Director of Public Prosecutions v Crispo

[2023] VCC 1269

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01500

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINCENT CRISPO

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2023 and 14 July 2023
DATE OF SENTENCE:	31 July 2023
CASE MAY BE CITED AS:	DPP v Crispo
MEDIUM NEUTRAL CITATION:	[2023] VCC 1269

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence

Catchwords:              Sexual assault of child under the age of 16 – Sexual penetration of a child under the age of 16 – Rolled up charges – Offending comprised of four separate incidents over a seven week period – Youthful offender – No prior criminal history – Diagnosis of Autism Spectrum Disorder and Major Depressive Disorder – Verdins principle five enlivened – Plea of guilty at an early stage – Good prospects of rehabilitation – Delay.

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991.

Cases Cited:R v Mills (1998) 4 VR 235; Worboyes v The Queen (2021) 96 MVR 344; R v Verdins (2007) 16 VR 269; Cooke v The Queen [2021] VSCA 70; DPP v Pang [2023] VCC 270; DPP v Calladine [2020] VCC 2014; Clarkson v R (2011) 32 VR 361; DPP v Dalgliesh (2017) 262 CLR 428; Gordon v R [2013] VSCA 343.

Sentence:                  2 years and 9 months imprisonment with a non-parole period of 1 year and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J W O’Toole	Office of Public Prosecutions
For the Accused	Mr B W Johnston (17 April 2023;14 July 2023) Mr F Ralph (31 July 2023)	Marshall Jovanovska Ralph

HIS HONOUR:

1Vincent Crispo, you have pleaded guilty on indictment to one charge of sexual assault of a child under the age of 16, contrary to section 49D(1) of the Crimes Act 1958 and three charges of sexual penetration of a child under the age of 16, contrary to section 49B(1) of the Crimes Act. These offences attract the standard sentencing regime.

2The offending relates to four separate incidents that occurred between 15 May 2020 and 4 July 2020. You were aged 20 at the time of the offending. The victim was 15 years old. Both of you lived at home with your respective families.

3Sexual assault of a child under the age of 16 carries a maximum penalty of 10 years’ imprisonment. The standard sentence applicable to this offence is 4 years’ imprisonment.

4Sexual penetration of a child under the age of 16 carries a maximum penalty of 15 years’ imprisonment. The standard sentence applicable to this offence is 6 years’ imprisonment.

Circumstances of the Offending

5The circumstances of your offending are set out in the summary of prosecution opening dated 11 April 2023.[1] Your counsel indicated that the opening was an agreed document for the purpose of sentencing.

[1]Exhibit A.

6At some point prior to 11 May 2020, you and the victim started following each other on Instagram. On 11 May 2020, the victim added you on Snapchat and you initiated a text message conversation that same night.

7You asked her how old she was and she told you that she was 15. You told her you were 20 years old and asked her if she was okay with the age difference. She told you that she did not mind. You replied that you did not mind or care that she was only 15.

8You exchanged phone numbers and the victim called you that same day and you spoke for over 90 minutes. At some stage during this conversation you began discussing sexual matters with her. You told her ‘you won’t be able to handle my dick’ and asked her if she would give you oral sex. She told you she was nervous, had never performed oral sex before and did not know what to do. You told her it would be easy and repeatedly asked her to meet up.

9The next day, the victim called you again and you spoke for 51 minutes. You asked to see her the following night. As it was a school night, she said no. You were upset and told her to make it up to you by seeing you on Friday. She agreed.

10On 13 May 2020, you exchanged messages with her via Snapchat. You sent her naked photographs of yourself. The victim refused when you asked her to send naked photographs of herself.

11Prior to meeting in person, you and the victim exchanged 12 phone calls between 11 May 2020 and 15 May 2020.

First incident

12On Friday, 15 May 2020, you met the victim for the first time. The two of you had dinner at Highpoint Shopping Centre. You offered to pay for her meal, but she declined.

13Both of you then made your way to your vehicle. You told her that you wanted to go to a park. She used Google Maps on her phone and directed you to a reserve in Essendon West.

14When you arrived at the reserve, both of you got into the back seat of the vehicle. You asked her to lie on top of you, which she did. You began kissing her. You removed your clothing and got on top of her. You tried to remove her clothes. She refused at first. As a result of you continuing to pressure her, she allowed you to take off her leggings.  You told her to ‘suck my dick’ and she replied ‘no’. You persisted with your request for oral sex and began ‘dry humping’ and grinding on top of her. Feeling pressured by you, she masturbated your penis with her hand. You did not ejaculate.  (Charge 1 – sexual assault of a child under 16).

15You then drove the victim back to Highpoint where she washed her hands and was picked up by her mother.

16Following this first meeting, you expressed your disappointment that she had not given you oral sex. You told her ‘you should have sucked my dick’.

17On 20 May 2020, you spoke with the victim on the phone and asked to meet again. You asked her if she would take off more clothes next time and perform oral sex on you. You also asked whether they were going to have sex next time. She told you that she did not want to have sex and that she was scared it would hurt her.

Second incident

18You met again on 5 June 2020. You picked her up in your vehicle from  Highpoint Shopping Centre and told her to find somewhere to park. She directed you to a reserve in Maribyrnong. At some point during the drive, you placed your hand on the victim’s thigh. Having arrived and parked, you got into the back seat.

19You removed your clothes as did the victim at your request. The two of you kissed while the victim was on top of you. You asked her four or five times for oral sex. She refused each time you asked. You then told her to lie on her back and she asked what you were going to do. You told her ‘I’m going to eat you out and finger you.’ She was scared and told you to be careful. You penetrated her vagina with your tongue. You continued to ask for oral sex, which was again refused and instead she masturbated your penis with her hand.

20You then asked her for sex. She said no and that she was scared it was going to hurt. You told her it would not hurt and to let you try. She did not respond and you penetrated her vagina with your penis. After 5 to 10 seconds, she told you it hurt and asked you to remove your penis. You asked if she was sure and she again told you to take it out, which you did.  

21You then inserted your fingers into her vagina. While doing so, you asked again if you could insert your penis. You told her it would not hurt as she was not even tight. She continued to say no. You then dry humped her placing all your weight on her. You masturbated until you ejaculated on her. You gave her either a receipt or a page from a book for her to clean herself up.

22You then drove her back to Highpoint Shopping Centre where you dropped her off. (Charge 2 – sexual penetration of a child under 16). Charge 2 is a rolled up charge representing penetration of the victim’s vagina with your tongue, penis and fingers.

23Following this second meeting, COVID-19 restrictions eased and the victim returned to school in person.

24The victim confided with her friends about talking to you. Her friends told her she should not be talking to you. She agreed but told her friends she couldn’t get rid of you.

25You called her regularly on school nights and talked for hours.

26During one of the conversations, you asked her if you and her would have sex at the next meeting. She said no and once again explained she was scared it would hurt and that she did not want to have sex.

27During another conversation via Instagram, you told her to perform oral sex on you next time. She said no and explained that she did not know how to. You told her to watch a video to learn, and that it would be easy.

Third Incident

28The two of you met again on 26 June 2020 at Highpoint Shopping Centre and drove to Maribyrnong.

29Both of you remained in the front seat and talked. The victim wanted to talk for as long as possible as she did not want to get into the back seat again. Eventually, you told her to get into the back seat, and she did.

30Both of you removed your clothing and the victim masturbated your penis with her hand. You asked her several times to give you oral sex. She refused a number of times before eventually agreeing. You penetrated her mouth with your penis and gave her instructions on what to do. You then penetrated her vagina with your tongue.   

31You then made repeated requests to engage in sex. She responded by saying ‘I shouldn’t’. You asked her why and she replied ‘because you’re 20’. She told you she did not want to lose her virginity at 15 to a 20-year-old. You continued to pressure her and she eventually agreed. You then placed your penis in her vagina. She was uncomfortable and barely looked at you while you penetrated her.

32You told her you would not be able to finish and asked her to perform oral sex on you again, which she did. You then penetrated her vagina with your penis again until you ejaculated on her body. Once again, you gave her a receipt or a page from a book to clean herself up. (Charge 3 – sexual penetration of a child under 16). Charge 3 is also a rolled up charge relating to the penetration of the victim’s mouth with your penis, and placing your tongue and penis in her vagina.

33After you both got dressed, you scrolled through your Instagram and showed the victim other girls you had been with. You called a male friend and bragged about having just had sex with the victim. You also told the victim to speak with him. When the friend asked whom he was speaking to, the victim replied ‘the 15-year-old’.

34The victim regretted having had sex with you but lied and told you she was fine.

35Over the next few days, you stopped responding to messages from the victim. She asked you if you had used her for sex and you replied ‘no’. She told you she did not want to see you again.

36You repeatedly asked to see her and she refused. On one occasion, she told you she was in isolation following a COVID-19 positive test and could not see you. You became upset with her for refusing to see you.

Fourth Incident

37On 4 July 2020 at about 1:15am, you picked up the victim from near her home and drove her to a nearby reserve.

38She was wearing a dress as you had told her to do. You got into the back seat. She did not want to have sex and told you that she had her period. This upset you. You kissed each other and you grinded up against her, making her feel uncomfortable.

39You then penetrated her mouth with your penis until you ejaculated on her. Once again, you gave her either a receipt or a page from a book for her to use to clean herself up. (Charge 4 – sexual penetration of a child under 16).

40You then drove to McDonalds and bought food for yourself. The two of you talked and you then drove her home. Having arrived home, the victim realised she was locked out of her house. She called you and asked you to come back and help. You refused to do so, which led to an argument.

41A week later, the victim told you she did not want to see you anymore. This led to another argument via Snapchat, Instagram and text message. You and the victim did not see each other again.

42The victim told a friend that she had lost her virginity to you after you pressured her into having sex.

43A complaint was made to the police on 31 August 2021 by the victim’s mother after the victim had revealed the offending during a counselling session.

44On 3 September 2021, the victim provided a Visual and Audio Recorded statement to the police. She also provided police with a number of screenshots of conversations she had with you via text message and snapchat after the first meeting. Many of these conversations involved you trying to convince the victim to meet in person again. In one conversation you told the victim that she was very mature for her age and that you wanted her in your life, and she was the most gorgeous girl.

45On 22 September 2021, the victim undertook a pre-text phone conversation with you. You admitted to having sex with her and knowing that she was 15 years of age.

46On 27 October 2021, police attended your home address to execute a search warrant. You provided your phone to police and attended the Mernda police station where you participated in a formal interview. You accepted meeting the victim on social media and knowing her age. You accepted meeting her on the four occasions that give rise to the charges against you. You made various admissions in respect of the sexual activity involved as set out in exhibit A.

Impact on Victim

47In sentencing you, I am required to take into account the victim impact statement[2] which was tendered and read out in court by your victim.

[2]Exhibit B.

48Your victim spoke eloquently of the significant impact your offending has had on her. She said:

I blinked my eyes and before I knew it I was thrown into an adult world, dealing with adult concepts before I could even understand what they were. I feel like you took away my teenage years. I never truly was able to experience the joys and innocents [sic] of being 15, 16 nor 17. I feel like you manipulated, and guilt tripped me. You took my innocents, [sic] my first experiences and changed my ideas and views around men and relationships… In every man I saw you. I lost all abilities of being able to trust or get close to males again, and always kept them at a distance.

49She said she spent the next year after the incident feeling terrible, crying and hating herself. Her self-esteem was crushed. She lost all motivation in school, and gave up the sport she had loved since childhood.

50She feels she grew up too quickly and became an adult before she had wanted to be. This case became a source of anxiety. She said each time there was an update, her entire world would stop and she would feel anxious, scared, sad and alone.

51She concluded her statement with optimism, saying:

My life will not be defined by you, nor the impact you made, my life will go on and I will do great things.

52I hope you have reflected upon the significant impact your offending has had upon your young victim.

Personal Circumstances

53You are now aged 23 and have no prior criminal history.

54You were born in Melbourne and are the youngest of three siblings. Your father works in construction and your mother works in a café.

55You described having significant difficulties at school and your schooling years as sad. You were prescribed spectacles at a young age and were required to wear them all the time. However, you experienced bullying because of your glasses and stopped wearing them. Not wearing glasses impacted your concentration in class.  This made school more difficult for you. You did no schoolwork and failed all your exams. You describe yourself as a shy student who struggled to make friends.

56You left school in Year 10. You completed a four year apprenticeship in carpentry. Prior to your remand in custody, you were working with your father in construction.

57You have had one relationship which came to an end in 2019 and lasted nine months. You have one friend with whom you catch up for dinner. Otherwise, there is very little you do outside your employment.

58You have never used illicit drugs and drink alcohol occasionally.

59You continue to live at home with your parents.

Gravity of the offending

60You committed the offending, comprising four separate incidents, over a period of some seven weeks between 15 May 2020 and 4 July 2020. You were aware that your victim was 15 years old from the outset. You were five years older. The offending involved elements of grooming and premeditation. In your initial telephone conversation, you introduced discussions of a sexualised nature. You sent her naked photographs of yourself and asked your victim to do the same. You told her to watch a video about how to perform oral sex. Your requests to engage in sexual acts with her were persistent and placed pressure upon the victim to reluctantly comply. No condom was used during the penetrative acts.

61In respect of charges 2 and 3, you are being sentenced in respect of multiple acts of penetration. Charge 2 involves you penetrating the victim’s vagina with your tongue, digitally and your penis. Charge 3 involves you penetrating the victims mouth and vagina with your penis. It also involves you penetrating her vagina with your tongue.

62Your counsel, Mr Johnston, sensibly conceded that this is clearly not an exceptional case involving a relationship of mutual care and affection between two young individuals.[3]

[3]See Clarkson v R (2011) 32 VR 361, [36].

Matters in mitigation

63In addition to the comprehensive written plea submissions, your counsel, Mr Johnston, presented a realistic and sensible plea in mitigation. He emphasised the following matters:

·        your pleas of guilty at an early stage.

·        your youth.

·        no prior criminal history.

·        your mental health issues.

·        delay.

·        burden of imprisonment.

·        positive prospects of rehabilitation.

Plea of guilty and remorse

64Whilst not the earliest stage, you pleaded guilty at a relatively early stage and importantly, prior to any cross-examination of your victim.[4] In fact, there was no cross examination of any prosecution witness.

[4]Mr Crispo pleaded guilty on the 5 April 2023. The Special Hearing was listed on 18 April 2023.

65Your pleas of guilty have facilitated the course of justice and you have taken responsibility for your actions. You have also saved the community the time and cost of a trial, and importantly, spared your young victim the anxiety of having to give evidence.

66I accept that your pleas of guilty demonstrate a degree of remorse.

67The utilitarian benefit of your plea is heightened in the current COVID-19 environment when this court is facing a considerable backlog of trials. The courts must encourage those who are guilty to so plead and such encouragement must come from an ‘actual and palpable’ amelioration of sentence.[5]

[5]Worboyes v The Queen (2021) 96 MVR 344.

Youth

68You were only 20 years old at the time of the offending and are now 23. You are being sentenced as a youthful offender. I firmly bear in mind the propositions in R v Mills.[6] You are experiencing incarceration for the first time. Despite the seriousness of your offending, your successful rehabilitation remains an integral sentencing objective. Whilst I am unable to avoid the imposition of a custodial sentence, I bear in mind your youth and positive prospects of rehabilitation in sentencing you and directing the appropriate non-parole period.

[6](1998) 4 VR 235.

Mental health

69I have had regard to the two psychiatric reports prepared by Dr Rakov, dated 16 March 2023[7] and 2 April 2023.[8] I have also taken into account the letter from Dr Ismail dated 2 April 2023.[9]

[7]Exhibit 2.

[8]Exhibit 3.

[9]Exhibit 4.

70Dr Rakov confirmed the diagnosis of a Major Depressive Disorder. This is characterised by low mood, lack of interest in previously enjoyable activities, poor concentration, appetite and sleep disturbances and thoughts of suicide. You were prescribed antidepressant medication some days before Dr Rakov’s assessment on 20 January 2023. It appears the prescribed anti-depressants did not suit you. I note you have been prescribed a different antidepressant suggested by Dr Rakov since your remand in custody.

71Dr Rakov also believes there is a presence of Autism Spectrum Disorder (ASD).[10] She states that this diagnosis is:

…supported by his persistent deficits in social communication or interaction across multiple contexts and his restricted patterns of behaviour, interests, or activities. He has difficulties with nuance and abstraction but is amenable to learning when rules are explained to him.  

[10]Exhibit 3, [4]. Dr Rakov places the severity of the Disorder at level 1 or 2.Functional and cognitive testing by occupational therapy/neuropsychology is necessary to confirm the severity.

72In her oral evidence, Dr Rakov confirmed that the diagnosis of ASD was a firm diagnosis based on her clinical assessment. The AQ10 Questionnaire did not detract from her clinical opinion. She said that unlike depression, ASD cannot be medicated and requires lifestyle and psychological interventions which will not be available in custody. She stated that your depression is long standing and it can worsen. Further, due to your limited skills in social interaction and the unique environment of custody, amongst seasoned criminals, it could lead to you being exploited.

73The initial plea hearing was adjourned for an assessment for a Community Correction Order and a Justice Plan.

74The Disability Overview Report dated 26 June 2023[11] confirms that a cognitive function assessment revealed that you have a mild intellectual disability. You require support and assistance to function in the community, especially in the conceptual, and social skills domains including reading and writing, interpersonal relationships, self-direction, responsibility, home living and following rules.  

[11]Exhibit 7.

Burden of imprisonment

75I accept that the burden of imprisonment upon you, a 23 year old man with no prior experience of custody, will be more onerous. Not only are you a young man, but you are grappling with mental health issues.

76Not surprisingly, your introduction to a custodial environment has been a very difficult experience. As a result of experiencing suicidal ideation, you were placed in an observation cell following your reception into custody. You spent a week in the observation cell and during this time wore a smock and slept under a stiff hessian blanket.[12]

[12]Additional Submissions for Further Plea dated 5 July 2023, Exhibit 5.

77I was told that you have now settled somewhat and attend the gym daily. You have been receiving visits from your family regularly and you speak to your father daily. You are prescribed antidepressant medication and seen by a clinician twice every week to develop strategies to assist in managing your mental health. You have also been engaging with the Forensicare, Hope Inside program.[13]

[13]Disability Overview Report, Exhibit 7. See also a Statement of Intellectual Disability – Exhibit 8.

78Dr Rakov states in her report:

Mr Crispo’s interpersonal deficits because of ASD will likely make incarceration more onerous for him than someone without autism. The social milieu in prison is unique and he may be vulnerable to exploitation and bullying for his differences, as he was at school.

Specifically, the loss of social and functional supports (his family, sisters, and work) would weigh heavier on an individual with autism than someone neurotypical. Given his young age and impressionability, custody may also expose Mr Crispo to far more antisocial and criminogenic behaviour than he has himself displayed.[14]

[14]Ibid [11.9] and [11.10].

79I accept that Verdins[15] principle 5 has application and I take that into account.

[15]R v Verdins (2007) 16 VR 269.

80Since your remand, your father has had cancerous cells removed from his thyroid gland and is awaiting further tests. I accept that your father’s health will cause you additional anxiety as you are not able to be there for him.

Delay

81The offending occurred three years ago between May and July 2020.The matter was reported to the police on 31 August 2021 and the victim provided her Visual Audio Recorded Evidence on 3 September 2021. However, you were not arrested until 21 March 2022. Your first appearance before the Magistrates’ Court was on 8 April 2022. I accept that during the period of this three year delay[16] you have continued in full time employment and have not re-offended in any way. A three year delay in the life of a young 20 year old as you were at the time of the offending, is a very significant period.

[16]It is not suggested that the prosecution or anyone else is to blame for this delay.

Prospects of rehabilitation

82Dr Rakov opines that you have good prospects for rehabilitation. I agree with that opinion. The outcome of the testing on the RSVP instrument, indicates that your risk of sexual reoffending is low. Dr Rakov states:

However misguided his attempts to engage a peer in intimate relationships (such as to meet through Instagram and overlook the legal age gap), they are not malicious, antisocial or driven by deviant sexual interests.[17]

[17]Exhibit 2, [11.5].

83You are supported by your family with whom you will continue to reside upon your release. You will have little trouble in obtaining employment in your chosen trade. Until the recent assessment by Dr Rakov, your ASD had gone undiagnosed. Importantly, you have shown a willingness to seek help with the mental health issues you are grappling with.

84In respect of the Autism Spectrum Disorder, Dr Rakov states it 

…is a permanent condition that can be modified with appropriate behavioural and psychological interventions which essentially facilitate integration and appropriate management. A major area of difficulty for Mr Crispo is his rigid thinking, continuing to address it will hopefully allow him to become less distressed when confronted with various challenges, as well as understand rules more clearly.[18]

[18]Ibid [11.15].

85I accept that your prospects of rehabilitation are positive. You will return to live with your parents and sister in a loving and supportive environment. Now that your family are aware of your ASD, they will no doubt provide assistance in ensuring you seek the appropriate treatment. Employment will be available to you.

86In addition to the reference provided by your parents,[19] your father gave evidence at the plea hearing. He confirmed the unwavering family support. He confirmed your employment in commercial carpentry. While you excelled in your practical skills as a carpenter, you struggled in the theory assessments during your apprenticeship. Mr Crispo senior stated that your practical carpentry skills are of a very high order. He made it plain that you would have struggled to secure employment without his influence. Your communication skills are limited and you would struggle with completing an application form to a standard that would attract prospective employers. No doubt, your father would assist in ensuring that you return to employment in your chosen trade upon your release. I note that your father gave evidence that you are a softly spoken individual.

[19]Exhibit 6.

87Any term of imprisonment, bearing in mind it is your first experience, will act as a deterrent to you. The sentence I impose must also give effect to deterring others who may be minded to commit similar offending to yours against young vulnerable victims. On behalf of the community, your conduct must be met with appropriate denunciation.

88I accept that on account of your age, I can give general deterrence a somewhat reduced emphasis than when sentencing an older and mature offender.

89Whilst your ASD and depression is not relied upon in a Verdins sense to reduce your moral culpability, it remains relevant in the overall assessment of the limitations and vulnerabilities that you present.

Standard Sentence

90Sentencing requires taking into account many different matters. The standard sentence is one such factor and no more. The sentence specified as the standard sentence is, ‘the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness’.[20]

[20]Sentencing Act 1991 s5A(1)(b).

91The standard sentencing regime does not interfere with the instinctive synthesis approach the Court must carry out which involves distilling all relevant factors to arrive at the appropriate sentence.

92The Court must only have regard to sentences imposed in cases where the standard sentence regime applied.[21] I have had regard to the standard sentencing cases referred to me by both parties.[22]

[21]Sentencing Act 1991 s5B(2)(b). The Court is not, however, precluded from considering principles established in past cases.

[22]Cooke v The Queen [2021] VSCA 70 (‘Cooke’); DPP v Pang [2023] VCC 270 (‘Pang’); DPP v Calladine [2020] VCC 2014 (‘Calladine’). The remaining two cases mentioned in [30] of exhibit 1, were not relied upon as comparators as they didn’t relate to sentences imposed under the standard sentencing regime.

93I do not propose to set out an exhaustive list of the differences. However, a glaring difference between the case before me and the cases of Cooke and Pang, is that those cases involved offending limited to one occasion. In Cooke, the Court of Appeal reduced the sentence to 12 months’ imprisonment along with a two year community correction order. The offending related to one act of penile vaginal penetration between a 22 year old offender and a 14 year old victim. Verdins principles one, three and four had application.

94In Pang,[23] the offending involved a single rolled up charge encompassing digital and penile vaginal penetration involving a 26 year old offender and a 15 year old victim. However, unlike you, Pang was a mature, married, 26 year old offender who did not experience mental health issues at the level that you do. Of course, as one would naturally expect, there are many other differences.

[23]Sentenced to 2 years 6 months with a non-parole period of 1 year and 4 months.

95The case of Calladine involved an 18 year old offender. This case was in that exceptional category involving a genuine affectionate relationship between the offender and his 14 year old victim.

96Current sentencing practices are not determinative; they are no more or less important than any of the other factors which the court is required to consider.[24] Each case ultimately turns on its own particular facts and circumstances.         

[24]DPP v Dalgleish (2017) 262 CLR 428.

Sentencing submissions

97Mr Johnston acknowledged the seriousness of your offending and accepted that the impact upon your victim has been significant. He ultimately conceded that a term of imprisonment would follow but urged the Court to consider a term of imprisonment in combination with a community correction order. He relied upon the combination of strong mitigating factors as set out in these reasons.

98On behalf of the prosecution, Mr O’Toole provided detailed written sentencing submissions,[25] supplemented orally. Mr O’Toole set out the factors going to the objective gravity of the offending. Those factors are not in dispute. He conceded the matters in mitigation, but nevertheless submitted that the seriousness of the offending was such that a sentence of imprisonment with a non-parole period was necessary to give effect to the important purposes of general deterrence, denunciation, just punishment and protection of the community.

[25]Exhibit C.

Serious Sexual Offender Provisions

99Pursuant to s6B of the Sentencing Act  1991,  upon conviction  and being sentenced  to a term of imprisonment  on Charges 1 and 2, you fall to be sentenced  as a serious sexual offender with regard to Charges 3 and 4 on the indictment. Pursuant to s6D of the Sentencing Act, in determining the length of any sentence on Charges 3 and 4, I must regard community protection as the principal purpose for which the sentence is imposed. It has not been suggested, and nor do I consider it appropriate in this case, that a disproportionate  sentence  is necessary to achieve the protection  of the community.

100Pursuant to s6E of the Sentencing Act, there is a presumption of accumulation with regards to sentencing for serious sexual offender offences. However, I must also bear in mind the overarching principle of totality. I must ensure that the totality principal is applied in a manner that does not undermine the legislative policy inherent in s6E of the Sentencing Act.[26]

[26]Gordon v R [2013] VSCA 343, [74].

101I have carefully considered all the material filed on the plea.

102On the one hand, there is a real interest in ensuring a youthful offender with good prospects of rehabilitation is allowed to resume his life and work within a supportive family environment. On the other hand, the gravity of the offending and the impact upon your victim cannot be forgotten.

103This is why sentencing is complicated. It involves competing considerations.

104I have carefully considered whether I can adequately deal with all sentencing purposes, namely general deterrence, denunciation, just punishment, community protection and rehabilitation by the imposition of a combination sentence.

105Ultimately, I have determined that the offending, despite the strong mitigating factors, is too serious for a combination sentence to adequately meet all sentencing objectives.

106However, I must not lose sight of the fact that I am dealing with a youthful offender, aged 20 at the time of the offending, and who has mental health issues impacting his daily life. He is a young man who, with appropriate assistance, is well able to lead a law-abiding life. The support of his family is unwavering and he will return to that loving family environment. Any sentence, regardless of length will be a significant punishment.

107The sentence on Charges 1 through to 4 will be much lower than the standard sentence in order to reflect the objective gravity of the offending as articulated earlier in these reasons, your personal circumstances, your pleas of guilty, remorse, youth, and the burden of imprisonment.       

Sentence

108Please stand Mr Crispo.

·        On Charge 1, you are convicted and sentenced to 6 months’ imprisonment.

·        On Charge 2, you are convicted and sentenced to 2 years’ imprisonment.

·        On Charge 3, you are convicted and sentenced to 2 years and 3 months’ imprisonment.

·        On Charge 4, you are convicted and sentenced to 2 years and 2 months’ imprisonment.

109The sentence on Charge 3 will be the base sentence. Three months of the sentence on Charge 2 and three months of the sentence on Charge 4 will be served cumulatively upon the base sentence on Charge 3 and upon each other. The sentence on Charge 1 will run concurrently.

110This makes a total effective sentence of 2 years and 9 months’ imprisonment.

111In light of your youth and positive prospects of rehabilitation, demonstrated during the three year period of delay, I consider that it is in the interests of justice to fix a non-parole period that is less than required by s 11A(4)(c) of the Sentencing Act 1991.

112You should have the opportunity to be assisted and supported in the community.

113I set a non-parole period of 16 months’ imprisonment.

Pre-sentence detention

114Pursuant to s18 of the Sentencing Act, the period of 105 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Courts records.

Serious Sexual Offender

115On Charges 3 and 4, pursuant to s6F(1) of the Sentencing Act, you are sentenced as a serious sexual offender and I order that this fact be entered into the records of the court.

Section 6AAA declaration

116Pursuant to s6AAA of the Sentencing Act, I indicate that had you pleaded not guilty to Charges 1 to 4 and been convicted of them, you would have been sentenced to a term of 4 years’ imprisonment with a non-parole period of  2 years and 4 months.

Sex Offender Registration

117Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, registration is mandatory in relation to these offences and the reporting period is life. Upon your release from prison, you must report your personal details to Victoria Police and continue to comply with the reporting obligations. I will ask you now to sign an acknowledgement form to indicate you have received a document setting out your reporting obligations upon your release and the consequences of any breach. It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.