Director of Public Prosecutions v Cremona
[2013] VCC 1197
•9 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01756
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EMANUEL CREMONA |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April and 9 August 2013 | |
DATE OF SENTENCE: | 9 August 2013 | |
CASE MAY BE CITED AS: | DPP v. Cremona | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1197 | |
REASONS FOR SENTENCE
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Catchwords: Trial – sentencing - indecent act with a child under 16 years - elderly offender
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Zammit | Office of Public Prosecutions |
| For the Accused | Mr D. Sexton | Galbally & O’Bryan |
HIS HONOUR:
1 I will now proceed with my sentence and sentencing reasons.
2 I indicate at the outset that in the interests of privacy and in accordance with current County Court practice, in the edited version of this sentence and sentencing remarks the references to the name of the victim will be anonymised to initials only.
3 Mr Cremona may remain seated throughout this process.
4 Emanuel Cremona, on 12 February 2013 you were found guilty by jury verdict of two charges of committing an indecent act with a child under 16 years.
5 Charge 5 on the indictment had been a charge of sexual penetration of a child under 16 years and the jury's verdict reflects findings instead on the statutory alternative. It is clear by the jury's verdict that they were not satisfied beyond reasonable doubt of the element of penetration.
6 The maximum penalty for indecent act with a child under 16 years is ten years' imprisonment.
7 You were born on 7 December 1931 and were aged 80 at the time of the offences. You are presently aged 81. You reside in a street in Deer Park.
8 You have no criminal history.
9 RV is the victim in this matter. RV was born on 7 October 1999 and was aged 12 at the time of the offences. She is now 13 years old.
10 RV suffers from a cognitive impairment that affects her intellectual ability and judgment. She has been cognitively impaired since the time of her birth.
11 At the time of the offences she was residing with her parents and her older brother in another street in Deer Park. You and RV, in fact, live near each other. You first met RV and her family when her father would take his children and dog for a walk around the block. You would exchange general conversation about the day. Over the years RV would see you in the neighbourhood and at the park.
12 The circumstances of your offending are as follows.
13 On the morning of Sunday 6 May 2012 RV went to the Isabella Williams Memorial Reserve, which is a park in the local area of her home, to meet with her friends. She had previously attended this park on many occasions to meet with a friend or friends or to play on her own.
14 After playing with her friends for a period of time, you took RV for a walk and led her to a footpath. You took her to a nearby fence and pushed her back against her stomach. You held her and moved yourself in a back and forward motion simulating sex. You placed your hand between her legs over her vagina.
15 In light of the jury's verdict involving rejection of the element of penetration, other inconsistencies in the complainant's account of events generally, and the evidence of Mrs Brzica, I am not satisfied beyond reasonable doubt that your hand was inside the victim's underclothes and on the flesh of her vagina. I accept Mrs Brzica's evidence that your hand was over her clothing. This conduct represents the alternative charge to charge 5, indecent act with a child under 16.
16 You then placed your hand under her top and began to feel her breast. When you were feeling her breast, you were moving your hand around in a circle‑like motion and you would try to have a look down her top, but RV just kept covering it. This conduct represents charge 6, indecent act with a child under 16.
17 When you were doing this to RV, a neighbour, Mrs Brzica, looked over the fence and saw what you were doing. Soon after, you stopped what you were doing and walked a short distance with RV. RV then walked to a friend's house, picked some flowers and when she saw that you had left, she too went home.
18 RV recognised the lady who looked over the fence as the lady who has the “green car”.
19 Mrs Brzica recognised the young woman she saw to be the young girl who lives in her street. She also recognised you as the old man as previously walking his white dog in the park.
20 Later that day she contacted the police and told them what she saw. The police later attended upon RV's parents' home and spoke with RV. RV was subsequently taken to the police station to make a formal statement by way of a video recording where she outlined what had occurred to her at the park and nominated you as the offender.
21 RV was later taken to the Royal Children's Hospital for examination. She was examined by a forensic paediatrician and the findings were normal.
22 On Wednesday 9 May 2012 you were arrested at your home address and taken to the Sunshine Police Station where a formal record of interview was conducted in relation to these offences. In the interview you admitted to knowing RV and stated that the last time you saw her was about 8 to 9 months ago. Later in the interview you stated that you had seen her in the park on the Saturday 5 May 2012.
23 You stated that you had attended at the park on Saturday 5 May 2012 at about eleven o'clock in the morning and not the Sunday 6 May 2012. You said on Saturday 12 May you took your white dog for a walk in the park. You stated that you take your dog for a walk once or twice a week. You denied sexually assaulting RV, but admitted to sitting on a bench with her and that you both gave each other a kiss. You admitted to taking a walk along a path in the park.
24 The victim has made a victim impact statement sworn 8 March 2013. In it she describes her very understandable fears and anxieties.
25 I now turn to your personal circumstances.
26 As I noted earlier, at the time of the offending you were aged 80 years. You are 81 years old now, and you have no history of breaching any of the criminal law. You were born in Malta, completed your formal education at age 16 and initially worked on the dockyards and on boats. You came to Australia in 1967 and have largely worked in manual positions, including cleaning. You retired in 1981. You have been married for 59 years and have raised a family of seven children. The family now extends to 21 grandchildren and 10 great-grandchildren. You and your wife own your home. Since a fall in 2009, at which time you suffered a serious head injury, you spend your days mostly at home looking at magazines and colouring in text in the mornings before having lunch and sleeping until 4.30 to 5 pm. You then have an evening meal and return to bed.
27 Your health, both mental and physical, has become frail. Physically, you suffer hypertension and angina, poor hearing and fatigue which causes you to fall asleep during the afternoons. At times you have also suffered episodes of lumbar spondylosis and emphysema. You are on multiple pharmacological medication, walk with the assistance of a frame, are generally weak and often suffer dizzy spells.
28 Your mental condition has been described in two reports tendered. Dr Reeves decided it was futile to proceed further in her assessment due to your incapacity to engage capably in the interview process. Dr Reeves describes you as being unable to comprehend what was being communicated, being unable to give informed consent, suffering dizzy spells after ten minutes and collapsing on the desk in a semi‑conscious state. You were unable to explain what the charges were and what happened in the court process. Dr Reeves recommended a neuropsychological assessment, which was subsequently undertaken by Dr Tracey Wardill.
29 Dr Wardill confirmed your compromised mental state. Your memory and executive functioning is impaired, you have difficulty formulating plans to solve even mildly complex problems, and easily become overwhelmed. Your condition is consistent with a diagnosis of acquired brain injury resulting from a fall in 2009. In a custodial setting you are likely to become confused and disoriented. It is likely that your poor memory and poor solving skills will become exacerbated in a custodial setting. In Dr Wardill's opinion you will require high levels of support and assistance with basic activities of daily living. At present you receive this through the assistance of your wife and family at home.
30 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific to an offender and general to deter other like‑minded individuals), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of any victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
31 Ordinarily, having regard to the seriousness of the offence of indecent assault, particularly upon a vulnerable child, an offender should expect a sentence of immediate imprisonment and for a significant period. In all the circumstances I am satisfied that the offences, being against a young and vulnerable girl, in a public environment where she was entitled to feel safe, requires a sentence of imprisonment to appropriately reflect its seriousness, to give proper effect to appropriate denunciation and general deterrence. However, because of the mitigating circumstances, in particular your very advanced age, your impaired mental state, your physical condition and your otherwise decent and law‑abiding life, I am prepared to wholly suspend the commencement of that sentence.
32 I am satisfied that because of your physical and, in particular, mental condition, you are less of an appropriate vehicle for the purposes of general and specific deterrence, that imprisonment will weigh more heavily on you than upon an offender in normal health, and that there is a serious risk that imprisonment will have a significant adverse effect on your mental health.
33 I intend to sentence you to a term of imprisonment, such term to be wholly suspended for a period of 12 months.
34 The purpose and effect of the proposed suspension order is to grant you conditional freedom, the condition being that you avoid conviction for any offence punishable by imprisonment for, in this case, 12 months from its commencement, which is today.
35 If you commit such an offence in that period, you will be liable to attend court again and if necessary, that will be under arrest. In the absence of exceptional circumstances, you will be ordered to serve the whole of the suspended sentence.
I am required to ask Mr Cremona if he understands that, Mr Sexton.
Do you understand that, Mr Cremona?
OFFENDER: Yes, I do.
HIS HONOUR: Thank you.
36 On each of alternative charge 5 and charge 6 of indecent act with a child under 16, you are convicted and sentenced to six months' imprisonment.
37 In light of the fact that each charge relates to the same incident separated only momentarily in time, I make no direction as to cumulation.
38 The total effective sentence is six months' imprisonment.
39 Pursuant to s.27 of the Sentencing Act, I order that this sentence be wholly suspended and I declare that the operational period of the suspended sentence is 12 months.
40 There is a further matter to which I need attend. I need to speak to you about the provisions of the Sex Offenders Registration Act.
41 The offences of which you have been found guilty are registrable offences pursuant to the provisions of the Sex Offenders Registration Act and by reason of your being sentenced for these offences, you are a registered offender obliged to comply with reporting obligations imposed by that Act.
42 As required by s.5(2BC) of the Sentencing Act, in sentencing you I have ignored any consequences that may arise, and in this case do arise, under that Act from the imposition of the sentence today. In other words, the reporting burden that you carry as a registered offender is not a matter that can objectively influence the imposition of a just sentence.
43 Further, pursuant to s.50 of the Sex Offenders Registration Act, I am required to give you a written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations.
44 I am also required to inform you of the length of your reporting period, which is for eight years.
45
My associate will, in a moment, hand to you the notification of reporting obligations which I have already signed. Mr Sexton, your representative in court today, will ensure that you understand the requirements set out in this form and I will ask you, once it is further explained and given to you, to sign the acknowledgment that you have received the notification form.
46 I ask you, Mr Sexton, that you ensure that Mr Cremona understands what this is all about.
(Mr Sexton confers with offender.)
MR SEXTON: Sorry about the delay, Your Honour. That's been done.
HIS HONOUR: I understand that the form has now been signed and acknowledged and, Mr Sexton, you and your instructing solicitor no doubt will make it clear also to the family of Mr Cremona that, obviously because of his condition, he will need to have that reinforced by his family. I noticed that they were assisting in the process just before and I hope that continues.
Thank you for that, Mr Cremona.
47 At the plea hearing the Crown sought an order for the retention of a forensic sample of a scraping from the mouth. I have made that order today for the reasons noted on the order, namely the seriousness of the offending warrants the making of the order, the order is by consent, and the making of the order is in the public interest.
48 I have signed the retention order and that being the case, is there anything else from either counsel that needs to be addressed?
COUNSEL: No, Your Honour.
HIS HONOUR: Thank you. It would be helpful, Mr Sexton, if you simply reinforced to the family to continue their careful supervision of Mr Cremona and particularly during the period of the suspended sentence order.
Thank you very much for your help, each of you.
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