Director of Public Prosecutions v Calleri
[2016] VCC 166
•22 February 2016
| Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-01241
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN CALLERI |
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| JUDGE: | HIS HONOUR JUDGE MAIDMENT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 22 February 2016 |
| CASE MAY BE CITED AS: | DPP v Calleri |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 166 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Burnside | |
| For the Accused | Mr D. Sala |
HIS HONOUR:
1John Paul Calleri, you were found guilty by a jury last year on three offences of committing acts of sexual penetration with a child under the age of 16 years; one offence of attempted sexual penetration of a child under the age of 16 years; and on 17 December of last year you pleaded guilty to an indictment charging you with supplying a drug of dependence to a child, that drug being cannabis, and also possession of a drug of dependence, namely cannabis.
2The maximum term of imprisonment for sexual penetration of a child under the age of 16 years is ten years' imprisonment, and for supplying a drug of dependence to a child, 15 years' imprisonment. You have also admitted a number of prior court appearances and convictions and I think it is fair to say that most of those relate to offences involving driving or driving with excess, alcohol, reflecting your longstanding alcohol problem.
3The prosecution relied upon at the trial, a summary of prosecution opening, and that is dated 22 June 2015. I propose to mark that Exhibit A in this case. Although, of course, it also dealt with another offence that was on the indictment, Charge 1, which was before the jury, you were acquitted on Charge 1 of administering a drug, namely cannabis, for the purposes of sexual penetration. I think it is, however, instructive to place that as Exhibit A on the plea, and that will be incorporated into these reasons for sentence.
4For the purposes of the second indictment the prosecution tendered and relied upon a summary of prosecution opening dated 11 December 2015, which set out the circumstances relating to the supply of the cannabis to the minor in this case and your possession of cannabis. I mark that Exhibit B and incorporate that summary into these reasons for sentence in its entirety. The prosecution has also provided me with a victim impact statement from the victim and I mark that Exhibit C and I take the content of that into account.
5The circumstances of the offending, which occurred on 17 January 2014, now over two years ago, involved your taking advantage of a person who, the jury found, you knew to be under the age of 16 years, and who you must have quickly realised was a vulnerable young female. You took her back to your premises, you smoked cannabis with her and then engaged in the sexual acts which gave rise to the charges 2, 3, 4 and 5, of which the jury found you guilty upon your trial.
6Offences of that kind are bound to have a significant impact on a child who was then two days short of her 14th birthday. For that reason Parliament has determined that the maximum penalty is ten years' imprisonment in the circumstances in which you committed the offence or offences.
7So far as the use of cannabis is concerned and your supply to the child, the jury found they could not be satisfied beyond reasonable doubt that you supplied the drug for the purposes of sexual penetration. I do not sentence you on any basis that is inconsistent with the jury verdict. Nevertheless supplying a child with cannabis is to be regarded as a serious offence and for that reason Parliament has prescribed the maximum term of imprisonment to 15 years.
8
Turning to matters personal to you, I ordered and received, a Forensicare report from Professor Michael Daffern dated
11 December 2015, which conveniently sets out a deal about your personal history. I propose to mark that Exhibit 1 on the plea and I will incorporate that into these reasons for sentence.
9You have had a difficult life in many respects, although you have worked. Professor Daffern has found that your intellectual functioning is at an extremely low level and I take that fact into account. I was supplied with a copy of the decision of the High Court in Muldrock v The Queen [2011] 244 CLR at 120, and I have noted the legal principles which seem to me to flow from that case.
10The fact that you have had many setbacks and factors which have, it seems, contributed to depression over the years, and to your alcoholism and your chronic use of drugs, in particular, cannabis, no doubt provides part of the context for this offending conduct. It does not mitigate it but it certainly provided a context and, in particular, because you supplied the young lady with cannabis on the day and you shared cannabis with her in the lead-up to the offending conduct.
11It is difficult to assess your prospects of rehabilitation as particularly high. There is no indication that you have any sexual deviance or that you represent a significant danger to the public so far as further sexual offending is concerned but nevertheless the fact that you did offend on this occasion is something which I need to take into account. I am required to sentence you as a serious sex offender in relation to - I think it is two of the offences, is it not?
12MS BURNSIDE: That is so, Your Honour.
13HIS HONOUR: Yes. To the extent that I have imposed a term of imprisonment on charges 2 and 3, then I am required to sentence you as a serious sex offender on charges 3 and 4 on the indictment that you faced in front of the jury.
14The prosecution has not sought to persuade me that I should impose a disproportionate sentence to give effect to the purpose of the legislation, which is to protect the public. However, the prosecution does rightly point out some of the aggravating features of the offence. There was a significant age gap between you and this young lady. You are now 48 years of age and she was two days short of her 14th birthday. Also they point to the fact that you knew she was residing at a residence that was provided by the Department of Human Services and that she was a vulnerable young lady. However, it is conceded that there was no violence involved and that you have no relevant priors. You did not use a condom in the penile penetration, which is the subject of Charge 5 on the indictment.
15Your counsel rightly points out that you have a good work record and that you have been using your time well since you have been in custody. He points to the fact that the offending conduct all happened on the one day in a short period of time. It was not pre-planned in any real sense of the word. This was not a case where you had spent a significant time or several days or weeks grooming this young lady. It was opportunistic. However, they are serious offences and I cannot give you credit for a plea of guilty in respect of them. It is not possible for me to find that you are remorseful in the sense that you ran the defence that you thought that she was over the age of 17, that defence being rejected by the jury. However, it is to your credit that you pleaded guilty to the charges, the subject of the second indictment, and I give you full credit for that.
16In addition to the case of Muldrock I was supplied with the sentencing snapshot, No.181, and sentencing snapshot No.65 in respect of the offences for which I have to pass sentence, as well as two other cases, The Queen v Walker [2005] VSCA 179 and Griffin v The Queen [2011] VSCA 3004, for the purposes of enabling me to identify current sentencing practice.
17It is appropriate that I take into account your low level of intellectual capacity and I do that. I have endeavoured, in structuring the sentence, to facilitate your rehabilitation to the extent that I reasonably can, but I do have to impose appropriate punishment upon you and to denounce your conduct to deter you from further offending and to, in particular, to others from committing offences of this nature.
18Doing the best I can to balance all of those factors, I am ready to pass sentence upon you. Would you stand, please?
19Dealing first with the indictment upon which you stood, the trial before the jury, on Charge 2 I convict you and sentence you to imprisonment for a period of three years and six months. On Charge 3, of attempting to commit an act of sexual penetration, I convict you and sentence you to imprisonment for a period of two years. On Charge of sexual penetration, I convict you and sentence you to imprisonment for a period of three years and six months, and I sentence you as a serious sex offender on that charge. On Charge 5 I convict you and sentence you to imprisonment for a period of three years and six months. I sentence you as a serious sex offender on that offence.
20On the second indictment, on Charge 1, of supplying a drug of dependence to a child, I convict you and sentence you to imprisonment for a period of two years. On Charge 2, of possessing cannabis, I convict you and discharge you.
21I order that six months of the sentence on Charge 1 of the second indictment be served cumulatively on Charge 2 on the first indictment, making a total effective sentence of four years' imprisonment, and I order that you serve a period of two years and six months before you become eligible for parole.
22I declare 167 days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively and I order that that fact be noted in the records of the court.
23I make the disposal order in the terms of the draft with which I have been provided and I hand that to my associate for the purpose of distribution.
24Am I required to point out registration on the sex offenders registration?
25MR SALA: Yes.
26MS BURNSIDE: Yes, Your Honour.
27HIS HONOUR: Yes.
28MS BURNSIDE: A 15 year period, Your Honour.
29HIS HONOUR: Yes. You will be required to comply with the reporting requirements of the Sex Offenders Registration Act for a period of 15 years and you will be supplied with information about those obligations.
30MR SALA: As Your Honour pleases.
31MS BURNSIDE: If Your Honour pleases.
32HIS HONOUR: Take a seat for the moment.
33MR SALA: Might I be excused from the Bar table to escort your tipstaff to have the document signed?
34HIS HONOUR: Yes, yes, you certainly can, yes.
35MR SALA: Or your associate, please, signing it.
36HIS HONOUR: Yes.
37MR SALA: I do not know if Your Honour has to be on the Bench while he signs the necessary documentation.
38HIS HONOUR: No, but I think I have to sign it.
39MR SALA: Of course.
40HIS HONOUR: It may not take very long, I do not know.
41MR SALA: That is right, Your Honour.
42MS BURNSIDE: He already has, yes.
43MR SALA: We understand that there are some training wheels in this matter.
44HIS HONOUR: Yes, all right. I will leave the Bench.
45MR SALA: As Your Honour pleases.
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