Director of Public Prosecutions v Bogosavlj
[2018] VCC 821
•26 April 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.CR-15-01712
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL BOGOSAVLJ |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 April 2018 | |
DATE OF SENTENCE: | 26 April 2018 | |
CASE MAY BE CITED AS: | DPP v Bogosavlj | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 821 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Gross indecency in presence of child under 16 years; indecent
assault of child under 16 years; rape; relevance of sentencing
practices at time of offending; delay; hardship caused to family
member by imprisonment of offender.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex
Offenders Registration Act 2004
Cases Cited: Markovic v R [2010] VSCA 105; Carter v R [2018] VSCA 88; Stalio
v R [2012] VSCA; Thrussell v R [2017] VSCA 386
Sentence: Total effective sentence of seven years and one month
imprisonment. Non-parole period of four years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Stougiannos | Office of Public Prosecutions |
| For the Accused | Mr T.F. Danos | Giorgianni & Liang Lawyers |
HIS HONOUR:
1 Michael Bogosavlj, in this Court on 20 November 2017, you pleaded not guilty to the following charges:
(1) That between 1 January 1982 and 31 December 1982, you committed an act of gross indecency with or in the presence of Lilian Anna[1], a female under the age of 16 years.
[1] Lilian Anna is a pseudonym.
(2) That between 1 January 1982 and 31 December 1982 you committed an act of gross indecency with or in the presence of Brayden Mudie[2], a male under the age of 16 years.
[2] Brayden Mudie is a pseudonym.
(3) That between 1 January 1982 and 20 December 1982, you indecently assaulted Brayden Mudie, a male under the age of 16 years.
(4) That between 1 January 1984 and 31 December 1984, you indecently assaulted Lilian Anna, a female under the age of 16 years.
(5) That between 1 January 1985 and 31 December 1985 you raped Lilian Anna by introducing your penis into her vagina without her consent.
(6) In the alternative to the 5th charge, that between 1 January 1985 and
31 December 1985 you took part in an act of sexual penetration with Lilian Anna who was above the age of ten years but under the age of 16 years in that you introduced your penis into her vagina.
(7) That between 1 January 1987 and 31 December 1987 you indecently assaulted Lilian Anna being a female under the age of 16 years.
(8) That between 1 January 1988 and 31 December 1988 you indecently assaulted Lilian Anna being a female under the age of 16 years.
(9) In the alternative to the 8th charge, that between 1 January 1988 and 31 December 1988 you committed an act of gross indecency in the presence of Lilian Anna, a female under the age of 16 years.
2 On 27 November 2017 a jury of 12 found you guilty of Charges 1, 3, 4, 5 and 7. You were found not guilty in respect of Charges 2, 8 and 9, being the alternative offence to Charge 8. Because you were found guilty of Charge 5, the jury was not required to return a verdict in respect of Charge 6. It follows that you must be sentenced now in respect of one charge of gross indecency (Charge 1), three charges of indecent assault (Charges 3, 4 and 7), and one charge of rape, (Charge 5).
BACKGROUND
3 As to the background to this matter. In the late 1960s the mother of the victims married their father. There were two children of the marriage, the oldest was the second complainant, Mr Brayden Mudie, born in August 1970, who is now 47 years of age, and the youngest was the first complainant, Ms Lilian Anna, born in March 1973, who is now 45 years of age.
4 In 1978 the complainant’s parents divorced. In 1979 you commenced a de facto relationship with the complainant’s mother which, although punctuated by some separations, endured until 1989. During the relationship you lived with the children and their mother as a family unit.
5 You, Michael Bogosavlj, were born on 21 November 1946. You are now 71 years of age. During the time frame of the offending you were aged between 36 and 42 years of age. Ms Lilian Anna was a child between the ages of 9 and 15 whilst Brayden Mudie was a child aged about 11 years at the relevant time. The children's mother died in 1998.
6 At the time of the trial Ms Lilian Anna suffered from a cognitive impairment. She had been diagnosed in 2015, suffering from chronic post-traumatic stress disorder with features of a major depressive disorder. Accordingly her evidence-in-chief was video recorded and cross-examination was the subject of a special hearing. The recordings of those proceedings were played to the jury.
CIRCUMSTANCES OF THE OFFENDING
7 In 1982 Lilian Anna was 9 years of age and Brayden Mudie was about 11 years of age. At that time the family lived in a housing commission flat in Carlton. You were left in charge of the children by their mother who worked nightshift as a nurse. Evidence led at trial, for the purpose of contextualising your offending, revealed that you would often drink large quantities of wine and that you would touch the first complainant sexually whilst she sat on your lap and that you would kiss the first complainant on the lips and put your tongue in her mouth.
8 On the occasion constituting the first charge, you became intoxicated and demanded that the first complainant lick your penis. She complied with that demand and the jury found you guilty of that charge.
9 It was further alleged that on that same occasion you demanded that the second complainant Brayden Mudie also lick your penis. That allegation constituted the second charge. The jury found you not guilty of that charge.
10 On another occasion in 1982, Brayden Mudie gave evidence that you gave him some red wine with dinner and then put him to bed. He recalled that he was asleep in his room and awoke to hear the sound of you pulling down the zipper of your pants and then feeling your penis rubbing across his mouth. He immediately pushed you away saying, “What's that, what are you doing?” He then heard the sound of the elastic of your pants being pulled up. You then left the room. Those circumstances constitute Charge 3. The jury found you guilty of that offence.
11 In 1984 Ms Lilian Anna was 11 years of age and living at an address in Noble Park. On one occasion during that time you entered her bedroom and masturbated in her presence. You then placed your fingers in her vagina. That conduct constituted Charge 4. You were found guilty of that charge.
12 As to the circumstances relevant to Charge 5, they relate to an occasion where your then de facto wife was at work and you used that opportunity to go into Lilian Anna's bedroom and lay on top of her. You then removed her pants and forced your penis into her vagina. As this occurred she screamed and told you to stop as it was hurting her. She tried to push you off and her face was scratched by your watch. You told her, "Don't say anything I'm gonna kill youse all".
13 The complainant believes that she then passed out and when she regained consciousness you told her to tell her mother that she had accidentally scratched her face with the vacuum cleaner. This event occurred at the Noble Park address in 1985, when Lilian Anna was just 12 years of age. The jury found you guilty of that charge.
14 The conduct comprising Charge 7 occurred in 1987 when Lilian Anna was 14 years of age and living at a property with the family in Oakleigh. On that occasion you drove her to school in your car and whilst on the way you gave her a love heart locket and said, "You can put a photo of me in it, this is our love." You then rubbed the complainant's inner thighs and also rubbed the top of her vagina over her underwear. The jury found you guilty of that charge.
15 In 1988 Lilian Anna was 15 years of age and the family was living in a high rise flat in South Yarra. On an occasion when the mother was working it was alleged that you took Lilian Anna into the main bedroom, made her undress and told her that you were going to teach her things. It was alleged that you compelled her to look at her naked body in the mirror and then at your exposed erect penis. This conduct constituted Charge 8 and Charge 9 in the alternative. You were found not guilty of both of those charges.
16 It is important to note that the jury also heard that at about the time Lilian Anna was in Year 8 or Year 9 at secondary school she complained to a school friend that you had touched her sexually. She did so on more than one occasion.
17 You were interviewed by the police about these allegations on 6 June 2014. You denied any sexual misconduct and suggested that the first complainant Ms Lilian Anna had mental health problems. I want to now turn to the impact this offending has had.
IMPACT ON VICTIMS
18 Ms Lilian Anna read her victim impact statement aloud in court. The pain and the damage your offending has caused her was plainly evident. She stated,
"He destroyed my inner self, the pure innocence of my childhood and teenage years at primary and high school. I could not develop normally like other little girls with confidence from loving, trusting and caring role models. I am sad and angry that he took my virginity and that has affected my future relationships with men."
19 She also described how when the abuse stopped she felt as if she had been left alone to deal with the nightmares, depression, anxiety, flashbacks and fear that if she spoke out about what you had done, you would harm her.
20 Ms Lilian Anna was assessed by a psychiatrist Dr Minaakshi Tolat who stated in a report of 18 December 2013,
"In my opinion Ms Lilian Anna presents with symptoms suggestive of post traumatic stress disorder and a moderate depressive disorder in the background of her past experience of sexual abuse, her ongoing feelings of poor self esteem, self confidence and feelings of being unsupported by her partner and her difficulties in her employment in the past."
21 In a further assessment of 20 May 2015, Dr Tolat noted,
"From my earlier assessment of Ms Lilian Anna in 2013, things do not appear to have changed very much as these are issues that she's been dealing with over many years and perhaps at the completion of the court case she may have a sense of closure. I do however believe that this vulnerable lady needs ongoing assertive psychological support and would benefit from ongoing antidepressant treatment."
22 In respect of the damage you have caused Lilian Anna whilst I could not be satisfied on the strength of the available evidence that Ms Lilian Anna's mental health problems were solely caused by your offending, I am well satisfied that your offending has significantly contributed to those problems. Your actions have left her with a terrible legacy that endures to this day.
23 Though not as severe as his sister, Mr Brayden Mudie was likewise damaged by your conduct. He has provided a written victim impact statement which I have taken into account. At the age of 47 he is still being treated for the psychological and emotional effects of what you did to him when he was 11 years of age.
PERSONAL CIRCUMSTANCES
24 I turn now to your personal circumstances. As I earlier indicated you were born on 21 November 1946. At the time of those offences you were between the ages of 36 and 41. You are now 71. For the purposes of the plea you were assessed by clinical psychologist Ms Pamela Wakefield-Simmons. In her report of 1 February 2018, Ms Wakefield-Simmons documents the extraordinary abuse you describe suffering as a child. She states,
"During treatment Mr Michael Bogo explained that he was Serbian and was born and grew up in the former Yugoslavia. Mr Bogo stated that his father had died when he was young and his mother remarried when he was five or six. As a young boy from about five to twelve years of age, Mr Bogo reported that he was subjected to severe continuous torture and sexual abuse, beatings, forced to work all the time and was subjected to digital rape by his stepfather. Mr Bogo said he was beaten with ropes, wire, belts, chains and was often chained in the smokehouse. He was fearful of saying anything because his abuser threatened him further harm if he did."
25 You told your psychologist that you eventually escaped from your stepfather and sought help from your grandmother who reported the abuse to police. Thereafter you lived with your grandmother and attended school. Your psychologist concluded that you continue to suffer the symptoms of post-traumatic stress disorder as a result of being subjected to this abuse. You migrated to Australia in 1974 and for a period of approximately 35 years you worked in supervisory roles in various chocolate factories until you retired following a workplace accident in about 2006. At that time you injured your neck, shoulders, ribs and back after falling more than 3 metres to the ground.
26 You further told the psychologist that as a result of the abuse you experienced as a young child you never developed sexually. Ms Wakefield-Simmons states,
"Mr Bogosavlj reported that as a result of the trauma he was very low on testosterone, not sexually aroused and had not developed through puberty, was unable to get erections or have intercourse."
27 You provided an account to the psychologist to the effect that you had engaged in a platonic relationship with the mother of the complainants. You said that you had formed a close friendship with her and had confided in her about your sexual difficulties. She had asked you to help her extricate herself out of a violent relationship by pretending to be her lover. You say that you agreed to this arrangement and lived with the children's mother for a few years and during that time you looked after the children and indeed you told the psychologist you cared for them and were protective of them. You remain adamant that you are not guilty of these charges.
28 In assessing the account you provided to your psychologist, I note that whilst you vehemently denied the allegations in your record of interview, you did not provide that same account to the police. At questions 232-234 of the interview, you describe the allegations as "real lies" and asked the question rhetorically, "Then what I doing with her mum, why I sleep with her mum together?" Those answers appear to be very much at odds with what you told the psychologist.
29 It is important that you understand that the law requires me to sentence you in accordance with the jury's verdict. None of what was described to your psychologist was placed before the jury in your trial. Indeed the account you provided to the psychologist is in important respects inconsistent with the jury's verdicts. It follows that you must be sentenced on the factual basis put by the prosecution and in my view, accepted by the jury.
30 I turn to considerations relating to your health. You suffer from a number of medical conditions including osteoarthritis, reflux, an abdominal aortic aneurysm and high cholesterol. In addition to the work accident in 2006 you were also involved in a motor vehicle accident in 2015 where you received head and neck injuries, which still cause ongoing pain and discomfort. You take an array of medications to deal with these ailments as set out in Ms Wakefield-Simmons' report. I accept that the ability of these medications to treat or ameliorate your symptoms is limited.
31 In terms of mental health problems, your psychologist assessed you as suffering from severe psychological distress, depression, anxiety and symptoms of post-traumatic stress disorder. You have received some treatment for these conditions but they are said to be severe, chronic and permanent in nature. Ms Wakefield-Simmons states, '
"Michael Bogosavlj is at high risk of falling into a major depressive episode if he is imprisoned, placing him at risk of self harm. Imprisonment will trigger cues related to his childhood trauma, being bound and locked away in the smokehouse feeling hopeless and helpless. He feels his physiology will make him a target for abuse and ridicule yet again."
32 In light of these findings I am satisfied I should take into account the likelihood that imprisonment will be more onerous for you than a person of normal health. I am also satisfied that there is a real risk imprisonment will adversely affect your mental health conditions and that both these considerations tend to mitigate your position.
33 A significant feature of your personal circumstances relates to the plight of your younger brother, Bozidar. A medical report from Dr Marita Carmen of 27 December 2017 confirms that he suffers from schizophrenia and that he is not "suited to independent living". You live with him and have been his carer for approximately the last six years. Although Bozidar's condition is well managed that appears to be largely due to the fact that you have looked after him well. He relies on you for dealing with most aspects of his daily living activities.
34
Two witnesses were called on the plea, Milan Bogovic and Tanya Kurgis. Some personal references were also tendered on your behalf and I have taken those into account. Both Mr Bogovic and Ms Kurgis spoke highly of you as honest, reliable and respected within the local Serbian community.
Ms Kurgis in particular was able to confirm the living arrangements with Bozidar and his heavy reliance on you.
SUBMISSIONS
35 Mr Danos who appeared on your behalf on the plea but not on the trial, relied on the principle in Markovic v R [2010] VSCA 105 to argue that the hardship caused to your younger brother Bozidar by your imprisonment is a matter that ought mitigate the penalty imposed. With the benefit of counsel's submissions, Dr Carmen's report and Ms Kurgis' evidence, I am persuaded that this case does reveal exceptional circumstances justifying the mitigation of penalty on the basis of third party hardship. I will take this matter into account in two ways. First, it is plain Bozidar will be badly affected by your imprisonment. Second, you will feel acutely the hardship that your imprisonment will cause to your brother.
36 As to other personal considerations, Mr Danos argued that these are very old offences and that you have otherwise led a blameless life since 1985. You have two prior findings of guilt for assaults arising in 1977 and 1985. It was suggested, and I accept, that those matters are of relatively marginal relevance and it is significant that since 1985 you have not been in trouble with police and appear to have led a productive life. You were interviewed in respect of these offences in June 2014 and it is nearly three years and ten months before they are to be finally dealt with. I will take into account the fact that these proceedings have weighed heavily on you throughout that time.
37 I turn to the Crown's submissions. Mr Stougiannos who appeared on behalf of the Crown both at trial and on the plea, submitted that your offending was attended by a number of aggravating features. In particular he pointed to the fact that your offending was not isolated or one off. It was aggravated, he argued, by the repetition and variety of the sexual offending involved. Both victims were young vulnerable children who had been placed in your care and you abused that trust and parental authority. You secured Ms Lilian Anna's silence by threats. The victim impact statements particularly Ms Lilian Anna's, catalogue significant harm. Further although it is not an aggravating feature, you have not shown any remorse or taken any responsibility for what you have done. I need to bear in mind the absence of this mitigating feature in considering any comparative cases. As was said in Carter v R [2018] VSCA 88 at [75],
"In incest cases an accused who pleads guilty is entitled to more than just the usual utilitarian benefits. Importantly added benefits mitigating sentence flow from avoiding the victim and other affected persons such as a parent or a close relative from having to undergo the extreme stresses of a trial."
38 Although you could not be charged with incest, it seems to me that that statement is apposite, in that it articulates the type of benefit to which you are not entitled.
39 I accept Mr Stougiannos' submissions as to those matters that aggravate your offending. He further submitted that at the time you raped Lilian Anna, no protection was used giving rise to the risk of pregnancy or sexually transmitted diseases. I find that there is insufficient evidence to satisfy me beyond reasonable doubt of that matter. Accordingly it will not aggravate the sentence imposed.
40 I need to say something now about the relevance of sentencing practice. Section 5(2) of the Sentencing Act 1991 (Vic) among other matters requires me to have regard to current sentencing practices. In addition the principle in Stalio v R [2012] VSCA 120 enables me to have regard to sentencing practice at the date of your offending for the purpose of ascertaining just punishment in accordance with the principle of equal justice. In Stalio the court said it would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue simply because of the lapse of time. Stalio was considered recently in Thrussell v R [2017] VSCA 386 and most recently in Carter. In Thrussell the court summarised the effect of Stalio in the following terms.
"The principle of equal justice requires regard is to be had to sentencing practices at the time of the offence if those practices can be demonstrated to have required the imposition of materially lesser sanction for like offences than current sentencing practices would impose for the offence."
41 Here there is no evidence as to the sentencing practice at the time of this offending and, whilst I am prepared to accept, just as the Court of Appeal did in Stalio at [62], that at the time of this offending sentences for sexual offending of this order were "generally somewhat lower than at present", that fact is of limited assistance. A more tangible consideration is the fact that the applicable maximum penalties, two years for gross indecency, five years for indecent assault and ten years for rape are substantially lower than is the case at present for comparable offences. That fact alone operates to significantly constrain the length of sentence imposed in contrast to what might be imposed for contemporary offending of this type.
42 In summary I will ensure that you will not be sentenced to a substantially higher sentence than an offender who committed like offences at about the same time.
43 On the other hand I must also have regard to the fact as was mentioned in Stalio at [73], that,
"A serious aspect of offending of the type in issue is that it is difficult to detect and not infrequently comes before the courts only after the victims have reached adulthood. The abuse of power relationship reflected in this pattern and its long lasting consequences contribute to and are reflected in the community's abhorrence of the offending."
44 In reality Mr Bogosavlj, these are quintessentially offences of sexual violence that generally progress in seriousness and culminate in the violent rape of a 12 year old girl. You raped Lilian Anna in the face of her protests and obvious distress in circumstances where she should have been entitled to feel safe in her own home. Accordingly, public denunciation and deterrence are sentencing purposes that in your case require particular emphasis. I note further that you are to be sentenced as a serious sexual offender. Protection of the community becomes therefore the principal sentencing purpose in the sentence that will now be imposed. I did not understand the prosecution to suggest that a disproportionate sentence should be imposed.
45 Mr Bogosavlj, could I ask you now please to stand.
46 On each charge you will be convicted and sentenced as follows.
Charge 1, ten months' imprisonment.
Charge 3, twelve months' imprisonment.
Charge 4, two years' imprisonment.
Charge 5, five years' imprisonment.
Charge 7, three months' imprisonment.
47 I will order that six months in respect of Charge 1, six months in respect of Charge 3, 12 months in respect of Charge 4, and one month in respect of Charge 7 be served cumulatively upon the sentence imposed on Charge 5, making a total effective sentence of seven years and one month. I will fix a non-parole period of four years and six months.
48 I will declare that under the Sex Offenders Registration Act because you have been found guilty of a class 1 offence, and more than one class 2 offences you must report to the relevant authority for life.
49 I will further order having regard to your consent to the prosecution application that you, pursuant to s.464ZF of the Crimes Act, provide a forensic sample and I should inform you that the form of the forensic sample is a scraping from the mouth. If at the time of the request for such a sample you do not consent to the taking of that mouth scraping, then under the supervision of an authorised member of the police force, police may use reasonable force to enable that forensic procedure to be conducted.
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