Director of Public Prosecutions (Cth) v Rossignoli
[2023] VCC 419
•20 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01532
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| CADMAN ROSSIGNOLI |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 March 2023 |
| DATE OF SENTENCE: | 20 March 2023 |
| CASE MAY BE CITED AS: | DPP (Cth) v Rossignoli |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 419 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of sexual penetration of a child under 16, use a carriage service to procure a person under 16, indecent act with a child under 16, use a carriage service to transmit indecent communications to a person under 16 and procuring a minor for child pornography – offender and victim attended same high school – age difference of four years - no criminal history – highly dysfunctional upbringing – friendship support later in life – diagnosed with mild single episode depressive disorder – effect of media attention on offender – remorse – excellent prospects of rehabilitation – early plea of guilty
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited: R v Jones [2004] VSCA 68; Worboyes v R [2021] VSCA 169;
Sentence: 24-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth | Ms N. Stevic | Director of Public Prosecutions |
| For the Accused | Ms M. O'Brien | James Dowsley & Associates |
HIS HONOUR:
Introduction
1At the outset, Mr Rossignoli, and subject to your consent, I propose to place you on a community correction order. I will detail its terms later.
2You have pleaded guilty to six charges including two charges of sexual penetration of a child under 16. It is important for you to realise the maximum penalties for the offences to which you have pleaded guilty:
(a) using a carriage service to procure a person under 16 – 15 years' imprisonment;
(b) indecent act with a child under 16 – 10 years' imprisonment;
(c) using a carriage service to transmit indecent communications to a person under 16 – seven years' imprisonment; and
(d) sexual penetration of a child under 16 – 10 years' imprisonment;
(e) procuring a minor for child pornography – 10 years' imprisonment.
3Exhibit A is the prosecution's summary of its opening for your plea hearing. Through your counsel, you accepted its accuracy.
Circumstances
4You and the complainant attended the same secondary school. You were in Year 12 and she was in Year 9 when your offending started. The offending set out in the charges occurred when the complainant was between 14 and 16 and you were between 18 and 20, an age difference of about four years. Despite implying the contrary during your interview with the police in 2020, you knew the age of the complainant throughout the course of your offending.
Charge 1
5Starting in February 2012, you messaged the complainant repeatedly seeking meetings with her, talking about contraception and staying with each other overnight. This constitutes Charge 1, a charge of using a carriage service to procure a child under 16 to engage in sexual activity.
Charge 2
6On 19 February 2012, you and the complainant were in your bedroom. After lifting her top and bra, you touched her breasts and rubbed her vagina over the top of her jeans. This constitutes Charge 2, a charge of indecently assaulting a child under 16.
Charge 3
7On the same day, and after the event in Charge 2, you started sending the complainant messages electronically: whether she 'shaved downstairs', you had thought about having sex with her, whether she enjoyed the event in Charge 2, whether she would have sex with you and whether she was a virgin.
8These kinds of messages continued until 1 September 2013. Examples of what you said in these messages appear in paragraph 10 of Exhibit A. These messages embarrassed and confused the complainant. She did not know how to respond but nevertheless felt the need to impress you. These circumstances constitute Charge 3, a charge of using a carriage service to transmit indecent communications to a person under 16.
Charge 4
9On 6 March 2012, after her school finished, you took the complainant to your bedroom. You penetrated her vagina with your fingers. This is an uncharged act. Then, with her agreement, you penetrated her vagina with your penis. You did not wear a condom but withdrew before ejaculating. The penetrations caused the complainant pain and she bled from her vagina. You explained the bleeding as due to her being a virgin. These circumstances constitute Charge 4, a charge of sexual penetration of a child under 16.
Charge 5
10On 26 June 2012, after you persistently requested, the complainant sent you an image of her breasts by way of a text message. Again, after persistent requests for an image of the complainant naked, she sent you an image. It did not depict her breasts, vagina or bottom.
11On 25 February 2013, after exchanging messages, you sent the complainant an image of your penis. You repeatedly insisted on images of her naked. She sent you an image of her breasts and half of her bottom. In response to your request that the complainant show you 'playing with herself', she sent an image of her standing in the shower with her hand between her legs. Your requests for more revealing images and particular poses were rejected.
12These circumstances constitute charge 5, a charge of procuring a minor for child pornography.
Charge 6
13On about 13 February 2013, you sent the complainant a video entitled 'How to make women squirt'. Later, on your bed, you penetrated her vagina with your finger or fingers, trying to copy what happened in the video. These circumstances constitute Charge 6, a charge of sexual penetration of a child under 16.
14Charges 1, 2, 3 and 5 are rolled up charges. The meaning of the words 'rolled up' was given in R v Jones[1] at paragraph 13:
'Rolled up counts are a collection of offences bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner.'
[1] [2004] VSCA 68 at [13].
15After a pretext phone call between you and the complainant on 10 December 2020, you were arrested the same day. When interviewed, acting on legal advice, you mostly made no comment to most of the questions although you said you did not know what the age of consent was and you did not think you had to know.
16After the interview, you were released. It was not until 22 April 2022 that charges were laid. In the Magistrates' Court, there were two committal mention hearings. At the second, on 26 August 2022, you were committed for trial. There was no committal hearing.
Criminal History
17You have no previous convictions or findings of guilty for any criminal offence. However, after the offending in the charges, you described to the psychologist, Dr Dion Gee, what appear to be traffic infringements and the possession of a credit card knife. You were penalised by fines.
Victim impact statement
18Despite the complainant participating in the pre-text phone conversation in December 2020, there is no impact statement from her or anyone else.
Personal
19You are now 29. You are an only child. However, you have two younger half-brothers through your mother. You have never met your father. You have a vague notion of his identity. You lived with your mother and she was helped by her father.
20Nevertheless, you had a highly dysfunctional upbringing due to the instability of your mother. To the psychologist, Dion Gee, you describe your mother's problems with drugs, alcohol and family violence with the last involving you, your mother and her various male partners.
21Your friendship with another pupil stands out as the one positive of your youth.
22Although you were bullied at school because of your voice, you were popular with the students at your secondary school. This much emerges from some of the letters of reference.
23You told the psychologist of many short-lived relationships, your current relationship being of 12 months' duration.
24You drank alcohol at a young age. You started using illicit drugs at 24. At 27, you started using cannabis regularly.
25The publicity surrounding your charging with these offences saw the termination of your employment. Presently, you work as a despatcher. You hope to resurrect your photography business.
26Despite your relationship, you live alone. Your family relationships are not close but, as the letters of reference attest, you have 'a tight network of friends', to adopt the words of your counsel.
Psychologist
27Dion Gee is a forensic psychologist. At the request of your solicitors, he interviewed you and reported on 8 February 2023.
28After applying a variety of psychometric tests, Dr Gee considered you suffer from a mild single episode depressive disorder. He did not diagnose any other recognised disorders. However, he noted several personality traits without diagnosing a personality disorder.
29Dr Gee described your offending[2]
'as an unsophisticated, distorted, and highly misguided "adolescent" attempt at social connection, sexual expression, and self-soothing in a young man'.
[2] At [11].
30After analysing the results of the various tests he applied, Dr Gee considered you a low risk of sexual re‑offending.
31He recommended various areas of treatment.
References
32Your counsel tendered 13 letters from your present partner, step-grandmother, former girlfriends and friends. They speak highly of you as a person and your appropriate behaviour towards women. All speak of the profound effect of you of a newspaper article about you and these offences including your contemplation of suicide. Apparently, the article generated a great deal of online abuse of you including death threats. It also caused the end of your business as a photographer. Most speak of your remorse for the offending.
Discussion
Purposes
33Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender and other persons from committing offences of the same or of similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and,
(e) to protect the community from the offender.
34The law seeks to protect children under 16 from the offences you committed upon the complainant. Although I have not heard from the complainant, one presumes your offending harmed her at the time and still does. Plainly, my sentences should deter you and others from committing these or similar offences. They should manifest a denunciation of your offending and protect the community from you.
35On the other hand, the difference in your ages was small, about four years. Moreover, you were immature for your age. Although you knew the complainant's age at the time, the question of the illegality of your behaviour did not enter your mind at the time.
36I accept you are remorseful for your offending. Your guilty pleas are an indication of your remorse.
37It is also clear you have rehabilitated yourself. As I said, you were young at the time of your offending. The law places great importance on rehabilitating young offenders. Over the intervening 10 years, you have remained free of this type of offence. A number of references are from women, whether former partners or simply friends. They speak of your appropriate behaviour towards women. You are assessed as a low risk of re‑offending. In terms of the prospects of rehabilitation, I consider they are excellent.
Guilty pleas
38I would say your intention to plead guilty to these charges came at the earliest reasonable opportunity.
39By pleading guilty to the charges, you have saved the time and expense of a trial. You have allowed other trials to be listed earlier than would otherwise be the case. You have spared witnesses, especially the complainant, the burden of giving evidence in a trial. Giving evidence is never easy, especially for a victim of sexual charges.
40At the present time, pleas of guilty deserve a greater discount on sentence. Why this is so is explained in the case of Worboyes v R[3], where the court said:
'As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.'
[3] [2021] VSCA 169 at [35]
41You will receive a significant discount on the sentences which I would have imposed if you had not pleaded guilty.
Community correction order assessment
42Your counsel submitted a community correction order was the appropriate sentence. The Director's counsel submitted such a disposition was in the range of appropriate sentences. On 10 March 2023, you were assessed for the purposes of a community correction order. You were assessed as being a low risk of re‑offending and suitable for such an order. The assessor recommended three special conditions, which after hearing from counsel, I will adopt.
Sentence
43On Charges 1 and 3, subject to your consent, I will sentence you to a community correction order of 24 months' duration with these special conditions:
(a) to perform 200 hours of unpaid community work;
(b) to be supervised, monitored and managed as directed by the Secretary;
(c) to undertake any program which addresses factors relating to your offending.
44On Charges 2, 4, 5 and 6, again subject to your consent, I will impose the same community correction order. Their conditions, including the special conditions, will run concurrently.
45If you undertake any program in (c) which is to undertake any program which addresses factors related to your offending, then the hours satisfactorily undertaken will count as hours of unpaid community work.
Section 6AAA
46If you had not pleaded guilty to these charges but had been found guilty, I would have sentenced you to a community correction order but of a longer duration of three years and more unpaid community work at 300 hours.
Sex Offenders Registration Act
47I will adjourn the application under the Sex Offenders Registration Act to a date to be fixed, with leave to either party to relist it before me upon reasonable notice to the other.
Disposal order
48I will make the disposal order in the terms sought.
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