Director of Public Prosecutions v Agresta (a pseudonym)

[2022] VCC 1541

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT LATROBE VALLEY

CRIMINAL DIVISION

THE DIRECTOR OF PUBLIC PROSECTIONS

v

RODNEY AGRESTA (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	11 August 2022
CASE MAY BE CITED AS:	DPP v Agresta (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1541

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr A. Dickenson	Richard Davis & Associates

HIS HONOUR:

1       

Rodney Agresta[1], you have pleaded guilty to one charge of sexual penetration of a child under 12 ages, that being a course of conduct charge.  You have also pleaded guilty to sexual penetration of a child under the age of

16 years, that not being a course of conduct charge.  Those crimes carry maximum penalties of 25 years and 15 years respectively.

[1] A pseudonym.

2       

There has been some discussion about Charge 2, and on the face of it, the standard sentencing regime applies to that and the standard sentence is

six years.  I am well aware of the decisions of Macpherson v Brown, and in these circumstances, I am prepared to proceed, bearing in mind that Charge 2 is the lesser of the two charges and there will be a degree of accumulation which would not change, even if it was not a standard sentence.  In those circumstances, I do not think I need to go through the sometimes artificial aspect of distinguishing why it differ from the standard sentence, or it does not differ from the standard sentence because Charge 1 is the main offence.

3       You are now 50 years of age.  You were 42 to 45 years of age when the offending took place.  You have pleaded guilty in the ultimate to a settled indictment and must get the benefit of that.  In your situation remorse would be somewhat problematic but I will give you the benefit of the doubt.

4       You clearly must get the utilitarian benefit of that plea of guilty.  In these times of Worboyes, that benefit must be of significance and observable.  You also saved the complainant, as I understand it, from giving evidence in a trial, and that also plays a part.  When this plea is also of some value to the Crown in terms of resolving any potential disputes in a trial.

5       You must receive a custodial sentence, and your counsel does not defer from there.  I am aware that the initial part of that sentence at least will be undergone in COVID conditions and I am aware of the difficulties that that brings into play for prisoners.  There has also been a delay of some three years through procedural matters mainly, as I understand it, plus COVID, and I take that into account.

6       

Because of the nature of the offending, you will be placed on the

Sex Offenders Register and I advise you that the reporting conditions will be for life, and I will ask you, Mr Dickenson, if you would not mind – is it

signed – just take this down to your client; I will get my associate to accompany you.

7       All right.  Because of prior convictions that you have previous gaol sentences, you will be sentenced on each charge as a serious sexual offender.  I am aware that in those circumstances, accumulation applies, unless otherwise ordered.  I will be otherwise ordering because totality demands it.

8       I am also aware that the community protection becomes the principal sentencing purpose, and I take that into account.  The Crown in this situation does not seek a disproportionate sentence, and I indicate that would have not given one in any event.  I direct that that be entered in the records of the court.

9       The offending is contained succinctly in the Crown opening.  You formed a relationship in late 2009 with a Ms Bower[2] and you moved in with her and her daughter – this will be anonymised afterwards to make it clear – Miley[3] in 2010.

[2] A pseudonym.

[3] A pseudonym.

10      In July of 2013, that relationship ended but resumed in around in 2015 when you moved back to the address where she lived in a shed at the rear of the property.  At that point, the relationship between you and Ms Bower was on and off and you were living at other addresses and the shed as well at that addresses.

11      

Between 1 July 2017 and 22 June 2019, there are four separate incidents which give rise to the course of conduct charge.  Miley was aged between

11  and 12.  They are very similar in nature, and I will briefly describe them.  In each one you sexually penetrated her by inserting your fingers and penis into her vagina, and inserting your penis into her mouth.  These incidents would occur after she had returned home from school and whilst Ms Bower as at work.

12      The first between 1 July 2017 and 22 June 2013, she was home alone sitting in the loungeroom.  You knocked on the back door, as I understand it you were probably coming from the shed, and you came into the house.  In each of these situations, you touched her over her clothes - on her breasts, vagina and buttocks and there all uncharged acts and simply give rise to context.

13      

In any event, on this occasion you led her into the spare bedroom, removed both your pants and her pants and underwear, picked her up, forced her onto her knees and inserted your penis into her mouth.  You then put her back onto the bed and inserted your penis into her vagina.  After a time, you withdrew your penis from her vagina and left the house.  You did not ejaculate during that incident.  She apparently suffered bleeding from her vagina for about

two days which caused both her and her mother to believe that her first period had started.  She had just recently turned 11 at the time of this incident.

14      The second in roughly the same timeframe, she was at home.  Again you knocked on the door and she let you into the house.  Again you touched her over her clothing, took her into one of the rooms in the house, removed the pants of both of you, inserted your penis into her vagina.  You then put your penis into her mouth before reinserting it back into her vagina.  You withdrew your penis and ejaculated on the floor which you rubbed into the carpet with your foot before leaving the house.  As I understand the forensic evidence, DNA samples subsequently discovered that semen and it was almost conclusively yours.

15      The next incident, again in that same timeframe, you came into the house via the backdoor, put your fingers into her vagina, took off your pants, removed her skirt and put your penis into her vagina while she was on the bed.  You removed your penis from her vagina, inserted it into her mouth, and you again ejaculated on the floor before leaving the house.

16      They give rise to the course of conduct, and on each occasion there were multiple penetrations.  That in itself it is very serious offending.

17      Charge 2 is a single offence of sexual penetration of a child under 16.  At this time, Miley had already turned 12 which takes it out of the previous regime.  Again, you came in through the back door.  Again, touched her over her clothing on buttocks, vagina and breasts.  Lifted up her dress, pulled her shorts down, you inserted your penis into her vagina, but a friend of hers came home knocking on the front door.

18      The complainant then disclosed after a period of time to her mother that you had penetrated her.  She also, as I understand it, complained to friends, or a couple of friends, that you sexually penetrated her.  An investigation was made.  You were ultimately interviewed by police and denied all the offending.  You have ultimately pleaded guilty, and as I already indicated, you must get the benefit of that.

19      I have read a couple of times now the victim impact statements in this matter and they describe very eloquently why this sort of offending cannot be tolerated.  The circumstances are that Miley, as part of her victim impact statement, there is a lot more to it than this, said:

I wanted to change my body completely because I wanted a body he hasn't touched, so I'd starve myself a lot which caused me to lose a lot of weight.  I've never liked my body at any stage after and during the offending.  It just made me feel disgusting knowing what they had done to me, and having to re-live and re-tell the story of the offendings made me begin to hate myself and my body and my personality, my looks basically.  I became disgusted in myself.

That is the sort of damage – and irreparable damage, unfortunately – that so often occurs to young victims in these circumstances.

20      Her mother's victim impact statement also outlines clearly what occurs on many occasions: the sense of failure, as is so often the case paramount.  She said:

I feel like I'm a failure as a mother because I was unable to protect my child the way a mother should.  I'm unable to trust people and find it hard to make new friends or maintain a relationship.  I used to have a sunny disposition and have always tried to see the best in people.  Now I find it very difficult to see the good in people always questioning their motives.

That is almost textbook what occurs in these situations to the mother of a child that has been offended against, and those victim impact statements clearly outline what your offending has caused, and the community views it seriously.  It is obviously serious because of the application of general specified deterrence as well as denunciation and appropriate punishment.

21      In effect, and it is analogous to the charge of incest in this situation, but I refer to the comments of Justice Hedigan from the matter Sposito, and as I say, it is analogous to this situation:

The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children.  It ought to be unnecessary to recount the morbid features of incest, the most prominent which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.

All those matters applies here; one only has to read the victim impact statements to understand that.

22      A very significant gaol sentence is the only option open here, and your counsel argued that I should take into account the prospects of rehabilitation and the like, and I do so as best I can.  You have a extensive criminal history and one of alcohol and started offending as a young person.  I understand all those matters.  You have been sentenced to YTC and you have been sentenced to intensive corrections order and the like.

23      But the real difficulty from your point of view in this situation, Mr Agresta, is that in September of 1999 on half a dozen separate charges, you were sentenced to be imprisoned for a total of three years with a non-parole period of one year and three months for offending against a 15 year old child.  She apparently was the younger sister of your then partner.

24      That offending, on the face of it at least, would appear to almost pale into insignificance compared to what you were doing to a little girl who had just turned 11.  In those circumstances, one, of course, has grave concerns about what your prospects for rehabilitation are, but I will give a minimum term in these circumstances, which at least enables the authorities at some date in the future to make their own decisions.  The risk of you re-offending is almost impossible for me to anticipate at this stage, but I accept that if you are rehabilitated it should be low.

25      

I then look to matters personal to you and your counsel has provided – very helpful if I might say so – and succinct submissions.  You have reached an age now of 50 where childhood does not help you a lot.  There is no suggestion that you yourself were sexually abused as a child.  You were born in Warragul, brought up on a dairy farm around Drouin.  Your father had certain expectations of you.  You described your childhood as poor and not happy.  You did not get on well with your father.  You did okay at school.  You enjoyed subjects such as woodwork and metalwork, but around

12 to 13 years of age, you began to disengage from school.  Halfway through

Form 9, you left and started as an apprentice jockey.  As I understand it, that apprenticeship was not fulfilled, but you continued to work after that for a period of time with horses doing track work and the like.

26      Around about those times, you were a heavy abuser of alcohol, and though it has got nothing to do with this offending, also for a period of time used speed or amphetamine.

27      Since then to your credit, you have had a good work record.  You have been licensed to operate excavators for a significant period of time.  You have done underground drilling and power, you have done excavation and pipe laying.  You worked as a fencing contractor for a period of time before an injury took that away.  And I have no doubt that you have over the years continued to work and done well.

28      I am told from the Bar table that you still have support from your family.  You have four daughters and you still have contact with a couple of them, and it is to be held that on your release you will have somewhere to go.

29      In the end, though, it is serious offending.  I have taken into account very much the question of totality.  Obviously, a crushing sentence is to avoided wherever possible, but in your situation you have done it before and it is offending – serious offending in itself.  So taking all those matters into account as best I can pursuant to the provisions of the Sentencing Act, on Charge 1 a sentence of imprisonment for a period of 10 years, on Charge 2, six years.

30      

I direct that two years of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed upon Charge 1, which gives a total effective sentence of 12 years.  I direct that you serve a minimum term of

eight years before becoming eligible for parole.

31      Now, one to stipulate there, I understand that will comply with standard sentence, Mr Dickenson, in either way – that minimum term.  Yes.  All right.  But I also assume there's no pre-resentence detention?

32      MR DICKENSON:  No, Your Honour.

33      HIS HONOUR:  Correct.  No.  All right.  Now, just so you clearly understand the benefit that you have received from pleading guilty in these times of Worboyes, but for your pleas of guilty you would have been sentenced to be imprisoned for a period of 18 years with a minimum term of 12.

34      MR MOORE:  The court pleases.

35      HIS HONOUR:  Any other orders need to be made, gents?

36      MR MOORE:  No.