holmes then said it is nevertheless conceded that this was, in legal sentencing terms, an isolated incident of limited duration, although taking into account it would have seemed like an eternity, of a gross intrusion to the victim, but in sentencing terms I must take into account that it was isolated and of limited duration.
Analysis
45	In my view, I take into account the fact that your plea of guilty was made at the earliest opportunity and in my view, given the admission you made in the record of interview and the other expressions you made to police and to Mr Newton, the plea of guilty in this case does in fact exhibit remorse.  As such, it has not only utilitarian benefit, but it facilitates the course of justice.  Moreover, although I recognise there are some problems with the details of your understanding of boundaries against which the offence was committed, I consider that you have good prospects for your rehabilitation.  I think your prospects for your rehabilitation will be enhanced by the sex offender treatment program that you will undertake whilst you are in custody.
46	I take into account the principles enunciated in DPP v Black and I take into account the objective circumstances of the offending.  In my view, limb 5 of Verdins does have application.  Verdins is a Court of Appeal case where the court said on the position of the fifth principle:
'That the existence of the condition at the date of sentence or its foreseeable recurrence may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health'.
47	In my view, that applies here.  In all of the circumstances, taking into account the standard sentence and the factors in mitigation, I have determined that the appropriate sentence in this case on Charge 1 is a sentence of 40 months, that is, three years and four months' imprisonment.  I have determined that it is in the interests of justice to impose a lesser non-parole period than the 60 per cent prescribed by the Sentencing Act and I say that it is in the interests of justice given the factors that I have outlined as to your childhood, your expression of remorse and my determination of your likely prospects of rehabilitation.  
48	On Charge 2, the charge of possess cannabis, you are convicted and sentenced to one month's imprisonment.  That sentence is to be served concurrently with the sentence on Charge 1.
49	As such, I am going to impose a non-parole of 21 months before you are eligible for release on parole.  In that time I would expect that you would be able to and ought to complete the sex offender treatment program.  
Total effective sentence
50	So the total effective sentence, Mr Frazier, is a sentence of 40 months' imprisonment with 21 months to serve.  
Section 6AAA declaration
51	The s6AAA declaration in this case is that, but for the plea of guilty, I would have imposed a sentence of five years and six months' imprisonment with three years and six months to serve.
Sex Offenders Registration Act 2004
52	I also say again, Mr Frazier, that you will be registered as a sex offender for a period of 15 years and there is a deal of paperwork.  
53	I have announced the 6AAA.  I have said why I have gone under the standard sentence.  I have announced the SORA.  
54	Ms O'Malley and Ms Royston, there is an ancillary order for the disposal of the cannabis.  I will make that order in chambers.  I take it there is no opposition to that, Ms O'Malley?
55	MS O'MALLEY:  No.
56	MS O'MALLEY:  No opposition.
57	HIS HONOUR:  Is there anything else?
58	MS O'MALLEY:  Nothing further.
59	MS ROYSTON:  No.
60	HIS HONOUR:  All right, Ms O'Malley, do you want a moment to speak to Mr Frazier online?
61	MS O'MALLEY:  Yes, thank you, I would appreciate that.
62	HIS HONOUR:  Thank you, I will leave you on the line.  Those that participated in the hearing.  Good luck with your healing into the future and thank you for your participation in the hearing again today as last week.  
63	OFFENDER:  Thank you.
64	HIS HONOUR:  I will adjourn now.
65	MS O'MALLEY:  As Your Honour pleases.
66	MS ROYSTON:  As the court pleases.
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