Director of Public Prosecutions (Cth) v Griscti
[2020] VCC 1389
•2 September 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-20-00353
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| DAMIAN GRISCTI |
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| JUDGE: | HER HONOUR JUDGE HASSAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 August 2020 |
| DATE OF SENTENCE: | 2 September 2020 |
| CASE MAY BE CITED AS: | DPP (Cth) v Griscti |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1389 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — use carriage service to groom a person believed to be under 16 years of age — use carriage service to transmit indecent communication to a person believed to be under 16 years of age — plea of guilty — earliest opportunity — remorse — no criminal history —general deterrence — denunciation — specific deterrence
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Director of Public Prosecutions (Cth) v Ingles [2017] VCC 693; Director of Public Prosecutions (Cth) v Theophanous [2017] VCC 1635; Director of Public Prosecutions (Cth) v Triantaffilou [2017] VCC 200; R v Cruwys [2018] VCC 89; Director of Public Prosecutions (Cth) v Short [2020] VCC 665
Sentence:Total effective sentence of 20 months’ imprisonment, to serve 6 months before release on recognisance of $3500 and good behaviour of 15 months
Section 6AAA declaration: total effective sentence of 30 months’ imprisonment, to serve 18 months before release on recognisance of $3500 and good behaviour of 24 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr I MacDonald | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr G Barns | James Dowsley & Associates |
HER HONOUR:
1Damian Griscti, you have pleaded guilty to the following offences:
i. Charge 1, use a carriage service to groom a person believed to be under 16 years of age. The maximum penalty for that is 12 years’ imprisonment.
ii. Charge 2, use a carriage service to transmit indecent communication to a person believed to be under 16 years of age. The maximum penalty for that is seven years’ imprisonment.
2You were born on 22 March 1981 and you are currently 39 years of age. At the time of the offending you were aged 38. You have no criminal history and no matters pending.
3Tendered on your plea as exhibit 1 was a ‘Summary of Prosecution Opening for Plea’.
4Briefly stated, the circumstances of your offending were as follows. Between 20 August 2019 and 5 November 2019, you communicated online with an undercover police operative (‘UCO’). The UCO was from the Joint Anti Child Exploitation Taskforce, conducting covert online duties purporting to be a 14-year-old girl called ‘Lily’ living in Melbourne.
5You sent sexually explicit messages and sent sexually explicit images to the UCO.
6In some of the messages, you spoke about the type of sexual activity you would like to have with a person you believed to be a 14-year-old child.
7The authorities are clear that the seriousness of your offending is not diminished because you were not in fact communicating with a child but with an adult adopting a fictitious persona. Your intent was to sexually interact with a child. Children and young people are particularly vulnerable to online predatory adults and the sentence I impose must denounce such conduct.
8I turn to the specifics of your offending.
9On 20 August 2019, you initiated communication with the UCO on the social media application Kik. You used the registered account ‘DamoG81’ with the vanity name ‘Damo 81’.
10Your communications with the UCO were from the outset sexual. You began saying that she had a cute profile photo and other flattering comments about her appearance. You told her she looked very young.
There was a discussion about your respective ages, which went as follows.
Offender: ‘May I ask how old u are and where your from?’
UCO: ‘14 Melb u’
Offender: ‘Cute’
Offender: ‘I’m 38 melb’
Offender: ‘Berwick’
Offender: ‘is it ok that I’m older’
UCO: ‘I guess’
UCO: ‘u don’t care I’m younger’
Offender: ‘No that’s cool’
12It is clear that you were excited by the young age of the person with whom you believed you were communicating, and you made repeated comments about her being school-aged and attending school.
13Your conversations progressed, with you commenting that you would like the UCO to model some clothes for you.
14You then asked the UCO, ‘Are u ever naughty on Kik?’ (sic). The UCO did not respond until the next day, at which point you said that you had been half-naked at the time that you asked the question.
15Over the course of the communication, you introduced pet names for the UCO, including ‘kitten’, ‘cutie’, ‘princess’ and ‘little one’.
16When asked by the UCO why you wanted to talk to a 14-year-old girl, you advised that ‘young hot bodies’ turned you on. You also asked whether the UCO had group chats on Kik with her school friends and you said you would like to meet her friends for something to do.
17In one exchange, the UCO said that her mother is strict with her phone usage, to which you replied, ‘Don’t get caught. She will kill u for talking to a dirty old [man] like me’.
18The conversations continued to be suggestive or sexualised, with you:
a.requesting that the UCO dress up and send you photos;
b.commenting that you would gently spank the UCO on her bum whilst in her leggings so as not to bruise her;
c.asking the UCO if she would like to visit you at work in the city;
d.asking what underwear the UCO wears and whether she would show you;
e.asking whether the UCO would let you squeeze her bum and what the UCO would like to try with you sexually; and
f.discussing masturbation and remarking:
You should do that so u know what u like … What did u think about while u did it? … A nice hard dick I hope. Holding it, rubbing it, licking it. Do u think you would like to ride one? Slowly slide onto a nice hard dick. Oh I should stop thinking about it.
19You made references to having a threesome with your girlfriend and the UCO, and sent more explicit sexual messages, including:
i. ‘would u watch me play on kik … play with my dick’
ii. ‘mmm nice legs … I’ll let u wrap them around my face … over my shoulders so I can lick your clit … I’ll lick your clit till u cum … too young for my thick cock in your tight pussy … I’ll lift your school dress, move your panties to the side and lick. I love doing it … love the taste … kissing first and I’ll rub your pussy, I’ll put your hand down my pants’
iii. ‘I’ve just started. Pants down. Stroking slow. Mmmm your hot little body. I’ll bend u over and spank u a little … if u were older I would fuck u from behind … you bent over and my hard cock in … your pussy’
iv. ‘I want to teach u how to suck it … mmm lick and suck the tip … start at the top. I won’t push it all the way in … I’ll reach down and play with your nipples … lick down my shaft … I’ll lay u on my bed, lick down your body, lick and suck your nipples, move down your body till I get to your clit. I want to please u. You have made me so hard.’
v. ‘Do u have homework? Can I stand over your shoulder while u do it rubbing my cock on your arm. Then u turn around and unzip my pants … take me dick out and suck it. I’ll need to invite u over’
20Throughout the communications, you regularly encouraged the UCO to send selfies of herself and you flattered her.
21The communications ceased on 27 September 2019.
22After a period of no contact, you reinitiated communication with the UCO on 18 October 2019 from a new Kik account named ‘Demonman 81’ with the vanity name ‘DamoG G’, as your other account had been disabled.
23The communications spanned 18 October to 5 November 2019, and during this period of communication you queried how school was for the UCO before commenting that you had been playing with your dick for an hour; requested images of the UCO in her bikini; obtained the UCO’s Snapchat and added her on the platform; commented that the UCO’s body was so hot and that if she were older you would try and have sex with her every day; advised that you wanted the UCO to, ‘69 me so I can lick your clit while u suck me … then I’ll do you doggy’; queried if the UCO would have sex with you, noting you would be gentle with a lot of fingering first and asked if she thought your penis could fit in her vagina; and remarked that you would nibble the UCO’s nipples to warm them up.
24All the conduct that I have described is the basis of charge 1. During the communications, you sent the following to the UCO via the Kik messenger: seven photos of your erect penis, one video of you masturbating, one image of adults engaged in oral sex, and four adult pornographic videos of adults having sex. That is the basis of charge 2.
25You were arrested on 7 November 2019. You provided police with the usernames and passwords to your devices and applications, including your Kik accounts. You were interviewed by police on the same day. During the interview, you made full admissions and you told police that you should have ended the communications with the UCO when she said that she was 14.
26Section 16A(2) of the Crimes Act 1914 (Cth) requires that I must take into account a number of different matters, if they are relevant and known to me. In arriving at your sentence, I take into account the following matters which were raised with me at your plea hearing.
27I begin with your plea of guilty and any expressions of remorse on your part. You pleaded guilty to the charges on the indictment at the committal mention on 28 February 2020. This is a plea at the earliest opportunity. Your plea has utilitarian value, as it has saved the community the cost of a trial. Your plea has heightened utilitarian value in the present situation of extreme stress upon the administration of criminal justice in this State caused by the COVID-19 pandemic.
28By virtue of your plea, you acknowledge your criminal responsibility for your actions, and I am also prepared to accept that it is indicative of remorse on your part. You also wrote a letter to the Court in which you stated, ‘I am ashamed and embarrassed of what happened and can assure you this will never happen again’. I accept that this is a sincere expression of remorse on your part.
29I turn now to your personal circumstances and in doing so I refer in the main to the report of Mr Patrick Newton, clinical and forensic psychologist, with whom you spoke on 15 June 2020. Mr Newton prepared a psychological assessment report which was tendered at your plea.
30You were the youngest of a siblingship of three. Your parents were hardworking Maltese immigrants. You had a stable upbringing and remain on good terms with your family, although there have been strains on your relationship with your parents.
31You completed your year 12 in 1999. You went on to do an electrical apprenticeship, which took around four years and which you successfully completed. You have worked with the same elevator company for more than 20 years and you told Mr Newton that you loved your work. You told Mr Newton that your employer is aware of your legal situation and is supportive. You are clearly a hard worker.
32You have never abused drugs or alcohol. Your sexual history is unremarkable. You have never been the victim of child sex abuse. You told Mr Newton that you had used pornography but had never viewed child exploitation material.
33You told Mr Newton that you had always been sexually interested in women of your own age. You met your former wife when you were around 22 years old and you have two teenage children with your former wife. Your marriage ended acrimoniously in 2015.
34You have gone on to re-partner with Melanie Heitman. You describe this relationship as strong and affectionate. You and Ms Heitman have a young daughter and Ms Heitman is expecting a second child in September.
35Ms Heitman wrote a reference for you in which she says that you understand the seriousness of what you have done. She says that your offending is out of character. She says that you are hardworking, reliable, responsible, and have been a loving and supportive partner.
36She says she will find it difficult to cope with two children, one newborn, if you are incarcerated. There was no submission made that I should take into account the effects upon Ms Heitman if you are sentenced to a term of imprisonment, but I do take into account the anguish that you will experience being separated from your family, especially in circumstances where you and Ms Heitman are expecting a baby in only a few weeks. I will take that into account in the sentence that I impose.
37Returning to Mr Newton’s report, you described to him how you became obsessive in your online activity, logging on first thing in the morning and checking your messages whenever you had some free time. You told him you initially joined chat groups which were not sexual, but you said online chat with female participants within a short period of time became sexual.
38You said you were experiencing a decline in your relationship with Ms Heitman at the time that you offended, and your online activities became a social and sexual outlet for you. You told Mr Newton that you hated yourself for what you had done and that you had completely stopped using social media.
39Mr Newton found you to be suffering reactive anxiety in response to your legal situation and in response to the situation in which your offending had placed Ms Heitman and your children. Mr Newton gave the opinion that, although you understood issues associated with the age of consent, you tended to downplay the damage caused by online sexual contact between adults and children. It was this cognitive distortion which allowed you to rationalise your offending, according to Mr Newton. However, notwithstanding this, Mr Newton did not consider you to suffer paraphilia or any other sexual disorder. He considered you a low risk of reoffending and recommended individualised offence-specific treatment.
40You have had psychological treatment since your offending. You saw Lindy Storme, psychologist, from December 2019 to February 2020. You then saw Francois Joubert, psychologist. Mr Joubert says in a letter tendered upon your plea that you have expressed deep remorse and have taken full responsibility for your behaviour.
41Further character references were tendered from your sister-in-law, Samantha Griscti, from Melanie Heitman’s sister, Amanda Heitman, from your brother, Ben Griscti, and from your friend and co-worker, Tristan Mowbray. All these references speak of your good work ethic and devotion to your family, and of the remorse you have expressed about your offending.
42I turn now to consider the objective gravity of your offending. Your offending spanned the period 20 August 2019 to 5 November 2019. That is around ten weeks. It broke off on 27 September 2019 and resumed again at your instigation on 18 October 2019. You had an opportunity to stop what you were doing and reflect upon your conduct. You knew what you were doing was wrong, but you re-engaged with the UCO. It is clear that you were highly sexually excited by your interactions with a person you thought was a 14-year-old girl. Your communications were sexually explicit. You requested sexual images from the UCO and your discussions made it clear that you were hoping to meet with and have sexual activity with a person you believed was a 14-year-old girl.
43Your transmission of sexually explicit images of yourself and of pornography is the basis of the second charge and is serious offending in and of itself.
44There was no actual victim, and therefore no harm or presumed harm was occasioned to any child, but this does not lessen the gravity of your offending.
45Online activity is a prevalent form of social interaction, particularly for young people. However, the cyberworld can unfortunately also be a dangerous place for children and young people. It is a place where they may be easily preyed upon by adults such as you, who seek to manipulate them and exploit them for their own sexual gratification.
46I regard your offending as persistent and predatory. It is objectively serious offending and your moral culpability is high.
47One of the matters I must have regard to in arriving at an appropriate sentence for you is current sentencing practices.
48Both the prosecution and the defence referred me to a number of comparator cases. Defence relied upon a number of decisions of this Court in which sentences were imposed that did not involve a period of immediate custody to serve.
49Defence referred me to the cases of Director of Public Prosecutions (Cth) v Short,[1] R v Cruwys,[2] Director of Public Prosecutions (Cth) v Triantaffilou,[3] Director of Public Prosecutions (Cth) v Ingles[4] and Director of Public Prosecutions (Cth) v Theophanous.[5] I note that in Short and Cruwys, the communication was one-off. In Triantafillou and Ingles, the extent of the communication was also more limited than in your case, and in Theophanous, there were no plans to actually meet.
[1] [2020] VCC 665 (‘Short’).
[2] [2018] VCC 89 (‘Cruwys’).
[3] [2017] VCC 200 (‘Triantaffilou’).
[4] [2017] VCC 693 (‘Ingles’).
[5] [2017] VCC 1635 (‘Theophanous’).
50These cases have been of some assistance as a yard stick in helping to inform me of the sentencing range, but my duty ultimately is to impose a sentence that is appropriate to you in the circumstances of this case.
51I now turn to the submissions of the parties.
52The prosecution submitted that a term of imprisonment is usually warranted for offending such as yours, unless there are exceptional circumstances. The prosecution submitted that, given your persistent and deliberate conduct and the prevalence of this kind of offending, general deterrence is the paramount sentencing consideration and matters personal to you are to be given less weight. The prosecution submitted that a sentence of imprisonment comprising a head sentence and a non-parole period was the appropriate sentencing disposition.
53Defence submitted that, given your plea and remorse, your good character and your excellent prospects for rehabilitation, your voluntary participation in treatment, and the onerous conditions in prisons during the COVID-19 pandemic, a term of imprisonment is not the only appropriate sentence and a disposition that includes requirements to attend treatment as recommended by Mr Newton was available to me.
54The purposes for which a sentence may be imposed are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort.
55General deterrence and denunciation are the primary sentencing considerations here. Children and young people must feel safe to go about their lives and enjoy their lives free from the unwanted and harmful sexual advances of adults. It is the obligation of the law to make it clear to anyone who would behave as you did that this kind of behaviour will result in stern punishment, and to unequivocally denounce such conduct.
56Specific deterrence also has some application, given your offending spanned some weeks and that you re-engaged with the UCO and continued to offend after you had the opportunity to stop and walk away from what you were doing.
57You have no prior convictions, you are remorseful, you have engaged in counselling, and you have the support of your partner, your family and your friends. I do regard your prospects of rehabilitation as excellent. I also take into account the onerous conditions in prison due to the COVID-19 pandemic.
58Weighing all the various sentencing principles as best I can, I have come to the conclusion that the seriousness of your offending and the need for general deterrence call for some component of immediate custody.
59On charge 1, you are convicted and sentenced to a term of imprisonment of 18 months. On charge 2, you are convicted and sentenced to a term of imprisonment of six months. I direct that the sentence on charge 1 commences today, that is, 2 September 2020. I direct that the sentence on charge 2 commences 14 months after the commencement of the sentence on charge 1. That makes a total effective sentence of 20 months.
60I direct you serve six months of the sentence I have imposed before being released on a recognisance of $3500 to be of good behaviour for 15 months on the following conditions.
61I will go through these conditions that I am imposing, and I will explain the effect of the sentence. As I said, you are to be of good behaviour for 15 months. You are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management, or his or her nominee, for 15 months.
62You are to attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce reoffending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management, or his or her nominee.
63You are to report to the Cranbourne Community Corrections Centre at 176 Sladen Street, Cranbourne VIC 3977, within two clear working days upon the completion of your sentence of imprisonment or detention term, and you are to report to and receive visits from a community corrections officer or officers.
64You are to notify an officer at the specified community corrections centre of any change of address or employment within two clear working days after the change.
65You are not to leave Victoria except with the permission of an officer at the specified community corrections centre.
66You are to obey all lawful instructions and directions of the community corrections officer.
67Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, I would have sentenced you to a total effective sentence of 30 months’ imprisonment, to serve 18 months before being released on a recognisance of $3500 and to be of good behaviour for 24 months with the identical conditions that I have imposed.
68Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served nil days and direct that this is entered into the records of the Court.
69Charges 1 and 2 are class 2 offences under the Sex Offenders Registration Act 2004 (Vic) and are registrable offences. As you have been convicted of two class 2 offences, you are required to report for a period of 15 years.
70Mr Griscti, to explain all that to you, I have sentenced you to 20 months’ imprisonment, but I have ordered that you only have to serve six months’ imprisonment. Then you will be released on a recognisance order and I need to explain to you the consequences if you fail to comply with that order without a reasonable excuse. Really, what has happened here is that you have been sentenced to a conditional grant of freedom after the expiry of six months. It requires you to be of good behaviour for 15 months. If you commit a further offence in breach of the recognisance to be of good behaviour during that 15 months then, unless you can show a reasonable excuse for committing a further offence, you may have to pay the $3500 which I have made part of the order and you may have to serve immediately any remaining term of imprisonment. In your case, that will be 14 months.
71I must also tell you that you or an authorised person may apply to the Court to vary or discharge the recognisance in accordance with s 20AA of the Crimes Act 1914 (Cth). So, effectively, you have the 14 months hanging over your head for that period of 15 months during which you are to be of good behaviour and to comply with the conditions of the order that I have placed you on. Do you understand, Mr Griscti?
72OFFENDER: Yes, I do, Your Honour.
73HER HONOUR: After you have had the opportunity to speak to Mr Barns do you understand the sentence that has been imposed upon you today?
74OFFENDER: Yes, I do.
75HER HONOUR: Thank you. I will get you now to sign the recognisance order. Now that you understand you will sign.
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