Director of Public Prosecutions v Calazzo (a pseudonym)
[2016] VCC 1365
•09 September 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN CALAZZO[1] |
[1] Is a pseudonym
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 02 September 2016 |
| DATE OF SENTENCE: | 09 September 2016 |
| CASE MAY BE CITED AS: | DPP v Calazzo (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1365 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F. Holmes | OPP |
| For the Defendant | Ms C. Randazzo | Doogue O’Brien George |
1Adrian Calazzo[2], on 2 September 2016 you pleaded guilty to the following charges on indictment number G10799188.
[2] Is a pseudonym
2Charge 1, indecent act with a child under 16 years. This is a representative charge. This offence has a maximum penalty of 10 years imprisonment.
3Charge 2, indecent act with a child under 16 years. This offence has a maximum penalty of 10 years imprisonment.
4Charge 3, incest. This is a representative charge. This offence has a maximum penalty of 25 years imprisonment.
BACKGROUND AND CIRCUMSTANCES OF OFFENCES
5You were married to Ruth Calazzo[3] in March 2004. On 2 May 2005, your first child Veronica[4] was born. She is your victim in these charges. You also have a second daughter born in May 2009. Your second daughter has been diagnosed with autism.
[3] Is a pseudonym
[4] Is a pseudonym
Charge 1
6The first incident took place on an occasion when Veronica was three years old and was home alone with you. You undressed yourself and got Veronica to undress too. You put her up on the nappy table in her bedroom where she lay down and opened up her legs. You then started licking her vagina. You licked her vagina repeatedly for probably five to ten minutes. That is indecent act with a child under 16. As I say, this is a representative charge.
7The second occasion occurred in Ruth's bedroom. You got Veronica to lie down on the bed on her back. You laid down on your stomach and then you told her to open her legs and you licked her vagina. Your daughter Veronica, while still three years old, complained to her mother about your offending.
8Veronica told her mother she did not like it. When you were challenged by your wife about these allegations you denied them and said Veronica was lying. Approximately two years later, in February 2011 on Veronica's first day at school you admitted to your wife Ruth that you had touched your daughter Veronica as she had described some two years earlier. You remained living in the family home.
CHARGE 2
9In late December 2015, you and Veronica went and saw the new Star Wars movie after it was released in the cinemas. Veronica was ten years old. After seeing the movie, you downloaded the original Star Wars movies and asked Veronica whether she wanted to watch them. She did, and over the next few weeks you began watching the films together in the computer room at your house.
10As you watched the movies together, you began to rub Veronica's stomach, both over the top of, and under, the T-shirt she was wearing. After a few days, you then rubbed Veronica's vagina over the top of the pants she was wearing. She let you do it for one or two minutes, then told you to stop. You did eventually stop, but not immediately, before continuing to rub her stomach under her T-shirt. You also did this a second time when you were watching a movie a few days later.
11A few weeks after that, Veronica was in her mother's bedroom one morning after having slept the night there due to a bad dream. Ruth was at work and Veronica's younger sister was at her therapist's house, so you were the only person alone with her. You had a shower in the ensuite bathroom while Veronica was still in bed. You then came out of the bathroom with a towel wrapped around you and you took it off.
12You then put the towel down and then lay on the bed and said, "Could you please touch me." Veronica said no and you grabbed her hand, put it on your penis, and started making her rub it up and down. You then let go of Veronica, but told her to keep going, so she did. After a few minutes, you ejaculated and then asked Veronica to stop.
Charge 3
13The following is a summary of Charge 3, the charge of incest. These events follow the indecent act with your daughter after the shower incident. You said to Veronica, "It's your turn." You made her pull down her undies and told her to hold the lips of her vagina open. You put your finger in your mouth and then you touched Veronica with it inside her vagina, rubbing it up and down all around her vagina, "Except for the hole that babies come out of." That is a quote from Veronica.
14Veronica asked you to stop. You continued a little bit longer and then you did stop, because you knew that Veronica was not going to have an orgasm which was what you were trying to do. That is from an answer you gave in the record of interview.
15You then put your towel, which you had used to clean up your ejaculate, into the washing machine. You also sprayed deodorant around the bedroom to hide the smell.
16A few weeks after that incident the subject of Charges 2 and 3 occurred, Veronica was on the couch in the lounge room of your house watching a television show. It was at night time and Ruth was walking the dogs. You came into the lounge room, pulled down Veronica’s pants and underwear, and again touched the inside of her vagina in the same way as the earlier occasion I have just referred to.
17As you were doing that, you said to her, "If you feel something coming, just let it - just let it go," again hoping that she would have an orgasm. At one point, Veronica said, "Dad, could you please stop? I don't like this," but you kept doing it. This incident lasted for five or ten minutes.
18When you had finished touching Veronica on each of these occasions, you told her not to tell Ruth. The first time you said that, Veronica asked you why. You had told her it was child abuse and you should not be doing it. You knew not to, but because it felt so good for you, you felt like you needed to do it to her to show your love for her.
19You also told Veronica that your mother had done it to you and it felt really good. On one occasion, Veronica spoke to you about why you had licked her vagina when she was little and you again referred to what had happened with your own mother. You then gave Veronica a kiss on the lips using your tongue.
DISCLOSURE OF OFFENDING
20In March 2016, after speaking with a friend and your wife, you said you would go to the police and hand yourself in for various offending against your daughter. When you left the house to head to the Sunbury Police Station, your wife Ruth spoke to Veronica who then disclosed the incidents that took place as she and you were watching the Star Wars movies.
21Veronica completed a VARE interview at the Faulkner SOCIT on Saturdays, 19 March 2016. Veronica further disclosed to Ruth the incident that took place after you had got out of the shower the day after disclosing the movie incident.
ARREST AND INTERVIEW
22You arrived at the Sunbury Police Station on Friday, 18 March 2016. After telling the police officer working the watch house that you wanted to confess to molesting your child, you were arrested and interviewed.
23The informant continued the interview on Sunday, 19 March 2016. During the course of the interview, you stated that:
a) you came to the police seeking help and you knew you had a problem;
b) that you had performed oral sex on Veronica twice when she was three years old by putting your mouth on her vagina and kissing or licking it, but you said that you did not penetrate her vagina when doing so;
c) that you touched Veronica's vagina over her clothes whilst you were watching the Star Wars movies;
d) you told Veronica that they should keep what was happening to themselves, as you were afraid of the consequences;
e) on the occasions that you touched her vagina with your hand on her skin, you tried not to put your finger inside or anything because you did not want to do that;
f) you encouraged Veronica to touch you penis during the incident following the shower (Charge 2), and that she played with it until you ejaculated. You claimed that you did not tell her what to do, but commented that it felt good;
g) there was never an occasion when Veronica said no to him and he tried to convince her otherwise.
24At the conclusion of the interview, you were released on bail to appear in court. I have been told that in fact you have served two days pre-sentence detention, plus the time since I remanded you for custody last week.
25The chronology of these proceedings are as follows. After your arrest and interview on 15 April 2016, there was a filing hearing. On 8 July 2016 the first committal mention occurred, which was adjourned for the purposes of discussions on resolution. On 27 July 2016, at the second committal mention, the matter was resolved and guilty pleas were entered in respect of these charges that are before the court now.
VICTIM IMPACT STATEMENT
26Your daughter Veronica filed a victim impact statement on 28 August 2016. It was not read out in court at the request of your daughter. I have no doubt you have seen it. Your daughter sets out how shocked, frightened, and scared she was by your offending behaviour. She describes her disgust at what happened to her. She expresses how sad she is that you as her father did these things to her. She is heartbroken. Her schooling has suffered and she now sees counsellors. It is early days for your daughter's recovery from your offending and the long-term impact on her life is difficult to assess.
27Your wife Ruth also filed a victim impact statement, dated 28 August 2016. It was not read in open court. Your wife sets out the impact of your offending on the dynamics of the family, in particular, the day-to-day activities of Veronica and your youngest daughter who has been diagnosed with autism, are now far more complicated, there is only one parent who is around to complete all the tasks. Your wife is stressed and angry by her observations of your Veronica’s suffering as a result of your offending. Your wife has trouble sleeping and eating, and is stressed by the responsibilities of bringing up your children on her own.
28I note that you have made steps to sort out the financial issues between your wife and yourself. You have also made provision for child care through the Child Support Agency whilst you are in prison. The documents for these arrangements are in Exhibit 8 and 9 on the plea. I will not detail the contents of those arrangements in my reasons for sentence. You have taken sensible steps to address your financial responsibilities to your wife and children. The impact of your offending on your family will be ongoing and long lasting.
PERSONAL CIRCUMSTANCES
29You are 38 years old. Your father died in 2009. Your mother is still alive, and until you were incarcerated, lived with you. You have a younger brother who has been diagnosed with schizophrenia since the age of 17. You are close to your brother and used part of the inheritance from your father's estate to make sure your brother had a home of his own to live in. You support your brother in his day-to-day life.
30You completed your education at year 12 at Salesian College in Sunbury. You obtained a TER score of less than ten. After school, you completed a certificate IV in information technology, which was computer programming. You have a good employment history. You informed your employer of these charges and resigned your job because of the inevitability of a prison sentence.
31Your manager Richard Wallace describes you as intelligent, innovative, and a hardworking team member. That is Exhibit 7 in the plea. He describes how stunned he was about your admitted offending, given the person he had assessed you to be as a fellow worker.
32You are a person of previous good character and have no prior criminal convictions. You have no outstanding criminal charges.
33In your history to psychologists Mark Kulkins and Patrick Newton, you told them that you had sexual experiences with your mother whereby she would masturbate you. This activity first commenced at age 13 and the last occasion on which it occurred was when you were 21 years old. The incestuous experience with your mother was submitted to be an explanation for your offending against your own daughter. There is no independent evidence to establish that this sexual activity occurred between you and your mother.
34I accept that your reporting of it to the psychologist is accurate and truthful. I accept that given the opinions of Mr Newton and Mr Kulkins, that the sexual encounters with your mother as a youth are relevant to consideration in your sentence. It goes to your moral culpability and the prospects of rehabilitation. Whilst it might provide an explanation, it does not excuse your offending conduct against your daughter.
35You have reported your offending to the police prior to any complaint by your daughter Veronica or anyone else. You made full admissions to the police in your record of interview. By an email dated 23 March 2016, you made contact with Mark Kulkins, psychologist, to get help to control your actions. You have had a total of 16 - 17 sessions to address your offending behaviours with Mr Kulkins. You told Mr Kulkins that you found stories and material highlighting incest sexually arousing and exciting. You described your sexual experiences with your mother as having nothing but pleasant memories of these events.
36Mr Kulkins' report, which is Exhibit 2, diagnosis your condition as follows:
a) Adjustment disorder with mixed anxiety and depressed mood;
b) Paedophilic disorder, non-exclusive type, sexually attracted to females, limited to incest.
37Mr Kulkins recommends ongoing psychological support for you over a two year period and ongoing until your deviant arousal is resolved.
38Mr Patrick Newton assessed you for the purposes of this sentencing process. His report is Exhibit 3 on the plea. Mr Newton notes that,
"Mr Calazzo has experienced longstanding incestuous fantasies which can be traced back to experiences of incest which reportedly took place with his mother. He has pursued an obsessional and compulsive interest in incestuous pornography and has acted on his own incestuous fantasies on several occasions with his eldest daughter. Mr Calazzo acknowledged that he found the sexual contact with is daughter extremely sexually arousing and he returned to the behaviour despite a clear knowledge of its wrongfulness and a desire not to do so."
39Mr Newton assesses you as fitting the criteria for paedophilia non-exclusive type, sexually attracted to females, confined to incest. That is the same as Mr Kulkins’ assessment. Mr Newton has assessed you of falling into the moderate risk range for reoffending. This assessment is based on limited access to potential victims due to sexual offender registration. Mr Newton recommends intensive ongoing psychological treatment in the form of a comprehensive sex offender treatment program.
SENTENCING CONSIDERATIONS
40The offence of incest and related sexual offending against you biological child strikes at the very heart of the most important building block in a civilised society, the family. The prevalence of the crime of incest in the community erodes the decency of family life, and the trust and confidence of its young victims. Such crimes call for punishment to reinforce the principles of general deterrence, denunciation, and the protection of young people.
41In the case of DPP v G, the then President of the Court of Appeal set it out clearly. I quote him,
"The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care, and that the community’s entitled to expect that those who exercise such care will not abuse the trust and confidence reposed in them, by those in their charge, parents, and those in loco parentis, who fall to exercise the restraint which a community expects of them and who give into their own sexual gratification, must expect to be severely and appropriately punished."
42In this case, the aggravating features of your offending is that in two separate stages of your biological daughter's life you have offended against her. The first time of the offending was when your daughter was three years old. You denied the offending when your wife confronted you with Veronica's allegations. This denial left your daughter in the position of being called a liar and without any parental support at a very young age. Subsequently, you admitted your offending when Veronica was about to go to school for the first time.
43The second period of offending was when your daughter was only ten years old. The level of your offending in this period was more serious than the earlier offending, because it involved digital penetration of your daughter's vagina in a deliberate attempt by you to sexualise your daughter's behaviour for your own gratification.
44The combination of the two distinct periods of offending are a serious breach of trust and a protection you owed to your daughter as a father. The offending against your own child at such a young age or young ages of three years old and ten years old is an aggravating feature.
45The return to offending after admitting and accepting your offending when Veronica was five years old makes your offending against her when she was ten years of age more egregious. You were trusting in her loyalty and love for you to satisfy your sexual gratification. In the second period of offending, you forced your daughter to masturbate you until you ejaculated. That is Charge 2. You told Veronica not to tell anyone about your sexual activity with her.
46In this case, Charges 1 and 3 are representative counts; that is, the offending is representative of two or more acts of the same character. This fact has two-fold relevance in sentencing. First, it is to be understood as the absence of a mitigating factor as an isolated event, as was the case here; and secondly, it provides a wider context for the extent of your offending. The fact that these two charges are representative counts for both periods of offending is an aggravating feature of your overall offending.
47The offending is, on my assessment, to be in the lower end of the midrange of incest-related offending due to the following factors:
a) the offending is not continuous over the period, that is, from the age of three to ten;
b) the offending is in two distinct periods, but for short periods of time;
c) the penetration is digital penetration as a representative charge and not penile-vaginal sexual penetration;
d) the offending is against a very young child, that is three and ten years old.
48A matter in mitigation of your sentence is that you have attended the police station at Sunbury on 18 March 2016 and confessed to molesting your daughter. This occurred before any complaint or report of the offending was made by your daughter. You made full admissions to your offending and were cooperative with police in the course of the record of interview and the subsequent investigation.
49As I have previously noted, you have put your financial affairs in order to assist your wife and children whilst you are incarcerated.
50You have pleaded guilty to these proceedings. The plea was indicated at the earliest time. Your plea has the utilitarian value of allowing the orderly and effective administration of justice. There is certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters. Your plea vindicates public confidence in the legal process set up to protect the community.
51You have, by your plea, relieved your victim, your daughter, from giving evidence against you. It facilitates some closure for her as a victim of your offending.
52Your plea is also a clear acknowledgement by you that you accept your responsibility for your criminal behaviour in this case, and your plea also recognises that you are willing to facilitate the course of justice in the community. I will also accept your plea to these charges indicates and demonstrates remorse on your part. I accept that you are remorseful for your offending and show some insight into your offending by attending treatment with Mr Kulkins, psychologist, prior to your plea hearing.
53In this case, Charge 3 is a baseline offence as defined by section 3(1) of the Sentencing Act 1991. I accept the prosecutor's admission that, in view of the judgment of the majority in the Court of Appeal in the matter of DPP v Walters, the baseline sentencing provisions are incapable of being given any practical operation. Hence, the court in the present matter should sentence without having regard to the baseline sentencing provisions of the Sentencing Act, including section 11A.
54As part of the governing principles to be considered in sentencing, I must take into account current sentencing practices. That enquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics at the time of the sentence. I have conceded these statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. I have also have taken into account the sentencing practices at the time of your offending. Each case again has its own distinguishing features and may be distinguished from yours as from one another.
55I have had regard to the sentencing snapshots for the charges that you have pleaded guilty to in this court. I have also looked at the authority of BM v R [2013] VSCA 3, and the case of Wallace Cummins (a pseudonym) v R [2013] VSCA 352, and DPP v DDJ [2009] VSCA 115. I have taken into account the pronouncements of the Court of Appeal in those cases and in other cases on sentencing incest cases, in arriving at your sentence.
56More recently, the Court of Appeal in DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 recently considered the current sentencing practices for sentencing incest offenders. It states at paragraph 128 and onwards as follows:
"In our view, current sentencing for incest reveals error in principle. The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender. Sentences for incest offences of mid-range seriousness must be adjusted upwards. That is a task for sentencing judges and, on appeal, for this Court. The criminal justice system can be - and should be - self-correcting.
"Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of the parental responsibility involved.
"On the current state of sentencing, there is no sufficient differentiation between the worst case and the mid-range offending. As we have said, sentences of mid-category offending have been constrained by sentences for worse category offending, and the sentencing range for mid-range offences has been inappropriately compressed.
As senior counsel for the Director correctly submitted, it is part of the Court's overarching responsibility to ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing. To that end, we have concluded that the sentencing courts must, by increments, increase the sentences for mid-range incest offences, so that the range of sentences is uplifted and substantially expanded. The maximum penalty provides sentencing courts with ample latitude to fix sentences which properly reflect the degree of criminality involved."
57The basic purpose for which a court may impose a sentence of imprisonment is just punishment, deterrence, both specific and general, rehabilitation, and denunciation of your actions, and the protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it, and your personal circumstances and those of your victim, your daughter.
58I am required to balance those interests with the interest of the community in denouncing your criminal conduct, with the interests of the community, in seeking to ensure, as far as possible, you, as an offender, are rehabilitated and reintegrated into society. As I have previously stated, I assess your offending at the lower end of the mid-range for incest offences.
59I assess your prospects of rehabilitation as fair. You have self-reported the later offending and sought treatment for your paedophilia condition, as diagnosed by Mr Kulkins and Mr Newton. However, Mr Newton assesses you as a moderate risk of reoffending. Your rehabilitation prospects would be enhanced by the provision of specialist treatment for your diagnosed condition.
60Under the Serious Offender provisions of the Sentencing Act, on your conviction and sentence, to a term of imprisonment in respect of Charges 1 and 2. I am required on the sexual offences charges thereafter to regard the protection of the community from you as a principal purpose for which the sentence is imposed. If necessary, in order to achieve that purpose of protecting the community, I am empowered under section 6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offences.
61This means that the sentencing task in respect of Charge 3 on the Indictment, incest, is to be undertaken on the basis that the protection of the community from you is a principal purpose for which that sentence is imposed. To achieve that purpose, a sentence may be imposed longer than that which is proportionate to the gravity of the offence, considered in the light of the objective circumstances.
62Section 6E of the Sentencing Act also requires that unless I otherwise direct, with respect to Charge 3 on the Indictment, the sentences I impose on you are to be served cumulatively. I note here the Crown did not call for a disproportionate sentence for all the cumulation contemplated either under section 6D or 6E of the Sentencing Act and allowing for matters I have already outlined.
63In my view, it is appropriate to impose only the degree of cumulation to which I subsequently refer, reflecting as it does the several episodes of offending. To do otherwise may produce a sentence which is not appropriate and is unjust.
64I take into account that you have no prior convictions. I also take into account that imprisonment will be difficult for you, because you will not be able to or be at liberty to assist your brother Michael who has come to rely on you for day-to-day support. This dependency, does not amount to the exceptional circumstances that activate the exercise by a court for mercy in the sentencing process.
65I find that in respect of the three separate offences you have pleaded guilty to, that a degree of cumulation between those individual sentences properly reflects the Parliament's intention when legislating for the two periods in the life of the victim, as affected by your offending. I also take into account the principles of totality in sentencing and in setting individual sentences and the cumulations between the three charges. In respect of Charges 2 and 3, whilst they have occurred initially on the one occasion - however, Charge 3 is also on the basis of a representative count and it is appropriate to cumulate some of the sentence in Charge 2 with the sentence in Charge 3.
SENTENCE
66On Charge 1, you are convicted and sentenced to two years imprisonment.
67On Charge 2, you are convicted and sentenced to two years imprisonment.
68On Charge 3, you are convicted and sentenced to five years imprisonment.
69I order that one year of the sentence in Charge 1 and one year of the sentence in Charge 2 be served cumulatively on the sentence in Charge 3. That is a total effective sentence of seven years imprisonment.
70I fix a non‑parole period of four and a half years imprisonment.
71I declare that you have served nine days of presentence detention which are to be deducted administratively from your sentence.
72I direct that pursuant to section 6F of the Sentencing Act that it will be entered into the records of the Court that I have sentenced you in respect of Charge 3 as a serious sexual offender within the meaning of the Act.
73At the hearing, the prosecution sought an order for retaining a forensic sample from you. I will make that forensic sample order, as I understand it, with your consent. I will explain that to you in a moment.
74The offences for which you have been found guilty are registerable offences pursuant to the Victorian Sexual Offences Registration Act 2004 and by reason of your convictions for these offences, you are a registerable offender and obliged to comply with the reporting conditions imposed by the Act. In your case, that will be for life.
75As required under section 5(2BC) of the Sentencing Act, in sentencing you I have ignored any consequences that may arise, in this case do arise under the Act from the imposition of the sentence today. In other words, the reporting burden that you carry as a registered sex offender is not a matter that can objectively influencing the imposition of a just sentence.
76I am required to give you written notice of the reporting obligations and the consequences that may arise if you fail to comply with these obligations. I am also required to inform you of the length of the reporting period, which I have previously announced, is life. My Associate will shortly hand you the papers and Ms Randazzo can attend at the dock to assist you with that. I think that covers everything.
77MS RANDAZZO: I think the 6AAA, Your Honour, declaration needs to be made.
78HIS HONOUR: Thank you. Sorry. Pursuant to section 6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to nine years imprisonment with seven years minimum.
79MS RANDAZZO: Thank you, Your Honour.
80MR BOYD-WILSON: As Your Honour pleases.
81HIS HONOUR: What happens now is - I have made an order in respect of 464ZF, which is a forensic sample order that prison authorities can take from inside your mouth a swab to obtain that. The other matter is the reporting, I will give you the document in a moment. Ms Randazzo, if you ‑ ‑ ‑
82MS RANDAZZO: Yes, Your Honour.
83HIS HONOUR: Thank you. Does that cover everything?
84MR BOYD-WILSON: Yes, Your Honour.
85MS RANDAZZO: Thank you, Your Honour.
86HIS HONOUR: Thank you. Thanks very much. Thank you both for your assistance today and thank Ms Holmes for her assistances the other day. Thank you. Remove the prisoner. Thanks.
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