Director of Public Prosecutions v Cuccia
[2013] VCC 1506
•17 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00576
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE CUCCIA |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 October 2013 | |
DATE OF SENTENCE: | 17 October 2013 | |
CASE MAY BE CITED AS: | DPP v. Cuccia | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1506 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty - Indecent act with a child under 16 – Impersonate a member of police force – Major depressive disorder – Not suitable to undergo Community Corrections Order
Sentence:Total Effective Sentence of 4 weeks’ imprisonment – Fine of $200 with stay of 6 months in respect of summary charge – Pre-sentence detention declared – s.6 AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Zammit Ms C. B. Hollingworth (Sentence) | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr T. R. Marsh | Victoria Legal Aid |
To ensure that there is no possibility of identification of the victim of the sexual offending, the name of the victim and those whose names may tend to identify her have been initialised.
HER HONOUR:
1 Shane Cuccia, you have pleaded guilty to one charge of indecent act with a child under 16 years which has a maximum penalty of 10 years imprisonment and to a summary charge of impersonating a police officer which has a maximum penalty of 100 Penalty Units.
2 Your offending was opened as follows:
3 The victim, IAM, was born on 14 July 1998 and was aged 13 years at the time of the alleged offences.
4 You were 26 years old at the time of the alleged offences.
ALLEGED OFFENDING
5 You first met the victim in mid-February 2012 through a mutual friend, 16 year-old TG. At that time, the victim and TG were living together in a residential unit in Mooroolbark operated by Wesley Mission.
6 On the day that you met, you had phoned TG and arranged for her to meet you in the city. The victim asked TG if she could go with her. TG agreed and helped the victim put on make-up.
7 TG and the victim then travelled by bus and train to Southern Cross Railway Station where they met you and another male at around 11.00pm. You and the victim introduced yourselves to each other.[1] The group then went to a park where you all consumed cask wine and smoked cannabis for a few hours. Whilst at the park, you and the victim became physically affectionate. TG was repeatedly telling you that the victim 13, however the victim told you she was 17.[2] At some point, you and the victim exchanged phone numbers.
[1]VARE of AI Q/A 102
[2]VARE of AI Q/A 292; VARE of TG Q/A 53 – 68, 103 - 106
8 Later that evening the two girls went to TG’s mother’s house in South Melbourne where they slept the night. TG’s mother, TS, had previously heard of the victim and knew that she was 13, however when she saw her she said in her statement she was “surprised” because she thought the victim “looked a lot younger than 13” despite the fact she was wearing “revealing clothing and a push up bra”.[3]
[3] Statement of TS p.2
9 In the days after your first meeting, you and the victim kept in contact by exchanging text messages, including a number of messages which were set out in the prosecution opening and which I will adopt into my sentencing remarks but I will not repeat here. You also began calling the victim trying to arrange to meet up again.[4]
[4]VARE of Anna Inwood Q/A 29
10 On 27 February 2012, you rang the victim and organised to meet her. You went together to a boarding house in South Melbourne where a friend of the yours, a Riyaad KAJEE, lived. You had earlier called KAJEE to ask if you and your “missus”, as you referred to the victim, could come over and sleep on the floor of KAJEE’s room. KAJEE agreed to this.[5]
[5]Statement of Riyaahd Kajee p.2
11 At around 9.00 pm to 10.00 pm you and the victim arrived at KAJEE’s room. KAJEE noted you were “acting like girlfriend and boyfriend” and were “all over each other”. The three of you smoked cannabis and watched TV in KAJEE’s room. At one point when the victim went to the bathroom, you asked KAJEE what he thought of her. KAJEE replied “What are you doing? She looks like she’s 11 or 12”.[6]
[6]Statement of Riyaad Kajee p.2
12 Over the course of the night the three of you stayed in KAJEE’s room smoking cannabis and sleeping on and off. You and the victim were also taking pills. At some point during the night you took the victim to a communal living area in the boarding house. You sat on a couch together and kissed a few times and the victim touched the your penis over your pants.[7] (Charge 1 – Indecent Act with a Child under 16)
[7] Q/A 317
13 You and the victim left the boarding house separately and later that same day the victim sent a number of sexually provocative text messages to you.
14 On 6 March 2012, you were spoken to by police in relation to an unrelated matter and your two mobile phones were seized. Upon examining the text messages in both of the phones, police discovered sexually related text messages between you and the victim. Police ascertained that the victim was aged 13 years and arranged for her to attend the Knox SOCIT Unit where on 27 March 2012 she was interviewed.
15 On 3 May 2012, you were contacted by police and an appointment was made for you to attend the Fawkner Police Station. Later that day you called the victim’s carer, MG, pretending to be Sergeant Appleby from the Fawkner Police Station and asked to speak with the victim about her statement (Summary Charge – Impersonate Member of Police Force).
16 MG was unaware at the time that it was you who was calling. She provided you with the victim’s mother’s mobile phone number as the victim was staying the night at her mother's. You then called the victim’s mother, IR, pretending to be Sergeant Appleby from the Fawkner Police Station (Summary Charge – Impersonate Member of Police Force). She handed the phone to the victim who confirmed she had made a statement about you. You then stated, “So you did make a statement about me”. The victim immediately hung up the phone. You then called MG again and in an aggressive tone accused her of telling the victim to go the police.
OFFENDER INTERVIEW WITH POLICE
17 On 4 May 2012, you were interviewed at the Fawkner Police Station and admitted the following:
18 When you first met the victim you believed she was 17 and that TG had earlier told you she was bringing a 17 year-old girl to meet you. You said the victim also told you she was 17 after you had met;[8]
[8]Q/A 12 & 81
19 You said that you had kissed the victim up to 15 times on the first night but stated that she was ‘jumping’ on you and you did not push her away;[9]
[9]Q/A 59 - 60
20 You said that when you were with the victim at the South Melbourne boarding house you had been suspicions about her age as she was not wearing make-up and looked younger and was acting immaturely. This caused you to believe the victim was “pretty young;”[10]
[10]Q/A 19 and 133
21 You also said that the victim looked like she was a child aged 12 or 13 years;[11]
[11]Q/A 20
22 You saw a comment posted by the victim on Facebook that read, “I can do whatever I want. I’m 13;”[12]
[12]Q/A 12 and 140
23 You also told police that whilst you were at the South Melbourne boarding house he “knew at some point she was not 17;”[13]
[13]Q/A 140
24 You said that the victim looked “very young;”[14]
[14]Q/A 143
25 You admitted kissing her whilst you were on the couch in the communal living room;[15]
[15]Q/A 286 – 287 and 299
26 You had thought about having sex with her but you only hugged her;[16]
[16]Q/A 302
27 While you were on the couch the victim touched your penis over the outside of your trousers;[17]
[17]Q/A 303 and 317
28 You did not ejaculate;[18]
[18]Q/A 314 - 317
29 You said you could not remember making any phone calls to the victim or her worker pretending to be a police officer.[19]
[19]Q/A 418-426, 463, 466, 469
30 In relation to the offence on the indictment, that is, indecent act with a child under the age of 16 years, whilst this is not the most serious example one has seen of this offence, it is serious enough especially in circumstances where the victim was 13 years old, barely a teenager, and you were twice her age. By your plea of guilty and record of interview admissions as well as other evidence at committal, it is clear that at the time you committed the indecent act you knew that she was under the age of 16 and you knew you ought to have known better in relation to treatment of her. It is no excuse that the victim may have made advances toward you or may have been sexually precocious. This is all the more reason why you, as the adult, should have exercised appropriate restraint. Further, once the victim made a statement to police as she was entitled to do, you pretended to be a police officer in order to contact her and you used the phone number which you had fraudulently obtained to abuse a person who was simply caring appropriately for the victim, blaming her carer for taking the victim to the police. It was not only her entitlement but her responsibility to take the victim to the police and I hope you understand that, Mr Cuccia. I regard this offending as a serious aspect of your offending overall. Of course there is a separate offence for it and I regard it as a serious example of that offence.
31 I take into account the stage at which you entered a plea of guilty to these charges, being after the committal hearing although in circumstances where you had been facing more serious charges. I was told that following the committal hearing some further material came to light which essentially weakened the Crown’s position and which led to the resolution of the matter. In the circumstances, you are entitled to a rather significant discount in the sentence you would otherwise receive as you have saved the witnesses, especially the victim, the time and trauma of giving evidence at trial and you have saved the community the time and expense of running a trial. I also allow for the fact that you ran a contested committal hearing when you were facing more serious charges.
32 It appears that you have a longstanding substance abuse problem which may have been developed as a means of coping with a major anxiety condition which Dr Owen, psychologist, has diagnosed you as suffering from. In the past you have also been diagnosed as suffering from attention deficit disorder, however, Dr Owen suspects that this may not be valid, at least, not at this stage in your life. I take Dr Owen’s diagnosis into account in sentencing you
33 You are now 28 years old and you have little in the way of prior convictions. However, you have a serious subsequent matter being two charges of armed robbery for which you were sentenced by His Honour Judge Chettle on 6 September 2012. You received the benefit of a Community Corrections Order. As your Counsel pointed out, it is unusual for someone convicted of armed robbery to receive the benefit of a Community Corrections Order but there were extenuating circumstances in your offending on that occasion which led to that result. However, you failed to comply with the conditions of that order in a most dismal fashion and you committed a further offence whilst being subject to it, albeit in the nature of a minor theft. His Honour then dealt with you for breaching the Community Corrections Order, re-sentencing you to 12 months imprisonment with a non-parole period of 5 months imprisonment. You are still undergoing that sentence and are due to be considered for parole on 25 October this year, which is a matter of weeks from now.
34 Mr Marsh, who gave a most eloquent plea on your behalf, submitted that whilst your compliance with Community Corrections Order dispositions in the past had been very poor, your experience in prison had made you take stock and you were now better placed to undergo such a disposition.
35 In sentencing you I must impose a sentence which denounces your conduct and which serves to justly punish you. I must place some weight on specific deterrence and significant weight on general deterrence in a bid to deter others from behaving as you have.
36 In all of the circumstances, having heard the submissions of counsel, I had you assessed for a Community Corrections Order, although Community Corrections had indicated that you could not be deemed suitable for such an order as the Parole Board had not determined whether you could be released. You are in a “catch 22” situation as it appears that the Parole Board will not consider you for release unless the matters before me had been finally determined. However, the report from Community Corrections deemed you to be unsuitable for reasons beyond technical ones, citing your poor compliance in the past and inability to identify strategies to avoid substance abuse. If the report had cited the technical problem as being the sole reason for deeming you unsuitable, I would have written to the Parole Board, as I indicated on the last occasion, to explain the dilemma in your case. However, this was not to be in view of the assessment which has now taken place.
37 In sentencing you, I factor in that you have good family support and the promise of work, as I understand it, upon your release which are both good assets to assist you in your rehabilitation. The big challenge for you, Mr Cuccia, as I am sure you are aware, will be to avoid substance abuse as this will inevitably cloud your judgement and lead to more offending. Upon your release you ought engage in counselling and any other treatment for this and your underlying condition. Do you understand?
38 If you fail to do so and get back onto the drugs then you can expect to spend ever-increasing periods of your life in jail.
39 As a Community Corrections Order is not suitable according to the Community Corrections Assessing Officer, I am afraid I have no option but to sentence you to a term of imprisonment; but in all of the circumstances, I intend to keep this to a minimum and abide by what was submitted to me as being appropriate by the Crown in this case.
40 Would you please stand up Mr Cuccia?
41 In relation to the charge on the indictment, you are convicted and sentenced to seven days' imprisonment to be served concurrently with the sentence you are presently undergoing.
42 In relation to the summary charge, you are convicted and fined $200 and I will allow you 6 months to pay this. Although I regard the offending in relation to the Summary Charge as a serious example of that type of offending, I also factor in that upon your release from jail it will be difficult for you to perhaps put funds together and I do not want to put undue pressure upon you in order to pay a monetary penalty.
43 If not for your pleas of guilty I would have sentenced you to 3 months imprisonment and I would have fined you $400. There is no pre-sentence detention to be reckoned as served.
44 Under the Sex Offenders Registration Act 2004 by reason of your conviction of this offence you are to be recorded as a registrable offender for eight years. You must report your personal details to the Chief Commissioner of Police annually for eight years. You must first do so, that is, report, within seven days after your release from custody. Details in writing of these reporting conditions will be served upon you now by my associate and I will ask your counsel to assist you in acknowledging that notice and have you sign it.
45 MR MARSH: May I be excused from the Bar table for a moment?
46 HER HONOUR: Yes, thank you.
47 MR MARSH: Thank you, Your Honour.
48 HER HONOUR: Very well. Is there anything arising out of the sentencing remarks?
49 MS HOLLINGWORTH: No, Your Honour.
50 HER HONOUR: Very well. Yes, thank you, you may remove the prisoner. Thank you and I thank counsel for their assistance.
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