Director of Public Prosecutions v Amaral (a pseudonym)

[2019] VCC 2178

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON AMARAL (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2019
DATE OF SENTENCE:	18 December 2019
CASE MAY BE CITED AS:	DPP v Amaral (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 2178

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:                   Brown v R
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough	Office of Public Prosecutions
For the Accused	Ms C. Hollingworth	Victoria Legal Aid

HIS HONOUR: 

1Jason Amaral,[1] you have pleaded guilty to three counts of sexual penetration of a child under the age of 16 years.  The maximum penalty for each of these offences is 15 years' imprisonment.

[1] A pseudonym.

2Pursuant to ss.5A, 11A(4) Sentencing Act and s.49B(3) Crimes Act, the sentences I impose upon you for each of these offences attract the operation of the standard sentencing provisions.  These provisions in combination provide a standard sentence for the offence of sexual penetration of a child under the age of 16 years of a period of six years' imprisonment.  Further, unless the court considers it is not in the interests of justice to do so, the legislation provides that I must impose a non-parole period of at least 60% of each term I impose for this offending.  I shall return to these provisions in due course.

3Next, your plea of guilty to these three offences and the fact that a term of imprisonment will be imposed on Charges 1 and 2 means you fall to be sentenced as a serious sexual offender on Charge 3.  At the relevant time I will make the declaration and cause it to be entered in the records of the court.  I note at this time however that the Crown does not seek to have a disproportionate sentence imposed in respect of your offending on Charge 3.

4Finally, the offences to which you pleaded guilty are all Schedule 1 offences for the purposes of the Sex Offenders Registration Act.  You will be registered as a sex offender for life.  Essentially, the Act imposes restrictions and reporting requirements which you will have to comply with after your release from prison for the rest of your life.

5You have no prior convictions and no subsequent or outstanding matters.

6The Crown tendered a summary prosecution opening on plea as Exhibit A.  

7A summary of your offending is as follows.

8You were the second of four siblings who migrated to Australia from Ethiopia. The victim of your sexual offending is your niece; your older sister's daughter. The victim was born in November 2003.  You were born in November 1991.

9Charge 1 occurred in the one year period after the victim’s 12^th birthday and before she turned 13; that is, up to 2 November 2016.  You were approximately 25 years old at the time of this offending.  You were to pick up your niece from her home and take her to a party.  You had intercourse with her, you told her not to tell anyone, and told her to wash the blood off herself.  You then took her to the party.

10On the second occasion in 2018, whilst the victim was still 14 years of age, you picked up the victim and her siblings to take them to soccer training.  Whilst her other siblings were at soccer training, you took the victim back to your place where you had intercourse with her.

11The final occasion occurred on 14 November 2018.  At her mother’s request, you picked the victim up from Federation Square after a school excursion.  You drove her to her home and when you were back at her house you put her on the bed and had intercourse with her. She told you to stop and you did not and instead you grabbed her hand tight.

12There are uncharged acts alleged (and admitted) which describe incidents occurring at home after school on more than ten occasions.  I simply note that the uncharged acts provide context and background to the charged acts.  They do not attract a separate penalty of their own, nor will I “top up” or add a premium to the sentences I shall impose for each of your admitted acts to take account of the uncharged acts.

13As a result of intercourse with you, the victim became pregnant. On 28 December 2018, her pregnancy was confirmed by medical testing.  Due to the late stage of the pregnancy, it was not possible for the pregnancy to be terminated.  The child was born on 7 April 2019.

14You were arrested by police on 29 December 2018 and bailed.  You attempted to leave Australia on 22 January 2019 but you were detained at the airport.

15It was argued on your behalf that your attempt to leave the country was simply to take a holiday in Ethiopia.  You had a return ticket booked, but your return was not until September 2019.  Again, I simply note that this provides context and background to the charged acts.  It does not attract a separate penalty of its own or a top up of the charged offending.

16You were remanded in custody from 22 January.  When interviewed by police, you made denials to the offending.  You have now spent over 330 days on remand by way of pre-sentence detention (excluding today).  I will reckon that period as already served.

17I turn now to a consideration of the standard sentencing scheme:

18The scheme provides for a standard sentence of six years for each charge;

19The standard sentence takes account only of the objective factors affecting the seriousness of the offence in question and is marked as the middle range of seriousness for that offence;

20Objective factors exclude consideration of matters personal to you as an offender or as a class of offenders.  Rather it is determined wholly by reference to the nature of the offending;

21This does not limit the matters which I must or may take into account in determining the appropriate sentence.  Nor is it intended to affect what is known as the instinctive synthesis process.  The standard sentencing scheme may be considered as a guidepost in the sentencing consideration.  However it is neither determinative nor a starting point from which I must simply remain, go up or go down in my sentencing consideration;

22In determining the appropriate sentences for your offences, I must take into account the standard sentence as one of the factors relevant to sentencing.  In this way, it is an additional factor to consider in the sentencing process;

23Furthermore I must not have regard to previous sentencing practices which are not standard sentencing scheme sentences.

24I now turn to consider the objective gravity of your offending and an assessment of your moral culpability. In doing so, I am mindful of the reasoning and principles enunciated in the recent Court of Appeal decision of Brown v R.

25The offences of sexual penetration of a child under 16 are, of their nature, serious offences.  This is marked in the first place by the maximum penalties of imprisonment applicable to your crimes. 

26You first offended against a child who was 13 years younger than you; she was then half your age.  Moreover she was a blood relative to whom you owed a duty of trust and responsibility.  Your contact with her on these occasions came about largely because of the trust reposed in you by your sister.  You offended against your victim in her own home and on a number of occasions in her own bedroom and the sex you had with her was (on at least the last occasion it seems) unprotected.  The offending occurred on multiple occasions and over a protracted period of time.  This resulted in your 15 year old niece becoming pregnant.

27The criminal law prohibits sexual offending, and specifically sexual offending against children, with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity.  The prohibition and the maximum penalty for its contravention is intended to deter others who may consider engaging in sexual activity with a child.

28The absolute prohibition on sexual activity with a child under the age of 16 presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm, which is long-lasting and serious and manifests itself in both physical and psychological forms. Therefore, the harm to your victim in this case is presumed. 

29I received a victim impact statement from the victim.  The victim speaks of her fear, confusion and feeling of being trapped because she did not feel she could speak to anyone about your actions.  The birth of the baby and the decision to keep it has had a dramatic, if not cataclysmic effect on your young victim.  She speaks of the fact that she no longer trusts people and has a fear of men in general.  Her life has become a whirlwind of interactions with doctors, social workers, psychiatrists, counsellors and mental health workers.  She has had to deal with police and child protection in relation to this matter.  She is struggling with finishing her education and raising a child and she is scared for her future. She has made it clear that you will not be a father figure in your child’s life.

30The victim impact statement is a brave and articulate statement from a very young woman.  It speaks eloquently of the fact that you have changed her life forever by your grossly selfish and predatory sexual behaviour.

31It is apparent from the Victim Impact Statement that the victim was (as I have said) in fear and confused by your criminal actions at the commencement of your sexual activity with her.  It is clear that your conduct was never welcomed, nor sought by her, and on at least the last occasion, she asked you to stop but you persisted.  In other words, the Victim Impact Statement spells out in explicit and unmistakable terms the harm that your actions have caused to your victim.

32I was told that this was your first and only series of sexual encounters that you have experienced in your life.  This provides no excuse.  Your offending is utterly abhorrent and deserves the denunciation of all right-minded thinking people in the community.

33The sentence I impose upon you (and the individual sentences) must reflect principles of deterrence, denunciation and protection of the community.  This means, Mr Amaral, that you must face punishment by a considerable period of imprisonment for your crimes.

34I turn now to your personal circumstances.  As I have already stated, you were born on in November 1991 and you are now 27 years of age.  You were born in Ethiopia.  Your parents died when you were young.

35Your older sister migrated to Australia.  It is entirely unclear as you are unable to provide your counsel with clear instructions, but it appears that your older sister may have sponsored you and your two younger siblings to live in Australia.  You are now an Australian citizen.  You were supported in court by your younger brother and sister and friends.

36You came to Australia in 2007 and initially lived with your older sister and her children before moving out.  You completed primary schooling in Ethiopia but it appears you did not commence any secondary school education there as you cared for your younger siblings.  When you came to Australia you attended language school in Collingwood and then completed Year 11 VCAL and took a job after that as a bricklayer.  You worked as a bricklayer for years and then became an Uber driver.

37You do not drink, you do not take drugs and, although you provided few instructions to your counsel, it appears you have no mental health issues.  You have no and have not had any intimate relationships in your life.

38I received character references, which speak of you as a peace loving, friendly, caring and non-violent young man.

39You have returned to Ethiopia three or four times since moving to Australia. You instructed your counsel that you were not seeking to flee on 22 January 2019. It appears, as I say, you purchased your ticket after your arrest but it also appears, notwithstanding the long date, you had purchased a return ticket.  I do not consider it necessary to make a finding in relation to this issue, as I have already said, and it will not influence the sentence I impose upon you.

40You have served your time in custody at the Hopkins Correctional Centre.  You receive visits from your younger sister and brother.  You have been working whilst in custody and you have completed courses in maths and English.  You understand that there will be more courses available to you once you have been sentenced.

41Ms Hollingworth, who appeared on your behalf, submitted that your sentence should be mitigated by your early plea of guilty and by your expression of remorse.

42Whilst I agree that the plea of guilty should be given weight for its utilitarian benefit, I do not consider there is sufficient evidence for me to find that you have been remorseful.  The couple of expressions you made to your counsel, which were then relayed in court by your counsel to me, may be signs that you have, or you are developing, insight into your offending.  However, a plea of guilty in the face of uncontradictable evidence and a couple of remarks to counsel in the course of your conference does not provide a basis upon which I can conclude you have exhibited remorse for your offending.

43Ms Hollingworth submitted that these were crimes committed without sexual violence.  In the case of the last charge, it was opened that the victim asked you to stop and you persisted.  You held her hand tightly.  I consider an act of sexual intercourse against the wishes or will of another person to have an element of sexual violence about it.  Moreover, the same may be said for the earlier acts of intercourse with the fact that you as an adult committed those physical acts against (not with) a child.  In any event, the Crown submitted (and I agree) that it is apparent that your acts caused enormous psychological distress to your victim.  Accordingly, I reject this aspect of Ms Hollingworth’s submission.

44Finally in this respect, Ms Hollingworth submitted that you have good prospects for rehabilitation.  In this respect she referred to the character references provided on your behalf, which speak of an otherwise well regarded member of your local community.  Ms Hollingworth submits the fact that you have no drug or alcohol issues, you have a trade qualification in bricklaying, you have a solid work history in bricklaying and Uber driving, you have support from your younger siblings and friends and you have kept yourself busy in prison, all speak well of your prospects for your rehabilitation.

45Overall, I consider that you do have good prospects for your rehabilitation. Nevertheless, I do consider these are somewhat predicated upon you openly and fully accepting the wrongfulness of your actions.

46The Crown submits that your offending is serious, and that the aggravating circumstances are significant.  The prosecutor particularly relied on the fact of pregnancy as aggravating, for it will be a life-long reminder to the victim of your acts.

47Overall, I must have regard to the principle of totality in the sentence I impose. 

48I intend to move to sentence now, if you could stand please Mr Amaral.

49On Charge 1, you are convicted and sentenced to six years' imprisonment. 

50On Charge 2, you are convicted and sentenced to six years' imprisonment.

51On Charge 3, I declare you to be a serious sexual offender, and I order that be entered in to the records of the court.

52On Charge 3, you are convicted and sentenced to six years' and 10 months' imprisonment.  On this charge, I have regard to the protection of the community as a dominant sentencing factor.

53I order that one year of the sentence on Charge 1 be served cumulatively on Charge 3 and all other sentences.  I order that one year of the sentence on Charge 2 be served cumulatively on all other sentences. 

54The total effective sentence is therefore one of 8 years and 10 months.  I order that you serve a non-parole period of 5 years and 8 months before you are eligible for parole. 

55I declare the period of pre-sentence detention of 330 days excluding today, reckoned as already served. 

56The sentences I have imposed on Charges 1 and 2 match the standard sentence.

57The sentence on Charge 3 is higher than the standard sentence for this offence.  It is apparent from all of the circumstances and factors that I have identified in the course of these remarks, that I consider the whole of your offending to be very serious and your moral culpability to be high.  I have therefore reached the conclusion that each of the sentences I have imposed is appropriate.

58The 6AAA declaration is that but for the plea of guilty I would have imposed a sentence of 12 years with eight and a half years to serve. 

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