Camilleri v The Queen
[2022] VSCA 58
•7 April 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0154
| JOHN CAMILLERI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 7 April 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 58 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1239 (Judge Dean) |
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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Indecently assaulting a male (4 charges) – TES of 3 years and 9 months, with NPP of 2 years – Whether reasonably arguable that judge failed to properly take into account applicant’s admissions and successful rehabilitative treatment – Whether reasonably arguable that judge failed to properly take delay into account – Whether reasonably arguable that sentence manifestly excessive – Proposed grounds of appeal not reasonably arguable – No reasonable prospect that court would reduce TES – Application for leave to appeal refused.
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| REPRESENTATION: | Counsel | Solicitors |
| For the Applicant | Mr A C L Marshall | James Dowsley & Associates |
| For the Respondent | Mr B L Sonnet | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA:
The applicant pleaded guilty in the County Court to four charges of indecent assault of a male contrary to s 68(3A) Crimes Act 1958.[1] On 30 August 2021, following a plea hearing on 23 August 2021, the applicant was sentenced as follows:
[1]As inserted by s 3(b) of the Crimes (Amendment) Act 1967.
Charge Offence Maximum Sentence Cumulation 1 Indecent assault of a male 5 years 2 years 1 year 2 Indecent assault of a male 5 years 2 years Base 3 Indecent assault of a male 5 years 12 months 6 months 4 Indecent assault of a male 5 years 6 months 3 months Total Effective Sentence 3 years and 9 months Non-Parole Period 2 years Pre-sentence detention Nil Section 6AAA statement 5 years with a non-parole period of 3 years
The applicant now seeks leave to appeal against sentence. His proposed grounds of appeal are:
1.The judge failed to properly take into account the admissions made to the family of the complainant at about the time of the offending and the successful rehabilitation with a medical practitioner undertaken by the applicant in or about 1981;
2.The judge failed to properly take into account the delay in this proceeding from the time of the complaint was made before it came to trial.
3.The penalty imposed was manifestly excessive taking into account:
(a)the age of the applicant;
(b)his plea of guilty;
(c)the criminal history of the applicant;
(d)the remorse of the applicant shown by his admissions to the family in the 1980s and limited admissions to the police in his record of interview;
(e)the rehabilitation of the applicant by undergoing counselling after admissions to the family of the complainant;
(f)the applicant subsequently leading an exemplary life including bringing up his stepdaughter and son as a sole parent;
(g)the excessive delay in the hearing of the matter from time of complaint and the applicant’s action in returning from Western Australia to meet the charges;
(h)the effect of COVID-19 on the judicial system and the concerns of the pandemic on an elderly prisoner.
Circumstances of the offending
The offending the subject of charges 1 to 4 occurred between 1977 and 1981, at which time the applicant was aged between approximately 31 and 34. The complainants were brothers in a family with whom the applicant and his family had become friendly.
The first complainant (the victim of charges 1, 2 and 3) was aged between 7 and 10 at the time of the offending against him. The second complainant (the victim of charge 4) was aged 9 or 10 at the time of the offending against him.
Charge 1 was a rolled-up charge, involving two incidents. When the first complainant was about seven, his family met the applicant’s family at a park. During the day, the first complainant went to a urinal in a toilet block. The applicant stood beside him and said ‘give it a kiss’. The first complainant was scared. He bent down and put the applicant’s penis in his mouth for a couple of seconds. This was the first of the incidents which made up charge 1.
The second incident under charge 1 involved an occasion when the first complainant (then aged 7 or 8) was visiting the applicant’s family at their home. The applicant came out of the house and went into the backyard and arranged a game of hide and seek. He then whispered to the first complainant, ‘hide in here’. The first complainant entered an old wooden garden shed, and the applicant closed the door. The applicant then undid the zip of his pants and pulled out his semi-hard penis from inside his pants. He told the first complainant, ‘I want you to hold it’. The first complainant complied because he was too afraid to say no. The first complainant held the applicant’s penis, and the applicant asked him to move his hand back and forth as he wanted to show the first complainant ‘how hard it can get’. The first complainant moved his hand back and forth and the applicant’s penis ‘got really hard quickly’. The applicant then said to the first complainant, ‘show me yours’. The applicant said he was going to ‘give it a kiss’. He then put the first complainant’s penis in his mouth.
Charge 2 was a rolled-up charge, involving three incidents which occurred when the first complainant was 7 or 8. The first incident occurred when the applicant’s family and the complainants’ families met at the applicant’s family home. They were outside and walking up along the side of the house. The applicant pulled his penis out and made the first complainant hold it and told him to move his hand back and forth. He then told the first complainant to kiss it, as he had kissed the first complainant’s penis on the last occasion. The applicant also told him to put the applicant’s penis in his mouth, which the first complainant did.
The second incident which formed part of charge 2 involved the applicant putting the first complainant’s penis in his mouth and sucking for a little while.
The third incident involved in charge 2 occurred after the applicant stood up and told the first complainant, ‘do it the way I showed ya’. The first complainant then put the applicant’s penis in his mouth. The applicant told the first complainant not to tell anyone. He complied because he was scared.
Charge 3 was a discrete incident which occurred at the complainants’ home when the first complainant was 9 or 10. The first complainant was walking along an outdoor patio. He walked past the applicant and the applicant called out to him. The applicant pulled down his pants and said ‘suck me off’. The applicant put his penis in the first complainant’s mouth and the first complainant sucked the applicant’s penis. According to the first complainant, ‘this seemed to go on for a long time’. It stopped because of a noise from somewhere which was coming closer. The applicant told the first complainant, ‘If anyone finds out about this, I will kill you’.
Charge 4 was a discrete incident involving the second complainant when he was 9 or 10. It occurred in a lounge room at the complainants’ home, and involved the applicant fondling the second complainant’s genitals.
Sentencing reasons
The judge commenced his reasons for sentence by noting that charges 1 and 2 were rolled-up charges concerning two indecent assaults and three indecent assaults respectively. The judge observed that the laying of rolled-up charges was a procedure, which had been adopted with the applicant’s consent, and which permitted the court to have regard to the applicant’s overall offending, ‘constrained by the maximum penalty for a single offence, in this case, five years’ imprisonment’.[2]
[2]DPP v Camilleri [2021] VCC 1239, [2] (‘Reasons’).
The judge observed that the applicant had pleaded guilty ‘following the conclusion of related criminal proceedings and after pre-trial argument was conducted in this case’.[3] The judge noted that committal proceedings were conducted and the victims of the applicant’s offending were cross-examined. He said that the plea had therefore been entered at a late stage, but had also nevertheless spared the victims the further burden of a criminal trial. He said that it also spared the community the cost and difficulty of conducting a trial during the COVID-19 pandemic restrictions.[4] The judge accepted that the applicant’s plea was evidence of some remorse for his offending, saying that he took it into account in the applicant’s favour in mitigation of sentence.[5]
[3]Ibid [3].
[4]Ibid.
[5]Ibid [4].
Next, the judge observed that the applicant had no prior convictions or subsequent convictions of any relevance for sentencing purposes.[6]
[6]Ibid [5].
The judge summarised the applicant’s offending,[7] before saying that it was plain that the applicant had ‘exploited two vulnerable children in the context of their parents trusting [him]’.[8] The judge said that charges 1 to 3 constituted serious examples of the offences to which the applicant had pleaded guilty.[9] He accepted, however, that charge 4 fell at the lower end of seriousness for such offending.[10]
[7]Ibid [7]–[13].
[8]Ibid [14].
[9]Ibid [15].
[10]Ibid.
Next, the judge referred to the first complainant’s victim impact statement, saying that it was clear that the applicant’s offending against him had ‘had a deeply traumatic effect upon him and [has] seriously harmed his personal development, wellbeing and quality of life’.[11]
[11]Ibid [16].
Having regard to the applicant’s proposed grounds of appeal (and in particular, proposed ground 1), it is necessary to set out what the judge said next:
In approximately 1981, the victims of your offending complained to their mother and a meeting was held between the families to discuss your crimes. The accounts of what occurred at that meeting and when it took place vary amongst the witnesses, but it is clear that your offending was discussed. Following this, the families ceased contact and the matter was not formally reported to the police despite you receiving treatment from a medical practitioner for your criminal sexual behaviour.
It was not until 2016 that the matter was formally reported to police and the investigation leading to the charges before this court was commenced.
On 19 April 2017, you were interviewed by investigating police in relation to the offending the subject of the charges, and admitted you fondled the genitals of the victim on one occasion, the subject of Charge 4, but otherwise denied all of the allegations put to you.[12]
[12]Ibid [17]–[19].
The judge then said that the sentence he imposed must be ‘calculated to protect the community and vulnerable children from offending of this nature by making it clear that conviction for sexual offending against children in circumstances such as this will result in the imposition of a significant sentence of imprisonment’.[13]
[13]Ibid [20].
The judge said that the applicant had to be punished for his criminal sexual exploitation of his friends’ children, observing that offending of the type committed by the applicant ‘causes immeasurable damage to both the victims and our society’.[14]
[14]Ibid [21].
The judge then turned to the applicant’s personal circumstances, noting that he was now 75; his infancy and early childhood were spent in a Catholic orphanage until he was adopted by the Camilleri family, and that following this he lived in a loving and supportive family; he was educated to Year 9 level, and thereafter had been in full employment in a range of skilled and unskilled occupations; and that he had been married twice, had one son with whom he had a close relationship, and a stepdaughter who had provided a positive and supportive reference on his behalf.[15]
[15]Ibid [23]–[24].
The judge accepted that the applicant was a hardworking member of the community who at all times had sought to provide for his son and stepdaughter; was close to his grandchildren; and, following his retirement, had lived in Western Australia, before voluntarily returning to Victoria when these matters were being investigated in 2017.[16]
[16]Ibid [25].
As to delay, relevantly to proposed ground 2, the judge said:
The delay in these matters being finalised in court has been a serious cause of concern to you. But as I have said, your plea was entered at a late stage in the proceedings.[17]
[17]Ibid [26].
The judge then referred to the evidence in a number of medical reports detailing the applicant’s past and present medical history.[18] The judge concluded that, while the applicant had suffered a series of relatively minor strokes in 2017, he had recovered and was now in good health for a man of his age.[19]
[18]Ibid [27].
[19]Ibid.
The judge then referred to the various submissions made on the plea, noting that the applicant’s counsel placed considerable emphasis on the fact that the applicant had not reoffended since 1981. The judge said that he had accepted that specific deterrence was not a relevant sentencing consideration. He also accepted that the applicant’s prospects for rehabilitation ‘may now be properly described as good’.[20] The judge rejected submissions that a suspended or partially suspended sentence could be imposed. He noted that the maximum term of a suspended sentence (either wholly or partially suspended) was three years, and said:
I do not accept that the sentencing discretion of this court should be so constrained in a case concerning serious sexual offending over an extended period of time in relation to two young and vulnerable children.[21]
[20]Ibid [28].
[21]Ibid [31].
The judge observed that on charges 3 and 4 the applicant would be sentenced as a serious sexual offender and, as such, he had regard to the protection of the community as the principal purpose for which the sentences were to be imposed on those charges.[22] He also observed, however, that the prosecution did not seek a disproportionate sentence, and he said that he would not impose one.[23]
[22]Ibid [32].
[23]Ibid [33].
The judge again referred to the COVID-19 pandemic, saying he accepted that this would greatly increase the burden of imprisonment on the applicant, as he would not have personal visits from his family and would not be able to engage in productive activities.[24]
[24]Ibid [34].
The judge concluded his sentencing reasons by saying:
Finally, these offences occurred over 40 years ago, but in my opinion the passage of that time does not moderate the gravity of what you did. Whilst you have not since reoffended, and that is very much to your credit, the seriousness of your offending would not have faded in the lives of your victims and you must be punished for it.[25]
[25]Ibid [35].
Proposed ground 1: admissions to the family and rehabilitation in or about 1981
In 1981, the first complainant told his mother about the applicant’s offending against him. The offending ceased, and there was a discussion between the complainants’ family and the applicant’s family. As the applicant puts it in his written case, the memories of those present at the discussion differ as to what admissions were made by the applicant. What is not in dispute is that the applicant thereafter received medical treatment for his offending behaviour and did not reoffend again. The applicant contends that his behaviour, ‘shortly after the outing of the offending, indicated remorse and [the taking of] appropriate action [by him] to facilitate [his] rehabilitation’. He submitted that the judge erred in not appropriately discounting the sentence to take account of these matters.
Proposed ground 1 is not reasonably arguable. In paragraphs [17] to [19] of the Reasons, the judge, in appropriate detail, set out what occurred in and after 1981. At other places in the Reasons, the judge noted that the applicant had not reoffended since 1981; that the applicant’s prospects for rehabilitation could properly be described as good; and the fact that the applicant had not reoffended was ‘very much to [his] credit’.[26]
[26]Ibid [5], [28] and [35].
Plainly, the judge gave the applicant credit for such admissions as he made in 1981 and for undergoing rehabilitative treatment and not thereafter offending. The judge was right, however, to observe that upon being interviewed by police many years later, the applicant denied a number of the serious allegations that were put to him. Those matters were relevant to the level of the applicant’s actual remorse at that time.
The short point with respect to proposed ground 1 is that there is nothing in either the judge’s reasons for sentence, or in the sentence imposed, which suggests that his Honour failed to properly take into account the matters that occurred in or about 1981. The contrary is not reasonably arguable.
Proposed ground 2: delay
Under proposed ground 2, the applicant contends that the judge ‘did not make any allowance for delay’[27] between the taking of the first complainant’s initial statement in November 2016 and sentencing, other than to state that the delay was ‘a serious cause of concern to [the applicant]’.[28]
[27]See Applicant’s Written Case, filed 1 November 2021, [19].
[28]Reasons [26].
Proposed ground 2 is without substance. Delay was relevant in this case on two bases: first, the matter hung over the applicant’s head from late 2016 until the time of sentencing; and secondly, during the period of delay, the applicant’s rehabilitation progressed.[29] A fair reading of his Honour’s reasons for sentence shows that his Honour took delay into account in both of these relevant respects. The statement at Reasons [26] that the delay had been a serious cause of concern to the applicant shows that his Honour took the delay into account on the first relevant basis (albeit that, as his Honour was entitled to observe, the applicant’s plea was entered at a late stage). The statement at Reasons [35] that the offences occurred over 40 years ago, and that it was very much to the applicant’s credit that he had not reoffended, shows that the judge took delay into account in the second way in which it was relevant.
[29]R v Merrett (2007) 14 VR 392, 400 [35]–[36] (Maxwell P, Chernov JA and Habersberger AJA); [2007] VSCA 1 (‘Merrett’).
There is no basis for contending that the judge failed to properly take into account the delay that occurred before sentencing. His Honour expressly took the relevant delay in this case into account in the two permissible ways referred to in Merrett. Moreover, there is nothing in the sentence imposed that suggests that the judge did not appropriately take into account the delay in this case. The contrary is not reasonably arguable.
Proposed ground 3: manifest excess
Under proposed ground 3, the applicant contends that the sentence imposed upon him was manifestly excessive when regard is had to the following matters, ‘taken as a whole and individually’:
·the applicant’s age (he having turned 75 on 20 August 2021);
·his plea of guilty, ‘even at the late stage’;
·the ‘non-existent prior criminal history and not relevant subsequent history’;
·the remorse the applicant showed ‘by his admissions to the family in the 1980s and limited admissions to the police in his record of interview’;
·the rehabilitation of the applicant ‘achieved by undergoing counselling after admissions to the family of the [first] complainant’;
·the fact that the applicant led an exemplary life subsequent to receiving counselling, including bringing up his stepdaughter and son as a sole parent;
·the ‘excessive delay in the hearing of the matter from [the] time of complaint, and the applicant’s action in returning from Western Australia to meet the charges’; and
·the ‘effect of COVID-19 on the judicial system and the concerns of the pandemic on an elderly prisoner’.
As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[30] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[31]
[30]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[31]Ibid.
The applicant has correctly identified the important matters in mitigation which he was able to rely upon on the plea, and in this Court. They are, however, to be balanced against the circumstances and seriousness of the applicant’s offending. As the judge rightly observed, charges 1, 2 and 3 constitute serious examples of the offence to which the applicant pleaded guilty.[32] The seriousness of these offences, committed as they were against a young child, cannot be gainsaid (so much is obvious — even without the need for recourse to the first complainant’s powerful and eloquent victim impact statement, which details the very significant and ongoing harm caused by the applicant’s offending against him). The applicant’s offending against the first complainant was, on any view, appalling; and it has had lifelong consequences for the first complainant.
[32]Reasons, [15].
While the judge accepted that charge 4 fell at the lower end of seriousness for such offending, it is also relevant to note that the second complainant was also a young child when the applicant offended against him.
Another relevant matter to be taken into account is that the applicant was sentenced as a serious sexual offender on charges 3 and 4. Section 6E of the Sentencing Act1991 required the terms of imprisonment imposed to be served cumulatively, unless the sentencing court otherwise directed.
Synthesising all of the circumstances of the applicant’s offending and the circumstances of the applicant, it is not possible to say that any of the sentences (or the total effective sentence or non-parole period) imposed by the judge were manifestly excessive. To the contrary, the sentences were, if anything, moderate — particularly the non-parole period. That said, far from being manifestly excessive, there is in fact no prospect that this Court would reduce the total effective sentence imposed by the judge. This provides a further ground for refusing the applicant’s application for leave to appeal,[33] even if it were thought (contrary to what I have said above) that there was any merit in proposed ground 1 and/or proposed ground 2.
[33]See s 280(1)(b) of the Criminal Procedure Act 2009.
Conclusion
The applicant’s proposed grounds of appeal are not reasonably arguable. The application for leave to appeal must be refused.
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