Director of Public Prosecutions v Aleksi (a pseudonym)
[2019] VCC 2101
•19 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISTOPHER ALEKSI (A PSEUDONYM) |
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| JUDGE: | His Honour Judge Johns |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 November 2019 |
| DATE OF SENTENCE: | 19 November 2019 |
| CASE MAY BE CITED AS: | DPP v Aleksi (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2101 |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing – sexual offending – sexual penetration of a child under 16 – indecent act with a child under 16 – sexual assault of a child under 16 – guilty verdict following trial – 10 to 12 year old complainant - young offender – life sex offender registration – immediate term in a Youth Justice Centre.
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APPEARANCES: | Counsel | Solicitors |
| Director of Public Prosecutions For the accused | Mr P. Teo Ms E. Fargher Mr R. de Krester | Office of Public Prosecutions Doogue + George: Criminal Lawyers |
HIS HONOUR:
1Kristopher Aleksi.[1] On 20 September 2019 a jury found you guilty of 4 charges of sexual penetration of a child under 16, one charge of an indecent act with a child under 16, and one charge of sexual assault of a child under the age of 16.
[1] A pseudonym.
2The maximum penalty for sexual penetration of a child under 16 is 15 years' imprisonment; the maximum penalty for indecent act with a child under 16 is 10 years' imprisonment; and the maximum penalty for sexual assault of a child under 16 is 10 years' imprisonment.
Circumstances of Offending
3You were in a relationship with the victim's older sister, Alyson.[2] Your son was born to this union in October 2017. The victim's date of birth is in November 2005. When the victim was aged between approximately 10 and 12 years of age, you assaulted her on the occasions alleged in each charge. These occasions occurred when you were living in the victim's family home, on occasions predating and postdating the birth of your son.
[2] A pseudonym.
4On an occasion between November 2016 and June 2017, you fondled the victim's vagina whilst the two of you were sitting on a bed playing PlayStation. That is Charge 1.
5On two separate occasions, whilst your partner Alyson was out of the house, you pulled the victim's legs apart and introduced your fingers into her vagina; Charges 3 and 4.
6On an occasion in February 2018, after school had gone back for the summer holidays, you were with the victim in the lounge room where she slept. You introduced your fingers inside her vagina after kissing her. That is Charge 5.
7You then pulled down your pants, and holding the victim's hand firmly, you made her masturbate you. That is charge 6. The victim says she felt wetness on her hand.
8On the final occasion, the victim was assisting with the care of your infant son. She was lying on the bed, holding your child, and you pulled her shorts to the side and penetrated her vagina with your fingers. That is Charge 7.
9Not long after this incident, there was a confrontation of sorts, apparently, with the victim's mother and you were asked to leave the home.
10You were interviewed by police in March 2018 and made no comment. At the time of the commission of Charge 1, you were aged between 16 years and 9 months and 17 years and 5 months; in relation to Charges 3 and 4, you were aged around 17 years and 11 months; Charges 5 and 6 occurred just after you turned 18; you may have been just under 18 where Charge 7 is concerned.
11In respect of each charge, I sentence you on the basis that you were at the younger end of the possible age range. It was noted by your counsel at your plea that whilst there is an age disparity of 5 years and 9 months between you and the victim, it was noteworthy that the offending took place between your ages of 16 years and 9 months, and 18 years and 1 month. And you are 19 at the time of sentence.
12In relation to Charge 1, the victim was 10 or 11 years of age. In relation to all other charges, she was 12 years of age. And as your counsel noted on the plea, those charges must have occurred over a two to three week period. The offending is very serious, given the victim's young age, the age disparity, and what I have found to be the predatory nature of the offending.
13Nevertheless, you are a young offender, and you are entitled to the full mitigatory effect of the principles that relate to young offenders.
Personal Circumstances
14You were born in Carlton, and are the only child of your parents' union. Your father was a nurse, and your mother worked in aged care, and your parents separated when you were aged three.
15When you were still very young, your father moved to Adelaide, and ultimately remarried. You have three half-siblings, two sisters and a brother, from that marriage. It was stated on your plea that the absence of a positive and present male role model throughout your development has contributed to a period of dysfunction during your teenage years.
16You grew up in the Rosebud area. Your childhood was marked by disadvantage and instability in a material and financial sense. Your mother speaks of your childhood circumstances, and matters relevant to the sentencing exercise in this court, in her letter dated 28 October 2019; Exhibit 2. I accept the contents of that letter.
17You attended primary school at Rosebud until grade 3, at which time your family moved to Mornington, and you attended a local primary school. At around 12 years of age, you joined a Christian Youth Group, which has been an important connection for you through your teenage years. You were also diagnosed as having ADHD around this age, and you were prescribed medication. You stopped taking the medication within a year or so, due to the difficulty you had swallowing the tablets, apparently.
18You attended a local secondary college for your secondary school years, where you completed year 11 in 2016. I was told that you had difficulties adjusting at school; you had difficulties concentrating, and you were suspended on multiple occasions. It was at secondary school that you met the mother of your two children.
19After secondary school you have worked in plumbing and for some seven months as a cabinet maker. You have also worked at Hungry Jack's. Cabinet making is a career which you have expressed an interest in pursuing in the future. You completed a Certificate II in Mechanics at TAFE in 2017. You are a talented footballer for your age. You play football at an underage level and have clearly been one of the best players in your age group. This is a very positive connection, and is one which favours your prospects of rehabilitation.
20You are no longer in a relationship with Alyson. As I have stated, you have two children with her. Aside from your son, you have an infant daughter aged approximately 8 months. You and Alyson separated during the pregnancy. It is a source of considerable stress and concern that any contact you have with your children into the foreseeable future will be impacted as a result of your offending.
21You have been described as a loving father, and I accept that you are, and that this stress will weigh heavily upon you. You have a limited criminal record, disclosing some dishonesty matters, primarily, for which you have had appearances in the Frankston and Dandenong Children's' Courts, in late‑2016 and the early part of 2017.
22Your counsel, Mr de Kretser in his careful plea, addressed me on that history, and I accept that limited history represents offending which occurred at a particularly dysfunctional time of your teenage years, where you were out of the family home and experiencing some turmoil and disruption.
23I received a psychological report from Dr Aaron Cunningham dated 29 October 2019, which was Exhibit 1 on the plea. Dr Cunningham performed some psychometric testing upon you, and identified a verbal learning disorder. He also noted that you had previously been diagnosed with attention and concentration problems at school, and that the verbal learning disorder, as indicated by the psychometric testing, would have contributed to difficulties comprehending verbally-based information at school.
24The learning disorder was consistent with your presentation, which he described as somewhat immature, relative to your peers. He said you struggled to communicate emotional states, but presented as anxious, with regard to the prospect of incarceration. Dr Cunningham opined further that you would benefit form a disposition that facilitated your rehabilitation, and he noted, in particular, the risks to you, the risks of abuse and manipulation, if you were placed in an adult gaol environment.
25I also received, together with a reference from your mother, Ms Aleksi, I received references from Daniel Sullivan[3] and Adrian Crowe[4] that spoke of your otherwise good character, and the challenges you faced growing up, and I accept the matters contained therein.
[3] A pseudonym.
[4] A pseudonym.
26On your plea, your counsel Mr de Kretser spoke to his careful and thorough written submissions, and emphasised the mitigatory effect of youth in your case, and I accept those matters. Mr de Kretser urged upon me that I have you assessed for both an extended pre-sentence report with a view to a Community Corrections Order, as well as a Youth Justice report, and I received both reports.
27Turning to the Youth Justice report, the author of which was in court on the plea, Dr Mickael Bojczenko noted at p.4 that you presented as physically immature for your age, and have small stature. Cognitively, you presented as immature, at times showing a lack of insight and broader awareness of your emotions, and awareness of others. However, you fully participated in discussion, and were able to indicate understanding and congruency in the responses you gave.
28He noted the concerns related to your lack of experience in a custodial setting, and the associated anxiety of entering into an unknown environment. Dr Bojczenko espoused the benefits of a tailored support offered by Youth Justice case management.
29In conclusion, he noted that you were open to interventions which mitigate criminogenic factors, although having a complex family situation, you have family support, and you have a demonstrated ability in educational and employment settings. All of these matters speak well of your prospects of rehabilitation.
30He noted that you were receptive to offence‑specific interventions, and that you would be required, if admitted to the program, to participate in the male adolescent program for positive sexuality. He noted that you have been assessed as presenting with reasonable prospects of rehabilitation, and you are a young person who is particularly impressionable, immature, and likely to be subject to undesirable influences in adult prison, again noting your physical and social immaturity.
31The Community Corrections report focused largely on your denial of responsibility for the offending for which I'm sentencing you, and that was viewed as an obstacle to successful entry and completion of a Community Corrections Order (CCO). I am not bound by that, of course, however for reasons that I will shortly express, I have concluded that in your case a disposition of detention in a Youth Justice Centre is the only appropriate sentence. Not simply due to the nature and breadth of your offending and its objective seriousness, but I also considered it in the context of its rehabilitative benefits.
32I consider that detention in a Youth Justice Centre can better serve your prospects of rehabilitation at this juncture in your life than a CCO alone would. It is unfortunate, in your case, both for you and the community, in my view, that I do not have available to me the sentencing option of a combined Youth Justice Centre detention and a Community Corrections Order, in the same way I would have if I considered that a period of imprisonment was appropriate.
33Nevertheless, considering your youth and placing emphasis on the purposes of rehabilitation, and the interest of separating a young offender, such as you, from older offenders, that emphasis leads me to the imposition of a sentence requiring your detention in a Youth Justice Centre. A disposition of this type provides a young offender, whose offence is serious enough to require punishment by custodial sentence, the opportunity to serve the sentence separated from older offenders who may have an unfavourable influence, while at the same time providing appropriate rehabilitation and training.
34Having considered the pre-sentence report, I have formed the view that there are reasonable prospects of your rehabilitation, and I further accept that you are particularly impressionable, immature, and likely to be subject to undesirable influences in an adult prison. Whilst I've emphasised the purposes of rehabilitation, and the undesirability of adult prison, it's not the only purpose of the sanction, of course. There remains, in your case a moderated place for general deterrence and denunciation.
Sentence
35Accordingly, Mr Aleksi, I sentence you as follows:
in relation to Charge 1, you are to be detained in a Youth Justice Centre for three months;
in relation to Charge 3, you are to be detained in a Youth Justice Centre for 12 months;
in relation to Charge 4, you are to be detained in a Youth Justice Centre for 12 months;
in relation to Charge 5, you are to be detained in a Youth Justice Centre for 15 months;
in relation to charge 6, you are to be detained in a Youth Justice Centre for 6 months; and
in relation to Charge 7, you are to be detained in a Youth Justice Centre for 12 months.
36I direct that 1 month of each of the sentences imposed on Charges 3, 4 and 7 be served cumulatively on each other, and on the sentence imposed on Charge 5.
37That makes a total effective sentence of 18 months detention in a Youth Justice Centre.
38As I have noted, Charges 5 and 6 are standard sentence offences. You may not be aware, but the standard sentence structure applying to those offences means that the standard sentence for a charge of sexual penetration of a child under 16 is six years, and the standard sentence in relation to sexual assault of a child under 16 is four years' imprisonment.
39The sentence I have imposed, of course, is well below that standard sentence, and I have had regard to the objective circumstances which include your age, and the age of the victim, the age disparity, and particularly your age at the time of the offending.
40Furthermore, the fact that the balance of the indictment contained offences for which the standard sentence did not apply, and for which I have given sentences of detention in a Youth Justice Centre, was a factor in combination with the observations I have made about the objective circumstances of the offending, and the personal mitigation available in your case, which have led me to a sentence that is well below, of course, the standard sentence for those offences.
41In that regard, I've also taken into account the prosecution submission on the plea, in relation to sentence.
42As a consequence of your conviction on these charges, you must also be registered as a sex offender. By virtue of you committing these offences, your reporting period as a registered sex offender is for life.
43Prosecution have also made an application to obtain a forensic sample from you. As I understand it, this application was not opposed.
44MR de KRETSER: No, Your Honour.
45HIS HONOUR: Thank you. I make the order for the reasons set out in the face of the order, which include the serious nature of this offence, and I direct that you undergo a forensic procedure of the taking of a buccal swab, or buccal swab. I'm further required to tell you that police officers may use reasonable force to enable the procedure to be conducted to obtain a sample from you. I make those orders.
46Now, Mr de Kretser, as I understand it, your client has to be given some documentation in relation to the registration.
47MR de KRETSER: Yes, Your Honour.
48HIS HONOUR: Anything arising out of that, on the sentence?
49COUNSEL: No, Your Honour.
50HIS HONOUR: Mr de Kretser, do you want to approach your client?
51MR de KRETSER: Yes, if I can just do that. Thank you, Your Honour.
52HIS HONOUR: Thank you.
53MR de KRETSER: Thank you, Your Honour.
54HIS HONOUR: Right. So it's been acknowledged? Yes, all right. Thank you, we'll adjourn the court
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