Director of Public Prosecutions v Caccamo

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE
CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01591

DIRECTOR OF PUBLIC PROSECUTIONS

ROBERT CACCAMO

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JUDGE:	JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2023
DATE OF SENTENCE:	28 August 2023
CASE MAY BE CITED AS:	DPP v Caccamo
MEDIUM NEUTRAL CITATION:	[2023] VCC 1733

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:   Rape
Legislation Cited:  Sentencing Act 1991 (Vic)
Sentence:  4 years’ imprisonment
NPP 2 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J. Piggott	Office of Public Prosecutions
For the Accused	Mr C. Hooper	Ann Valos Criminal Law

HER HONOUR:

Robert Caccamo, you were tried in the County Court at Melbourne on one charge of rape.
The charge of rape has three elements:
(i)the accused intentionally sexually penetrated the victim; and
(ii)the victim did not consent to the sexual penetration; and
(iii)the accused did not reasonably believe that the victim consented to the sexual penetration.
The third element relates to your state of mind about the victim's consent and was the contested element in this trial. The prosecution was required to prove beyond reasonable doubt that at the time of sexual penetration, you did not reasonably believe that the victim was consenting. The third element would be met in any of the following circumstances:
·        the accused believed that the victim was not consenting; or
·        the accused gave no thought as to whether the victim was consenting; or
·        even if the accused may have believed that the victim was consenting, this belief was not reasonable in the circumstances.
You were convicted by a jury of the offence of rape on 4 August 2023. The maximum penalty is 25 years' imprisonment.
The prosecution and defence have disagreed about whether the circumstances of your offending are clear, in light of the jury verdict.
The prosecution has submitted that although there was some inconsistency in the victim's evidence about whether a physical or verbal request was made by you to initiate the sexual penetration, there was no dispute that the victim said “no”. It was not challenged in cross-examination, nor was the subsequent conversation. It was submitted that you must have heard what she said because you asked 'why not?' and in response, the victim replied 'I'm not in the mood'. You responded 'but I am' and then penetrated the victim. Given that you were facing each other in bed, and that your eyes were open, there was nothing to indicate that you did not hear or misunderstood her response.
The prosecution position is that you proceeded to penetrate her, despite her lack of consent. Further, that it is not open when sentencing you to conclude that you had an honest but mistaken belief in consent. The evidence before the jury did not indicate there was any misunderstanding or lack of appreciation that 'no means no'. In the prosecutor's view, the evidence is quite clear. Consent was sought, rejected, queried and overridden.
Your counsel's position is that the jury verdict does not assist the court to determine the circumstances in which the offending occurred. While the truthfulness of what the victim said was not challenged, the defence was run on your internal thought process, where the circumstances of your offending was an honest but unreasonable mistake. You and the victim only had 4 hours of sleep and were fatigued.
Your counsel accepted that the jury found the victim said no, and that your belief in consent was not reasonable. He further submitted that the victim did not do anything to positively indicate that she consented, and you took no steps to confirm whether this was the case. Further, that inconsistencies in the initial complaint evidence relate to what was actually said.
The submission proceeded that although this does not automatically render your belief unreasonable, the jury can be taken to have found for these reasons, in combination with your words to the victim immediately following the cessation of penetration, any belief you held in consent was unreasonable. That is, you held an unreasonable view of her consent, and your conduct was consistent with that.
In those circumstances, your counsel submitted that it is unclear which part of the third element of the offence the jury decided was appropriate, in their finding of guilt. The court could not be satisfied that you heard or understood the victim's expression of lack of consent. You counsel submitted that it would not be open to sentence you on the basis that you knew the victim was not consenting, as it would be equally open to conclude that even if you believed she consented, this belief was not reasonable. Therefore, it is submitted that the benefit of ambiguity flows to you.
In considering these arguments and determining the facts upon which I should proceed to sentence you, I have considered the evidence and the arguments put to the jury by the prosecution and defence. I directed the jury that it was a matter for them what they concluded, when considering all the evidence. There was a clear factual dispute about the third element of the offence.
I provided the jury with an unreliability warning in relation to the victim's evidence, given the inconsistency of her accounts as to how the sexual penetration was initiated. I directed the jury that they must take care and exercise caution when considering the victim's evidence, as inconsistency may affect her reliability and, ultimately, it was a matter for the jury.
I also directed the jury that they needed to be cautious of the potential for contamination of recollection by the witnesses, being the victim and the two complaint witnesses, due to the discussions between them which may have affected their accurate recollection and reliability of their evidence. I directed the jury that they must take this into account when determining whether they accept their evidence and what weight to give their evidence.
After going through the elements of the offence, I then directed the jury that in order for them to convict you, they would have to be satisfied, beyond reasonable doubt, that the victim's evidence is honest, accurate and reliable.
In those circumstances, I consider that the jury must have been satisfied of the victim's evidence, beyond reasonable doubt. I accept that the jury verdict has determined that the victim said no, that you heard what she said, and proceeded regardless. If they accepted her account to be honest, accurate and reliable, as they obviously did, it was inevitable that you would be convicted. I propose to sentence you accordingly and will now outline the circumstances of your offending.
In October 2020, you met the victim through a mutual friend. In May 2021, you commenced an ongoing sexual relationship, and the victim moved into your house in July 2021. The victim regarded herself as your housemate.
On 28 August 2021, the victim moved into a rental property which you owned, although she continued to regularly stay with you overnight.
On 15 September 2021, the victim took a pregnancy test. She advised you that it had returned a positive result. The next day, the victim returned to your house at around midnight, after she finished work. You stayed up and talked until 3.00 am, before going to bed together. The victim was naked when she went to sleep.
The offence was committed on the morning of 17 September 2021. She was 28 years of age, and you were 54 years old at the time.
The victim woke up at 7.00 am. She noticed that you were awake and had your hand on her waist. You leant towards her and looked at her, as her eyes were open.
She told the jury that you asked if you could make love, while your hand remained on her waist. She replied 'No'. You responded 'Why not?', and she replied 'I'm not in the mood'. You responded 'But I am', and climbed on top of her. The complainant was shocked and 'froze', as you inserted your penis into her vagina and penetrated her between two - five times. You then stopped, withdrew your penis and rolled onto your side of the bed.
The victim immediately got up and sat on her side of the bed, with her back to you. You hugged her from behind, apologised and said 'I realised what I've just done'. The victim got dressed and left to attend a doctor's appointment. She contacted two of her friends and told them what had happened.
That night, the victim went back to your house. She told you that your sexual relationship had ended, although she needed your friendship to continue to effectively co-parent your unborn child. You told her that you understood. You explained to her that you stopped because you had realised what you were doing.
You continued to communicate with the victim and tried to empathise and placate her. On 27 September 2021, you exchanged Facebook messages where you wrote 'I know I made a horrible mistake. Was it the night I forced myself on you?' The victim responded that 'it was a morning'. On 8 October 2021, you attended an ultrasound together. You ceased having contact in November and on 2 December, the victim reported the matter to police, before providing a statement on 21 December 2021.
One week later, you were spoken to by police and made a no comment record of interview. You were initially charged with one count of rape and two separate counts of sexual assault. On 2 September 2022, a contested committal was conducted, where the victim was cross-examined. You were committed to stand trial on all three charges and entered a plea of 'not guilty'.
On 27 February 2023, two witnesses were called for cross-examination at a s198B hearing. An indictment was filed in April 2023, which contained one charge of rape that was the subject of the trial. The other two charges did not proceed.
Your trial commenced on 27 July 2023, and the first jury was immediately discharged, through no fault of yours. Your trial recommenced on 31 July and you pleaded not guilty to the charge. Your defence at trial was that although you admitted that the sexual penetration occurred and that the victim did not consent, you denied that you did not reasonably believe that the victim consented to the sexual penetration. The jury, by their verdict, rejected your defence and you were found guilty on 4 August 2023.
A Victim Impact Statement, dated 11 August 2023, has been prepared by the victim. She read it out in court. In that statement, she describes the quandary she faced in deciding to report your offending to the police, given that she once cared about you, and that you are the father of her son.
She described that when she was raped, she developed insecurity which has affected her lifestyle overall, including her capacity to enjoy motherhood. She has felt shame about her sexual activity being disclosed to her family, friends and in the court. She describes that she has lived 'in the very moment of you raping me, every day for 686 days' until the trial concluded. She feels that she has undergone her own sentence.
By making her relive the trauma through running a contested legal process, she feels that she has been 'treated as the guilty party'. She writes that 'every time you pleaded not guilty, the pain of what you did had a stronger sting'. She describes that your lack of remorse has made it impossible for her to forgive you for your misconduct.
I take the relevant parts of the Victim Impact Statement into account. Your offending conduct clearly had an ongoing impact on the victim's daily life, until the conclusion of the court proceedings. I hope that she will now be able to put your conduct behind her.
You pleaded not guilty and continue to deny that you committed the offence of rape. You immediately apologised to the victim, yet you used the content of your apology as a factor that was relied on in your defence at trial. While I accept that your apology and subsequent engagement with the victim does show an element of regret, it is not consistent with remorse, as it did not result in entering a plea of guilty to the charge. While you are not to be penalised for running a trial, your acceptance of responsibility has been in a limited sense.
I turn now to your personal circumstances.
You were born on 4 August 1967 and are now 56 years of age. Your parents are still alive and you assist with their care and wellbeing.
After leaving school at the end of Year 10, you commenced an apprenticeship as a diesel mechanic, which you completed in 1989. You have a strong history of employment working as a diesel mechanic, as a traffic/parking inspector for a local council, and as a truck driver. Prior to the running of this trial, you ran your own truck driving business and earned approximately $1,000 per week. You own investment properties, which you manage, as well as your residence. You are required to repay mortgages in the amount of approximately $3,000 per month for these properties.
You commenced a 5-year relationship and married your wife in 1993. You separated in 2006. You have two children together who are now aged 26 and 19 years. You commenced a subsequent relationship in 2014. I am told that your partner was aware of the relationship with the victim in this matter when it commenced in May 2021.
Your partner attended court for the plea hearing with your ex-wife and one of your daughters. She has prepared a letter to the court and describes that your absence has already caused her immeasurable pain. She has a diagnosis of multiple sclerosis and previously relied heavily on your assistance, to maintain her functional living environment. You have been supportive of her children over the past 9 years. She remains in contact with you and is committed to supporting you throughout this difficult time. She writes that you have expressed regret and sadness for your behaviour and for the impact of incarceration on your daughters and partner. She was shocked to hear the jury verdict and is currently experiencing additional stress. She hopes that your relationship will continue, upon your release from custody.
Your ex-wife has also written a letter to the court, confirming that you have remained in a positive and amicable relationship since your separation. She is concerned about the mental effect your incarceration will have on your daughters. They are both in receipt of psychological assistance to manage these circumstances.
Both of your daughters have also written letters to the court. They, too, are shocked by the verdict and will do whatever is required to continue to support you throughout this difficult time. You have supported your daughters throughout their lives as a responsible, loving parent. Your older daughter writes that while she does not endorse your act of infidelity, she understands that everyone makes mistakes. She and your family struggle without having you in the community. Your younger daughter writes that she, too, struggles without your ongoing support, as she has recently suffered unrelated grief and loss that has affected her mental health. Your incarceration has had a significant impact on her and on the rest of your family.
You are most fortunate to maintain the love and support of your partner and family. I accept that they will suffer hardship as an inevitable consequence of your imprisonment. Further, that you will suffer significant anguish as a result of your inability to provide support for them, which will result in your time in custody being more onerous. The burden of imprisonment will be more significant for you in those circumstances.
I am told that you experienced stress and anxiety when charged with the offences, two of which were discontinued. While this matter has been hanging over your head for almost two years, the delay is not excessive. However, I accept that this period has resulted in a source of anxiety for you, notwithstanding your plea of not guilty. You are not to be penalised for the fact that you elected to contest the charge in front of a jury. You have been subject to an intervention order since you were charged and once you were committed to stand trial, you were placed on bail. You have complied with these court orders. I am also aware that the delay has been a source of significant anxiety for the victim and your family. I take that into account.
Apart from this incident that occurred on 17 February 2021, you have led an unblemished life. You have no criminal history, nor have you committed any subsequent offences. It is not disputed that 'good men can make mistakes'. You are entitled to call upon your good character in this case. There is no suggestion that your offending was motivated by substance abuse, excessive alcohol use or other related substance abuse problems. There is no evidence that you suffer from any mental health disorder or have any antisocial personality traits. Despite your limited responsibility for your offending conduct, I am satisfied that this incident was an aberration. In light of these factors, I accept that your prospects for rehabilitation are very good.
The charge of rape attracts the standard sentencing provisions outlined in the Sentencing Act.[1] The standard sentence is one where the Act specifies the appropriate sentence for an offence in the middle of the range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence. The relative standard sentence is 10 years' imprisonment
[1] Sentencing Act 1991 (Vic), ss5A(1)(b).
The objective factors are to be determined without reference to matters that are personal to a particular offender.[2] There are several factors that are relevant when assessing the objective gravity of the offending. These include:
[2]        Sentencing Act1991 (Vic), s5A(3)(a).
·        the victim was known to you;
·        you had previously been involved in regular sexual activity;
·        she was pregnant to you at the time;
·        there is no evidence of premeditation; you did not plan to commit the offence but took advantage of the opportunity;
·        the offence did not involve any violence;
·        the duration of the offence was very brief;
·        you voluntarily withdrew your penis after a very short time;
·        the victim was alone in your company; she would have expected to be safe in your bed at your home;
·        the penetration occurred, despite the victim saying 'no'
·        the victim did not suffer any physical injury.
I take the standard sentence into account as one of the factors that is relevant to the instinctive synthesis of imposing sentence. I accept that it is a guidepost, to be considered when determining the appropriate sentence in this case. I also take the maximum penalty into account and current sentencing practices.
When considering the circumstances of this offence, both parties agree that while the offence of rape itself is a serious offence, this offence is towards the lower end of the range of these type of offences. Your counsel accepted that if you are to be sentenced on the basis that you knew the victim did not consent and then proceeded regardless, that would elevate the seriousness of the offence. I agree with this concession.
I have been referred to a number of cases for rape that fall within the standard sentencing provision, most of which are for offending that is more criminally culpable than your offending conduct. The cases are only guidelines for offences of this kind. I have considered those cases and taken them into account.
In addition, I am required to fix a non-parole period which is at least 60 per cent of the total effective sentence, unless it is in the interests of justice not to do so.[3]
[3] Sentencing Act 1991 (Vic) s11A.
When considering the appropriate disposition in this case, I have been urged by your counsel to impose a straight sentence of imprisonment without a non-parole period, as this would adequately address all relevant sentencing considerations.

The prosecution has submitted that the legislative considerations are required to be considered when determining the appropriate outcome overall.
It cannot be said that the offence of rape is anything but a serious offence. The maximum sentence and standard sentence both need to be taken into account with all other factors, in determining the appropriate disposition. Your offending is clearly below the mid-range of culpability. I agree that the sentence that I should impose is well below the standard sentence. I accept that this offence is towards the lower end of range of seriousness. Your moral culpability is reduced, in light of the very brief duration of penetration and your voluntary withdrawal. In the circumstances, I consider that your moral culpability for the very serious offence is well below the mid-range.
All sexual offences are crimes of violence that cause harm to the victims. It is clear that your conduct has had a significant impact on the ongoing emotional state of the victim. Any sexual activity that takes place without consent is wrong and must be denounced. I consider that general deterrence must be given weight in the sentencing process, as must the factors of denunciation and punishment. I consider that specific deterrence is relevant in a more limited way, in light of your lack of criminal history. I am also required to balance your sound prospects of rehabilitation.
This morning, I was told that you have spent the last few days in 23-hour detention, due to matters that are not related to your offending. I hope that now you are sentenced, you will be moved to an alternative custodial location.
Balancing all of these factors as best I can, I will impose the following sentence:
You are convicted and sentenced to four years' imprisonment.
Having regard to the reduced importance of specific deterrence and protection of the community, as well as your rehabilitation prospects, I consider that it is not in the interests of justice to fix a non-parole period of 60 per cent.
Accordingly, I fix a non-parole period of two years.
I enter in the records of the court that you have served 24 days by way of pre‑sentence detention.
Were there any further orders sought Ms Piggott?
MS PIGGOTT: No, thank you, Your Honour.
HER HONOUR: Thank you.
MR HOOPER: As Your Honour pleases.
HER HONOUR: Thank you. If Mr Caccamo could be removed, please.
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[2023] VCC 1733

28 August 2023