Director of Public Prosecutions v Bosanko

[2018] VCC 571

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-00380

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALAN PAUL BOSANKO

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	26 April 2018
CASE MAY BE CITED AS:	DPP v Bosanko
MEDIUM NEUTRAL CITATION:	[2018] VCC 571

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecution
For the Accused	Mr D. Taylor	Daniel Taylor Lawyers

HIS HONOUR:

1Alan Paul Bosanko, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 years.  The offending occurred in 2002 when the penalty for that offence was ten years' imprisonment.  You are presently
39 years of age.

2You pleaded guilty at a reasonably early opportunity and you made full and frank admissions to the police in your record of interview.  You must of course get the utilitarian benefit of that plea of guilty.  Remorse is somewhat more problematic but I do not need to go into that in any detail.

3You do have prior convictions and findings of guilt to this matter but they are of little significance in this sentencing process as they do not relate to anything of a sexual nature.  I understand that you have a subsequent criminal history of some significance but that is more for others than for me and it falls for me to sentence you for the one incident.

4I point out from the outset that you do have, it would seem, PSD for this particular matter but you are to be sentenced on Monday in the Magistrates' Court for a range of offending, including as I understand it a couple of indecent act on a person under 16 charges.

5You have 273 days of pre-sentence detention and I understand from the court records and from counsel that the magistrate is considering imposing a community corrections order.  I will certainly make the magistrate aware of what I have done today and what I impose as a sentence is to in no way hinder what the magistrate proposes to do at that time.

6Firstly, because of the offending you will be placed on the Sex Offender Register and I advise you that the reporting period will be for 15 years.  The offending can be described in fairly brief compass and I will direct that the Crown exhibit, being the opening, remain on the court file if anyone does have a genuine interest in it.

7Back in 2001 and 2002 you were in a relationship with the complainant.  Effectively you were around 23 and she was in her 16th year, being 15 years of age.  Clearly she regarded herself at that time as being in a relationship and sexual penetration took place on a number of occasions.

8There was one, as I understand it, pregnancy, which was terminated and subsequently to that there was further sexual activity in terms of penetrations and the charge for which you are brought before me is particularised by being the one that caused the complainant to become pregnant.

9It became known as I understand it before her 16th birthday that in fact she was pregnant and it was agreed apparently that the matter would not be reported to police and the situation would continue.  A child was born in 2016 and you and the complainant remained in an on again/off again relationship as I understand it for a period approaching a decade.

10In any event, two more children were born as a result of the relationship.  The relationship was terminated in 2011 and these matters were reported to police in 2017.  It has been made clear it is not a representative or a rolled up charge, it is one incident and which I take into account the circumstances before and after that it becomes virtually an impossible sentencing proposition, but I fully understand why it is being presented in the way that it has.

11Having read the detailed and very helpful submissions of your counsel it is my view that a suspended sentence is the appropriate disposition which would have been available to me back then.  The Crown agreed that that disposition is open and accordingly I do not have to go into the detail I normally would.

12A suspended sentence is regarded by those practising criminal law as giving effect to general deterrence which is the real situation in your circumstances, as well as being a punishment and involving a sense of denunciation at least from the community's point of view.

13I have before me a victim impact statement from the victim which I have read and which I clearly take into account and that victim impact statement points out why 23 year old should not sexually penetrate 15 year olds. Even though in your case the maturity levels may not have been that far apart the community regards it as a crime and it does have a devastating effect, not only on the life of the complainant but on various others as well.

14I am going to your personal history, and again bearing in mind the position of the Crown and my view in any event I do not have to go into detail.  Tendered on your behalf were some submissions of your counsel which point out that you made full and frank admissions, that you have pleaded at the earliest opportunity, that it was of sorts a relationship and the particular situation here in my view is that you have now done nine months, albeit for other offending, but that offending is against, or some of it at least is against this particular complainant and you have been dealt with for offending against her previously.

15There is a report from Mr David Bell and they also have the compulsory treatment records of the Flynn Unit nearby here in Traralgon.  Your mother feels that you have had significant mental difficulties since you were a teenager.  The records clearly indicate that since 2005 your mental illness has become frank and there have been a number of forced admissions to psychiatric units.

16I do not propose to humiliate you by going through all those in this situation, I am not too certain what your current mental state is.  That will be a matter for a magistrate when he sentences on Monday.  I note that he has requested, although I am obviously not inquired as to results, that you be assessed by Corrections for mental health issues and to do a sex offender's program and I have no reason to doubt that that will not be part of at least whatever disposition the magistrate imposes.

17I think in terms of the severity of your mental illness, particularly over recent years, the principles referred to in Verdins clearly come into effect and it is again obvious that you can become threatening and frightening in that respect.

18There is no suggestion of in the actual charge for which I sentence you of there being any force or violence involved for those.  I avoid going through in great detail the psychiatric material.  It is clear that over the last up to a decade you have had delusional beliefs, including amongst many others, that the IRA had you under surveillance, that you were going to get employment with ASIO to eradicate terrorism in Australia and that you built the pyramids.

19All those matters in very simple form clearly indicate the problems that you have, Mr Bosanko, in dealing with this world and I do not propose to add to them.  In any event I think a custodial sentence, albeit greater than what I would have imposed in other circumstances is necessarily appropriate.

20It is in the interests of justice that that sentence be suspended and because of all the surrounding circumstances I think it needs to be simply a short fully suspended sentence to act as general deterrence and have a short operational period.

21There seems to be no other sensible disposition that could be imposed in these circumstances.  I have taken into account all the other material that was provided on your behalf by your counsel including your physical difficulties and the fact that you do on the face of it at least have a level of family support and I notice that they have had you admitted a couple of times as well.

22The prospects of your rehabilitation I have got no idea.  The prospect of you reoffending I hope is limited, certainly for the next nine months whilst you are under this suspended sentence.  Doing the best I can in a difficult situation on the particular charge to show that it is not trivial and others have to be deterred from doing it, you are sentenced to be imprisoned for a period of three months.

23That period is to be wholly suspended for a period of nine months because I consider it to be in the interests of justice to do so.  No other orders I need to make?

24MR DEVLIN:  As Your Honour pleases.

25MR TAYLOR:  No, Your Honour.

26HIS HONOUR:  Thank you, Mr Taylor.  You can go now, thank you.  It is a suspended sentence, Mr Bosanko.  If you breach it that is three months and nine months.  If you breach it and get brought back before me you have got to show exceptional reasons why I would not impose it.

27So if you are brought back before me for any offending against this complainant, sexual or violence wise, you would do it.

28OFFENDER:  Yes, Your Honour.

29HIS HONOUR:  You can be represented at the time but you would do it.  Thank you.  Thank you, Mr Bosanko.  There are no other orders I needed to make in this matter?

30MR DEVLIN:  No, Your Honour.

31HIS HONOUR:  Thank you.  Thank you, Mr Taylor.

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