Director of Public Prosecutions v Alvanos

[2015] VCC 1944

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01468

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL ALVANOS

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2015
DATE OF SENTENCE:	13 April 2015
CASE MAY BE CITED AS:	DPP v Alvanos
MEDIUM NEUTRAL CITATION:	[2015] VCC 1944

REASONS FOR SENTENCE
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Subject:             Sexual penetration of a child under the age of 16 (x2)

Sentence: Community Corrections Order – 18 month duration – 100 hours community work – supervision – treatment and rehabilitation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R. Champion	O.P.P
For the Accused	Ms B. Franjic	Victoria Legal Aid

HIS HONOUR:

1Mr Alvanos, you have pleaded guilty to two counts of sexual penetration of a child under the age of 16.  The complainant in this matter, who I will describe as Ms M, was just over 14 years old at the time.  At the time, you were about 21 and a half.

2

The circumstances of the offending were set out in the Crown opening,

Exhibit A, which was read in open Court on the plea and I will incorporate it by reference.  It is unnecessary for me to elaborate the two particular events that constitute the two counts, except a note that you had arrived in Melbourne that day from regional Victoria and you had gone to another house where the complainant was visiting a friend of hers, and then sometime in the evening, you proceeded to engage in sexual conduct with her, giving rise to the two events, plus other sexual conduct that is not the subject of the charges, but as part of the overall course of conduct, leading ultimately to digital and penile penetration.

3Shortly after that, or about a month later, the complainant told her mother, and the matter was reported to police on 15 June 2013 and you were then interviewed. You made a number of admissions as to the events that ultimately led to your plea to these offences.  The maximum penalty for the offence, is ten years' imprisonment.

4The matter was originally listed for trial on 19 January this year, where the Crown was alleging a different offence against you, of persistent sexual abuse.  The matter was then resolved between the Crown and the defence and you pleaded guilty to these two charges, ultimately on 19 January this year.

The seriousness of the offences. 

5The offence of sexual penetration of a child under the age of 16 is inherently a serious offence.  It carries a ten year maximum gaol sentence.  These two offences involved a single course of conduct that day or that evening.  The girl was just over 14 years.  The age of consent of 16 years.  There was a presumption of harm involving sexual conduct with a child under the age of 16.  There is no evidence of the extent of the harm here, as the complainant declined to file a victim impact statement.  However, there is a presumption of harm and this reflects the community value that premature sexual involvement is not in children's best interests and that children are to be protected from adults until they are in a position to give proper consent until they turn to the age of consent.

6So it is serious offending.  The fact that the complainant may have consented is irrelevant.  There is a presumption of harm, but the extent of harm is not clear from the evidence.

7Overall, having considered the submissions of your Counsel and her written submission which were marked for identification and placed on the Court file, I place your offending in the lower scale of offending, but not at the bottom of the scale of offending.  It was, as she submitted, situational and opportunistic.  Your conduct might reflect morals or mores on the island of Lesbos, described as “The Pagan Island” in a book by Betty Rowland, which was published in 1963, but it is totally unacceptable in this country, which is your native country.

8I turn now to matters in mitigation.  First, you are a first offender, which is a significant matter in mitigation.  Next, given your age, 21 at the time of the offending, you are to be sentenced as a youthful offender or a youngish offender and the cases say that rehabilitation is to be given considerable weight.

9Your personal circumstances were outlined on the plea and are set out in some detail in Mr Simmons', psychologist, report and I will not repeat.  But you have had a disrupted upbringing with your parents taking you to Greece when you were about nine years old, then your parents separating when you were over there and your mother coming back to Australia and then you being separated from your mother for a period of nine years, while you and your father remained in Greece, and due to economic circumstances, you needed to contribute to the family budget from the age of about 15 until finally in 2012, you returned to Australia and were reunited with your mother and your father also returned to Australia subsequently, indeed subsequent to this offending.

10Despite a disrupted childhood in the sense of half of your education was in Greece and the other half was in Australia, and the fact that you were brought up by your father for a considerable period, separated from your mother, you have remained crime free both before these offences and subsequently and a period of nearly two years since these matters were brought to attention is a significant period, where it has been hanging over your head and I have taken that into account.

11Indeed, Mr Simmons, in his report, says that you found the judicial process quite aversive and this has underlined the fact that your behaviour was not acceptable.

12As I have said, I accept on the plea that you have contributed to the family income from an early age by working and supporting your father in Greece and then now, since you are back in Australia, you are living with your father who is aging, on an old age pension, and is medically challenged and now you are living with him and contributing to the family budget.

13Your secondary education was in Greece, but when you came back to Australia, your obtained a job in hospitality and then subsequently got a position as an apprentice as a motor mechanic.  Subsequently, that apprenticeship appears to be transferred to another leading dealer, Barlow Motor Australia, where you have been there for over 12 months and you are going very well in that apprenticeship.  So you are a productive member of the workforce, advancing your occupational skills.

14Also in evidence was a report from your aunt, who indicates that effectively you are a good boy, and another report from a psychologist, Mr Monteiro, who you have seen on two occasions and indicates that your prognosis is more positive and he further indicates that you are prepared to engage in counselling sessions with him.

15Most significantly, there is a report from Mr Simmons, who indicates that you have a relatively normal psychosexual background and upbringing and you are not of an antisocial nature.  He further indicates that he is of the view that your prognosis for rehabilitation is good.  He says you do not have any deviant patterns.

16In terms of matters of mitigation, I take into account your plea of guilty.  You were charged with a more serious offence and the matter resolved at the plea hearing.  Thus, the plea of guilty was not at the earliest stage, but it does have utilitarian value and the complainant was not cross-examined in the committal.  So I give you credit for the plea.  You have accepted responsibility for your conduct and facilitated the course of justice.

17Next, I consider that the plea is some evidence of remorse.  There are references to remorse in the reports of Mr Simmons and Mr Monteiro, but the references are not elaborated and I accept the prosecution submission that they do not take the matter very far.  There seems to be plenty of self-pity but in terms of victim empathy, very little evidence.  But I do give you credit for the plea as evidence of some remorse.

The purposes of sentencing.

18The basic purposes for which a Court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society.

19Here, the learned Crown prosecutor accepted that a community corrections order was within appropriate range and your Counsel submitted that a community corrections order was an appropriate disposition.  I have accepted the submission of your Counsel and arranged for you to be assessed for a community corrections order and you have been assessed as a suitable person.

20In sentencing you, I must denounce your conduct and I do so.  Here the community interests are in your rehabilitation, given your age, the circumstances of the offending and your lack of prior convictions.  A community corrections order will serve the community interests of general deterrence, denunciation, in this case, specific deterrence has lesser weight given that you are a first offender.

21I have taken into account put on your behalf by your Counsel in her comprehensive plea and as I said, had you assessed for a community corrections order.  You have consented to a Community Corrections Order.

Sentence

22I am proposing to place you on an 18 month Community Corrections Order and to order that you undertake within the first 12 months 100 hours of community work.  I am further going to require that you be under supervision or that period, that you undertake any treatment and rehabilitation that may be directed by the Office of Corrections and that you undertake any sex offender program that they may direct you to.

23It is important that I explain to you the nature of a community corrections order.  For the next 18 months, you are effectively on a good behaviour bond.  If you commit any criminal offence over that period, then that breaches the community corrections order.  In addition to that, you must undergo any treatment or rehabilitation that is directed by the Office of Corrections.  You have got to do 100 hours of community work as arranged and specified by the Office of Corrections.  If they decided to send you to a sex offender program, you have got to undertake that sex offender program.  If they arrange an appointment for you to see one of their officers, you have got to attend that appointment.  If you commit an offence or fail to comply with any of those requirements of the Office of Corrections, then that breaches the community corrections order and you will come back to me for possible re-sentencing for the two offences of which I am sentencing you.

24It is going to be an aggregate sentence of 18 months community corrections order with convictions. The prosecution have also sought a forensic sample from you and I propose to accede to that request and I am required to advise you that the authorities may use reasonable force to obtain a sample of saliva from you for the purpose of going onto a database.

25As a consequence of being convicted of sexual penetration of a child under the age of 16, then under the Sex Offender Registration Scheme, you go onto the Sex Offender Register for a period of 15 years.  That is not part of the sentence, but it is a consequence of a sentence.  That means that for a period of 15 years, you have got to advise a registrar, a police officer, when you change your address, when you get a new phone, you get a new internet address, when you get a new car, a whole lot of detailed reporting requirements that also carry terms of imprisonment if you fail to comply with it.  Now your Counsel will explain the requirements and you will be asked to sign the relevant documentation before you leave the Court.

26You are also required under the community corrections order to attend at the Dandenong Community Corrections Office within two business days in order to get inducted and registered with them.  I will ask Counsel to explain the terms of the Community Corrections Order to you and then I will ask also to have the Sex Offender Registration forms explained to him.  Is there any other matters, Madam Prosecutor?

27MS CHAMPION:  Yes, just Your Honour's obligations under s.6AAA.

28HIS HONOUR:  Section 6AAA.  If Mr Alvanos had not pleaded guilty, I would have imposed a two year sentence of imprisonment as an aggregate sentence with a one year non-parole period.  I will stand down while my associate hands the documents to Counsel and I ask that they be explained to him.

29Mr Alvanos, you are going to have to attend at the Dandenong police station to get this forensic sample within the next four weeks from you, but in addition to that, you have got to attend at the Community Corrections Centre in Dandenong within two business days, by Wednesday evening, and then for the next 18 months, as I said to you before, you are on a community corrections order, which involves supervision, work, community work, undertaking any courses or treatment that they recommend and including supervision and attending when they request you to do that.

30So I am giving you this opportunity to not go to gaol for two serious offences.  I have emphasised rehabilitation in this disposition, but I do not want to see you back in Court for anything and your conduct in having intercourse with this 14 year old is absolutely unacceptable and the community treats it that way.  But I accept that you are progressing in your motor mechanic and helping your father and I commend for the conduct in that and I wish you all the best.

31I want to thank Counsel for their assistance in this plea.

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