Director of Public Prosecutions v Cupidan

[2023] VCC 2148

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

CR 21-02199

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSE CUPIDAN

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 November 2023
CASE MAY BE CITED AS:	DPP v Cupidan
MEDIUM NEUTRAL CITATION:	[2023] VCC 2148

REASONS FOR SENTENCE
---

Subject: CRIMINAL LAW

Catchwords: Common law assault - recklessly cause injury – harassment

- false imprisonment – domestic violence – controlling relationship -

- no prior criminal history – substance abuse.

Legislation: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic) – Criminal Code 1995 (Cth)

Cases cited: R v Pasinis [2014] VSCA 97

Sentence: A three year community correction order and a $10,000 fine for the state based charges. For the Commonwealth charges a fine of $2500.00. 

6AAA- If not for pleading guilty, a gaol sentence would have been imposed rather than a community correction order and fine.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McCowan
For the Accused	Mr P. Kounnas

HIS HONOUR:

1Mr Cupidan is a personal trainer and is aged 40, he was 35 and a half approximately, when these offences took place, having been born in June, 1984.  As I said, he's a fitness instructor he works at Port Melbourne apparently.

2

Mr Pirrie originally appeared for the Director in this matter and Mr Kounnas for

Mr Cupidan.  On day 1 of the trial, Mr Cupidan pleaded guilty to Charges 6 and 11 on the Indictment M10223477.  A jury was then empanelled.  We had a 198B hearing and Mr Pirrie opened, a reply was made by Mr Kounnas and thereafter that night the matter settled.

3

On 23 May 2023, the matter was resolved and Mr Cupidan pleaded guilty to Charges 1-5 and 8-10.  Insofar as Charge 7 was concerned, the jury was discharged on 26 October 2023, pursuant to s241(2A) of the

Criminal Procedure Act

, on the basis that the prosecutor indicated they would lead no evidence on the charge, I therefore directed an entry of not guilty be entered in the records of the Court in regard to Charge 7.

4

The matter was adjourned to 22 August 2023 for plea and subsequently adjourned to 26 October, on which date Mr McGowan appeared for the Director.  Mr Kounnas accepted that Exhibit A, being the prosecution opening of

25 July 2023, presented the facts upon which I was to sentence his client, and accepted his client’s criminal record.

5

Exhibit B was tendered, which was a victim impact statement of Rosanna Lees[1] who read the same to the Court and I will comment upon that in due course.  Exhibit 1 was tendered which was the defence submission as to plea dated

25 October 2023.  Exhibit 2, the Psychologist report of Ms Cidoni, dated

18 October 23 and Exhibit 3, a letter from the Better Health Network, confirming the men's change program undertaken by Mr Cupidan over a period of 20 weeks on the basis of two hours at each session.

[1] A pseudonym.

6Tendered as Exhibit C, was the Community Correction report, prepared by Mr Divitis, dated 31 October.  Insofar as that report is concerned the matter has been discussed this morning, and I accept that insofar as that report's concerned, there were some issues and I accept from Mr Kounnas that his client is adamant that he did not at all dispute the allegations open of which the pleas were made. 

7It is to be noted that this matter involved a committal on 13 October 2021, where Ms Lees was cross-examined.

8I come then to the circumstances of the offending.

9At the time Mr Cupidan was six years older than Ms Lees.  They were married in 2014.  They had by the time of the offending, a four-year-old child named Quinn[2].

[2] A pseudonym.

10Charges 1, 2, 3, 4, 8 and 10 are charges laid pursuant to the common law of assault.  The maximum penalty which can be imposed pursuant to the Crimes Act for such a charge is one of five years imprisonment.  Insofar as the first charge is concerned, which took place on 5 July 2019, it involved an assault on Ms Lees after she had returned from lunch with a friend, and advised Mr Cupidan that they had been gifted a bottle of wine from the owner.  Mr Cupidan while in the car with the victim punched her to the body and the ribs.  He slammed her head into the gear stick and her nose and lips were bleeding, then he has bashed her head into the dash. In order to stem the blood coming from her nose and lips she needed to use a handtowel which she found in the car.

11

Charges 2, 3 and 4, all arise out of the same incident and occurred on

15 July 2019.  Both Mr Cupidan and Ms Lees had been on an interstate trip with a friend of them both, as I understand it, Mr Weir[3].  When they returned back to Melbourne, in their car at the car park, Charge 2 occurred when he punched the victim saying to her at that time, 'Do you want to fuck him?'

[3] A pseudonym.

12Charge 3, occurred when they got home and involved a 20 minute period of assault and choking, wherein Ms Lees was rendered almost unconscious.

13Charge 4, took place at approximately 3 am that night, when Ms Lees was dragged from the bed, pulled by her hair and abused in the term such as, 'You're a slut.'

14

Insofar as context while not in anyway resiling from the seriousness of these charges, it was put that there had been an admission by

Ms Lees of infidelity with Mr Weir.  I stress that background factor was not put as an excuse, but as to the context as to these assaults.

15We then come to Charges 5 and 6, which relate to the assaults which took place at the Ms Collins nightclub on 26 October 2019.  This is a charge of recklessly cause injury, that is Charge 5, for which the maximum penalty is one of five years imprisonment.  Ms Lees apparently at some stage looked at another male, this promoted an argument.  She went down to the women's bathroom after the argument.  While she was in there Mr Cupidan pushed his way into the booth where she was, grabbed her by the hair, pushed her head against the tiles, leading to her having a bloodied lip, nose and a black eye.  These injuries the result of the reckless assaults cause injury, were seen by an independent witness, being the bathroom attendant.

16

Thereafter, Mr Cupidan was evicted from the nightclub and that is where

Charge 6 occurred, the Commonwealth charge of harass, being an offence under s474.17 of the Criminal Code, bringing with it a maximum penalty of two years, whereby he was trying to inveigle, threaten, and or cajole the victim to come out from the nightclub. Again as put to me by Mr Kounnas, I stress not as an excuse but suggested context, is that she had allegedly, that is the victim deliberately provoked Mr Cupidan by kissing another person in front of him. As I said, no excuse and no provocation in law, but a suggestion of context.

17Coming then to Charges 8 and 9. This occurred on 27 October 2019, and was the day after the assault at the nightclub, Charge 5. Again, Ms Lees was assaulted in her home.  She was attacked while she was in bed and her head was smashed into the wall.  She was punched and was called a number of terms such as “slut” and “garbage”.  She received a black eye and a bruise on her left arm.  On that day Charge 9 occurred, which has the highest maximum penalty of these charges, which is a charge of false imprisonment, as a result of his overwhelming jealousy he after having assaulted Ms Lees as indicated in Charge 8, then he kept her at the house for the rest of the day and would not allow her to leave.  Hence the charge of false imprisonment.

18

Charge 10, occurred on 21 November 2019, while they were staying at

Ms Lees’ parents' home.  They were apparently in a gym located there and had an argument.  He punched her to the right eye, she had a black eye and swelling, which was noticed not only by her parents but fellow workers.

19Charge 11, is another harassment charge under the Commonwealth Criminal Code. That occurred on 16 January 2020, when finally Ms Lees who had not complained about the assaults by Mr Cupidan, finally decided to go to the police. That took place subsequent to the incident that had occurred at her home. When she finally went to the police Mr Cupidan must have found out about it, I am not sure how, but he pursued her on that day, no doubt seeking that she did not go to the police to the effect that the harassment involved some 100 calls to her.

20The above recounting of the offences is a sorry record indeed.

21As I remarked in the plea such actions evoke classic signs of domestic violence:  firstly, pure jealousy and consequential rage, secondly, inane provocation, thirdly, resort to violence in the home, family car, or in regard to Charge 5 in a nightclub convenience, fourthly, circumstances where the victim hid the reason for the assaults so evident upon her body from her workmates and family, describing other reasons and fifthly, assaults as I have already indicated at various locations which made up the marriage, that is, either at the home, parents' home in their car, or even when they're out at a nightclub.

22Insofar as these crimes are concerned the victim impact statement was tendered as Exhibit B and Ms Lees spoke to that.  Her statement and words evoke almost classic domestic violence.  Fortunately, there was no long-term physical injuries result suffered by her.  However, emotionally and perhaps psychologically she details a broader fear in the relationship.  She details the controlling actions in the relationship with Mr Cupidan, the control of both her, her friends and her activities.  I found the letter to be particularly lucid and indeed a very good explanation as the basis why she was subsequently diagnosed as having post-traumatic stress disorder following the ending of the relationship.  I wish Ms Lees well in her recovery.  I should point out however, that in sentencing I am constrained by the facts of the offences and must only sentence in that regard, despite understanding the broader context of family violence of which Ms Lees was a victim.

23In sentencing upon the offences of course there are fundamental principles to be taken into account. As dictated by the Court of Appeal in of R v Pasinis [2014] VSCA 97, at [53], court said:

'Historically perpetrators of family violence are rarely prosecuted.  Even when offenders were convicted of such offences, they often received lenient sentences.  Fortunately, the criminal law now gives greater recognition to the devastating effects of family violence.  It has also been recognised that women who are killed by their husband, boyfriend or de facto partner, have frequently been assaulted by them on many occasions.  This makes both specific and general deterrence very important factors in sentencing men who assault their partner.'

24Then paragraph [54]:

'The effects of family violence are now well-documented.  They are not confined to physical injury.  Victims often feel responsible for the violence and ashamed that they are not able to prevent the perpetrator from offending.  As occurred in this case, (“and also in, with Ms Lees”), it is common for the victims to deny or conceal that their partners have assaulted them until the violence becomes unbearable.  This phenomenon was reflected in the behaviour of the person involved there.  Victims who have been dominated, controlled and beaten by their partners over a significant period experience serious and long lasting psychological trauma.  As is the present case the physical effects of the violence and its erosion of the victim's confidence can also affect their ability to participate in paid work and have other serious financial effects.'

25All of those matters of course referred to are reflected in the victim impact statement tendered.  Finally at [57] as to general deterrence, the Court of Appeal said as to these crimes:

'General deterrence is of fundamental importance in cases of domestic violence.  The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to authorities.  The key to protection lies in deterring the violent conduct by sending an unequivocal message to would be perpetrators of domestic violence, that if they offend they will be sentenced to lengthy terms of imprisonment so that they are no longer in a position to inflict harm.'

26Such principles of course must be applied and balanced with all other principles detailed in s5 of the Sentencing Act and the mitigatory matters put to this Court by Mr Kounnas. 

27The prosecution's prime submission as to sentence was a period of gaol with relevant parole as the appropriate sentence in all the circumstances. The prosecution accepted as a secondary alternate a combination sentence. 

28In the plea Mr Kounnas went to a number of factors.  The first was the plea of guilty being mitigating, of assistance to justice and utilitarian.  As I indicated I accept that the plea was made at the earliest time to the amended Indictment.

29Secondly, he went to the issue of context, by way of explanation for such violent behaviour by a person without any such prior offences, given his age of 35 at the time of the offending.  Mr Kounnas was at pains to have the Court understand the context of the relationship, which was not mentioned in the victim impact statement.  That is that the relationship was volatile owing to the life of both Mr Cupidan and his then wife which included, heavy participation in alcohol, methamphetamine and cocaine associated with what is known in the community as 'the party scene.'

30In the psychological report such situation is diagnosed in regard to Mr Cupidan as a substance abuse disorder and as detailed in the report upon instructions from Mr Cupidan, seemed to be in sustained remission.  In this context Mr Cupidan has since been charged, undergone a men's change program known as a behavioural change program, as confirmed by Exhibit 3.

31He now has a new partner, Ms Palomenos, who gave oral evidence to this Court.  Under oath she said that their relationship involves no violence.  That their four-year relationship has not involved use of drugs by Mr Cupidan.  They live together at the Docklands, with her 12-year-old child.

32Mr Kounnas also put to the Court that in addition to the issues of context at the time Mr Cupidan was going through the stress of the failure of a business located in Mornington, which was another gym as I understand it, and ongoing issues with dealing with the loss of his mother. 

33As a result of the totality of the matters put to the Court Mr Kounnas submitted that his client was a good candidate for rehabilitation, despite the subsequent offences recorded against him.  Mr Kounnas further submitted that a sentence in excess of 12 months would have consequences as to him residing in Australia and upon his current girlfriend.

34The defence on behalf of Mr Cupidan sought firstly a Community Correction Order or in the alternative a combined order under s44.

35

Coming then to the sentence, the balance here is exquisite, especially given the principles set out in Pasinis.  I should say Mr Cupidan I am not particularly impressed with you or your actions.  I should also say that I am sceptical as to whether a person, who in a relationship has demonstrated such jealous rages, can change his spots.  Indeed, I am sceptical as to Mr Palomenos’s evidence.  However, it may well be that the actions that you perpetrated upon Ms Lees demonstrate the impact of drugs upon you, rather than you being psychologically inclined to commit domestic violence on partners.  I hope you prove my scepticism to be ill-founded.  Of course my sentence must be pronounced on the evidence in the case and not my scepticism as to such evidence or my concerns about

Mr Cupidan's nature.

36After much agonising, given your age, your lack of priors, the evidence as to the steps taken by you to rehabilitate, the sworn evidence of your current partner as to the effect of such steps, insofar as the manner in which you have conducted yourself over the last four years in your current relationship, your alleged abstinence from drugs, and the extensive counselling undertaken by you as detailed in Exhibit 3, and finally the Community Correction report Exhibit D, in effecting the balance that I must, given the totality of the factors put to me by both counsel, I am prepared to give you an opportunity, despite my opinion of you and your crimes.

37I therefore reject the prosecution's submission as to sentence.  I intend to place Mr Cupidan on a Community Correction Order for three years.  He will be required under 48C of the Sentencing Act to perform 300 hours of community work.  He will be required to undergo treatment in regard to drugs under 48D(3)(a), alcohol 483(3)(b) and to consent to testing in regard to both.  Further, pursuant to s48(3)(c), if required, he will undertake treatment at residential facilities, if such is required.

38Under 48D(3)(d), he is to undergo any necessary medical assessment, any necessary mental health treatment and assessment, and any programs as to offending behaviour under sub-s(f).  And under 48D(4), he is to be subject to the directions of the Secretary for any of such programs.  He is also to be subject to supervision under s48E all of which were recommended by Mr Divitis in the report.

39Before I ask you formally through your counsel to consent to this and sign the CCO, I want to advise you Mr Cupidan, if you return here having breached this Community Correction Order in any way, then you should have no illusions as to what will be the consequence, you will then immediately go to gaol.

40Mr Kounnas, I am going to adjourn so you can talk to your client.  I want you to explain all of those conditions.  I want you to explain to him that in addition to the Community Correction Order which will relate to Charges 1, 2, 3, 4, 5, 8, 9 and 10, I intend to impose an aggregate fine of $10,000 which I will give him a stay of 12 months to pay.  And then in addition, I am going to fine him a total of $2,500 for the Commonwealth matters.  I want you to assure me Mr Kounnas that Mr Cupidan understands what I have said, my scepticism about him and his partner's evidence, and the consequences of any breach of a Community Correction Order in this case.

41MR KOUNNAS:  I will explain that to him again Your Honour, yes.

42HIS HONOUR:  Sorry?

43MR KOUNNAS:  I will explain that to him again.

44HIS HONOUR:  Yes, I'll stand down while you do it.

(Short adjournment.)

45MR KOUNNAS:  It's been thoroughly explained to Mr Cupidan and he understands how lucky he is with this opportunity Your Honour.

46HIS HONOUR:  Yes, thank you.  Mr Kounnas I don't know whether I might have mispronounced your name a couple of times and indeed your client's partner but if I did I apologise.

47MR KOUNNAS:  It's no difficulty, Your Honour.

48HIS HONOUR:  No.  Yes, Mr Cupidan if you would stand please.

49In regard to Charges 1, 2, 3, 4, 5, 8, 9 and 10, you will be convicted. And in regard to those charges I impose an aggregate penalty pursuant to s40 being a Community Correction Order for three years, with the conditions that I have indicated to you. I also in regard to such offences and pursuant to s51 of the Sentencing Act impose an aggregate fine upon you of $10,000.  I will grant you a stay of 12 months to pay the fine and any application to extend such time for payment, must be made to me.

50Insofar as the Commonwealth charges, Charges 6 and 11 and despite the seriousness of them, given totality I have determined to impose a fine in regard to each charge, and a fine of four penalty units under the Act which at the appropriate time was $313.  In that instance it comes to a sum of $1,252 in regard to each of the charges being the fine, making a total of $2,504. 

51Mr Prosecutor anything, I am sorry, I have got to do 6AAA don't I?

52MR McCOWAN:  Yes, Your Honour.

53HIS HONOUR:  Insofar as 6AAA is concerned, Mr Cupidan what that requires me to tell you is the value of your plea of guilty to these matters.  That is to indicate to you what would have happened had you not pleaded guilty.  I think it is pretty clear to you that you certainly would not have been getting a Community Correction Order and a fine, but you would certainly have got gaol.  I think in complying with the requirements of Parliament as to one factor when we are concerned with a multifactorial sentencing process is that is about as best as I can do.  I think that's all I need to do Mr Prosecutor?

54MR McCOWAN:  Yes, from my perspective.

55HIS HONOUR:  Yes Mr Cupidan you can come out of the dock in due course.  We'll adjourn the Court.  I'm sorry we've got to get him to sign first, don't we.  Let's do that.  Yes, Mr Cupidan, I wish you well.  I hope you do prove me wrong.  Yes.

56OFFENDER:  Yes, Your Honour, thank you.

- - -