Director of Public Prosecutions v Curic
[2019] VCC 1210
•5 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-18-00739
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW CURIC |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 July 2019 |
DATE OF SENTENCE: | 5 August 2019 |
CASE MAY BE CITED AS: | DPP v Curic |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1210 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Indecent act (3 charges); Indecent assault (2 charges); Plea after trial; Delay; Offender child at time of offending; Subsequent offending; Emphasis on general deterrence substantially reduced.
Legislation Cited: Criminal Procedure Act 2009 (Vic); Crimes Act 1958 (Vic); Sex
Offenders Registration Act 2004 (Vic).
Cases Cited: Sherritt v The Queen [2015] VSCA 1.
Sentence:Convicted and sentenced to 4 months imprisonment wholly suspended for period of 12 months (Charges 8 and 9); Adjourned undertaking for period of 12 months (Charges 2, 3 and 4).
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Slim | Director of Public Prosecutions |
For the Offender | Mr S. Anger | C. Marshall & Associates |
HIS HONOUR:
1On 27 March 2019, you pleaded not guilty to five charges of indecent act with a child under the age of 16 years, one charge of sexual penetration of a child between the ages of 10 and 16, one charge of common assault and two charges of indecent assault. A jury of 12 was then empanelled to determine those charges.
2On 1 April 2019, after the close of the prosecution case, I determined that there was no case to answer in respect of Charge 6 on the indictment being the charge of sexual penetration of a child between the ages of 10 and 16. In accordance with s 241(2)(b)of the Criminal Procedure Act 2009 (Vic) the jury was discharged from delivering a verdict on that charge and an entry of not guilty was recorded. I further ruled that an alternative charge of indecent act should then be left to the jury.
3After retiring to consider their verdicts on 2 April 2019, the jury returned the following verdicts on 8 April:
4Charge 1: indecent act between 1 April 1998 and 8 March 1999, not guilty and that was a unanimous verdict.
5Charge 2: indecent act between 1 April 1998 and 8 March 1989, the verdict was guilty and that verdict was unanimous.
6Charge 3: indecent act, 9 March 1999, the verdict was guilty and that verdict was by majority.
7Charge 4: indecent act, 9 March 1999, the verdict was guilty and that verdict was by majority.
8Charge 5: indecent act, 26 June 1999, that verdict was not guilty and that verdict was unanimous.
9Charge 6: indecent act, 26 June 1999, the verdict not guilty and that verdict was unanimous.
10Charge 7: between 1 April 1999 and 25 December 2000, common assault, that verdict was not guilty and that verdict was unanimous.
11Charge 8: indecent assault, 5 July 2003, that verdict was guilty and that verdict was unanimous.
12Finally, Charge 9: indecent assault, 5 July 2003, that verdict was guilty and that verdict was unanimous.
13You therefore now fall to be sentenced in relation to Charges 2, 3, 4, 8 and 9.
Personal circumstances
14You were born in April 1986 and you are now 33 years of age. The complainant, who I will refer to as AB for the purposes of these sentencing remarks, was eight months younger than you having been born in December 1986. She was known to you.
15During the time frame of the indictment, 1 April 1998 to 5 July 2003, you were aged between 11 and 17.
16The events the subject of these charges, inclusive of those of which you were acquitted, consisted of five occasions where you were alleged to have offended against AB.
17The first occasion was alleged to have taken place between 1 April 1998 and 8 March 1999. In that instance the complainant alleged that you had pursued her in a game of hide and seek onto a bed and held her down whilst kissing her on the neck and cheek and then on her stomach in the area of her navel. That conduct constituted Charge 1 of which you were acquitted.
18The complainant then alleged that you had forced her to rub your exposed and erect penis with her hand. That conduct constituted Charge 2 of which you were found guilty.
19The next incident was said to have taken place in March 1999 at a celebration. During another game of hide and seek you were alleged to have taken the complainant into some bushes where you pushed her to the ground and began rubbing your body up and down on top of her. The complainant said, 'No, stop, get off me. This is wrong. It’s disgusting'. You used one of your hands to prise the complainant’s legs apart and she tried to push you off. She could feel your erect penis against her inner thigh. That conduct constituted Charge 3 of which you were found guilty.
20You then placed your left hand inside her pants but on top of her underwear. The complainant described you placing your hand over her clitoris but not actually moving your fingers. This lasted for a couple of seconds. That conduct constituted Charge 4 of which you were found guilty.
21The third incident was said to have taken place on 26 June 1999 at another celebration, this time at the complainant’s home. Whilst on the trampoline out in the backyard AB alleged that you placed your hand underneath her as she sat down. It was alleged that you grabbed the space between her vaginal opening and her anus. That conduct constituted Charge 5 of which you were acquitted.
22It was then alleged that you had placed your hand inside her pants at the back touching her on the bottom, on her skin. This charge had originally been pleaded as sexual penetration but as I indicated earlier it was left to the jury as the alternative charge of indecent act. You were acquitted of this charge, Charge 6.
23In respect of the fourth incident, AB gave evidence that she was on a different occasion in a bedroom looking out a window. You were alleged to have walked into the room and forcefully grabbed her around the upper arms and pulled her towards the bed. As this occurred you were interrupted by others coming into the room. This conduct constituted Charge 7 of which you were acquitted.
24The final incident was alleged to have occurred on 5 July 2003, again at a celebration. On that occasion it was alleged that you were watching a movie with AB and a number of other younger children in a bedroom. It was alleged you pulled the complainant towards you and used your left hand to fondle and squeeze her right breast whilst kissing her neck. As you did this the complainant said, and I quote, 'No, the kids are here'. That conduct was said to constitute Charge 8 of which you were found guilty.
25It was then alleged by AB that you placed your left hand inside her jeans and inside her underwear and placed your hand on top of her vagina and made a comment about her pubic hair. You attempted to move your hand further down, placing your fingers on the outside of her vagina. She tried to push your hand away but was not successful. You desisted only when your sister entered the room. That conduct constitutes Charge 9 of which you were found guilty.
26AB complained about the conduct constituting Charges 3 and 4 to her friend XY in Year 7.
27She later also complained to her now husband DC on her 21st birthday to the effect that you forced yourself on her when playing hide and seek.
Victim impact
28AB provided a victim impact statement which she read to the court herself.
29Clearly, the effect your actions have had on her has been life changing. When this happened to her as a child she did not appreciate the extent to which it impacted on her emotional and social development. Now, with the benefit of being able to reflect on what happened, it is evident that what you did impacted on her self-esteem and sense of confidence, it damaged her ability to form relationships and continues to make her feel unsafe, not only for herself, but for her daughter as well.
30Over these years she has endured nightmares, difficulty in sleeping and eating, and has had occasional suicidal thoughts. She recalls that before these offences she was a happy, outgoing child, now she has become somewhat isolated with very few friends, nor can she see any of her extended family. She feels she can trust no one other than those closest to her.
31It is important that you understand that the significant impact your offending has had on your victim is an important matter that I must take into account in formulating the sentence that will now be imposed.
Personal history
32Turning to your personal history, you were born in April 1986 and are now 33 years of age. Your father, who was present to support you in court, worked in the Allen's Factory whilst your mother worked for Qantas when you were growing up. You told your assessing psychologist Dr Aaron Cunningham that your home life was stable and supportive. However, you did not have a good relationship with your mother and it appears that you rebelled as an adolescent and left the family home when you were just 16.
33You went to Box Forest Secondary College in Glenroy until halfway through Year 9. It appears that your main work since that time has been as a roof tiler and over a period of six years or so leading up to 2011 you worked for a number of different employers in that field. Unfortunately, you have not worked since 2011 and I was told that that was due mainly to a back injury that you received at that time.
34It seems also that substance abuse has been a problem for you since about the age of about 20. At various stages you have had significant problems with alcohol, cannabis and methamphetamine. You told Dr Cunningham that you ceased using methamphetamine seven or eight years ago, but relapsed in 2014 in the context of being homeless. You say that you again ceased using methamphetamine with the help of some further drug rehabilitation and have now stabilised.
35You have had two significant relationships. The first produced two children now aged eight and six. You continue to maintain a relationship with those children. You also have a three year old son from a relationship with another woman who now lives in Western Australia. That relationship ended when your son was six or seven months of age and it seems that it has been difficult for you to maintain a relationship with that child because he lives with his mother in Western Australia.
36In his assessment of you Dr Cunningham conducted a number of psychological tests and he tested to assess for the presence of intellectual impairment and found that you were in the average range of non-verbal fluid intelligence. There was no indication of intellectual disability. Dr Cunningham also administered the risk for sexual violence protocol known as RSVP. He assessed you by reference to that testing as a moderate risk of sexual reoffending.
37At p.4 of his report of 24 July 2019, Dr Cunningham states:
'Mr Curic reported a history of childhood instability and abuse. He reported a difficult relationship with his mother. He felt abandoned and rejected. He suffered sexual abuse at the age of eight from a 12 year old female. This incident caused confusion and he acted out sexually from this time. He lost his virginity at the age of 14. He has not addressed the consequences of his abuse or engaged in a course of therapy. He has mainly escaped from problems through drug abuse. He has recently had additional stressors in the form of difficult relationships and separation from his children. He does not present with adequate coping skills to deal with these stressors.'
Subsequent Offending
38Whilst you do not have any prior convictions there is a subsequent criminal history which bears upon your prospects for rehabilitation.
39You have undergone two other separate trials in respect of other complainants of a similar age to AB. On 22 June 2016 you were sentenced in this court to undertake a Community Corrections Order, with conditions to perform 200 hours of unpaid community work and to participate in a Sex Offender Assessment and Treatment Program in respect of three charges of indecent act with the child under the age of 16 and one charge of sexual penetration of a child under the age of 16. Those offences were committed between July 1999 and January 2001.
40You were also sentenced in this court on 24 February 2017 in respect of a charge of, what was then called, maintaining a sexual relationship with the child under the age of 16 to a term of 18 months' imprisonment, which was wholly suspended for a period of two years. You were also ordered to comply with the requirements of the Sex Offenders Registration Act2004 (Vic) for a period of seven years and six months. That offence was committed over the period July 1999 to December 2008.
41Each of those orders was the subject of contravention proceedings. In the case of the Community Corrections Order, for failure to comply with some of the conditions of that order and in respect of the suspended sentence, for offending mainly relating to breaches of a family violence intervention order. In the case of the Community Corrections Order contravention you were ultimately sentenced to 11 months' imprisonment, however, eight months of that sentence was suspended for two years and you were required to serve three months' imprisonment. The suspended sentence order was confirmed and you are now, as I understand it, no longer subject to any Community Correction Order or suspended sentence.
42Your current situation is that you have returned to live with your parents at their home in Broadford and are not presently working.
Submissions
43Turning to submissions made by the parties, Mr Anger who appeared on your behalf submitted in respect of Charge 2 that you could have been as young as 11 years of age at the time that offence was committed and certainly you were no older than 12 years of age. With respect to Charges 3 and 4, you were 12 years of age. And with respect to Charges 8 and 9, you were 17. He submitted that because you were a child at the time those offences were committed general deterrence should not be regarded as a relevant sentencing purpose. He referred in particular to the decision of Sherritt v The Queen [2015] VSCA 1 in support of that submission.
44He also argued particularly with respect to Charges 2, 3 and 4 that your moral culpability must be characterised as being very low because of your very young age. He made the point that had these matters been dealt with under present legislation, s 49U the Crimes Act 1958 (Vic) would have provided a complete defence because you were no more than two years older than the complainant at the time. He submitted that in these somewhat unusual circumstances a Community Corrections Order of short duration was an appropriate disposition.
45On behalf of the prosecution, Mr Slim acknowledged having regard to the fact that you were a child at the time of these offences that different sentencing considerations apply. Nonetheless, he submitted that it was important to have regard to the impact your offending has had on the victim and when sentencing you to mark and denounce your conduct. He submitted that an appropriate disposition was one of a term of imprisonment which was wholly suspended. He acknowledged given your very young age with respect to Charges 2, 3 and 4 that a different disposition might be appropriate for those offences.
Analysis
46Taking these submissions into account it is important to emphasise that very different sentencing considerations apply to your case because you were a child at the time of the commission of these offences. I accept Mr Anger’s submissions that general deterrence has no role to play and that your moral culpability should be characterised as being very low because you were a child, that is particularly so in the respect of the Charges 2, 3 and 4. Consistent with the sentencing considerations that apply to the sentencing of children, I should also seek to emphasise your rehabilitation to the extent that that is possible.
47Whilst it is true that you were a child at the time of these offences, with respect to Charges 8 and 9 you were nonetheless considerably older, that is 17 years of age, and your conduct on that occasion involved the commission of a serious sexual assault that has had a lifelong impact on the victim. It is, therefore, very important that the sentence I impose recognise those matters and denounce your conduct. In those circumstances I am satisfied that no other penalty other than a term of imprisonment albeit wholly suspended should be imposed in respect of those offences.
48Accordingly you will be sentenced as follows, would you please stand, Mr Curic:
49In respect of Charges 2, 3 and 4, I will order that this proceeding be adjourned for a period of 12 months and that you be released without conviction upon giving an undertaking that you first be of good behaviour during the period of the adjournment and second that you attend before this court if called upon to do so during the period of the adjournment.
50In respect of Charges 8 and 9 being the two charges of indecent assault you will be convicted and sentenced to a term of imprisonment of four months' imprisonment in respect of each charge. I will make no order for cumulation and I intend that the total effective sentence in respect of those two charges should be four months' imprisonment and I will further order that that sentence be wholly suspended for a period of 12 months.
51In the exercise of my discretion I will make no order under the Sex Offenders Registration Act given that you are currently subject to the requirements of that Act for a further period of approximately five years.
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