Director of Public Prosecutions v Bruzzese
[2019] VCC 1784
•1 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-00911
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FORTUNATO BRUZZESE |
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| JUDGE: | HER HONOUR JUDGE QUIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 October 2019 |
| DATE OF SENTENCE: | 1 November 2019 |
| CASE MAY BE CITED AS: | DPP v Bruzzese |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1784 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Holmes | OPP |
| For the Accused | Ms G. Connelly | James Dowsley & Associates |
HER HONOUR:
Fortunato Bruzzese, you have pleaded guilty to one charge of sexual assault and one charge of failing to comply with your reporting obligations under the Sex Offender Registration Act 2004. (SORA) The maximum penalty for these offences is ten years and five years respectively.The circumstances of your offending are set out in the prosecution opening dated 15 August 2019 (Exhibit A) and can be summarised as follows: 1
2You were working as the manager of a restaurant in Little Collins Street, Melbourne, but failed to report this employment in accordance with your reporting obligations under SORA. (Charge 2).On Saturday 3rd November 2018, Emily Fox[1] went to that restaurant looking for work. You organised for her to complete a trial shift the following Monday. At the time she was a 20 year old Korean national working on a temporary visa in Australia.
[1] This is a pseudonym name.
3During her trial you made some inappropriate comments about her stockings and the effect they had on sweating in the vaginal area. At the conclusion of her trial shift you told her to come back the following day.
4She came back the next morning though the restaurant was quiet. She returned to work as requested by you at 6pm. At approximately 9 pm,
Ms Fox finished her shift and you cooked her dinner and opened some champagne. There were no other people in the restaurant and you told her she was hired and gave her your phone number.5During dinner you received a phone call and spoke inappropriately about
Ms Fox’s legs and breasts. You attempted to grab her breasts, but she leant back to avoid being touched. After the call you again reached over to her breasts and squeezed them over her shirt. She was shocked and did not know what to do. You then lifted her skirt up. You persisted and put your right hand up her skirt touching her vaginal area on the outside of her underwear. Ms Fox tried to move away, though there was limited space. You said that you thought you liked each other, and it was the Australian way. You put your hand inside her stockings and touched her bottom. She told you to stop and that she had her period. You responded that you wanted to see if her vagina was wet, and slid your hand onto the outside of her vagina.6Ms Fox again told you to stop and that she was not there to do those kind of things. You said you were sorry if she felt uncomfortable and tried to convince her such conduct was normal in Australian culture. She left and immediately messaged a friend, and told her what had happened. She reported the matter to police. The next day Ms Fox phoned you. You maintained what had happened was an accident, and that she should pretend nothing had happened.
7On Wednesday 7 November 2018 you were arrested and interviewed by police. You maintained that you had cooked dinner and that Ms Fox fell over, and that you accidentally touched her bottom when you were assisting her. You denied the offending and complained that people take advantage of you.
VICTIM IMPACT STATEMENT
8Ms Fox provided a victim impact statement dated 28 June 2019. She described herself as feeling ashamed, humiliated and upset with herself. She is unable to trust white men and has been unable to tell her parents what had happened. Even writing her statement made her miserable. She was 20 years old and in a situation that she would not wish on anyone. It has had a big impact on her and left a scar that she hopes one day will heal.
Personal circumstances
As to your personal circumstances I was provided with reports from Carla Ferrari, psychologist, dated 11 September 2018 and 1 September 2019.
Ms Ferrari also gave evidence. Her first report was prepared in the context of your court appearance for breach of SORA in September 2018. I take all of that material from Ms Ferrari into account.
You are currently aged 67 and were 66 at the date of the offending. You were born in Salerno and grew up in Calabria, migrating to Australia at age 15 with your family. I was informed that you grew up in circumstances of extreme poverty and came to this country via a funded passage.
Your father died in 1984 and your mother is currently 88 years and in poor health. You have five younger siblings, though your younger brother died in June 2017. I was informed that your siblings have health issues which impact on their availability to care for your mother, a matter I will address later in these reasons.
You initially married in 1973 though you separated from your wife in 1977. You have a daughter, Linda, from that union. You re-married and have both a step daughter, Yamoour, (28 years old); and your own daughter, Elena, (13 years old). You have had limited contact with Elena and your wife since your previous offending when you were in court in 2014. You currently have no direct contact with your daughter though your family members keep you up to date on her progress. Prior to being incarcerated you provided financial support for her.
As to your work history, after leaving school you soon obtained work washing dishes at the Southern Cross Hotel beginning a career in hospitality. You completed an apprenticeship and became a qualified chef attending William Angliss. You worked in this field and opened your first pizza restaurant in 1972 able to provide employment for family members and working every night yourself for a number of years. You successfully opened a number of restaurants and established the Il Divo chain in early 2000s.
Additionally, during the day, you became involved in a number of other businesses including a newspaper within the Italian community, a florist and another business related to aspects of weddings, including catering and bridal ware. Ultimately your business interests failed and you sold or closed down your restaurants after the suicide of your business partner and friend in 2011. You do have a strong work ethic consistent with that of your father who instilled in you the value of hard work.
As outlined in Ms Ferrari’s report you have various physical and mental health issues and I take that material into account. You are currently on medication for your physical conditions. I was informed that you have required a hospital admission whilst in custody and that has limited your ability to engage in chef work at the prison.
Although you have no formal mental health history or treatment, Ms Ferrari opined that at the time of your business partner’s suicide and given the circumstances related to that, that you then experienced symptoms of post-traumatic stress disorder and major depressive disorder. Your symptoms re-emerged in 2017 with the hospitalisation and unexpected death of your brother. When you were first assessed in September 2018, Ms Ferrari opined that your breaches of SORA occurred during a period of turmoil, grief and loss in your life rather than due to any sinister motives or criminogenic attitude. (See para 98 Ex 1)
She considered that you required immediate psychological intervention to prevent further decompensation and such would result in you being regularly monitored and ensure your mental health remained stable. I note at the time of this assessment that Ms Ferrari did not have available to her the circumstances of the 2011 offending for which the SORA order was made.
After relevant testing and consideration of further information provided both by you and in documentation on the second occasion, Ms Ferrari noted that results suggested that there had been a worsening of your depression and anxiety symptoms since her previous assessment. Ms Ferrari viewed you as experiencing extremely severe symptoms particularly whilst in custody, which she thought were likely as a result of the combination of your untreated mental health issues being exacerbated whilst in prison, your family illness issues and you having to face the reality of the nature of your offending, in addition to the other matters that she included in her first report.
Given Ms Ferrari’s opinion, your counsel submitted that your mental health was such that you would find prison more burdensome than other prisoners and that your condition was likely to deteriorate whilst you are incarcerated. Your counsel relied on limbs 5 and 6 of Verdins and I accept that your mental health is such that your sentence should be moderated.
20 Your mother is currently aged 88. She is cared for by your sister, who herself has health issues. It was submitted that your mother’s situation was relevant to the sentencing exercise in two ways: First, that custody would be more burdensome for you given your family’s predicament and your concern or worry about particularly your mother without you to help. This proposition was not disputed by the prosecution, and I take that into account.
21 Second, it was submitted that your mother’s condition and sole dependence on you for her care was such that exceptional circumstances existed, and warranted me taking into account in the sentence I impose consideration of the hardship to her.
22 Your counsel submitted that a wide range of circumstances could be considered to be exceptional, that the evidence of your mother’s doctor, sister Leigh and medical reports relating to your sisters, particularly Sonya who currently cares for your mother (see Exhibits 3 through to 8) were sufficient for me to make a finding that exceptional circumstances existed. Counsel for the prosecution disputed that I should be so satisfied.
23 The authorities make it clear that there is a high evidentiary level or bar that is required before hardship to a third party can be a relevant sentencing consideration. It is a question of fact and degree in each case. One cannot help but be sympathetic to your mother’s situation, however, the test is high for the reasons set out in the authorities. There was no evidence before me as to the capacity of other family members to assist though I accept this may be difficult in relation to Sonya, who requires hospital treatment in the near future. Clearly some alternative plan will need to be implemented to assist your mother, however I am not satisfied that exceptional circumstances have been made out.
PRIOR CRIMINAL HISTORY
24You have prior convictions, many for dishonesty and some assaults and stalking, though these relate to about a period 20 years ago. Further, between 2002 and 2003 you were convicted of a number of dishonesty offences and incarcerated for 18 months with a non-parole period of nine months.
25Of more relevance is your prior matter in 2014 - I was provided with the police summary in respect this offending which occurred in July 2011. You were convicted of one count of indecent assault and one count of indecent act with a 16 to 17 year old under your care supervision or authority. You were sentenced to a term of imprisonment of 12 months, wholly suspended for a period of two years.
26You were also registered under SORA with reporting obligations for eight years as a consequence of those matters. Although it was unclear which specific charges identified in the summary were proceeded with, the circumstances of this previous offending raised concern given the similarities to this offending. The victim in that matter was a young female working on a trial as a waitress in one of your restaurants. Your offending occurred in the context of her working and you taking her home in your car, and you touching her in a sexually inappropriate manner. The victim was aged 16, you were 57.
27You have prior convictions for driving offences in July 2015. The commission of those offences breached the suspended sentence. However the sentence was not re-activated. You were also convicted of failing to comply with your SORA obligations on 18 September 2018 and placed on a community correction order. This offending has breached that CCO.
Plea of guilty and remorse
28I take into account your plea of guilty and accept that you indicated your plea at an early stage. I accept that your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit. Ms Fox has not been required to give evidence and relive the traumatic incident. You have saved the community and the courts the cost and time of a trial.
29As the question of remorse, the prosecution highlighted aspects of
Ms Ferrari’s report (see paragraphs 43- 50, Exhibit 2) and your account to her of this offending, maintaining your actions were inadvertent and suggestive of a lack of insight into his offending. However, later in her report and evidence before me, Ms Ferrari maintained that when you were challenged about this attitude that you were able to understand and acknowledge that there was a power imbalance in the dynamic between you (see paragraph 51 Exhibit 2) that you were extremely apologetic and remorseful for your actions and embarrassed that you misread the situation. You recognised how uncomfortable your behaviour made Ms Fox feel. Once challenged you were remorseful and “sheepish” and when all factors were explained, you recognised the wrongfulness of your actions and had some insight. I accept that your plea is indicative of some remorse, though this is complicated to some extent by your mental health issues.Rehabilitation prospects
30There are competing considerations in making an assessment of your rehabilitation prospects. You have committed offending of a similar nature in respect of a young female before in similar circumstances and you have breached orders previously imposed by the court. I accept that much of your offending should be viewed in the context of your personal circumstances at the time and that you do require assistance in managing your mental health. Further you would benefit from engaging in a specific program for sexual offenders. You have the support of your family, some of whom were in Court. I regard your rehabilitation prospects as fair dependent on you properly engaging in relevant mental health and sex offender treatment.
Objective gravity of offending
31There was a clear power imbalance between you and Ms Fox. That related to your age difference, cultural issues and your potential capacity as her employer
Sentencing submissions
Your counsel submitted that a combination sentence was open, that is a term of imprisonment for 12 months or less and a Community Correction Order. Alternatively, it was submitted that you could be sentenced to a term of imprisonment approximating time served on Charge 1 and a fine or community corrections order on Charge 2. I had you assessed by a representative from the Office of Corrections and you were deemed suitable. It was submitted that such an order would ensure that you were treated for your mental health issues and that you could do some community work.
The prosecution submitted that a term of imprisonment with a non-parole period was warranted. Your offending was serious. You took advantage of your position and exploited Ms Fox. The impact on her has been significant. Principles of general and specific deterrence are applicable. Sentencing considerations of just punishment and protection of the community are also relevant, and given you are to be sentenced as a serious sexual offender under the Sentencing Act in respect of Charge 1, protection of the community is the principal purpose of sentencing. These matters must be balanced with all matters in mitigation including your plea of guilty and factors that impact on your time in custody as set out in these reasons.
If you could please stand, Mr Bruzzese? In respect of Charge 1 you are convicted and sentenced to a term of imprisonment of 15 months. In respect of Charge 2 you are convicted and I impose a community correction order for a period of two years. The community correction order will have conditions regarding supervision, mental health assessment and treatment and also that you participate in a sex offender's program. I do not propose to impose community work given the period of time that you will spend in custody. You can sit down now, thank you.
35 Charge 1 is a Class 4 offence. The prosecution has made application under s.11 Sex Offenders Registration Act 2004 for an order which would have you being required to report for life. As indicated in the course of these reasons, you were in 2014 placed on the SORA register for a period of eight years. The court may only make an order under s.11 if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons in the community.
36 Taking into account your prior matter of similar nature, the circumstances of this offending and the opinion of Ms Ferrari, in particular her comments regarding serious concerns for your behaviour and the risk you pose to younger females (see paragraph 55 Exhibit 2) I propose to make the order whereby you will be required to report for life under the provisions of SORA.
37 Pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty to this matter I would have imposed a sentence of two years and six months with a non-parole period of 18 months. What is the pre-sentence detention please?
38 MS HOLMES: 359 days, Your Honour.
39 HER HONOUR: I declare 359 days pre-sentence detention. Was the forfeiture or disposal order made?
40 MS HOLMES: No, Your Honour, is it no longer sought.
41 HER HONOUR: Not sought, and forensic sample not sought?
42 MS HOLMES: Not sought.
43 HER HONOUR: I declare pursuant to s.6D of the Sentencing Act that
Mr Bruzzese is a serious sexual offender in respect of Charge 1.44 MS HOLMES: Yes, thank you, Your Honour. In relation to the SORA reporting it is actually 15 years.
45 HER HONOUR: It is 15 years?
46 MS HOLMES: Yes.
47 HER HONOUR: We will amend that on the revised transcript.
48 MS HOLMES: Thank you, Your Honour.
49 HER HONOUR: Mr Bruzzese, you understand that upon your release from custody in respect of Charge 1 you will be placed on a community correction order. You need to understand that if you commit another offence punishable by imprisonment that the order may come back before me and I will have to re-sentence you in respect of that matter. There are conditions that I think have already been explained to you by the corrections officer. If you could sign the community correction order please and, Ms Connelly, could you just go down and explain that with my associate please?
50 MS CONNELLY: Thank you, Your Honour.
51 HER HONOUR: Thank you. Thanks, I will just stand down.
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