Dante Morello (a pseudonym)[1] v The Queen
[2021] VSCA 225
•20 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0054
| DANTE MORELLO (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.
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| JUDGE: | McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 20 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 225 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1835 (Judge Marich) |
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CRIMINAL LAW – Leave to appeal – Sentence – Five counts of indecent act with child – Applicant treated as victim’s father – Offending spanning seven years – Various uncharged acts – Escalating and demeaning sexual abuse – Fundamental and damaging breach of parental trust and responsibility – Total effective sentence of 3 years and 6 months’ imprisonment with non-parole period of 2 years and 3 months – Whether sentences manifestly excessive – Serious offending – Sentences within available range even accounting for mitigatory factors – Whether error in imposing same sentence for charges said to differ in seriousness – No error shown – Any error would not have affected order for cumulation – Whether failure to consider combination sentence – No error shown – Leave to appeal refused.
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| WRITTEN SUBMISSIONS: | Counsel | Solicitors |
| For the Applicant | Mr J Lavery | Ann Valos Criminal Law |
| For the Respondent | Ms E Drake | Ms A Hogan, Solicitor for Public Prosecutions |
McLEISH JA:
On 9 November 2020, before a judge of the County Court, the applicant pleaded guilty to five charges of an indecent act with a child under the age of 16.[2]
[2]Contrary to Crimes Act 1958 s 47(1), as it existed at the time of the offences.
On 18 November 2020, he was sentenced as follows:[3]
[3]DPP v Morello (a pseudonym) [2020] VCC 1835 (‘Sentencing Remarks’).
Charge on Indictment Offence Maximum Sentence Cumulation 1. Indecent act with a child under the age of 16 10 years’ imprisonment 18 months’ imprisonment 3 months 2. Indecent act with a child under the age of 16 10 years’ imprisonment 12 months’ imprisonment 2 months 3. Indecent act with a child under the age of 16 10 years’ imprisonment 12 months’ imprisonment 1 month 4. Indecent act with a child under the age of 16 10 years’ imprisonment 2 years and 6 months’ imprisonment Base 5. Indecent act with a child under the age of 16 10 years’ imprisonment 2 years and 6 months’ imprisonment 6 months Total Effective Sentence: 3 years and 6 months’ imprisonment Non-Parole Period: 2 years and 3 months’ imprisonment Pre-sentence Detention Declared: Nil Section 6AAA Statement: 4 years and 3 months’ imprisonment with a non-parole period of 3 years Other Relevant Orders: Sentenced as a serious sexual offender in respect of charges 3, 4 and 5.
The applicant seeks leave to appeal against his sentence on three grounds set out later in these reasons. In my view, none of the grounds has merit and leave should be refused.
Circumstances of offending
The offending occurred over a roughly seven-year period, from 1996 to 2003, when the applicant was between about 28 and 36 years old. During that time, he lived with his de facto partner, the victim’s mother, as well as the victim and her older brother. The victim, estranged from her biological father, regarded the applicant as a father and he was aware of this.
The offending commenced in 1996, when the victim was around eight years old. At some point during that year, the applicant drove her to a nearby forest to collect firewood. While driving, he invited her to sit on his lap and steer the car. While she was on his lap, the applicant rubbed his penis against her back for around five minutes (charge 1 — indecent act with a child under the age of 16).
Some years later, between late 1998 and late 2001, the victim and the applicant were together on a bicycle ride. The victim stopped to pick blackberries. While talking to the victim, the applicant hugged her with his penis exposed through his shorts (charge 2 — indecent act with a child under the age of 16).
At another point in the same period, the victim and the applicant were alone talking in a work shed on the property where they then lived. She noticed, again, that his penis was exposed through the front of his denim shorts (charge 3 — indecent act with a child under the age of 16).
By 2003, the victim was around 13 years old. On one occasion that year, the applicant, while cutting the victim’s hair, grabbed the inside of her upper thigh, near her groin. During the same period, the applicant routinely drove the victim to various locations. When she was in the car with him alone, he would expose his penis and masturbate while he drove, sometimes also stroking her inner thigh and commenting on her skin. He encouraged her to watch him ejaculate but she never did. With two exceptions, these were uncharged acts.
On an occasion between January and mid-October 2003, the applicant drove the victim a short way from their home during the middle of the day. He masturbated vigorously while breathing heavily. He asked her to watch him ejaculate. She turned away (charge 4 — indecent act with a child under the age of 16).
On another occasion in the same period, the applicant drove the victim in the early evening to a social gathering. While he drove, the victim saw the applicant fondling his exposed penis in her peripheral vision (charge 5 — indecent act with a child under the age of 16). Again, she looked away.
During the period of offending, there was also further uncharged inappropriate sexual conduct by the applicant. From a young age, the applicant observed the victim, or intruded on her, when she dressed and undressed. Also from a young age, he regularly kissed her on the lips in the course of her bedtime routine. The applicant exposed the victim to pornographic material in her late childhood or very early adolescence. From at least her early adolescence, the applicant touched her inappropriately and made sexualised remarks about her appearance and body.
The victim disclosed the offending to friends while at high school. At age 14, she confronted the applicant about the offending and threatened to report him, after which he ceased offending against her. Some years later, she disclosed some of the offending to her mother, who confronted the applicant. He denied that it had occurred, accusing the victim of ‘making up false memories’. Later the applicant admitted to the victim’s mother that the victim had, on one occasion, seen his erect penis, but he said that it was her ‘fault’ because she had ‘seen him in the shower’ and ‘shown an interest’. Some years later, the victim disclosed more of the offending to her mother.
In her late teens, the victim twice confronted the applicant about his offending. On the first occasion, he said that she had ‘got off lightly’ in terms of sexual abuse. He said ‘I didn’t rape you, it’s not that big a deal’. He also warned that if she reported him to police it would destroy the family and ‘kill his mother’. On the second occasion, he cried and said he was sorry. The victim severed contact with the applicant shortly afterwards. In her early to mid-twenties, she disclosed the offending to other family members.
The victim reported the matter to police in 2018. A pretext call was arranged, during which the applicant admitted the offending. He admitted treating the victim like a ‘sex object’ and sexualising her since she was five or six years old. He said that he knew what he had done was wrong, pathetic, disgusting and disgraceful. He acknowledged that his offending had been immensely damaging to the victim, who had been ‘fucked up’ by his offending and would ‘probably never stop hurting from it’.
While expressing remorse, he also minimised what he had done. For example, he described his conduct as ‘fairly innocent’ and ‘child-like’, and less serious than it might otherwise have been had he been aggressive or violent. He also displaced responsibility for his actions, saying that he had offended to fulfill sexual and psychological needs which were not being satisfied by the victim’s mother, whose sexual attentions were directed elsewhere. The victim’s curiosity in him, he said, was what he wanted, but did not receive, from her mother. He said that the offending happened because he was being ‘fucked around with’. Specifically, the victim’s mother was being unfaithful, manipulating him and ‘fucking with [his] head’. He also supposed that, at least subconsciously, by offending against the victim, he was trying to hurt her mother.
In late December 2018, the applicant was arrested. On 22 February 2019 he was charged. On 9 November 2020 he pleaded guilty.
Judge’s sentencing remarks
After outlining the circumstances of the offending, the judge noted the applicant’s guilty plea. Despite being entered midway through proceedings, after several committal mentions and procedural hearings, she considered the plea to be of considerable utilitarian value and to be evidence of the applicant’s remorse, which the applicant had separately conveyed to the victim.[4]
[4]Sentencing Remarks [34]–[35].
Next, the judge turned to the victim’s impact statement, which described the significant trauma caused to her. She explained that the offending occurred before she had any comprehension of sex, and deprived her of her ability to consent to sexual encounters. It also deprived her of her sense of safety at home, and with her parents. The applicant’s unwanted sexual attention caused her to become repulsed by her body. Through primary school, she could not socialise with her friends at home with ease. She remained vigilant to ensure that they did not also become the subject of the applicant’s behaviour. In high school, she felt embarrassed, humiliated and confused, and contemplated suicide. Throughout her life, she has carried a ‘constant feeling’ of unworthiness and not being ‘enough’, despite impressive personal progress and considerable professional accomplishments. She has continued to experience mental health issues, loneliness and difficulty in forming stable intimate relationships. Coming to terms with and recovering from the applicant’s offending has been an ongoing process, now spanning more than two decades.[5]
[5]Ibid [36]–[41].
The judge then turned to the applicant’s personal circumstances. He was raised as the youngest child in a large family. His parents were loving, but he was sexually abused by an older brother at the age of 12 or 13. He commenced smoking cannabis at the age of about 16, and became a daily smoker of cannabis some years later. He attended high school for all but the final term, after which he apprenticed, then worked, as a hairdresser. Later, he worked as a labourer and in other unrelated fields, regarding himself as a ‘jack of all trades’.
The judge referred to a report prepared by Jeffrey Cummins, consultant psychologist, that had been tendered at the plea. That report relevantly recorded that:[6]
[6]Ibid [55]–[60].
(a) at the time of the offending, it was ‘very probable’ that the applicant was suffering from an undiagnosed and untreated major depressive disorder with recurrent and moderately severe anxious distress;
(b) the applicant was not assessed as suffering from any specific sexual deviance, such as paedophilia or hebephilia (sexual attraction to post-pubescent but underage persons). Instead, his offending was probably situationally motivated, and he therefore may be responsive to offence-specific treatments;
(c) the applicant currently suffered from a cannabis use disorder;
(d) the applicant’s reported reactive mental health symptoms fell short of the requirements for a major mental illness such as major depressive disorder; and
(e) the applicant’s risk of reoffending was in the low to moderate range, trending toward low.
The judge took into account the applicant’s prior good character, noting his lack of prior convictions, and that he had not had any court appearances in the 18 years before sentence.[7] The judge noted a suspended term of imprisonment for trafficking in cannabis and theft, imposed in February 2001. Although she described this as a ‘subsequent’ court appearance, nothing turns on the point for present purposes.
[7]Ibid [53].
Next, the judge turned to the gravity of the offending. She characterised each count as serious, involving a serious breach of trust against a young and vulnerable victim, who was seriously affected by the conduct. She stated:[8]
Your offending was again opportunistic, callous and exploitative as well as continuing to exploit the opportunity that your position of trust gave you. She was young and vulnerable, and you used her for your sexual gratification on these occasions over a period of five [sic] years.
[8]Ibid [65].
The judge considered that, as the applicant had engaged in sexual offending against a child, the sentencing purposes of punishment, denunciation and deterrence assumed prominence.[9] Specific deterrence was also required. Having regard to Mr Cummins’s report, the judge ‘cautiously’ estimated the applicant’s prospects of rehabilitation as likely to be good, assuming his engagement in offence-specific rehabilitative courses.[10] The judge noted the effect of the ongoing COVID–19 pandemic on those serving a custodial sentence.
[9]Reference was made to this Court’s decision in Shawcross(a pseudonym) v The Queen [2018] VSCA 295, [63] (McLeish and T Forrest JJA) (‘Shawcross’).
[10]Sentencing Remarks [67].
The judge recorded defence counsel’s concession that a term of imprisonment was appropriate, but rejected the submission that a suspended sentence was the appropriate disposition. The judge considered immediate imprisonment to be warranted, with a sentence structured to include a significant period of parole eligibility to reflect the matters in mitigation and to incentivise the applicant’s rehabilitation.[11]
[11]Ibid [71].
The judge also recorded that the applicant fell to be sentenced as a serious sexual offender on charges 3, 4 and 5, given the imposition of terms of imprisonment for charges 1 and 2. She indicated that she did not propose to impose a disproportionate sentence.
Ultimately, the judge imposed the sentence described above.
Proposed grounds
The applicant seeks leave to appeal against his sentence on the following three proposed grounds (omitting particulars):
1. The:
(a) individual sentences on counts 1 to 5;
(b) orders for cumulation on counts 1, 2, 3 and 5;
(c) the total effective sentence; and
(d) non-parole period,
are manifestly excessive in that they failed to take into account and/or give adequate weight to a number of mitigating factors put on behalf of the applicant.
2. The judge erred in imposing a sentence of 30 months’ imprisonment on count 5.
3. The judge erred in failing to consider a Community Correction Order as an appropriate sentence.
Proposed ground one — manifest excess
The applicant submitted that the various sentences were indicative of the judge failing to adequately account for the mitigatory factors which she identified, in particular:
(f) the applicant’s guilty plea and remorse;
(g) the considerable extent to which the applicant had rehabilitated in the long period between the cessation of his offending and his sentencing, and his good prospects for further rehabilitation;
(h) the applicant’s lack of prior criminal history, or recent court appearances; and
(i) the particularly onerous nature of imprisonment during the COVID–19 pandemic.
In his list of authorities (although not in the written case), the applicant made reference to unspecified sentencing statistics and a variety of County Court sentences in respect of multiple charges of sexual offending against a related minor, presumably seeking to illustrate that the present sentence lay outside current sentencing practices.[12]
[12]DPP v Dodd (a pseudonym) [2016] VCC 1711; DPP v Cook (a pseudonym) [2015] VCC 397; DPP v Paulson (a pseudonym) [2016] VCC 1299; DPP v Burton (a pseudonym) [2019] VCC 1537; DPP v Trent (a pseudonym) [2018] VCC 1518.
In my opinion, it is not reasonably arguable that the sentences imposed on the individual charges were outside the available range. The maximum sentence for each offence was 10 years’ imprisonment. The offences reflected a course of fundamental and profoundly damaging breaches of parental trust and responsibility. While of course the applicant is not to be sentenced for the uncharged acts, it is plain that the offences were not isolated events, but took place in a context of escalating and demeaning sexual abuse. This was therefore serious criminal conduct. It demanded just punishment, denunciation and general deterrence.[13] The applicant was sentenced as a serious sexual offender in respect of the last three charges, including the two most serious charges, making protection of the community from the applicant the principal purpose of imposing those sentences.[14]
[13]DPP v VH (2004) 10 VR 234, 237–8 [11] (Callaway JA, Buchanan JA agreeing at 238 [15]); Shawcross [2018] VSCA 295, [63] (McLeish and T Forrest JJA).
[14]Sentencing Act 1991 s 6D.
As to matters in mitigation, the applicant could draw mainly on his plea of guilty and remorse, and especially his generally positive prospects of rehabilitation (buttressed by the absence of offending during the intervening period). At the same time, it must be said that his expressions of remorse were tempered with attempts to downplay the significance of his actions and his responsibility for them. Overall, in my view, the mitigatory factors the applicant relied on are reflected in the sentences generally, and, in particular, in the non-parole period which is just under two-thirds of the total effective sentence.
There is no basis for complaint regarding the orders for cumulation. No doubt taking account of the totality principle, they were very modest, especially given that the counts were temporally and factually distinct.
The cases identified by the applicant do not assist his argument. All of them involved offences for which the maximum sentence applicable at the relevant time was 5 years, 3 years, or less. Although these cases involved more serious offending, in the sense that there was much more intimate physical contact, the fact that sentences in the order of 2 to 3 years were imposed in them has to be viewed in light of the lower maximum penalties. Moreover, a number of the cases involved strong mitigating factors not present in this case. Of course, even if the cases showed a relevant sentencing practice, that would only be one factor in the overall synthesis.
The same can be said of sentencing statistics.[15] Those statistics show that the sentence imposed on charge 4 (being the principal or base sentence) lay a little above the average and around the middle of the range of recent sentences for this offence. Given the relationship of familial trust that was breached and the period of time over which the offending occurred, and allowing for the applicant’s good prospects of rehabilitation, that is not surprising.
[15]The applicant presumably intended to refer to Sentencing Advisory Council, ‘Sentencing Snapshot 233: Sentencing Trends for Indecent Act with a Child under 16 and Related Offences in the Higher Courts of Victoria 2013–14 to 2017–18’ (22 May 2019). Reference might now be made to Sentencing Advisory Council, ‘Sentencing Snapshot 258: Sentencing Trends for Indecent Act with a Child under 16 and Related Offences in the Higher Courts of Victoria 2015–16 to 2019–20’ (11 August 2021).
In the circumstances, in my opinion, it is not possible to say that a total effective sentence of 3 years and 6 months was outside the range of sentences reasonably open to the judge. Nor is it possible to say that any of the individual sentences, the orders for cumulation, or the non-parole period are outside the available range.
Proposed ground two — specific error in imposing the same sentence on counts 4 and 5
The applicant submitted that the judge erred by imposing the same sentence in respect of count 5, namely 2 years and 6 months’ imprisonment, as that imposed in respect of count 4. This was because count 4 was identified by defence counsel, at the judge’s invitation, as the most serious example of offending.
There is no merit in this ground. As the respondent pointed out, defence counsel’s nomination of count 4 as the most serious charge was less than definitive: it was described as ‘probably’ the offence with the highest level of seriousness, ‘in some respects’. Moreover, in the applicant’s own written submission on the plea, and in the prosecutor’s oral submissions, it was submitted that counts 4 and 5 both represented an escalation in offending. Plainly that is the case. The applicant’s conduct in respect of counts 4 and 5 was overwhelmingly similar, involving visibly masturbating in the presence of the victim while she was physically isolated in his vehicle. The fact that in charge 4 he asked her to watch him ejaculate did not sufficiently distinguish the charges to demand a lesser sentence on charge 5.
Further, even if a somewhat lower sentence were to be imposed on charge 5, it is inconceivable that this would affect the order for 6 months’ cumulation (especially given that the applicant was sentenced as a serious offender on this charge, so that a presumption of cumulation applied[16]). Leave to appeal on this ground must be refused for this reason alone.
Proposed ground three —specific error in failing to consider combination sentence
[16]Sentencing Act s 6E.
The applicant submitted that the judge erred by failing to consider a defence submission that, even if the judge considered a wholly suspended sentence inappropriate, she should nonetheless impose a combination sentence of imprisonment for up to 12 months together with a community correction order. It was said that the prosecutor in her sentencing response conceded that such a disposition was open.
In fact, the prosecutor at the plea submitted that immediate imprisonment was ‘the only disposition reasonably open’ and that a combination sentence was ‘outside the range for this type of protracted, serious offending against a child’. Moreover, defence counsel at the plea hearing conceded that a period of imprisonment was open, and did not develop his written submission urging a combination sentence. In the circumstances, it was unsurprising that the judge did not make specific reference to that option. But in any event, the judge’s reasons for rejecting a suspended sentence applied just as much to a combination sentence. In short, she considered that the case demanded an immediate term of imprisonment and it is obvious from the non-parole period imposed that she did not consider conditional release after 12 months, which a combination sentence would have involved, to be an appropriate outcome.[17]
[17]See [2] and [24] above.
This ground is therefore also without merit.
Conclusion
Leave to appeal is refused.
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