Director of Public Prosecutions v Cauchi (a pseudonym)
[2025] VCC 32
•29 January 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEIGH CAUCHI (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 17 December 2024 | |
DATE OF SENTENCE: | 29 January 2025 | |
CASE MAY BE CITED AS: | DPP v Cauchi (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 32 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Guilty verdicts after trial of sexual assault of a child under the age of 16 – Acquitted of sexual penetration offences – Offender was in a relationship with the victim’s aunt – Victim approximately nine years old – Whether connection between good character and the offending –Reasonable prospects of rehabilitation.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act2004.
Cases Cited:DPP v Ooms [2023] VSCA 207; Fichtner v The Queen [2019] VSCA 297; Ryan v The Queen (2001) 201 CLR 297; Markovic v The Queen [2010] VSCA 105; 30 VR 589.
Sentence: Total effective sentence of 34 months’ imprisonment with a non‑parole period in this matter of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Pezzimenti | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Connolly | Slades and Parsons Criminal Lawyers |
HIS HONOUR:
1Leigh Cauchi,[1] on 10 October 2024, after a short trial you were found guilty by jury verdict of Charge 6 of sexual assault of a child under the age of 16 and Charges 2 and 4 of sexual assault of a child under the age of 16, alternatives to Charges 1 and 2 which were sexual penetration charges. You were found not guilty of Charge 5 of sexual assault which was an allegation that you pinched Irene Hall on the bottom in accordance with some CCTV footage that was played to the jury.
[1]A pseudonym.
2The maximum penalty for the offence of sexual assault of a child under the age of 16 is 10 years' imprisonment and the standard sentence is four years' imprisonment.
3The victim in this matter is Irene Hall. She was born in February 2013. The charges in this case were based on the evidence in her two VARE recordings and her evidence at the special hearing.
4Her mother is Briony Hanlon[2] who is the sister of Sally McKenzie. Briony Hanlon’s partner is Chris Van Wyk.[3] They lived together with the victim and the victim’s foster sister, and three other siblings.
[2]A pseudonym.
[3]A pseudonym.
5You started a relationship with Sally McKenzie,[4] in 2020 and you visited the victim’s family regularly.
[4]A pseudonym.
6By 2021, Irene Hall had become comfortable with you and asked you for piggyback rides. She spoke about this in her first VARE at Question and Answer 14 where she said:
I asked for piggybacks from him when I got closer to him. I started asking for piggybacks and every time I asked he would touch my rude parts or my vagina. He would just play with it. It was uncomfortable and I hated it so I started asking for shoulder rides instead and he said he could only give me piggybacks because his shoulders were too sore. And then when my auntie was out one time I sat on the couch with [Leigh] and my cousin [omitted] was there but he was sleeping on the couch. I had a talk to him and said, talked about it and I said "Why did you do it?" and he said 'cause I thought I liked it' and then after a couple of weeks or something he did it again and I talked to him and he said he forgot and then he stopped doing it and he hasn't done it since.
7That was the uncharged contextual evidence that was led at the trial. I accept the victim's evidence about those uncharged acts beyond reasonable doubt which, in my view, is a finding consistent with the jury verdict. Of course, you are not to be punished for those acts, but they were relied as context to the charged acts. The charged acts were Charge 2 and 4.
Charge 2
8The evidence in relation to Charge 2 can be found in the complainant's first VARE commencing at around Question 19. She said she was at her house in the backyard playing with her brothers and sisters. She asked you for a piggyback. You said, 'Okay only for a little bit', and you picked her up. You started touching her vagina for a couple of seconds, then you stopped, and then you started doing it again for a second or so.[5] She said in her evidence that you touched her vagina over her clothing. She was wearing pants. There was further evidence about precisely what she was wearing. It was a little unclear but certainly she had pants on. She described you as putting your finger in and twirling it around.
[5] Complainant’s VARE, Q+A 35-42.
9There was an issue in the trial as to whether the jury could be satisfied a penetration occurred. They were not so satisfied. I sentence you on the basis that you touched the complainant on the vagina over her clothes. Although it was not of long duration it does not strike me as fleeting given that description of the complainant.
Charge 4
10She went on to describe a second incident which occurred at your house, where you live with Sally McKenzie and your children.
11At Question and Answer 57 through to around 76 of the first VARE, she said that she asked you for a shoulder ride[6] and you said your shoulders were too sore, but you could give her a piggyback.[7]
[6] Complainant’s VARE, Q+A 59.
[7] Complainant’s VARE, Q+A 57.
12This occurred upstairs in her cousin's room and then you took her downstairs on your back, and she described you as ‘just sort of playing with her vagina’. Initially, you had your arms under her legs and again she described touching on top of her clothing in similar terms to the first incident. Again, it was a touching of short duration. The jury were not satisfied of penetrative conduct. Again, although it was of short duration, I do not characterise it as a fleeting touch. Charge 4.
Charge 6
13The third charge was Charge 6, which was covered in the complainant's second VARE which she made quite a considerable time later after making a further disclosure to her mother.
14In this instance, she said that you were present at the victim's home. She was playing with her sister. You took her into the bathroom and locked the door behind you.
15You swung her around and you put her down on the ledge of the bath. She was standing up on the ledge. You lifted her shirt and sucked her nipple for a few seconds; she tried to pull her shirt down, but you lifted it up again.[8] Her sister was using a pin to try and unlock the door, and you put her down. You stopped sucking her nipple when you became aware of that.
[8] Complainant’s Further VARE, Q+A 45.
16So those are the circumstances of Charge 6, as per her VARE, which were circumstances accepted by the jury.
17On 8 November 2022, Briony Hanlon noticed her son doing something she thought was amusing in the hallway near the victim's bedroom. There was a CCTV camera in the victim's bedroom, and she wanted to watch the footage to see again what her son had done. On the footage, she saw you pinching the victim's bottom in the bedroom as she was climbing up the ladder to the top bunk. You had been about to leave with Sally McKenzie, and you had come back inside to get your mobile phone, which Irene Hall had taken.
18You were acquitted of that charge, and it is only relevant to explain the narrative of how Irene Hall came to tell her mother about the offending.
19After she had seen that footage, Briony Hanlon spoke to her daughter, who told her that you had been touching her vagina.
20Briony Hanlon told Sally McKenzie, and she told her mother. The matter was reported to police on 10 November 2022 and on 14 November 2022, a VARE was conducted at Benalla SOCIT. Later, the victim told her mother about the circumstances of Charge 6, and the second VARE was conducted on 19 July 2023.
21When you were interviewed, you denied the offending and, of course, that was the position you took in the trial of this matter.
22Regarding the charge relating to pinching Irene Hall’s bottom, the main issue before the jury was whether that occurred in sexual circumstances and the jury were not satisfied of that, so you are not to be sentenced for that conduct.
Victim Impact Statements
23Victim Impact Statements were tendered from the victim’s grandmother, Irene Hall herself and Briony Hanlon. Irene Hall describes how her conflicting emotions about the offending have affected her relationship with her mother and as a result she has been to see counsellors. She describes the emotional pain the offending has caused. She says it is harder to express her feelings, and she has been bottling everything up. She has seen counsellors over various periods since the offending came to light. She said she feels stressed and overwhelmed.
24Although the offending caused her some physical pain, she says the pain has been more mental. She has had trouble sleeping at the time of the offending because she was thinking about how to tell her mother about the offending. She felt less social, and she felt sad. She was scared at first because she did not know what was going on.
25Briony Hanlon refers to the close relationship she had with her sister Sally. She saw Sally and her children and you daily. The families had many outings, dinners and holidays together. She says you have destroyed the family dynamic. Whilst she does not ever see a life without her sister in it, seeing you infuriates her and has put a strain on their relationship. Her nephew, Sally’s son, often asks why Irene is not allowed to visit or have sleepovers any longer. Irene herself does not want to lose contact with her aunt.
26Briony Hanlon saw a counsellor to deal with some of her emotions, but she struggles. She says Irene’s personality has changed. She says the stress of dealing with the legal side of your conduct has affected her relationships, that is Briony’s relationships and changes in Irene have been distressing for the whole family. Irene now mainly plays with girls, and she sees boys differently. Irene’s attendance at school has at times been low. The toll of your offending on her has been significant.
27The victim’s grandmother describes how difficult this time has been for the family. She has observed a big difference in Irene’s personality and says she is no longer the happy, bubbly child she once was. She feels in the middle, as the mother of Briony and Sally. Her relationship with Sally and the grandchildren has changed. They do not come over very often anymore and she does not visit them very often. She says, 'We no longer have family gatherings like Christmas, Easter, birthdays'. She feels torn between her two daughters and she cannot be part of Sally and her grandchildren's lives in the same way.
Gravity
28Sexual offending against children is rightly considered abhorrent by the community. The law presumes that such offending will have ongoing psychological consequences for victims. The victim impact statements establish that the impact of your offending on the victim has already been substantial. The impact on Briony Hanlon and the victim’s grandmother has also been significant. You have caused a division within the wider family by your conduct. You have placed your partner Sally and the victim's mother in an invidious position. This is likely to be ongoing. This, in turn, has affected Irene Hall.
29In this case there are two significant aggravating circumstances which are: the young age of the victim at the time of the offences, she was around nine years old; and the breach of trust involved in the offending. Briony Hanlon allowed you to associate with her children because you were the partner of her sister. You abused this trust with Irene, who, as I said, was around the age of nine.
30In my opinion, the only rational motivation is that you offended for sexual gratification. The offending was brazen taking place in the victim's house and your house and when others were present including children.
31Charge 6 involved you offending after you had locked the bathroom door.
32The context evidence led in the trial serves to rebut any suggestion that your actions were isolated to three occasions, but I emphasise that you are not to be sentenced for those matters.
33The charged incidents here were brief and the touching apart from Charge 6 was over clothing. These matters are relevant to the assessment of the objective gravity of the offending and the physical acts themselves are at the lower end of sexual offences heard by this court. That observation is in no way intended to diminish the gravity of the offending or its impact, but simply to put its objective gravity in context. Whilst the acts may have been at the lower end of the spectrum, the aggravating factors I have referred to are significant in deciding the appropriate sentence.
Standard Sentence
34As I have already noted, the standard sentence for sexual assault is four years' imprisonment. The standard sentence applies to an offence in the mid-range of seriousness based only on its objective factors. The standard sentence is just one of the many matters to which I must have regard in deciding the sentence in this case. It is a legislative guidepost or yardstick. In deciding the sentence in this matter, I have had regard to the standard sentence. As will be seen, the sentences I will impose are less than the standard sentence.
35In having regard to current sentencing practices for a standard sentence offence, I am only allowed to have regard to sentences imposed since the introduction of the standard sentencing scheme. In this case, neither counsel referred extensively to current sentencing practices. It is unusual to be sentencing for discrete acts of sexual assault in this court. Usually, such acts are coupled with more serious acts.
36Nonetheless, I have attempted by perusing the case summaries and statistics to gather information about current sentencing practices which are of course a guide but not a controlling factor in deciding the appropriate sentences.
Personal circumstances
37Turning then to your personal circumstances. You are now 30 years old, and you were born in October 1994. You were brought up in Kyneton. You have an older brother and an older sister and a younger sister. You remain close with your siblings who have all provided references on your behalf. You describe yourself as having a normal childhood.
38Your family moved around the Kyneton area when you were growing up. Your mother and father separated when you were young. You lived with your mother in Benalla, but you had some contact with your father. I was told you do not have any significant contact with him anymore.
39Your mother re-partnered. Your stepfather died in a motor vehicle accident just last year.
40At school you had some learning difficulties. You went to Benalla College. You finished Year 9. You had some behavioural issues at school largely related to learning issues. You started an apprenticeship as a diesel mechanic at the age of 16. You left that to become a shearer, and you have worked as a shearer since your teenage years.
41You are the sole income earner in your family. Your partner is Sally McKenzie. You have been together since 2020. Together you have a daughter who is now three years old, and Sally has a son who was born in 2018.
42I was told, and I accept, that you work long hours in your employment as a shearer to support your family.
43You have a prior conviction for recklessly causing serious injury in 2015. You received a 24-month Community Correction Order with substantial work hours and treatment and rehabilitation. You have another prior conviction for criminal damage in 2017. You have no prior convictions for sexual offending. You cannot claim an unblemished history and the priors have some relevance in assessing the character material, but this offending is of a different nature and, therefore, the priors have limited significance to sentencing in this matter.
References
44Letters of support were tendered from the following people:
(a) Mary Lionel,[9] who is a friend of your sister;
(b) Charles Groves,[10] your younger brother;
(c) Diedre Smith,[11] your younger sister;
(d) Richard Bachelor,[12] a friend and a fellow shearer;
(e) Sue Cauchi,[13] your mother;
(f) Ashley Cauchi,[14] your brother;
(g) Amanda Ferrero,[15] a social worker, a friend of your mother; and
(h) your partner, Sally McKenzie.
[9]A pseudonym.
[10]A pseudonym.
[11]A pseudonym.
[12]A pseudonym.
[13]A pseudonym.
[14]A pseudonym,
[15]A pseudonym.
45Sally McKenzie says you have been in a relationship together for almost five years. She says you have a great relationship with her son and your daughter. She says you are a fantastic father, a good person and she will continue you to support you. She says that if you receive a prison sentence, it will have an impact on her mental health. She was diagnosed with depression and anxiety in 2019, conditions she still struggles with. She says you have been a great support to her in that regard. She is worried about how the family will cope financially in the event of a prison sentence.
46Mary Lionel has known you for over 10 years and describes you as a family-oriented person who loves his siblings and his children.
47Charles Groves, your younger brother, says he has always looked up to you. You have always been there for him ready to offer a kind word or lend an ear when he needed someone to talk to. You stay connected with him by playing online games a couple of times a week.
48Diedre Smith, your younger sister, says you were a pillar of strength to your family after the passing of her father and your stepfather last year. She thinks you are a good uncle to her two children, and you have always been dedicated to your children.
49Richard Bachelor describes you as a friend who is reliable, kind and hardworking. He says you are dedicated to your family.
50Sue Cauchi says you faced many challenges growing up and you struggled to fit in and form lasting friendships at school. She describes you as a dedicated and hardworking man. She says many other things which I have taken into account.
51Ashley Cauchi your older sister characterises you as a dedicated brother and a hard-working individual committed to providing for your family. You have been consistently supportive to her over the years.
52Amanda Ferrero has known you since you were born and watched you grow up, says that you are compassionate and willing to help others.
53That is a summary of the character material, which I have taken into account.
54Your counsel, Mr Connolly, relied on good character as a mitigating matter as attested to in the letters of support. He submitted the letters establish you are a good father, a supportive partner and a hard worker. The prosecutor, Ms Pezzimenti, submitted that pursuant to s5AA of the Sentencing Act 1991, I should disregard character as a mitigating factor.
55Section 5AA provides that I must not have regard to previous good character if I am satisfied that previous good character was of assistance to the offender in committing the offence.
56In the case of Fichtner v The Queen[16], the Court of Appeal held that this section is only engaged when the sentencing judge is affirmatively satisfied that the offender's prior good character and lack of previous convictions was of assistance to the offender in the commission of the offences.
[16]
57In the case of DPP v Ooms[17], the offender was a female teacher who had committed four sexual penetration offences against a 16-year-old male student at a school where she taught. The Court affirmed the interpretation in Fichtner that the Court must be affirmatively satisfied of the connection between good character and the offending. The Court considered some New South Wales authorities and observed that if an offender took advantage of his or her status as a person of good character in some discernible way to commit the offending, then s5AA would be engaged. The Court adopted the suggestions of Beech-Jones CJ, as he then was, in Ryan[18], that good character or the lack of convictions must have made some material contribution to the offender committing the offence.
[17][2023] VSCA 207
[18]Ryan v The Queen (2001) 201 CLR 297
58In Ooms, the Director argued that the offender's good character and the absence of convictions enabled her to gain employment as a teacher which brought her into a relationship of care, supervision and authority over students, which included the victim. In that role she had access to the victim and made initial contact with him, which progressed to sexual intercourse outside school hours; and, therefore, her good character and prior convictions were of assistance in the commission of the offending. The Court of Appeal said that employment as a teacher did no more than place the offender in the position of care, supervision and authority, and her status did not answer the question about whether good character or lack of prior convictions assisted the respondent to engage in sexual relations with her student. The Court said it was difficult to discern what role good character or lack of prior convictions played in assisting the offender to make initial contact with the victim. Further, even assuming her position as a teacher had been gained through lack of convictions, that did not necessarily mean it assisted in committing the acts of sexual penetration. The teacher/student relationship, whilst instrumental to the initiation of the first contact, became progressively less relevant during the relationship.
59In this case, the prosecution submitted your good character as a family man allowed you to have ongoing contact with the victim, which facilitated the offending.
60In my opinion, there is little evidence on the question of whether your suggested good character as a family man, or in respect of children, played any real or discernible role in your contact with the victim and her family. The evidence is that your contact with the victim came about because you were the partner of Sally McKenzie, her aunt.
61I do not know whether you presented yourself as a person of good character or Sally McKenzie did in respect of children or as a good family man or whether Briony Hanlon really turned her mind to your suggested good character or simply accepted your presence and involvement with her children because you were her sister’s partner. I am simply unable to discern on the material an affirmative connection between good character and the offending in this case. I have already said you breached a trust that Briony Hanlon placed in you as the partner of Sally McKenzie and there's no doubt about that, but I am not satisfied that s5AA precludes me having regard to the character evidence in this case.
62That said, it is a regular feature in cases of sexual offending against children that the offender has no prior convictions. Here the offending itself committed against your partner's niece was a very substantial breach of trust, a matter which tends to undermine and overwhelm your credentials as a family man.
63However, I take into account that you have obviously been a supportive brother and partner and a good father and hard worker. You have been a productive member of the community. These matters are to your credit and are relevant to the assessment of your prospects of rehabilitation and the weight to be given to specific deterrence.
64Your prospects of rehabilitation are not easy to assess. You deny the offending. Therefore, it cannot be said you have shown remorse or insight. You sought sexual gratification with a young child. On the other hand, you have no relevant prior convictions, you have support in the community and employment available to you. There is obviously uncertainty in these circumstances. Doing the best I can, In my opinion, you have reasonable prospects of rehabilitation.
65In sentencing you, I take into account that this is your first sentence of imprisonment, and you are aware you are leaving your partner and children in very difficult circumstances which increases the burden of the imprisonment for you.
66I am not satisfied that the, based on the decision of Markovic[19], that I should take into account the direct impact on Sally McKenzie and your children, because I am not satisfied exceptional circumstances exist. I am satisfied that the sentence will weigh heavily on you because of the situation you are leaving them in, and I have had regard to that in deciding the sentences in this case.
[19]Markovic v The Queen [2010] VSCA 105; 30 VR 589
Serious Sexual Offender
67I intend to impose prison sentences for Charges 2 and 4 and, therefore, you will be sentenced as a serious sexual offender for Charge 6. This means that the presumption of concurrency is reversed and sentences for serious sexual offender offences are cumulative, unless otherwise ordered. However, the serious sexual offender provisions do not exclude the application of totality principle. In this case, as it happens, I have formed the view that Charge 6 should be the base sentence. Additionally, the serious offender provisions provide that in sentencing for a serious sexual offence, community protection is to be regarded as the most important sentencing principle, and I have taken that into account. A disproportionate sentence is not justified in this case and nor was one asked for by the prosecution. In sentencing you for Charge 6, it will be noted in the records of the court that you have been sentenced as a serious sexual offender for that charge.
Sentencing Principles
68For these sexual offences against a young child, I must through the sentence I impose denounce your offending which, as I have already said, the community regards as abhorrent. The sentence I impose must also signal to other potential offenders that such conduct will not be tolerated and will result in significant punishment. I must also have regard to the need to deter you from any further offending of this type. Just punishment for this offending is required given particularly the significant ramifications to Irene Hall and the wider family. Your rehabilitation remains a matter of significance, and I have had regard to the need to facilitate your rehabilitation particularly when deciding the appropriate non‑parole period.
Totality
69The totality principle which requires that the total effective sentence is just and proportionate to the overall criminality of the offending. Significant concurrency between the sentences is required to give effect to this principle.
Non parole period
70The non-parole period mitigates a punishment in favour of rehabilitation. It must though be consistent with the objective gravity of the offending. It is the minimum period justice requires you to serve before becoming eligible for release on parole. In fixing the non-parole period in this case, I have allowed for a reasonably significant period of supervision, and I have had regard to my assessment of your prospects of rehabilitation and the other mitigating factors I have outlined.
71In respect of these matters I impose the following sentences.
72In relation to Charge 2 of sexual assault you are convicted and sentenced to 18 months' imprisonment.
73In relation Charge 4 of sexual assault you are convicted and sentenced to 18 months' imprisonment.
74In relation to Charge 6 of sexual assault you are convicted and sentenced to 22 months' imprisonment.
75Six months of the sentence on Charge 2 and six months of the sentence on Charge 4 are cumulative on the base sentence and on each other.
76That makes a total effective sentence of 34 months. I fix a minimum non‑parole period in this matter of 18 months. I allow pre-sentence detention which is on my calculation 43 days. As I said it is noted in the records of the court that you are sentenced as a serious sexual offender for Charge 6.
Sex Offenders Register
77The Sex Offenders Registration Act applies. I have to make an order under the Sex Offenders Registration Act, that is a mandatory order, that is life registration. You will be sent material, Mr Cauchi, that outlines your obligations under those orders and pursuant to the Sex Offenders Registration Act, and I am sure Mr Connoly will explain that to you as well.
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