DPP v Furletti [2021] VCC 1494 (1 October 2021)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT FURLETTI

JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2021
DATE OF SENTENCE:	1 October 2021
CASE MAY BE CITED AS:	DPP v Furletti
MEDIUM NEUTRAL CITATION:	[2021] VCC 1494

Sentence: Total effective sentence of 30 months' imprisonment with a non-parole period of 20 months' imprisonment.

s6AAA: Total effective sentence of 40 months' imprisonment with a non-parole period of 28 months' imprisonment.

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions

For the Accused	Mr I. Polak	Richard Davis & Associates

1 At the outset, Mr Furletti, I will tell you what I will do. I will sentence you to a total of 30 months' imprisonment and fix a non-parole period of 20 months' imprisonment. I will declare the 310 days of your pre-sentence detention as time served under those sentences.

3 If sentenced to imprisonment on Charges 1 and 2, you are to be sentenced as a Serious Sex Offender on Charge 3.

4 The circumstances are set out in the document entitled 'Summary of Prosecution opening on Plea', which is Exhibit A. Your counsel agreed with the factual content of that document.

5 At the time of your offending, you were living in a caravan at a residential address in Moe. After suspecting you were posing as a teenage boy and contacting teenage girls, the police applied for and were issued a search warrant. On 6 August 2020, the police searched your caravan and seized your Samsung Galaxy mobile telephone. Analysis of the data in the telephone revealed your contact with the child, the subject of Charge 1.

6 On 16 October 2020, the police interviewed this child. She was then 14 and living in New South Wales. You told her your name was 'Chase' and you were 16. You had put her on Snapchat and your online contact with her lasted about five months. At your request, she sent you photographs of her breasts and vagina. You sent her photographs of your penis and buttocks. She sent you nude photographs and videos of herself almost daily. You sent her videos of you masturbating and got her to send you videos of her masturbating. You sent her a video of a male touching the breast of a young female and ejaculating over her stomach. You told her you were the male, and the female was your 13-year-old sister and she was then asleep.

7 After this child discovered that 'Chase' was not your real name, you told her you were 28 years old.

8 Once you told her you were in Coffs Harbour and sought to meet her there. When she declined, saying she was too busy, you replied abusively.

9 After you and she broke up, you threatened to leak all the nude photographs you had of her. She said she did not care because they did not show her face.

10 Between 7 June and 20 July 2020, you and she exchanged 249 MMS messages. By July, you knew this child was only 14 years old.

11 The opening contains a number of instances of exchanges between you and the child. Many are sexually explicit. They were read out by the counsel for the Director, and I will not repeat any of them.

13 Further analysis of the data from your telephone revealed 132 messages exchanged between you and a second child, aged 16. These messages were exchanged between 25 May and 8 July 2020. This child is intellectually disabled.

14 Among your exchanges, you sent her a photograph of your erect penis and a short video of you masturbating. You instructed her on how she could masturbate, including finding her clitoris. She refused to send you a video of her masturbating.

16 The prosecution opening divided Charge 3 into two parts, each setting out the circumstances of an occasion of the rolled up charge. This rolled up charge alleges you have committed more than one offence of the same type between specified dates.

17 Further analysis of your mobile telephone showed you kept 103 files containing child abuse material. There were 99 video files and four picture files. These files has been categorised as follows:

(b) 27 files showing children masturbating himself or herself or sexual activity between children;

(e) one file placed in a category which covers sadism, bestiality, humiliation, or child abuse. It is unclear which of those activities is contained in the file.

18 The files in (a) to (e), are described as Categories 1,2,3,4, and 5, respectively. This mobile phone also contained 959 other files, placed in Category 8, and described as being legal adult pornography.

20 On 25 November 2020, you were interviewed by the police. It was a lengthy interview. Judging from the extracts of the interview contained in the opening, you were largely co-operative with the police in answering their questions.

21 On that day, you did not bring your second mobile phone, a Samsung A71, to the Police Station. The police were aware of the existence of this phone. Helpfully, you gave permission to the police to enter your caravan and remove this phone. Once they possessed the phone, you gave them its PIN code. It too was analysed and revealed:

(f) a Category 6 image containing an illustration of children engaging in sexual activity or poses.

22 As part of the Category 1 images, there were images of naked bodies of the victims, the subjects of Charges 1 and 2.

23 Between 26 The 1997 and 25 January 2017, you have appeared in a court on eight occasions, excluding an appeal to this Court. You were found guilty or convicted of 53 offences. Twice, you have received unsuspended sentences of imprisonment and once a partially suspended sentence of imprisonment. Those sentences were imposed for contraventions of Intervention Orders or the offence of stalking. The last sentence of actual imprisonment was your last appearance in a court apart from the present charges. On that occasion, you were sentenced to nine months' imprisonment. Up until then, that was the longest sentence you had ever received.

24 You are now 45. You are the eldest of three children. You have a sister and brother. You were raised in Benalla. Your father worked with the railways and your mother worked in a factory. Your parents separated when you were 14. You and your brother lived with your father while your sister stayed with her mother. Your father seemed to work a great deal. It was left to you to care for your brother.

26 At 16, you went to live with Sonia in a caravan in Lakes Entrance. Your relationship with Sonia lasted 11 years and there are two daughters, aged 20 and 22. After you and she separated, there was such a dispute over your access or contact with your daughters that resulted in you not seeing them for 15 years.

27 After your relationship with Sonia ended, you married twice with both marriages lasting seven years. There were two children born during the first marriage. It turns out they were not your children. You learned this after you separated from your wife. The second marriage produced a child, now aged 10. You have not seen this child for six years. This marriage broke down because of the infidelity of your wife.

28 You attempted suicide in 2016 by driving your motor vehicle off a cliff. You did so because of your distress at not seeing your children. You suffered broken bones and a collapsed lung. You were admitted to a psychiatric ward following this attempt.

29 Over the last four years, you have gained contact with your daughters and are now friendly with Sonia.

30 You attended primary and secondary schools in Benalla and completed Year 10. You left school after three weeks into Year 11. You worked in rubbish removal, then as a fisherman and as a night manager with Coles for five years. For 12 years, you worked as a high rise window cleaner. You lost this job during the first lockdown in this State. Since then, you have not gained employment despite your efforts.

31 While in custody, you have seen a psychologist three times. You are not prescribed any medicines.

32 You intend to live with your father in Lakes Entrance upon your release from prison/

33 Aaron Cunningham is a psychologist. On 17 September 2021, he interviewed you at the request of your solicitors.

34 You told him of your depressed mood over 20 years stemming from your inability to see your children (including the son from your second marriage) and your discovery that you were not the father of the two children of your first marriage. You felt the Family Court system was unjust. You coped with your depressed mood by realising what you can and cannot control. Despite your denial of any sexual attraction to children, Dr Cunningham assessed you as a moderate risk of sexual reoffending.

35 Applying psychometric tests, he found you had significant elevations on Generalised Anxiety Disorder, Major Depressive Disorder, and Persistent Depressive Disorder. Despite those findings, he did not diagnose you as suffering from any particular disorder.

36 He administered another test to assess your risk of sexual reoffending and, as I said, found it to be moderate.

37 Dr Cunningham identified the support of your family. After your release from prison, you intend to live with your father. You have resumed contact with your daughters.

38 Dr Cunningham considered a long period in prison would be likely to aggravate your depressed mood. He recommended engaging with offence specific psychological intervention to treat your offending behaviour and your depression.

39 Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed. Section 5(2) sets out factors which I must, if relevant, take into account in sentencing you.

40 Plainly, the purposes of deterring you and deterring others from committing these offences or similar offences is important. My sentences should manifest a denunciation of these offences. They should also act to protect the community from you. Aspects of these purposes may be achieved through your rehabilitation. For if you are rehabilitated, then you will not reoffend by committing these or similar offences again.

42 However, each of the charges is a 'sexual offence' as defined in s6B of the Sentencing Act 1991.^[1] For the purposes of sentencing on Charge 3, you are a 'Serious Sexual Offender'. In sentencing you on that charge, s6D tells me:

(a) I must have regard to the protection of the community from you as the principal purpose for which the sentence is imposed; and

(b) in order to achieve that purpose, I may impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.

43 Counsel for the Director did not seek a disproportionate sentence and I agree it is unwarranted in your case.

44 Finally, s 6E provides the sentence on Charge 3 should be served cumulatively on the other sentences unless I otherwise direct. Again, counsel for the Director did not seek full cumulation but did seek partial cumulation.

45 Neither counsel drew my attention to cases which might point to current sentencing practices.

46 These offences are in the mid-range of seriousness. The grooming occurred over a relatively short period of about five months. The involvement of the child in the second charge was even shorter.

47 Although, in terms of number, you had more files of adult pornography than those relating to children, nevertheless, the number of the latter files was significant.

48 Your culpability for these offences is high. There is an enormous age difference between you and the victims in Charges 1 and 2.

49 To an extent, you acted to lessen your culpability in relation to the second occasion of the third charge by allowing the Police to enter your caravan and seize your second mobile phone. You then gave the Police your PIN code so they could access your messages and gain the evidence necessary for the second occasion.

50 As to your prospects of rehabilitation, your criminal history shows your willingness to contravene orders. Dr Cunningham assesses you as a moderate risk of sexual reoffending. Upon release, you intend to live with your father. You have resumed contact with your daughters after many years of no contact. You are remorseful for your actions. The sentence I will impose is by far the longest sentence of imprisonment you have received. It must have some deterrent effect. Whether your rehabilitation is achieved through wanting to change or through fear of punishment matters little so long as you become law abiding. Overall, I consider those prospects as modestly positive.

51 Only the victim in the first charge has made an impact statement. Because it is short, I will read its admissible part:

“...I regularly feel the need to cut myself and I sometimes act on that feeling. This happens when I have flashbacks. I feel insecure about my body. I am fat. I see this because I am eating more when I am depressed. I often feel depressed. I have high anxiety when I meet with people I have known for a long time. I can't trust what people say to me about themselves. I find it impossible to think about social situations. I can't trust people generally. I always think that they are lying. Reading this statement about all that has happened to me makes me feel numb."

52 I am not surprised the victim in the second charge has not made a statement. To a limited extent, both victims were involved in the third charge.

53 Your pleas of guilty were entered at the earliest reasonable opportunity. They are evidence of your remorse over the commission of these offences.

54 Your pleas of guilty have a 'utilitarian' benefit. They assist the process of the administration of justice by bringing these charges to an end far earlier than if you had elected for a trial by jury. They relieve the eight prosecution witnesses from the arduous task of giving evidence in your trial. This is especially so in the case of the two victims. One of the victims was so upset that the police could not interview her. I daresay she would find the giving of evidence a very great burden.

55 The ability of criminal courts to hear and determine cases has been severely compromised by the restrictions necessitated by the pandemic. Recently, the Court of Appeal in Worboyes v R^[2] gave this instruction to the Courts:

“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.”

56 Overall, your pleas of guilty require a very significant discount on the sentences I would impose if you had not pleaded guilty but had been found guilty after a trial.

57 It is noted that your time in custody has coincided with the restrictions placed on persons in custody by way of contact with family and friends. The difficulties accessing programmes have increased through those restrictions.

58 No doubt, in view of Dr Cunningham's findings, your counsel did not rely on any of the propositions in R v Verdins^[3].

62 The sentence on Charge 1 will be the base sentence. Three months of the sentence on Charge 2 and nine months of the sentence on Charge 3 will be served cumulatively upon the sentence on Charge 1. The total effective sentence is 30 months' imprisonment. I will set a non-parole period of 20 months' imprisonment.

63 For the purposes of sentencing you on Charge 3, I declare you are a Serious Sexual Offender.

64 You have been in custody since 25 November 2020. Excluding today, that is 310 days. I declare that the 310 days of your pre-sentence detention is time served under these sentences.

65 If you had not pleaded guilty to these charges but were nevertheless found guilty, I would have sentenced you to a total effective sentence of 40 months' imprisonment with a non-parole period of 28 months' imprisonment.

^[1] Clause 1 of Schedule 1 of the Sentencing Act: sub-clauses (ixa), (xvih) and (xvihc).

County Court of Victoria

DPP v Furletti [2021] VCC 1494 (1 October 2021)