DPP v Fonta

"don't say anything". 15. When Whittney's parents asked her about the message, after some hesitation, she told her father, when she stayed with you, you had rubbed her thigh and her stomach, then "went downstairs" and rubbed there. At some later stage, she told her father you stuck your fingers inside her.[17] 16. Whittney's parents reported the disclosure to police.

1. On 1 September 2022, police spoke to Whittney using the VARE procedure.
2. She told them:

(a) she went to your home on 29 April 2022;

(b) while she was in one of the bedrooms in the house you came into the room and asked her to have sex with you;

(c) she said no and went into another bedroom room and lay on the bed;

(d) you came into that room and

(i) rubbed her thigh;

(ii) put your hand up her T-shirt;

(iii) then "went downstairs" and put your hands in her vagina, for about 10 minutes;

(iv) you asked her whether it felt good;

(v) you then asked her to touch your "dick" and tried to grab her hand;

(vi) she pulled away and you left the room; and

(e) then you rang her mum to come to pick her up.[18]

1. At a special hearing, she said what she told the police was true and correct.
2. When she was questioned about what you had done to her, she asked to write down her answer. She wrote "[you] went down and [were] doing stuff".[19]
3. In her evidence, she gave a different account of her movements between bedrooms in the house, in which bedroom room she was sexually assaulted and whether or not the bedroom light was on when it happened.

(a) at your home, you put Whittney into the bedroom of one of your daughters, with a TV and PlayStation and she remained there;[20]

(b) during the evening, you spoke to your father who told you he would pick you up early next morning to go to visit family;

(c) because of the early start, you called Whittney's father to collect her, and he did.

1. You denied any sexual contact with Whittney.
2. By its verdict, the jury was satisfied you introduced your finger into her vagina.

1. The prohibition on sexual activity with a child is "founded on a presumption of harm". [21]
2. Whittney, Danielle and Nick each made victim impact statements[22] which I have read.
3. Whittney has struggled with fear, anxiety and nightmares. She wrote, "No sentence will undo the pain, but I ask that justice be served".
4. Her mother is grappling with "the profound repercussions of the unimaginable sexual assault inflicted upon [her] daughter". She wrote "may justice serve not only my daughter but also contribute to the restoration of our shattered lives".
5. Her stepfather is hurting as he sees Whittney suffer emotionally and struggle to find herself again. He wrote, "I want you to understand it's not just about my daughter - it's about our whole family hurting. I hope justice recognises the impact on all of us".[23]

1. You have admitted a criminal record.
2. In 2005, you were released on a 12-month community-based order for a drink driving offence and assault
3. In 2016, you were sentenced to 7 days imprisonment for a drink driving offence.
4. In 2022, you were fined for possessing a dangerous article and, in 2023, you were fined for damaging property.

1. You were born in June 1986 at Narrandera, New South Wales.
2. Your father is a Ngiyampaa man. He grew up on a mission at Cargellico. Your mother is a Wiradjuri woman.
3. Your father described the significant trauma of four generations of your family.[24] Your great-great-grandfather worked and grew up on a cattle station. The next generation, and the one following, were forcibly moved on to missions. Your grandfather served in the Army during World War II. After the war, because he was Aboriginal, he was not eligible for the soldier land settlement program. Your father grew up in central west New South Wales. For a time, his family lived at a town camp in a tin hut without electricity or running water.
4. He later moved to Robinvale where he met your mother and where you were raised. You are the youngest of six children in a blended family.
5. Your father struggled with alcohol and his relationship with your mother was "on and off".
6. You went to local schools. Your father remembers an occasion when you, with three other aboriginal boys, were excluded from the local football team.
7. You left school at the end of year 10 to work on your parent's orange farm and, since they sold their farm, you have worked for other farmers.
8. When you were 12 years old, your 17-year-old foster brother was killed in a farm accident.
9. Your niece took her own life when she was 18 years old.
10. And, when you were 33, your best friend also took his own life.
11. When you were 19 years old, you had a son with your then partner. He is now 19 and lives with his mother interstate. You have regular phone contact with him. You believe the relationship with his mother ended because you were too "young".[25]
12. You met Ashlee in 2007. You have three daughters with her.
13. Since your remand in custody, she has moved, with your daughters, to a regional town, where they are near to her family.
14. Ashlee, and your parents, have stuck by you.
15. Distance prevents them from travelling to Ravenhall prison, to visit you.
16. You have videoconferences with Ashlee. Because of your conviction for a child sexual offence, you are limited to telephone contact with your children.
17. While you have had no trouble in prison, you are anxious and keep to yourself, spending time in your cell painting. You are doing aboriginal art and cooking programs and have applied to undertake parenting and literacy programs. You are working as a bin billet.
18. You report you want to use your time in prison to better yourself. [26]
19. A psychologist, Christine Kennedy, assessed you on 31 March 2025.
20. You presented to her as immature, with below average intelligence.
21. In her opinion, you have long-standing symptoms of anxiety and depression which are related to grief and intergenerational trauma.
22. You have made several suicide attempts.
23. In 2022, following a separation from your wife, you were hospitalised, after a suicide attempt, and settled with antidepressant medication. Shortly after, you returned to work and your family.[27]
24. In June 2024, you were hospitalised after another suicide attempt.[28]
25. In prison, you are prescribed an antidepressant and sleep medication. You reported the medications were improving your sleep and reducing your anxiety.
26. Nonetheless, Ms Kennedy believes, because of your poor mental health, prison will be harder for you and your symptoms are likely to exacerbate in the prison environment.
27. You told Ms Kennedy you were "very confused" about Whittney's complaint and the trial. You were heavily medicated during the trial before me. You told Ms Kennedy you remember very little of it.
28. Using the STATIC-200R test, Ms Kennedy assessed your risk of sexual reoffending as low.
29. She believes you may benefit from completion of a sex offender treatment program.
30. She recommends you engage with Mallee District Aboriginal Services (MDAS) for mental health support and for help to understand your aboriginal heritage and transgenerational trauma.

1. Your counsel, Mr Hands, acknowledged the seriousness of the crime of which you have been convicted.
2. He submitted your fragile mental health, attributable to intergenerational trauma, grief and loss, is a relevant sentencing factor.
3. He submitted your sentence should be moderated because prison will be harder for you than the ordinary prisoner and there is a likelihood your mental health will deteriorate in the prison environment.
4. He submitted, in all the circumstances, a combined order for imprisonment and a community correction order is the appropriate sentence in your case.

1. The prosecutor, Ms Ellis, in helpful written[29] and oral submissions, contended, considering the inherent seriousness and unquestioned harm of child sexual offending, the appropriate sentence is a term of imprisonment.
2. She referred me to two sentences of this court which are useful comparators.[30]

• 72 I have considered them, together with the High Court decision in DPP v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428 and other Victorian Court of Appeal decisions[31] to guide me in the relevant sentencing principles and to show current sentencing practices.

1. Sexual penetration of a child under the age of 16 is an extremely serious crime particularly where the offender has breached the trust and responsibility of keeping the child safe in their care.[32]
2. The maximum penalty is 15 years imprisonment.
3. The law prescribes a standard sentence of six years imprisonment for an offence, taking into account only the objective factors, which is in the middle range of seriousness.[33]
4. Because the offence "covers a very wide spectrum of different activities carried out in a wide variety of circumstances of differing degrees of objective gravity",[34] it is difficult to determine the middle range of seriousness.
5. Objectively,

(a) there was a marked age difference between Whittney and you; you are 20 years older than her;

(b) her parents trusted you to keep her safe in your care; and

(c) being alone in your house, with you, she was vulnerable.

1. Whittney was very reluctant to talk about her experience. Because she gave limited details, I am unable to make findings about the circumstances of the proven act of penetration, including the degree of penetration or its duration.
2. When I consider all the evidence, it is also difficult for me to make clear findings about the circumstances surrounding it, including any motivation, premeditation or coercion.
3. This complicates a determination of the objective gravity of your offending and your moral culpability.
4. Doing the best I can, I consider your offence falls below the mid-range of seriousness.
5. Sexual penetration of a child involves inherent violence. There is a presumption of harm.[35]
6. It follows, general and specific deterrence and denunciation are primary sentencing considerations.[36]
7. I am satisfied only a sentence of imprisonment can achieve all sentencing objectives in this case.
8. There are factors I take into account to moderate the sentence, and the non-parole period, I will impose.
9. You suffer from long-standing anxiety and depression, which is attributable to grief and loss of family members, and your closest friend, and aboriginal trauma through generations.
10. I am satisfied you will find imprisonment more burdensome than the ordinary prisoner and I accept there is a significant risk your symptoms will worsen in prison. Accordingly, principles 5 and 6 of Verdins[37] mitigate the sentence that would otherwise be imposed.
11. Considering

(a) you have no history of sexual offending;

(b) you are assessed as a low risk of recidivism;[38]

(c) you have a good work history;

(d) you have strong network of family and community support; and

(e) you have used your time in prison constructively,

I consider you are unlikely to reoffend and assess your prospects of rehabilitation to be excellent.

1. I will allow a reasonably significant disparity between your head sentence and the non-parole period, to give you the opportunity for supervised return to the community, although I am mindful the difference should not be so great as to undermine the purposes for which the sentence must be imposed.
2. By the sentence I impose, I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.
3. Considering the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of sexual penetration of a child under 16, you are sentenced to four years imprisonment.
4. To mitigate punishment and promote your rehabilitation, I fix a non-parole period of two years.
5. Pursuant to section 18 of the Sentencing Act 1991, I declare that you have served 106 days by way of pre-sentence detention.
6. Because of the nature of the offences of which you have been convicted, you are subject to mandatory registration under the Sex Offenders Registration Act 2004. You must comply with the reporting obligations, which the Act imposes, for 15 years.

[3] It was a retrial. In June 2024, a jury was discharged without verdict, after the conclusion of the evidence and before commencement of addresses, when you attempted suicide.

[5] Evidence of [Danielle], transcript page 47.

[8] Evidence of [Danielle], transcript page 48.

[9] [Nick] obtained an AVO after she had tried to set fire to her caravan, smashed the mailbox and damaged his car (Evidence of [Nick], transcript pages 81 and 83).

[10] Evidence of [Danielle], transcript page 46.

[11] Evidence of [Nick], transcript page 66.

[12] Evidence of [Nick], transcript page 67. [Nick] said you suggested taking her to your home (transcript page 67); you said it was his suggestion (transcript page 115).

[13] Evidence of [Nelson Fonta], transcript page 115.

[14] Evidence of [Nick], transcript pages 67 - 68.

[15] Evidence of [Danielle], transcript page 60 and evidence of [Nick], transcript page 68, line 17.

[16] Screenshot of messages [Whittney] shared with her friend (Exhibit B).

[17] Evidence of [Nick], transcript page 72.

[18] Transcript of VARE, questions 10, 116 and 117.

[19] Answer written by [Whittney] (Exhibit C).

[20] In her evidence, [Whittney] disagreed (transcript page 59) she said she moved from the bedroom, which was one of the children's rooms, because the roof was leaking, into another bedroom (transcript page 48). She said there was no TV and PlayStation in the children's bedrooms (transcript pages 58 and 59). [Ashlee] gave evidence. She said there were TVs and play stations in each of the children's bedrooms and there were no roof leaks.

[21] DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428,[47]; Clarkson v the Queen [2011] VSCA 157; (2011) 32 VR 361, [3].

[22] Victim impact statement of [Whittney] (Exhibit A); Victim impact statement of [Danielle] (Exhibit B); Victim impact statement of [Nick] (Exhibit C).

[23] While I accept the truthfulness of the statements there appears to be a common language style, which exceeds the sophistication of [Whittney], [Danielle] and [Nick], as I observed them when they gave evidence. I am left with the impression someone else wrote statements for them.

[24] Attachment to defence submissions (Exhibit 1).

[25] Report of Christine Kennedy dated 16 April 2025, page 4 of 7 (Plea exhibit 2)..

[26] Psychological report of Christine Kennedy (Exhibit 2), page 2.

[27] See letter of psychiatrist and nurse at Bendigo health regarding suicide attempt dated 11 May 2022 (Exhibit 4).

[28] You were initially tried at a regional location. At the conclusion of the evidence, and before closing addresses, you attempted suicide. Because you were unable to continue the jury was discharged without verdict.

[30] DPP v Christopher Trask (a pseudonym) [2020] VCC 831 (judge Hassan) and DPP v Alves dos Santos (a pseudonym) [2022] VCC 1209 (Judge Ridell)

[31] Stephen Barnard (a pseudonym) v The Queen [2022] VSCA 42; DPP v Dalgliesh (a pseudonym) [No 1]

[2016] VSCA 148; Peter Fisher (a pseudonym) v the King [2025] VSCA 25; Shane Greene (a pseudonym) v

the King [2024] VSCA 226.

[32] Ryan v the Queen [2001] HCA 21; (2001) 206 CLR 267, [117].

[33] Both the maximum sentence and the standard sentence are factors in the application of the intuitive synthesis. See Clarke (a pseudonym) v the Queen [2022] VSCA 89, [27].

[34] Lawrence (a pseudonym) v the Queen [2021] VSCA 291, [21] - [22]; Clarke (a pseudonym) v the Queen [2022] VSCA 89, [28].

[35] Grantley (a pseudonym) v the Queen [2018] VSCA 112 [129].

[36] ibid, I must impose a sentence which is proportionate.

[37] R v Verdins [2007] VSCA 102; [2007] 16 VR 269.

[38] According to the STATIC-2002R assessment tool.