Director of Public Prosecutions v Christofidis
[2012] VCC 715
•29 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02167
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER CHRISTOFIDIS |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2012 | |
DATE OF SENTENCE: | 29 May 2012 | |
CASE MAY BE CITED AS: | DPP v Christofidis | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 715 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms P. Long | |
| For the Accused | Mr M. Gumbleton |
HER HONOUR:
1 Peter Christofidis, you have been found guilty by jury verdict of three counts of indecent act with a child under the age of 16 (Charges 1, 2 and 3).
2 The maximum penalty for each of these offences is 10 years’ imprisonment.
3 The prosecutor sought an order for the taking of a forensic sample pursuant to s.464ZF of the Crimes Act 1958. This application was consented to.
4 You have spent 27 days in custody by way of pre-sentence detention.
5 It is agreed that pursuant to the Sex Offenders Registration Act 2004 you are subject to the reporting requirements of that Act for a period of 15 years. Each of these offences is a Class 2 offence. They arise out of the same incident but were committed against two people. Pursuant to sections 34(3) and 5(1) of the Sex Offenders Registration Act 2004 the offences are treated as two Class 2 offences.
6
Your offending occurred in the following circumstances. On 22 May 2010, you were at your friend AB’s house. You and AB had a business friendship which had developed into a personal relationship. You had been a friend of AB and her family for some time. AB has two daughters, to whom I will refer for these purposes as AN and AY. AY was then 10 years old. AN was 16 years old. At the house for dinner that night were you, AB, AY and her friend JR,
James Sunderland, Bonnie Kennett, Malcolm Kellett and Bruce Smith. Malcolm Kellett and AB had been living together for some time but were separated under the same roof at the time of this dinner. Mr Smith was a work colleague of Mr Kellett’s. James Sunderland is described as AB’s foster son. Bonnie Kennett is his girlfriend. They also lived at the house. JR was 11 years old and AY’s best friend. She was at the house that night to have a sleepover.
7 The group of people, including yourself, had a barbecue dinner and then started playing a game of Trivial Pursuit in the lounge room. At about 9:30 pm AY and JR went to AY’s bedroom to watch a DVD. At around 11:30 pm AY went into the lounge room and was told by her mother to return to her bedroom. AY and JR went to bed. AY was sleeping on her bed and JR was sleeping on a made-up bed on the floor next to AY’s bed.
8 Sometime that night between about 11:30 pm and about 1:00 am, you went into AY’s bedroom three times. During the first and second occasions you said goodnight to each of the girls and kissed AY goodnight. On the third occasion you tried to put your hand down AY’s pants. She kept pushing your hand away. During this interaction you touched AY on what was described as her “bum cheek” underneath her clothing. This conduct was the subject of Charge 1, indecent act with a child under 16.
9 You then moved over to where JR was sleeping on the floor. You tried to put your hand down her pants. She moved away. Her evidence, which was by their verdict accepted by the jury, was that you had put your hand to the extent of your fingertips or fingernails down her pants. That conduct is the subject of Charge 3, indecent act with a child under 16.
10
You then moved back to where AY was sleeping. While she had her eyes closed, you grabbed her hand and put your penis in her hand. You held her hand around your penis. She asked what it was and you said it was your hand. She opened her eyes and saw that your penis was in her hand. She described your penis as being like a cold sausage. You then left the bedroom and returned out to the group of adults. This conduct is the subject of
Charge 2, indecent act with a child under 16.
11 At about 1:00 am, AN and her boyfriend, Dylan Couper, arrived back at the house and went to AN’s bedroom. AY had gone to the bathroom to wash her hands and asked JR to get AN. When AN went into the bathroom she saw that her younger sister was visibly distressed. AY then described what had happened to her. JR then said that something had happened to her also.
12 Police were called. You left the address but returned a short time later.
13 Three victim impact statements were tendered as being Victim Impact Statement of AY (Exhibit A), Victim Impact Statement of AB (Exhibit B) and Victim Impact Statement of KR (the mother of JR) (Exhibit C).
14 In her Victim Impact Statement, AY describes her unhappiness at this having occurred to herself and her friend. She said she began punching herself afterwards as a result. She says that she feels like she is being watched and has been very uncomfortable around people. She says she has lost her trust in people. She says she also keeps remembering and reliving what happened. AY is also clearly distressed at the change in her friendship with JR which was one of the consequences of this offending.
15 AB describes the difficulties that occurred after your offending including the time required for the purposes of attendances in order to have the matter prosecuted. AB also describes the trauma and stress to herself. She also describes the effect on her daughter who she says has become reclusive and withdrawn and lost her confidence.
16 AB says she has lost her trust in others and is stressed about her mental health and that of her daughter. She describes the adverse impact of this matter on the extended family.
17 KR describes her distress at this offending and says that she is extremely frightened for her daughter and the consequences for her. KR says that her daughter’s persona has changed and she is not the bubbly easy-going person that she used to be.
18 A folder containing material relied upon by your counsel was tendered as Exhibit 1.
19 I have taken into account your personal circumstances in sentencing you. You are 51 years old. You were born and raised in the Melbourne area. Your parents migrated to Australia in 1957. Your father came from Cyprus and your mother from Greece. They met coming on the way to Australia and married a year later in 1958. Your parents were both hardworking with your mother working as a cleaner and your father working at the Board of Works.
20 Your father was diagnosed with a tumour in 1969. He lived for a further 27 years but was severely affected by his condition. He spent most of his time, as I understand it, in the Royal Melbourne Hospital being discharged for a month or two at a time. He could not work because of his condition.
21 In 1972 your mother sustained a back injury and spent over two years in hospital. There were times during this period when both your parents were hospitalised. You were at that time 12 and your sisters 13 and 10. When you were 12 you began working as a kitchen hand at a local restaurant. This employment continued throughout your secondary education.
22 Your mother returned home in 1975 but was unable to work and then received a disability pension. Your father passed away in 1996. Your mother still lives in the family home.
23 You successfully completed high school and were a Form Captain and Captain of various sports teams. You attended Latrobe University and studied part time whilst working full time. You left university in 1984 without completing your Degree. You have been constantly employed since that time.
24 You have had a successful employment history. You were promoted to a branch manager in a finance corporation six months into your 12 month deferral from university. You were then employed as a State manager with another financial services company. You worked as a sales and business development manager for two companies. You then were employed as a business development manager for a commercial laundry service. You then were a State manager for a company selling industrial washers and dryers. You suffered a knee injury at work in 2002 and were on Workers’ Compensation until the end of 2003. In 2004 you returned to work with a property development company.
25 You then started your own business with a colleague from the property development group, purchasing and renovating properties which were leased to students. At the same time you took a position as a sales consultant selling time shares. Your property business failed. Your instructions are that you failed to properly oversee the finance company and your partner poorly managed the investments. You had provided a personal guarantee. You took out bank loans to ensure that all creditors would be paid. The resulting debt to the bank stands at approximately $600,000.00.
26 You then took a job in real estate in addition to working selling time shares. In 2008 you damaged your knees again. You had arthroscopes in 2009. At the end of 2009 you took up a position with Townsend Homes employed as international sales and business development manager. In that role you travelled to developing countries in Asia to arrange for people to migrate to Australia. I am told this would involve the customer receiving Australian Citizenship in return for buying a home from the company and starting a business in Australia that would employ at least three Australian citizens.
27 You resigned from your position as a result of the jury verdict.
28 You married your wife in 1986 and have five children aged between 24 and 18. The two youngest are twin boys. You and your wife separated in 2004 although you continue to live at the family home in a separate bungalow and continue to play an active role as father to your children. Only one of the children is working full time.
29 You have been advised you will require surgery to your knees.
30 Very sadly in October 2011, one of your twin sons was seriously injured in an accident. He suffered considerable burns as a result of which he has had to undergo many operations and requires further surgery.
31 You have no prior criminal history.
32 In sentencing submissions your counsel submitted that a wholly suspended sentence of imprisonment would be the appropriate sentence. Your counsel particularly relied in mitigation on:
(a) Your very long and successful work history;
(b) Your lack of any prior offending;
(c)Your compliance with restrictive bail conditions;
(d) The lack of various aggravating features in your offending;
(e)The situational and spontaneous nature of your offending;
(f)The relatively short duration of your offending;
(g)Your lack of persistence in the face of resistance;
(h)The difficulties that you will face in incarceration in view of your separation from and inability to support your family financially and in relation to your son’s difficulties;
(i)The positive character references;
(j)The injuries to your knees;
(k)Your co-operation in returning to the house;
(l)Your lack of any subsequent offending;
(m)Steps taken towards reformation including acceptance of a referral to a psychologist.
33 Your counsel submitted that a wholly suspended sentence would meet the requirements for a sentence which would meet the sentencing purposes of denunciation, community protection and general deterrence. Your counsel suggested that you have good prospects for rehabilitation and that this was an isolated incident. Your counsel submitted that it would be desirable to wholly suspend any sentence of imprisonment. If I were against him on that your counsel submitted that any sentence should be partially suspended.
34 The prosecutor in sentencing submissions suggested that this was a very serious example of this type of offence. She addressed the effect on the complainants and the distress displayed by AY at the time. The prosecutor suggested that there were aggravating features of breach of trust and that the offences occurred in the home of one of the complainants where she was entitled to feel safe and secure. She said that there was a further aggravating feature in that this occurred in the presence of each of the complainants and that there was a very considerable age difference between you and the complainants.
35 The prosecutor submitted that giving effect to general deterrence and specific deterrence would require a custodial sentence. She said specific deterrence was of particular significance given your continued denial of the offending. She submitted that such a sentence was appropriate from the point of view of just punishment. The prosecutor submitted that there was some planning involved in that you returned to the bedroom for the third time.
36 The prosecutor said that her sentencing instructions were that the appropriate sentence would be a head sentence of 15 to 24 months with a nine to 18 months non-parole period. She submitted that the opportunity for parole might provide for the opportunity for you to have appropriate psychological treatment and undergo some supervision.
37 In relation to comparable sentences the prosecutor referred me to the cases of R v Wayne Arthur Scott [2009] VSCA 20 and HRJ v R [2011] VSCA 217.
38 Your counsel referred to the relevant Sentencing Snapshot and suggested that there was a wide sentencing range for this type of offending. He also urged me to consider that whether in view of your background and your subsequent behaviour, supervision was required for you. He suggested this in support of a partially suspended sentence rather than a non-parole period.
39 You committed these sexual offences against young girls. They are serious examples of this type of offending although, sadly, I do not consider these to be very serious examples of such offending when compared to other cases that come before this court. You were a trusted family friend of one of them. You seriously breached her trust and the trust of her mother. You took advantage of that trust to return to the girls’ room and sexually offend against both of them. The offending occurred in a place where both girls were entitled to feel safe and protected. You were very much older than the girls which is another aggravating feature.
40 You were prepared to do what you did despite both girls being in the room. From the evidence given during the trial I consider it very unlikely that either girl saw exactly what you were doing with the other girl. I do not consider this to be an aggravating feature in the way it would have been if you had committed an indecent act in the clear view of the other child.
41 You continued your offending despite an initial physical rebuff by AY who pushed your hand away and a second rebuff by JR who did the same. I accept that you did not persist with force. You did however put AY's hand around your penis. It appears from the evidence that you had drunk a significant amount of alcohol. I am satisfied that you were to some degree disinhibited by the effects of alcohol and gave way to most unworthy and base impulses.
42 The harm that this kind of offending causes to individuals and their families is reflected in the Victim Impact Statements. There is no doubt that the consequences of your offending will also have a negative impact on your family. The prospect that a trusted friend could behave in this way towards children while a guest in the family home horrifies members of the community. This type of offending undermines the ability of members of the community generally to trust each other. Your offending must be strongly denounced and appropriately punished. A sentence ought to be imposed which deters others from giving way to these types of impulses.
43 I accept that the offending was appropriately described as situational and spontaneous. You did go back for a third time which suggests that you were acting on an impulse developed during the previous two visits or while playing Trivial Pursuit but I am not satisfied there was any thinking involved which could properly be described as planning.
44 You have no prior criminal history. The references support a conclusion that you are generally a person of good character. You have employment, family support and purpose in life in supporting your family. I note your preparedness to accept a referral to a psychologist for counselling and what is described as your ‘anguish’ at this situation. These factors would suggest that your prospects for rehabilitation would be very good if it were not for your denial of this offending. Your denial and lack of remorse reduces your prospects of rehabilitation to good. I consider that specific deterrence ought to be given weight in your sentence to deter you from ever allowing yourself to be in this type of situation again. I make it clear that I have taken your denial of your offending into account only in assessing your prospects for rehabilitation. Your denial does, of course, mean that you are not entitled to the discount you would have received had you pleaded guilty.
45 I accept that the matters relied upon by your counsel operate in mitigation of this sentence except for the following matters. You did persist in offending despite resistance although I accept you did not persist with attempting to touch the girls under their clothing when they resisted. I accept that you have medical problems with your knees especially your left knee but am not satisfied that these problems will make your incarceration more difficult.
46 In relation to that last matter I do accept that your family’s financial situation and the very difficult situation with your injured son will weigh heavily on you and will make any incarceration considerably more burdensome. I have particularly noted what your wife has said in her reference about both those matters together with the medical material in relation to your son.
47 I have taken into account the material in Sentencing Snapshot Number 113 “Sentencing Trends in the Higher Courts of Victoria 2005–06 to 2009–10: Indecent Act with a Child Under 16”, the cases to which I was referred, the summaries of sentences in cases involving indecent acts with children under 16 in the Victorian Sentencing Manual and my knowledge of sentences in similar matters. I consider that a sentence of imprisonment is warranted for the purposes of denunciation, just punishment, general deterrence and specific deterrence.
48 I consider a sentence of imprisonment is warranted on each charge. Accordingly in relation to Charge 3 you will be sentenced as a serious sexual offender and I must regard the protection of the community as the principal purpose for which the sentence is imposed. I do so but do not consider in this case that a disproportionate sentence ought to be imposed for that purpose in light of your lack of prior criminal history and good prospects for rehabilitation.
49 I consider that you ought to be required to serve a portion of the sentence of imprisonment imposed. To do otherwise would not give proper effect to the sentencing purposes to which I have referred. After careful consideration I have decided that it would be desirable to suspend that part of the sentence which you are not required to serve in custody. I have taken into account the need to adequately denounce your offending, deter yourself and others, reflect the gravity of the offending and the degree of risk of your future offending. In my view it would enhance your prospects for rehabilitation and the protection of the community if you were able to plan on a definite release date. You are a person of mature years who has demonstrated competence and application in the workplace. You are capable of taking the steps that need to be taken, including counselling, without the supervision of the Parole Board. The prospect of a period of imprisonment hanging over you after the period served ought, in my view, be sufficient to encourage you to take those steps and to deter you from future offending.
50 The offending which is the subject of Charge 2 is the most serious. It quite understandably caused revulsion in the mind of AY. It is appropriate to order some cumulation of the sentence on Charge 1 to reflect the different type of offending. It is also appropriate to reflect the fact that a second person was offended against with some cumulation of the sentence on Charge 3.
51 I have taken into account the principles of totality and proportionality in determining the appropriate individual sentences and the degree of cumulation. Once I have sentenced you, you will be given a document setting out your obligations under the Sex Offenders Registration Act 2004. You will be asked to sign a form to acknowledge receipt of that documentation.
52 On Charge 1 you are convicted and sentenced to a term of imprisonment of 6 months.
53 On Charge 2 you are convicted and sentenced to a term of imprisonment of 12 months.
54 On Charge 3 you are convicted and sentenced to a term of imprisonment of 6 months.
55 The sentence on Charge 2 is the base sentence. One month of the sentence on Charge 1 and 3 months of the sentence on Charge 3 are to be served cumulatively on each other and on the sentence on Charge 2.
56 The Total Effective Sentence is 16 months imprisonment. That sentence is partially suspended. You are to serve five months of that sentence. Eleven months of that term is suspended for a period of 16 months.
57 I declare that you have served 27 days by way of pre-sentence detention. I order that that declaration be recorded in the records of the court.
58 I am making an order pursuant to s.464ZF of the Crimes Act 1914 for the taking of a forensic sample. I am satisfied in all the circumstances that that order is warranted, that is because of the seriousness of the offending and that the application was consented to.
59 Mr Christofidis, I am required to inform you that someone will come to take a sample from you which will be taken by a saliva swab of the mouth. If you do not co-operate then the authorities are authorised to require you to have a blood test and they are entitled to use reasonable force in order to effect that. I am sure that you will co-operate with them. Thank you.
60 Now Mr Christofidis, as I have said, 11 months of the sentence is suspended for 16 months. That means that you must comply with the law for the next 16 months. If you commit any offence for which imprisonment is a potential penalty then you will be brought back before the court. Unless there are exceptional circumstance you will be required to serve that 11 month sentence. So it is very important that you stick strictly to the law, well it is obviously important anyway, but particularly for this reason it is important that you stick strictly to the law for the next 16 months.
61
I am going to ask my associate to come, perhaps with your counsel,
Mr Gumbleton, to give you the paperwork for the Sex Offenders Registration Act she will ask you to sign. All you are signing for is that you acknowledge that you have received that paperwork.
62 Thank you Mr Gumbleton, would you mind going with Ms Hutchinson. Thank you.
63 Just take a seat for a moment please, Mr Christofidis.
64 Mr Gumbleton, is there anything arising from that you need clarification of or repetition of?
65 MR GUMBLETON: No thank you Your Honour.
66 HER HONOUR: You have got it?
67 MR GUMBLETON: Thank you. I will explain that to him when I see him shortly.
68 HER HONOUR: All right, thank you. Ms Long?
69 MS LONG: Sorry Your Honour, I have not had the benefit of seeing the paperwork, just to confirm it was for 15 years.
70 HER HONOUR: Fifteen, yes.
71 MS LONG: I know you referred to it earlier Your Honour.
72 HER HONOUR: Yes 15 years, I think that is all. Please just check it. If there is a slip then please let me know as soon as possible, in fact this week because after this week I will not be around for a while. Thank you very much.
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