Director of Public Prosecutions v Bellucci

[2014] VCC 1470

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOMENICO BELLUCCI[1]

[1] To ensure that there is no possibility of identification, this judgement has been anonymised by the adoption of a pseudonym in place of the name of the accused.

---

JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 May 2014
CASE MAY BE CITED AS:	DPP v Bellucci
MEDIUM NEUTRAL CITATION:	[2014] VCC 1470

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Martin
For the Accused	Mr C.T. Farrington

HER HONOUR: 

1Domenico Bellucci, you have been found guilty by a jury of two charges of incest by a step-parent.  The maximum penalty for that offence is 25 years imprisonment.  You have further been found guilty of five charges of indecent act with a child under 16.  The maximum for that offence is ten years' imprisonment.  Your trial commenced on 3 February 2014 and the jury returned the verdict on 14 February 2014, and you were then remanded in custody for plea and sentence, and the days which you have spent in custody before your sentence will be taken into account.  The offending of which you were convicted occurred in the family home, which you shared with your wife Rossana Alfonsina Bellucci[2], her two daughters from a previous relationship Lucia[3] and Camelia[4] and a daughter born of your union with Ms Bellucci, Vanna[5].

[2] Rossana Alfonsina Bellucci is a pseuodnym

[3] Lucia is a pseudonym

[4] Camelia is a pseudonym

[5] Vanna is a pseudonym

2The first two offences occurred in 2008, when Lucia, your oldest stepdaughter was about ten years old.  She approached you as you were playing a card game on your mobile phone.  She put her hand on your shoulder, you then put your arm around her, put your hand into her underwear and inserted your finger into her vagina, and that is the basis on which you were convicted for Charge 1.

3You then, shortly after, took her to the couch and sat her next to you.  You placed a pillow over her lap and again placed your hand inside her underwear and inserted a finger into her vagina.  Those matters form the basis for Charge 2.  Although these matters occurred on the same evening, they were two separate incidents of sexual penetration of Lucia.

4In 2009, Lucia was home with you and your natural daughter Vanna.  Lucia was playing on the computer while you sat on the couch.  Her evidence was that you were masturbating and moaning, and you got up and left the room.  You then returned with your penis exposed and a condom and you said words to the effect that, "We're safe now, Mum will never know."  This incident ended when Lucia said that she would tell her mother, and that is the basis for Charge 3.  In February 2011, when Lucia was 13 years' old, she did not attend a scheduled school camp and stayed at home.  She was in her bedroom in bed when she noticed you at the bedroom door.  Camelia was at school, and your wife was at work.  Lucia feigned sleep, but watched you through squinted eyes and observed you masturbating and saw that you wiped something off the floor with your shoe and wiped your penis and left the tissue behind.  And those are the facts that form the basis of Charge 5, which was indecent act with a child.

5On another occasion in February 2011, Lucia was sitting at home on her bed reading.  You entered the room with a condom in your hand and said, "Mum's not at home".  You climbed onto the bed used by Lucia.  You showed her the condom, but she told you, "No, I'm telling my mum, and you then left the room."  That forms the basis for Charge 6. 

6Evidence was also given by Lucia and Camelia of a number of other acts with which you were not charged.  They were events which occurred between 2008, and 2012, when Lucia was between ten and 14 years' old.

7The evidence was that you occasionally pulled your penis out and masturbated in the presence of both Lucia and Carmelia and the sisters tried to ignore you.  During that same period, on five separate occasions, Lucia awoke to find someone touching her under the blanket.  She saw you and felt you rubbing her on her vagina, either over or under her underwear.  On other occasions during that same period, you would grab the complainant Lucia on her breasts or pinch her bottom, often while your wife was in the house with her back turned.

8There were other occasions between 2008 and 2012 when Camelia gave evidence that you would masturbate in front of her and Lucia while wearing a condom, and you would masturbate while looking at your step daughters and standing in an open doorway.  On several other occasions during that same period, when Camelia was between nine and 13 years of age, you would grab her on her breast or touch her bottom.  Those matters which do not form the subject of any charges, I take into account insofar as they demonstrate that the offences of which you have been found guilty were not isolated and that was not the only behaviour occurring in the house.

9In 2012, when Camelia was aged 12 to 13 years, she was at home in bed.  You had driven her mother to the train station and returned.  She heard the sound of a wrapper.  She identified that as being the wrapper of a condom.  You then entered her bedroom with your penis exposed and wearing a condom and you began masturbating.  You then knelt down and asked her if she wanted to do it.  Carmelia said no, and threatened to tell her mother.  You put your hands under the blanket.  She pushed them away saying, "Please don't or I'll tell Mum". That incident forms the basis for charge 7.

10On another occasion in August, when Carmelia was 12 years old, she was standing in front of a wall heater.  You appeared in the bedroom doorway at the end of the hall and began masturbating in her presence and in full view of her, and that forms the basis for Charge 8.  Your offending was never mentioned to your wife, or to anyone else.  It came to light in relation to each of the girls when they disclosed separately the offending which they each said had occurred.  Lucia told a youth social worker on 20 August 2012 and as a result of that disclosure, your wife and daughters left the house and went to live with a friend Ms. Fausta Bianca Baldovini[6]. 

[6] Fausta Bianca Baldovini is a pseudonym

11In September 2012, during the time they were living there, Camelia disclosed the offending that related to her to Ms. Fausta Bianca Baldovini.  You were charged on 7 September 2012 and during your record of interview, you recalled the incident which gave rise to Charge 1 involving Lucia.  You said in your record of interview that she had sat on your knee, that you had been drinking and when the interviewing officer asked if you had inserted your fingers into her vagina, you stayed "I dunno."  You said you could not remember what had occurred.  You denied, however, masturbating in the presence of Camelia and Lucia and exposing yourself to them.

12This is clearly very serious offending, which occurred in an environment in which your stepdaughters were entitled to feel safe and protected.  Your offending has had an immediate effect on your family, and I note that you have not lived with them since the night that these matters were disclosed by Lucia to a counsellor.  You have had no contact with either of the girls, or your natural daughter Vanna since that time. 

13Both your ex-wife, Rossana Alfonsina Bellucci, and your two daughters Lucia and Camelia made victim impact statements.  Lucia stated that when these incidents first occurred, she felt ashamed and very confused and upset because she felt that she had let it happen.  She felt that she could not have any friends over to the house because of what they might see and she found it very difficult to eat and sleep and carry on a normal life.  She writes in her victim impact statement that she underwent counselling for self-harming and attempted suicide, which resulted in her receiving treatment.  Her ambition is to finish Year 12 and travel the world.  She wishes to become a fashion stylist, but indicates in her statement that she will not marry or have children as she would be afraid the same events might occur to her own child.  It is fortunate that she seems to be a resilient young woman who is now recovering from her experience. 

14Camelia, the younger of the two girls, in her victim impact statement declared that she was very scared when these events occurred and she did not know what to do or how to react.  She also began self-harming and had to undergo counselling.  Having been very isolated, she now feels more supported by the availability of counselling and people at school with whom she can talk.

15Your wife Rossana Alfonsina Bellucci writes of her distress, disappointment and emotional scars.  However, she indicates that she does attempt to get on with life and not dwell too much on it, just so she can offer the best life she can to her children.  She reports a great deal of stress on her physical and emotional health and reports difficulties she has had in maintaining her working hours due to lack of sleep.

16She writes that despite financial and emotional factors, her general well-being has been greatly affected.  As she puts it, the worry is making sure the children are going to be all right.  This has had a devastating impact on the lives of the people who were in your trust and care and I note that your wife has gone from being a single parent of two children to being a single parent of three children and solely responsible for their maintenance, upbringing, support and welfare.

17I now turn to your current personal situation.  You were aged 50 and have been unemployed now for some time.  You were living with two of your brothers up until you were remanded in custody.  Both of those brothers are unmarried and although you were part of a large family, there has been no one in court during the trial to support you.  As I have indicated, you have not had any contact with your daughter Vanna since these matters were alleged against you, and your father moved out of the home.  I have very little material in relation to you, but I note that there is a report tendered as Exhibit 1 from neuropsychologist Martin Jackson which is dated 15 January 2014.  Attempts to obtain funding for a further report to assist me in sentencing were refused by the Victorian Legal Aid, as I understand it.

18You were examined, however, and assessed by Mr Jackson to determine your level of cognitive function and whether or not you had an intellectual disability and to what extent you suffered any disability or dysfunction.  Mr Jackson concluded that you do not have an intellectual disability or specific learning disability.  You have an excellent ability to learn and remember information as long as it is logically presented to you, and your difficulties appear to be in your having poor vocabulary and sometimes you require extra time to process information or complete tasks, while not the purpose of the report, Mr Jackson does indicate that although you felt down at the time of the assessment, it was because of the charges that you were facing, and the fact that you could not see your daughter.  Otherwise, he reported no overt symptoms of depression or anxiety and no behavioural problems.

19Although some symptoms of severe anxiety and stress were found during formal questionnaires, you yourself have reported no depression.  Your testing did place you in a low average range of functioning, with an IQ of 71, so although you have no specific identifiable disability, I do take note of the fact that you have been assessed as being a borderline case.  I note that you lost your current employment, in your view, because you are about to become eligible for long-service pay, having worked with the same employer for nine years.

20You were not dismissed because of any ability to carry out your work satisfactorily, and I also take into account the fact that you have been an extremely hard-working man who has worked all of his adult life until you lost this last employment and were placed in custody.

21You were born in Malta, and your family came to Australia when you were two years old.  You were educated at Sunshine Primary School and High School, and left after completing Year 9.  You have no criminal history whatsoever, and I take all of those matters into account.

22I now turn to the other matters that I am required to take into account in sentencing you.  Firstly, specific deterrence.  That is, that you must be deterred from offending in this way ever again and it would appear that you have committed no other offences either before or after these and that this was a situation which arose within a particularly family context, when you were frequently left in charge of the children while your life was at work.

23It would appear that I would be unlikely to offend in this way outside that context, and I take the principle of specific deterrence into account to the extent that your circumstances require.  Those circumstances being a person with no prior history, and certainly by the time you were released from prison, you would be well over fifty years of age.

24I also take into accused general deterrence, that is that others in the community must be deterred from acting in a predatory way in relation to the children, who are in their families, who are in their care or who are in their care.  Anyone who sexually abuses children in these circumstances must understand that there are serious consequences for such behaviour.  I am further required to denounce your conduct on behalf of the community, and I do so.  The community will not accept the children are in danger of being sexually abused by members of their own family within their own homes.  Your behaviour is abhorrent and offends against all decent values.

25The position of natural dependency that a child has on its parent, and the people who caring for it, and the natural affection that a child also has for people in that position often weakens resolve of the victims to resist the demands of the offender and they frequently find it difficult to report because of the damage they know that it will do to their entire family life and the construct in which they live. 

26I note that you have shown no remorse your stepdaughters have gone through the trauma of giving evidence in a criminal trial despite the semi-admission that you made in your record of interview, you have chosen to run the full trial in relation to all matters and I take that into account as well.  I have no other evidence of remorse in any form.  I am required to weigh up the matters put in mitigation on your behalf and to impose a sentence which is just in all the circumstances.  Having considered all of those matters, including your prior good record and your relatively isolated situation in relation to family, I have reached the conclusion that a term of imprisonment to be served immediately is the only appropriate sentence for this offending.

27Further, I am required to take into account that from count 3 on the presentment, you will be sentenced as a serious sexual offender for the purposes of s.6 and 60 of the Sentencing Act. With respect to those offences, I am required to regard the protection of the community from you as the principle sentencing purpose and with respect to cumulation, s.6(E) applies.

28However, as I indicated previously, and assisted by submissions from both your own counsel and counsel representing the Director of Public Prosecutions, I consider it neither necessary, nor appropriate to achieve that purpose by imposing a sentence that is longer than that which is proportionate for the gravity of each of the relevant offences considering the sentences applicable in matters of this type, and I do not do so.

29In relation to cumulation, I have considered how the sentences imposed relate to each other and I have applied the principles relating to concurrency, cumulation, totality and proportionality.  I have determined that there must be some cumulation, both as between the various offences and also considering that there are two separate complainants in this matter, and I have chosen to impose that cumulation so that the total effective sentences imposed are just and adequately reflect the total criminality involved, while at the same time imposing a sentence which is not crushing. 

30Mr Bellucci, would you stand for me please?

31On Charge 1 you are convicted and sentence to four years' imprisonment, taking Charge 1 as a base sentence.

32On Charge 2, you are convicted and sentenced to four years' imprisonment and I declare that four months of that sentence be served cumulatively on the charge imposed in Charge 1.

33In relation to Charge 3, you are convicted and sentenced to 18 months' imprisonment and I order that four months of that sentence be served cumulatively on the sentence imposed in Charge 1 and other sentences.

34In relation to Charge 5, you are convicted and sentenced to 18 months' imprisonment, again with four months cumulative on the other sentences, the base sentence and other sentences.

35In relation to Charge 6, you are convicted and sentenced to 12 months with two months to be served cumulatively on the base sentence and other sentences.

36In relation to Charge 7, you are convicted and sentenced to 18 months' imprisonment and I order that eight months of that be served cumulative on the base sentence and other sentences.

37In relation to Charge 8, you are convicted and sentenced to 12 months with two months of that sentence ordered to be served cumulatively on the base sentence and other sentences.

38Now, in my estimate that is a total effective sentence of six years.  Is that correct?

39MS MARTIN:  Your Honour, I have got six years and two months but I will ‑ ‑ ‑

40HER HONOUR:  All right.  I intend that he serve six years so if there is a mathematical deficit, it is due to my putting in an extra charge.  That is a total effective sentence of six years and I order that you serve four years before being eligible for parole.  I declare that the 83 days of pre-sentence detention be deemed time served and I order that that be entered into the records of the court.

41I further, as I indicated from Charge 3, I have sentenced you as a serious sex offender and further, subject to the Sex Offenders Registration Act, you will be required to report pursuant to the provisions of that Act for life and you will be handed a document which will inform you of your obligations under that Act.

42Finally there is an application for an order pursuant to s.464ZF of the Crimes Act, that is that you undergo a procedure to take an intimate sample. I order that that be carried out and I do so because it is in the interests of justice in my view that it be done so and I do that on the basis of the seriousness of the offending which has brought you before the court.

43I note that that matter is not by consent and I do warn you that should you refuse to comply with the taking of a sample when it is demanded by an authorised police officer, which will be a scraping from your mouth, should you fail to comply an authorised police officer is entitled to use force in order to allow that procedure to be carried out.  I think that is all the orders, is that right.

44MS MARTIN:  Yes, Your Honour.

45HER HONOUR:  Now, just let's look at that.

46MR FARRINGTON:  I should say, Your Honour, I agree.  I am just doing calculations on my phone.  It would appear that with the six months on Charge 2, the four months on Charge 3, the four months on Charge 5.

47HER HONOUR:  I think - because I have got two numbers next to Charge 2, one was 4 and one was 6 and I think I must have meant to retain the 4.

48MR FARRINGTON:  If it was four months cumulation on Charge 2, that would get us to a total effective sentence of six years.

49HER HONOUR:  Yes.  Unfortunately when I redid all the numbers - so I will make that four months and I have done that because I consider it to be - although it is two separate penetrations, it is part of the same incident and I have made more in relation to Charge 7 which was to distinguish between the complainants. Thank you, so that completes the matter.

50MR FARRINGTON:  One other brief matter, Your Honour.  Yesterday I neglected to do this and I probably should have because Mr Bellucci is funded by Victoria Legal Aid.  It is just to seek an Appeal Costs Fund certificate for yesterday.

51HER HONOUR:  Yes.  And I really apologise for yesterday but I just - you might see I am still in the same condition today but anyway we have managed to ‑ ‑ ‑

52MR FARRINGTON:  I can see you are quite busy, Your Honour.

53HER HONOUR:  So I will grant that certificate for yesterday.  My associate will now take these documents down to Mr Bellucci.  Do you want to assist him to fill those in?  Mr Bellucci, the documents are being brought to you.  Thank you.

‑ ‑ ‑