On 23 December we read in the Mercury that Darren John Fenton, 48, received a suspended sentence after being found guilty of the indecent assault of two 13-year old girls on the East Coast last year.
The manifestly inadequate sentence, delivered by Justice Helen Wood, is a sorry indictment of the Tasmanian judicial system – at a time when violence against girls and women is being recognised as the shameful global epidemic it is.
Many people – women and men – are working tirelessly to spread the message of the White Ribbon campaign and change the culture of violence against women and girls.
Fundamental to that campaign is the need to make men accountable for their violence towards women. What message does it send to men, and young boys, if a man can indecently assault two female children and be punished with nothing more than a ‘slap on the wrist’? How will sentences such as this change a culture that is increasingly damaging, both physically and emotionally, to women and girls?
We urge the State of Tasmania to appeal Mr Fenton’s sentence as a matter of urgency.
• Sentencing remarks …
STATE OF TASMANIA v DARREN JOHN FENTON 21 DECEMBER 2015
COMMENTS ON PASSING SENTENCE WOOD J
Darren John Fenton is to be sentenced in relation to two offences of assault with indecent intent and one offence of indecent assault. He pleaded not guilty and in February 2015, after a hearing in the Magistrates Court he was found guilty. Mr Fenton appealed that decision and subsequently on 10 December this year, his appeal was dismissed. He is being sentenced in this Court as a consequence of that appeal and the power that this court has to finalise the proceedings, pursuant to s110(2)(i) of the Justices Act.
The facts of the matter are set out fully in my reasons for dismissing the appeal Fenton v Lane [2015] TASSC 61. In summary, the events are as follows. On the Australia Day long weekend in 2014, the complainants MS and her friend IR, both 13 years of age were camping at a property with MS’s family. The owner of the property was present and there was a social gathering during the evening of 26 January. The defendant, a friend of the owner, but unknown to the S family, also joined the gathering. The two complainants were camping in a tent and MS’s parents were staying in a caravan on the property. The girls retired for the evening, and watched a movie on a computer before falling asleep. The adult males stayed up drinking. Mr Fenton went to leave in the early hours of the morning at about 2.30am. However, his car would not start and the property owner and Mr S, MS’s father, spent some time helping him and working on the car. While they were occupied with fixing the defendant’s car the defendant left them. He left to go to the toilet and upon seeing light coming from the complainants’ tent he approached the tent and entered. The girls were asleep. MS woke up to find the defendant on top of her. He asked her if she wanted him to turn off the computer. She told him to just leave it and she rolled away from him. He touched her, rubbing her breasts and vagina, both over and underneath her clothing. This conduct constitutes an indecent assault. She tried to sit up but he would not let her. She pushed him away. The defendant then asked IR whether she was alright and he touched her on the stomach and her breasts over her clothing. IR pushed him away. The defendant then touched MS again to her breasts and to her vagina, this time over the top of her clothing only. The assault of IR and the second assault of MS each constitute an assault with indecent intent. MS pushed the defendant away, this time more forcefully and he left the tent. He returned to the men who by then had fixed his car and he drove away. Within minutes of the incident, the complainants went to MS’s mother who was in the caravan and they told her what had happened. They were both distressed, crying and shaking.
The defendant was interviewed by police within a few days. He admitted entering the girls’ tent but lied about his conduct. He said that he entered the tent to tell them to turn the computer off and that he did not assault them as they alleged.
This was a terrifying experience for the complainants and very distressing for Mr and Mrs S and Mrs R who were and still are aghast about what had happened.
Offences such as these inevitably cause harm to victims. In this case, I have the benefit of a victim impact statement from both complainants. These statements provide a valuable insight into the specific harm suffered by the complainants. I thank the complainants for providing them. They have been significantly affected by the defendant’s behaviour. They found his conduct very frightening and disgusting. The complainants were at a formative stage of development and the incident has affected them socially, impacting on their confidence and self-esteem. The distress caused to their parents has resulted in further distress and upset to the complainants.
It is clear that the defendant was extremely intoxicated. This does not excuse his conduct or reduce the seriousness of his conduct in any way. His behaviour was outrageous. He had no reason to go anywhere near the girls’ tent, let alone to enter it while they were sleeping. He assaulted the complainants while Mr S was nearby working on the defendant’s car. MS’s parents were evidently very protective of the girls. Earlier in the evening the defendant had made an inappropriate remark to one of the complainants and had been warned away by Mr S who had said to him that the complainants were only 13 years of age. This is relevant because it was a reminder to the defendant of the young ages of the complainants and that he should keep away from them. He must have known that MS’s parents would have been horrified by his behaviour in entering the tent where the children were sleeping, and yet he was not deterred by that.
He acted with persistence inside the tent despite being pushed away and clear signals from both children that they did not want him there. It was not until MS bravely pushed him very hard that he desisted and left. It is most fortunate that both complainants had the presence of mind to be assertive and defend themselves.
There are positive considerations that I take into account. I find that Mr Fenton’s conduct was not premeditated. This was opportunistic, spur of the moment behaviour. It is most significant that the conduct did not escalate and there was no penetrative sexual activity of any kind. I also note that the incident during which the assaults occurred was short-lived.
The defendant is 48 years of age. He has no relevant prior convictions. He is a respected member of his community and is well regarded, as reflected in the references I have received. He was a painter by trade for many years and an active member of the Army Reserve, reaching the rank of corporal. He served his country with distinction in Iraq. He successfully obtained a position as a driver with considerable responsibility, status and remuneration which he held until he was charged with these offences. As a further consequence of his offending he has been suspended from the Army and expects that his military career is soon to be terminated. Undoubtedly there have been significant personal losses as a result of his offending in terms of his employment, financial affairs, status and his reputation. He enjoyed the honour of being a member of the defence force and the prestige and comradeship that that provided. Those ties will be severed. He has and will continue to suffer the public humiliation arising from his conduct.
The defendant is not entitled to the mitigatory effect of a plea of guilty. I note that the defendant is sorry for what he did. I note that he has taken steps to address the factors that contributed to his offending. He has reduced his alcohol consumption markedly. He is attending counselling with a clinical psychologist. I note also he has gained new employment. He is a family man with young children and wants to focus on rebuilding his life.
The sentence must reflect the seriousness of Mr Fenton’s offending and the harm caused by his conduct to the two victims and their families. The sentence must endeavour to deter other offenders, and by doing so protect children from offences of sexual assault. While general deterrence and denunciation are important considerations, another sentencing consideration which must also be given weight is the rehabilitation of the defendant. This is especially so having regard to the fact that the defendant has no history of this sort of behaviour, indeed, he is a first offender, the significant personal losses resulting from his offending and that he has reacted responsibly by taking steps to promote his reform.
I conclude that a gaol sentence is required. However, having regard to the circumstances of the defendant, the sentence should be suspended.
I record convictions. I impose a global sentence of six months’ imprisonment. The sentence is suspended on condition that the defendant is not to commit any offences that could attract a term of imprisonment for a period of two years from today.
I expect that Mr Fenton is most unlikely to reoffend, but at this stage the risk cannot be discounted altogether. I make an order under the Community Protection (Offender Reporting) Act 2005 that the Registrar cause Mr Fenton’s name to be placed on the register and that he comply with the reporting obligations under that Act for 18 months. I impose a victims of crime compensation levy of $60, appropriate to the Magistrates Court jurisdiction, to be paid within 28 days.
Source: Tasmanian Times
https://tasmaniantimes.com/2016/01/sex-offenders-sentence-must-be-appealed