Director of Public Prosecutions v Christofis (a pseudonym)

[2016] VCC 869

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ISAAC CHRISTOFIS (A pseudonym)

---

JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2016
DATE OF SENTENCE:	23 June 2016
CASE MAY BE CITED AS:	DPP v Christofis (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 869

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dipietrantonio
For the Accused	Mr V. Azzopardi

HER HONOUR:

1Isaac Christofis[1], you have pleaded guilty to one representative charge of sexual penetration of a child under the age of 16 years under your care, supervision or  authority.  That is in indictment F11012727.  And on a separate indictment, a charge of use an unregistered category CD long arm and two charges of possessing an unregistered category AB long arm.  That is on

[1] A pseudonym.

a different indictment F11193439.

2The maximum penalties for these offences are as follows.  For sexual penetration of a child under 16 under the care, supervision and authority,
15 years.  Use an unregistered category CD long arm, four years' imprisonment or 240 penalty units.  Possessing an unregistered category AB long arm, two years' imprisonment or 120 penalty units.

3The offending in relation to the sexual penetration charge occurred between
31 January 1992 and 30 January 1996.  The offending in relation to the firearm offences occurred on 22 February 2015.  Although there is a significant time lapse between the commission of all the offences, the offending is related.

4I note the sexual penetration charge is representative and that reliance is placed by the prosecution in the Crown summary dated 24 February 2016 on the first occasion of penetration as the factual basis for each of the occasions the charge represents. 

5The significance of the charge being representative is twofold.  First, it should be understood that the occasion referred to, namely the first time that the complainant performed oral sex on you, is not an isolated event.  Secondly, it provides a context, a wider context for the extent of your offending.

6In 1984, you met Emma Christofis[2], the complainant's mother and commenced

[2] A pseudonym.

a relationship with her.  She had two children.  From approximately 1987 when the complainant was aged about seven, you engaged in grooming behaviour with her involving you being especially nice to her, touching her in an inappropriate manner and seeking her attention.

7In 1992 you moved to Dromana with the family when the complainant was aged about 12.  It was at this house when you first engaged in oral penetration with the complainant, inserting your penis into her mouth.  This occurred approximately weekly between 1992 and 1996, a four year period.  You would instruct her how to perform the act and ejaculate in her mouth.  On some occasions you would be exposing yourself or masturbating and it would start from there.

8When the complainant was 12, she told her mother about the abuse.  Her mother did not believe her after she had spoken to you.  You denied the allegations and the complainant then said that she had lied.  You continued with the abuse and according to the complainant, became even more controlling.

9If the complainant refused, you would get upset and make life horrible for her and refuse to allow her to see her friends.  As the complainant got older, when she was around 14 or 15 years, you started to give her marijuana but would refuse to do so if she did not participate in oral sex with you.  You continued to offend in this manner when the complainant was aged between 16 and 17 years.  Both this conduct and the grooming behaviour referred to above are uncharged acts led as context to this offence.

10Years later, the complainant told her husband about the offending but asked him not to tell anyone.  In March 2014, he told the complainant's mother about the disclosure as he had concerns regarding his own daughter.  The complainant was angry and upset that her abuse had been revealed.

11The complainant's mother confronted you and you admitted the offending and said you would kill yourself if the police became involved.  A few days later, the complainant's husband obtained an interim intervention order against you.  When you became aware of this order, you met with him.  You were upset and looked unwell and frightened.  You said you were really sorry and that you wanted forgiveness.  You said you wanted to kill yourself.

12You also told him that it would have been better if he had not told anyone as the discovery had upset the complainant and her family.  You said you would not make any admissions to DHS who were now involved, given concerns they had regarding your access to your grandchildren.  He described you as being very controlling and focused on yourself during this meeting.

13A meeting was held on 22 May 2014 with you and DHS.  During this meeting you admitted the offending and stated that the complainant had disclosed the offending when she was 12 and you had denied it.  You denied any threats were made to her to participate in any sexual activity, rather it just became
a normality.  You said during the time of the offending you were affected by cannabis and you admitted that you had told others to lie to DHS.

14You said if the complainant went to the police you would kill yourself.  You said you would rather your father lost his son than die knowing his son was a sex offender.  The complainant did go to police on 22 February 2015.  You became aware that she had done so and at approximately half past five to six o'clock on that night, you went to your garage and removed a .22 long rifle calibre Gervenham brand carbine automatic semiautomatic rifle and ammunition.

15You went in the house, obtained a bottle of whisky, a chair and some medication, then went back outside.  You said you were going to kill yourself.  Police were notified and several police units, the Air Wing, the Dog Squad and Critical Incident Response Team attended.  Police attempted to negotiate with you.  In the course of these negotiations, you said you had planned this day for decades after you had molested your stepdaughter between the ages of 7 to 18.

16You wanted police to witness your suicide and you believed your family had been let down by you.  You deserved to die as you had abused your stepdaughter and had been living with the guilt.  At 9.20 pm you told police that if they didn't come to you, that you would walk down the street and find them.  You walked towards police on the street armed with a rifle.  You continued to walk towards them despite a warning to put the gun down.

17Police then released the police dog which grabbed you on the upper thigh.  You then discharged the firearm and shot yourself in the chest area.  That is the conduct constituting the first charge on the second indictment.  When police assisted you, you said you wanted to die.  Police conducted a search of your garage and located a .22 long rifle calibre Marlin brand bolt action rifle and
a .410 gauge Baikal brand model IJ-18 break open shotgun and some ammunition.  You did not hold the relevant licence or permit to have these firearms.  That is conduct amounting to Charges 2 and 3 on the second indictment.

18On 16 March you were arrested at the Frankston Hospital in relation to the firearm offences.  You made a no comment record of interview.  On 27 March 2015, you again attended a police station in relation to the sexual offending but declined to be interviewed.  No victim impact statement was provided by the complainant. Given the nature of this offence, the effect on he would have been significant.  I was also informed that her husband's actions in disclosing the abuse has led to the breakdown of her marriage.

19As to your personal circumstances, I was provided with a report from Dr Danny Sullivan, consultant psychiatrist, dated 24 February 2016 and I take that material into account.  You are currently aged 59.  You have a brother and
a sister.  Both your parents are aged in their eighties.

20You completed schooling till matriculation and then completed an electrical apprenticeship.  You gradually obtained different skills and worked as a self employed building until 1999.  That employment was interrupted in 2000 when

you were arrested for growing cannabis crops.  You ultimately obtained employment at a heritage property on the Mornington Peninsula where you performed various roles over a number of years.  You took a redundancy package from that job and have been unemployed since.

21You were in a relationship with Emma Christofis, the complainant's mother, for
28 years, though since these matters have come to light, you have separated and are in the process of obtaining a divorce.  You have had no contact with
Ms Christofis since the incident in February 2015 and you have lived with your sister since your release from hospital.

22I received a report from Dr Daniel Martinez dated 29 February 2016 which outlines your medical problems and your medication regime.  Some of your medical issues are as a result of the injuries you suffered in the incident in February 2015.  I take those matters into account.

23You reported that you commenced taking cannabis at age 13.  Your usage increased up until you were aged 42.  Your prior history reveals involvement with this drug, culminating in relevant convictions before and up until September 2000.  I was informed that this last matter related to a small hydroponic setup growing cannabis  that you had at your home.  You successfully completed
a community-based order imposed for those offences.  You indicated that you have not used cannabis since those matters were in court.

24Prior to your admission to hospital in relation to this matter, you have had no contact with mental health services or other mental health care professionals.  You reported to Dr Sullivan that you had been persistently worried and felt guilty about your past conduct with the complainant, and had been contemplating suicide, in the event that your offending was disclosed. 

25After events in February 2015, you were treated by Alfred Psychiatric Services.  You were diagnosed with depression and adjustment disorder, related to your pending criminal matters.  You spent five to six weeks in treatment, then were transferred to the mental health unit at Frankston, before you were discharged to live with your sister, Angela,[3] where you have remained until these proceedings commenced.  At the time of assessment by Dr Sullivan, you denied any suicide ideation.

[3] A pseudonym.

26As to your mental state at the time of the offending, Dr Sullivan was of the view as to the sexual offending, that at that time, you were suffering from no identifiable mental disorder of relevance, other than cannabis dependence. 

27In respect of the matter in February 2015, Dr Sullivan is of the opinion that your behaviour was affected by a mood disorder, which was precipitated by growing awareness that your prior sexual offending would be disclosed.  He opines that your suicidal ideation was causally associated with your depressive illness.  Your reactions demonstrate an impaired judgment and reduced capacity for calm and rational thinking.  Given your treatment and current presentation,
Dr Sullivan was of the view that your depressive illness is in substantial remission.  However, given the severity of it, you remain at high risk in high times of stress. 

28Your counsel conceded that Dr Sullivan's opinion did not support the application of Verdins regarding your mental state at the time of the commission of any of the offences.  Rather, it was submitted his opinion provided a context of your thought processes operating at the time of the February 2015 incident, relating to the abuse of your step-daughter, the disclosure of it and the effect on you and family members.  It was submitted that this was relevant to remorse, a matter I will address in a moment.

29You engaged the services of psychologist, Melissa Giaquinta for counselling and attended nine sessions between 16 February 2016 and 30 May 2016. 
A report, dated 31 May 2016 was provided to the court.  Both she and
Dr Sullivan are of the opinion that, given your mental health history, your mental health is likely to decline whilst you are completing a term of incarceration. 
I accept that this is the case and I also accept that your mental health or depression will make your incarceration more burdensome.

30I received a number of character reference from family and friends.  Some of them were in court for those proceedings.  It is clear that they view you as
a loving and generous brother or friend and that you have their support. 

31You have pleaded guilty to both of these matters at a relatively early stage.  Your plea has saved the cost and time to the community of a trial.  No witnesses, particularly the complainant, have been required to give evidence.  There is a utilitarian benefit to your plea. 

32Your plea is also indicative of remorse.  Your counsel submitted that there was material in the depositions, as well as material tendered on your behalf, consistent with remorse, including the extent of admissions that you have made. 

33I accept that you made admissions in relation to your sexual conduct to Emma Christofis, the complainant's husband, to DHS workers and with police members during negotiations in the February incident.  When those admissions were made, they were in the context of you also expressing regret for your actions and a determination to end your life as a consequence, and as events played out, almost happened. 

34Counsel for the prosecution submitted that even accepting that you made admissions, they were not accompanied with insight or victim empathy, rather your admissions were to be seen in the context of you continuing to attempt to control the situation with the expression of suicidal thoughts and thus emotional pressure and control on those to whom you were speaking before the police became involved. 

35Dr Sullivan remarks, there were some aspects of you minimising the offending, prior to the siege, notwithstanding your acknowledgement to child protection workers, that you were responsible for the offending.  This seemed motivated by a desire to avoid prosecution and distress to your family.  Minimisation is common and not prominent in your case. 

36I accept that you made significant admissions in relation to the full circumstances surrounding your sexual activity with the complainant.  I note, however, the context of these admissions, that they were accompanied by threats of suicide if police became involved.  I do accept that you have expressed genuine remorse for your conduct.

37As to your rehabilitation prospects, you have a number of prior convictions relating to cannabis.  I accept that these are not relevant to this offending and that you have had no other police involvement since 2000.  Relevant to your rehabilitation prospects, is events that have occurred in the period between the sexual offending until 2015.  Delay is not unusual in matters of child sexual abuse, given that children are reluctant to disclose this type of offending. 

38By the acceptance of you of the summary, your sexual conduct ceased when the complainant was aged about 17, in 1997.  There is no suggestion that you have been involved in any other of this kind of activity since then. 

39Taking into account the date of your last prior conviction, 2000, and the ensuring period of 16 years without re-offending, there is a significant indication of rehabilitation, and therefore specific deterrence is less important than it otherwise would be. 

40Given the circumstance of the firearm offences, linked as they are to the sexual penetration offence, the commission of those offences does not significantly detract from that view. 

41Dr Sullivan carried out a risk assessment, relying on validated reliable risk assessment instruments, which reflect both static and dynamic variables, together with his own clinical judgment.  He considers you to be at a low risk of future sexual offending.  You have good family support.  Given all the matters listed above, I accept that you have good rehabilitation prospects.

42There were some aggravating features in relation to this matter.  In respect of the sexual penetration offence, the offending occurred over an extended period of time and was accompanied by uncharged acts before and after that period.  Your conduct continued, even after the complainant had told her mother, when she was aged 12, of the abuse.  The complainant was provided cannabis to participate in the sexual activity. 

43Your conduct amounted to a significant and gross breach of trust.  You acted in the role of parent or step-father to the complainant.  The effect on the complainant was significant. 

44In respect of the firearms offence, you placed both police and others in the neighbourhood at significant risk of harm with the use of a firearm and events continued for a period of about four hours. 

45In sentencing you, I must take into account the current sentencing practices.  That enquiry is directly particularly, though not exclusively, to the kinds of sentences imposed in comparable cases, as reflected in the sentencing statistics or snapshot.  I am mindful that such material is of limited assistance, given the varied circumstances and sentencing considerations applicable to each individual case. 

46Sexual offending of this nature has features that require condign punishment.  As the Court of Appeal remarked in PG v The Queen, 213 VSCA 9 at 103:

"The sexual penetration by the parent of a child is a total repudiation of not only the high obligation of trust which ought necessarily adhere to the relationship between the two, but also of the respect which every person, but experience a parent, owes to the psychological integrity of everyone else, especially his or her children."

47Your offending involved the exploitation by the stronger will of you as the adult, of the weaker will of the child and the physical subordination of the child to your perverted indulgences. 

48Your counsel conceded that given the serious nature of your offending, that an immediate term of imprisonment was warranted.  In the course of proceedings, I indicated to him that I did not accept that a sentence that allowed for
a combination of a term of imprisonment and community correction order would be appropriate in the circumstances.  Your counsel conceded that there should be some cumulation between the sexual penetration offence and the firearm offences. 

49The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your conduct and protection of the community. 

50I take into account your plea of guilty, remorse, good rehabilitation prospects and your personal circumstances. 

51In 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.  I am required to balance those interests with the interests of the community in seeking to ensure, as far as possible, you, an offender, are rehabilitated and reintegrated into society. 

52If you could stand up please, Mr Chistofis.

53In respect of Indictment No.F11012727, that is that containing the one charge of sexual penetration with a child under 16, under the care, supervision and authority, you are convicted and sentenced to a period of four years' and six months' of imprisonment. 

54In respect of Indictment No.F11193439, that is the indictment containing the firearm offences, in respect of Charge 1, you are convicted and sentenced to
a period of 12 months' imprisonment.

55In respect of Charge 2, you are convicted and sentenced to a period of three months' imprisonment. 

56In respect of Charge 3, you are convicted and sentenced to a period of three months' imprisonment. 

57I order, in respect of Indictment F11193439, Charge 1, that six months of the sentence imposed on Charge 1 is to be served cumulatively with the sentence imposed on the Indictment F11012727.

58That leaves a total effective sentence of five years' imprisonment, and I set
a non-parole period of three years. 

59Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to these matters, I would have imposed a sentence of seven years' imprisonment, with a minimum term of five years.

60Pursuant to the Sex Offenders Registration Act, you have pleaded guilty to one Class 1 offence and registration is mandatory. You will be required to report for a period of 15 years, pursuant to s.34(1)(b)(1) of the Sex Offenders Registration Act.

61Application had been made for a disposal order and a s.464ZF sample, and
I understand that I signed both those orders when the matter was previously before me.  PSD please? 

62MS DIPIETRANTONIO:  I am just calculating that now, Your Honour. 

63HER HONOUR:  If you could take the relevant sex offenders' material and
Mr Azzopardi, if you want to go and speak with your client.

64MR AZZOPARDI:  Yes, Your Honour. 

65HER HONOUR:  Thank you. 

66MS DIPIETRANTONIO:  Twenty-one days, not including today, Your Honour.

67HER HONOUR:  Twenty-one days, all right, thank you. 

68Thank you.  I declare pre-sentence detention of 21 days.  Thank you, you can remove the prisoner.  Thank you. 

69COUNSEL:  As Your Honour pleases. 

70HER HONOUR:  Thanks, 9 o'clock tomorrow, thank you.

‑ ‑ ‑