Director of Public Prosecutions v Christoforidis
[2016] VCC 2038
•22 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-02162
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ELFTHERIOS CHRISTOFORIDIS |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 9 – 19 December 2016 | |
DATE OF SENTENCE: | 22 December 2016 | |
CASE MAY BE CITED AS: | DPP v Christoforidis | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2038 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Shaw | Office of Public Prosecutions |
| For the Accused | Ms G. Connelly Ms N. Valos (for sentence) | Valos Black & Associates |
HER HONOUR:
1 34 years ago, in December 1982, a young woman, only 19 years old, was dragged into a car as she tried to flag down a taxi after leaving a friend’s house in St Kilda at about two in the morning. There were four young men in the car. She was driven to a deserted spot, a car park near a beach, and there raped in turn on the back seat of the car by each of the four men. When the last had finished, they pushed her out of the car and drove away, abandoning her in the dark.
2 She was soon helped by kindly strangers, who took her to police. A statement was taken from her, she underwent a medical examination, and her clothing, along with forensic samples taken from her during the examination, were submitted for forensic testing.
3 Although forensic testing conducted the following year in 1983 revealed the presence of spermatozoa on the intimate sample swabs, and the victim’s dress, and stains on the cuffs of her dress were examined, and tested positive for human blood, as the victim was unable to identify her assailants, the investigation soon foundered.
4 To preserve the victim's anonymity, as is required by the Judicial Proceedings Report Act 1958, I am not referring to her by name in these reasons. It must be understood, this is not to further depersonalise her, but to afford her the privacy that the law confers on her.
5 Thirty years went by. The forensic science laboratory decided to re-examine and retest cold case samples which had been stored in a freezer at the forensic science laboratory. Samples, identified by labels as coming from the cuffs of the complainants dress, were subjected to DNA testing. The left cuff sample matched the victim’s DNA. The right cuff sample contained a mixed DNA profile. It was compared with the DNA database, and a “match” was obtained.
6 Depending on the test used, it was either one in 120 million, or one in 100 billion times more likely it was the DNA of you, Elftherios Christoforidis, than any other person drawn at random from the Australian Caucasian population. Your DNA had been placed on the database following a conviction in 2004 for an entirely different type of offence, trafficking in cannabis.
7 As a result of the match, a police investigation was launched. Police spoke to your sister and some of your friends. They told them that they were investigating you as a suspect in a cold case, which they described as the abduction of a young woman in St Kilda by a group of four men, who then gang raped her. Telephone intercepts revealed you discussing the police investigation with these people, and the allegations that the police had made to your sisters and friends. You rang the investigating police, who confirmed the investigation and told you they would seek to interview you at some time in the near future. Before interviewing you, they executed a search warrant at your home and seized a notebook with entries in your handwriting.
8 It is clear from the content of the entries, and from intercepted conversations you had with your sister immediately after the seizure of the notebook that it contained notes you had made after being told of the allegations, and in preparation for interview. The note contained the following entries:
I was 17 the others 20.
It was there [sic] car. I had no license.
They organised they were older than me.
They pushed me to do it. They went first and second.
They were known to do sexual assault.
I happen [sic] to be at the wrong place at the wrong time with these people.
I never did anything like that ever before.
This is not may [sic] character.
I was drunk in the back seat.
I did not physically [sic] hurt her or aggressivly [sic] handle her.
I was the idiot that when third.
I did not know the driver. He was the other twos [sic] freind [sic]
9 Shortly after the seizure of the notebook, you were arrested, interviewed and exercised your right not to answer questions. You were charged with abduction, false imprisonment, one charge of aggravated rape and three charges of rape. The prosecution case was put on the basis of participation in a joint criminal enterprise to falsely abduct, imprison and rape the victim. The aggravated rape charge related to your act of sexual penetration, the circumstance of aggravation being the presence of the other three. The three rape charges related to the individual acts of sexual penetration by the other three, you being complicit by reason of participation in the joint criminal enterprise.
10 The victim, in her account, had described the two men in the front seat as being the first and second to sexually penetrate her, and one of the rear seat passengers, also one of those who had dragged her into the car, to be the third in turn to rape her, with the fourth being therefore the other rear seat passenger.
11 Based on the combination of the victim’s account of what happened, the DNA evidence and the entries in the notebook, the prosecution put its case on the basis that you were the third of the four to take your turn to sexually penetrate the complainant against her will after she had been abducted and taken away.
12 Following a trial in which it was expressly accepted that the complainant had given a truthful account of what had happened to her that night, and where your identity as one of the perpetrators, and specifically the third of the four to take his turn to rape the victim was put in issue, a jury unanimously convicted you of abduction, false imprisonment, aggravated rape in respect of your act of sexual penetration, and the three charges of rape in respect of the acts of penetration by the other three assailants.
13 For the purposes of sentencing, and consistently with the evidence and the jury verdicts, you come to be sentenced therefore as a participant in a joint criminal enterprise between four men to abduct, falsely imprison, and each in turn rape the complainant, you being the third in turn to sexually penetrate her against her will.
14 You were, as your notebook entry asserted, 17 years of age of the time. There is no evidence to suggest that you were the ringleader, but you come to be sentenced for your participation in the joint criminal enterprise. I accept for sentencing purposes that it is likely that at least one if not more of the other perpetrators was 18 or older, given that this happened in a car with one of the perpetrators driving. There is nothing to suggest that your assertion in your notebook that the other three were older than you and were 20 is false.
15 Even if, as you asserted in the notebook the others were older, and were “known to do sexual assault” your culpability is not lessened by reason of that. There is no evidence as to suggest you did anything to protect the victim, to distance yourself or disassociate yourself from what the others were doing, or to seek to dissuade the others from pursuing the course they were intent upon.
16 This is, as was conceded by your counsel, very serious offending. There were features of the evidence of the original investigation in this case which showed the very different, often insensitive, and at times downright disrespectful treatment generally meted out to complainants, or victims of sexual offending back in the early 1980s. But even then, such offending was, and rightly regarded as serious. The maximum sentences then available were ten years’ of imprisonment for abduction, ten years' imprisonment for rape, 20 years' imprisonment for aggravated rape, and the penalty for false imprisonment was then at large.
17 As the sentencing statistics for 1982 reveal, the median sentence for rape was three-and-a-half years, with the individual sentences ranging between 18 months and eight years, and the median sentence for aggravated rape was six years, with the sentences ranging between six months and 12 years.
18 Even then, it was recognised that women were entitled to be treated as the autonomous beings they were, with the right to choose whether, in what circumstances, and with whom they wanted to engage in sexual activity. The victim should have been safe to travel on her own, to stand on a main thoroughfare, at night, and flag down taxi without fear of being abducted, held against her will, and then raped by a group of strangers. The lack of respect for her as a human being, for her dignity, human rights and personal autonomy is demonstrated, not only by that conduct, but also by the callous and degrading way she was pushed out of the car and left, abandoned, in the car park when all four of you had had your way with her, as if she were just an object, or an empty vessel for your sexual gratification. The offending is also aggravated by the failure of any of you to use condoms, thus exposing her to the risk of sexually transmitted disease and pregnancy, as well as everything else.
19 Even then it was clear that denunciation, deterrence and just punishment loomed large in the sentencing mix, and they still do today.
20 There are complex and competing considerations which arise when sentencing a person for offences committed so long ago. I must consider sentencing practices then prevailing, but also have regard to the increased seriousness with which sexual offences are regarded by the law today, and the greater recognition, not only of the objective gravity of such offending, but having regard to the better learning today about the seriousness, and long term effects on victims of sexual offending.
21 As her victim impact statement makes clear, the effects on the victim have been profound and life-long. She is now 53, and her relationships with men, and her sense of personal safety, have been adversely affected by what happened to her that night. She now has children of her own. Her fears for their safety are heightened by reason of her experiences. She still suffers memories, flashbacks, and is fearful of strangers. In her victim impact statement, she spoke eloquently of the sense of shame, of being sullied, and being made to feel she was worthless, or to blame.
22 No counselling was offered to victims in those days, and it is clear that this victim still, understandably, suffers from the insensitive manner in which she was treated by police at the time. That of course cannot be attributable to you, but it is part of her suffering.
23 The revival of the matter after so many years, has clearly been difficult for her. She has been forced to relive the events. Although the courts are all too accustomed to dealing with cases of sexual abuse occurring many years ago, usually it is a victim’s actions which bring a matter to light, many years after the event. Here, the victim had no say in the revival, or the timing of the revival of the matter. Although she expresses gratitude to the police, particularly the informant, who had the conduct of the revived investigation, for the manner in which she has been treated, again, she is caught up in something not of her making. Having said that, I was also impressed by the resilience that she has clearly shown. She has not let the experiences of that terrible night define her, and has obviously, despite the difficult struggles that she has had, worked to make the best of the hand that has been dealt to her through no fault of her own, and I hope that she can continue on her path to recovery.
24 You were, at the time, a young offender. Although 17 year olds were then outside the jurisdiction of the Children's Court, the Children's Court does now deal with people up to the age of 18, unless the gravity of the offending is such as to warrant removal to the County or Supreme Court.
25 Children's Court sentencing requires rehabilitation of the offender to be taken into account as the paramount sentencing consideration. In the adult courts, rehabilitation of the offender is one, but not by statute, the paramount factor to take into account when sentencing.
26 I must sentence you as the person you are today, but taking into account your moral culpability - which is to be measured by reference to your youth and immaturity – at the time. I can take into account evidence of rehabilitation since then, but I cannot punish you if you have not spent your time well since then.
27 Dealing then with matters personal to you. You are now 51. You were an apprentice panel beater at the time of the offences, and in the intervening years you completed your apprenticeship, and I am told you have worked all your adult life as a panel beater.
28 From your childhood until your late 30s you played club soccer, and have obviously spent much of your time productively, in work and recreation.
29 You have however, amassed a significant criminal record in the years since this offending. Importantly, however, there are no other sexual offences. Consistently with what you said in the telephone intercepts, you have a number of subsequent convictions for violent offences, and you have convictions for drug related matters, including trafficking. It does not appear from the materials before that any of the offences for violence were offences of violence against women, or occurring in the context of an intimate relationship.
30 You are unmarried, and live with your parents and older sister. Your parents are in their 80s and your father particularly, is in poor health. Your sister wrote a moving and obviously heartfelt account of the manner in which the two of you have shared the care of your parents as their health has deteriorated. Your sister spoke highly of the support you have shown her and her son, particularly following the breakup of her marriage, when her son was only five and she returned to the family home. Your nephew, now a man in his 30s, also wrote lovingly of the large and supportive role you have played in his life.
31 The high regard in which you are held by your family and by your family’s circle of friends, as attested to in the testimonials, is something I take into account in your favour.
32 I take into account in your favour also, the absence of any other sexual offending, and the strong history of gainful employment and family support. They clearly count in your favour when considering your prospects for rehabilitation, and as indicating that specific deterrence is not a significant factor here.
33 I take into account your subsequent criminal history, only insofar as it indicates that although prospects for rehabilitation in terms of sexual offending must be regarded as good, you have not always used the time since the commission of these offences to rehabilitate yourself more generally. And so, that although bearing in mind you were young and immature when these offences were committed, the penalty that I impose is not mitigated as much as it would otherwise have been had you led an unimpeachable life since then.
34 That said, I regard your prospects overall for rehabilitation as good.
35 It is put, and I accept, that imprisonment will be burdensome for you by reason of your distress over being unable to continue to provide the daily care, and for some of the most basic needs of your parents that you have been providing over recent years, and your appreciation of the added burden that will be to your sister, and to your fear your parents may not have many more years to live.
36 I take into account also that this will be your first time in prison, and that you are being sentenced now for something that happened a long time ago, and that you are a different man now. Having said that, I consider that it is highly likely that had you been detected, charged and convicted and sentenced at the time, it is highly likely that you would have been sentenced even then to a substantial term of imprisonment. Therefore, counterbalanced against the fact that a long time has passed since the commission of the offences, and you do not have the punishment and penalty for that behind you, you have on the other hand enjoyed the benefit up to now of not having served a term of imprisonment, and of not having served a term of imprisonment as an impressionable young man, and of not having to carry the stain of conviction for such offences on your record since 1982.
37 You fall to be sentenced as a serious sexual offender for charges 4, 5, and 7, and I make the declaration accordingly. I do not consider it necessary to impose a disproportionate sentence on you in order to protect the community, and I do not consider it appropriate to direct all sentences to be served cumulatively. To do so would offend the principle of totality.
38 Having acknowledged the significance of the totality principle, I should also make it clear, if I have not already, that I understand I must impose sentences for the individual misconduct the subject of each charge, and not doubly punish by doubling up on conduct the subject of one charge when considering the conduct the subject of any other, or considering what aggravating features attach to any individual charge.
39 As was discussed in the course of the trial, the abduction charge, as amended, encompasses the dragging the victim into the car, the false imprisonment, the detaining her against her will once in the car. The circumstances of aggravation for the aggravated rape charge are the presence of others, and you fall to be sentenced as jointly criminally liable for the acts of penetration by your co-offenders. It is in respect of those three charges of rape, in my view, an aggravating feature that each of them was committed in the presence of the other three men. And the sentence, therefore, has been structured accordingly to reflect those matters.
40 Could you now please stand?
41 Elftherios Christoforidis, on the charges of which the jury has found you guilty, you are convicted.
42 On Charge 1 of abduction, you are sentenced to be imprisoned for a period of two years.
43 On Charge 2 of false imprisonment, you are sentenced to be imprisoned for a period of two years.
44 On Charge 3 of rape, you are sentenced to be imprisoned for a period of four years.
45 On Charge 4 of rape, you are sentenced to be imprisoned for a period of four years.
46 On Charge 5 of aggravated rape, you are sentenced to be imprisoned for a period of five years.
47 And on Charge 7 of rape, you are sentenced to be imprisoned for a period of four years.
48 The sentence on Charge 5 is the base sentence, and I direct that three months of the sentence on Charge 1, three months of the sentence on Charge 2, six months of the sentence on Charge 3, six months of the sentence on Charge 4, and six months of the sentence on Charge 7 be served cumulatively upon each other and upon the base sentence.
49 That makes a total effective sentence of seven years, and I fix the period of five years as the time that you must serve before being eligible for parole.
50 I declare that you have spent three days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
51 Are there any further orders that are required to be made?
52 MR SHAW: No, Your Honour.
53 HER HONOUR: Is the arithmetic correct?
54 MR SHAW: No.
55 HER HONOUR: Arithmetic correct?
56 MR SHAW: It is correct, yes.
57 MS VALOS: It is correct, yes, Your Honour.
58 HER HONOUR: Thank you. Could you remove Mr Christoforidis, please? Thank you, and I direct that this sentence be placed on the media portal.
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