Director of Public Prosecutions v Curmi
[2019] VCC 852
•11 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL CURMI |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 June 2019 | |
CASE MAY BE CITED AS: | DPP v Curmi | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 852 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. Warren | |
| For the Accused | Mr D. Salia |
HER HONOUR:
1 Daniel Curmi, you have pleaded guilty before me to one charge of committing an indecent act with a 16 or 17 year old child who was under your care, supervision or authority, two charges of indecent act with a child under the age 16 and one charge of sexual penetration of a child aged 16 or 17.
2 The facts underlying this offending are as follows.
3 The offending occurred between November 2016 and January 2017, at which time you and the three complainants were employees at a boat yard. During that period of time you committed sexual offences against all three whilst employed as their direct supervisor at the business.
4 You undertook two records of interview with police on 30 June 2017 and 27 July 2017. At the time of the offending you were 37 years of age. Two of the complainants, A and J, were brothers. You recruited A through Facebook and he started working with you in about October 2016. The third complainant, M, you knew through his parents. You offered him a job in December 2016. He worked for about seven days during the holidays.
5 Referring to the first complainant, A. At about 7am on 19 November 2016 A, who was then 16, was taking covers off a boat with you when you asked him whether he had, 'A big zobb or a small zobb', referring to his penis in Maltese. You then squeezed A's genitals twice. A did not know how to react and said, 'I dunno', and returned to removing the covers on the boats.
6 Between 1 November 2016 and 31 January 2017 you squeezed A's genitals on about 12 to 13 occasions whilst either removing the covers on the boats in the morning or replacing them in the evening. These actions underlie Charge 1 on the indictment, indecent act with a 16 or 17 year old child under your care, supervision or authority and is what is called a charge based on a course of conduct.
7 Charge 3, sexual penetration of a 16 or 17 year old child who was under your care, supervision or authority, also relates to the complainant A.
8 At about 9pm on 14 January 2017 you followed A into the cabin of one the boats when he went to get cups from the cupboard. You stood above him on the stairs, then grabbed him on the penis over his clothing before reaching under his clothing, rubbing A's penis whilst holding him by the shoulder. You then got on your knees and pulled A's pants down and licked his penis and put it in your mouth for a few seconds. A pulled his pants up. You said, 'I'm sorry. I'm sorry', and A walked out. As I said, these actions underlie Charge 3 on the indictment.
9 In relation to the second complainant, J, who is the brother of A, at about 1.30 on 19 December 2016 you offered J a lift home after finishing work for that day. The two of you got into your car. J sat in the front passenger seat whilst the car was parked in a multi-level car park. As you were driving the car out you reached over and squeezed J's genitals. J grabbed your hand and said, 'What are you doing?', and you responded, 'Oh sorry, sorry', and continued to drive him home.
10 Between 17 September 2016 and 22 January 2017 you spoke to J in a sexual way, having specific conversations with him about sex and sex acts, masturbation, his sexuality, whether he had a girlfriend and on numerous occasions showed him pornographic videos on your mobile phone saying, 'Do you like that?'. You asked J to sleepover at your house and massaged his shoulders. These actions underlie Charge 2 on the indictment, indecent act with a child under 16.
11 In relation to the third complainant, M, between 13 December 2016 and 29 January 2017, you spoke to M in a sexualised way, having conversations about sex and sex acts, masturbation, his sexuality, if he had a girlfriend and you asked M to tell you how big his penis was using his hands. You asked to trade photographs of genitals of each of you saying, 'How big is your cock? Can I see it? When are you going to show it to me?'
12 You asked M to sleep over on one of the boats with you so that you could watch pornography together and you showed M a pornographic picture on your mobile phone. You asked M to take his mobile phone and go down into the cabin of the boat and masturbate and said to him, 'Stop being so shy. I'm going to organise to get you a blow job'.
13 On 28 January 2017 you took M on a cruise on one of the boats instructing him how to drive the boat while sitting on a couch nearby. You then came up behind M and rubbed his left leg and penis while asking. 'How big is it?' These actions underlie Charge 4 on the indictment, indecent act with or in the presence of a child under 16.
14 You ceased working with the company in February 2017 but continued to communicate with M. M's mother was uncomfortable with this continued contact.
15 On 24 April 2017, J disclosed to other people that you had sexually touched him at work. On the same day, K spoke to her son, M at which time he told her that you had touched him on the penis while working for the company.
16 On 25 April 2017, a meeting was held between the families of the two boys at which time M and J both disclosed that you had sexually touched them at work. Police were then contacted. M conducted a VARE on 28 April 2017. On 30 June 2017 you attended police where you were arrested and interviewed in relation to the matters alleged by J and M. You made full admissions in those records of interview.
17 During that record of interview you were also asked whether you had committed any sexual touching or any sexual assault on A and you made some admissions. As a result of that A was contacted and participated in a VARE on 20 July 2017.
18 On 27 July 2017, you again attended police and undertook a second record of interview. In that record of interview you were entirely cooperative and made full admissions to touching A on the penis, admitted to sexual penetration and it is clearly the case that two of the most serious charges against you in relation to A, that being Charges 1 and 3, arose as a result of your admissions to police.
19 This matter was settled at committal mention stage, no witnesses were cross‑examined and the community was spared the time and expense of a trial.
20 I now turn to your personal circumstances. You are now 48 years of age. You live with your parents, your mother working as a cleaner and your father as a retired council worker. Your parents were born in Malta and emigrated to Australia in 1976. You are the oldest of four children. You have three younger sisters who are all married. Your family is law abiding. You have no prior convictions.
21 You completed Year 12 at Keilor Downs High but it is clear, despite the law abiding and stable nature of your family, that you had a very difficult childhood.
22 You told forensic psychologist Janelle Armstrong, whose report dated 22 April 2019 was tendered on the plea, that your family was very strict, that you felt unloved by your parents although I hasten to add that they have been very supportive of you since revelation of this offending and your own mental health difficulties which were then revealed.
23 In any event, it is clear you grew up as an insecure child who had difficulties and insecurities when you went to school and immediately became the target of bullying. This bullying was extensive in primary school but you felt unable to tell your parents for fear of being punished.
24 To add to your difficulties, when you were aged 10 you were sexually abused for a year by an older cousin on either a weekly or fortnightly basis which added to your psychological difficulties.
25 These continued in secondary school as those who had bullied you in primary school moved on to the same school as you and the bullying reached extreme levels where you were assaulted daily and on occasions even whipped. Eventually when you were 14 you told your parents. No intervention occurred and, in fact, the bullying intensified.
26 Nevertheless, you completed VCE in 1996 and went on to compile a stable work history. You completed a bricklaying apprenticeship, working for the same company between 1998 and 2006. Between 2007 and 2009 you worked with a road maintenance company rising to the position of road inspector. You had lived all your life with your parents but in 2009 left home for the first time to move to Portland where you worked as a road inspector for a period of two years and earned certificates in occupational health and safety
27 In 2012 you returned to Melbourne as you missed your family and worked for an engineering firm for 12 months as an occupational health and safety representative. Between 2013 and 2017 you worked for the pleasure cruise company where the offending occurred. You worked excessive hours, sometimes up to 70 hours a week.
28 You told Ms Armstrong that you had had two intimate relationships. The first lasted for seven years. You were engaged to be married but she was unfaithful to you. You wanted the relationship to continue but she told you she was no longer in love with you and the relationship ended.
29 When you were 34 you had a six month relationship with an age appropriate woman but there was a mutual decision to end this relationship although you told Ms Armstrong that you felt you were not good enough for either partner.
30 In 2016 you were diagnosed with depression after attending on a GP. In the three years leading up to this you had again, which is unusual in a man of mature age, undergone extensive bullying on Facebook. Appalling photographs were posted of you and you came to realise that this had been the work of a group of people you regarded as your friends including a man you thought was your best friend. You cut ties with them and at the time of this offending had become socially isolated.
31 You were diagnosed, as I have said, with depression and placed on anti-depressants. You have no history of drug or alcohol use.
32 Following the record of interview conducted in July 2017, you made a number of suicide attempts, attempting to hang yourself, via drug overdose and at one stage, put a knife to your throat but were dissuaded from further harm by your mother. It was at this stage you began attending upon Dr Armstrong.
33 Dr Armstrong's report I regard as particularly useful as it is the report of a treating psychologist and not a forensic psychologist who has been brought in to assess you for a single period and report those findings to the courts.
34 At the time of the plea earlier this year you had attended upon Dr Armstrong for a period of almost two years. Dr Armstrong is a forensic psychologist experienced in treating sex offenders.
35 It was Dr Armstrong's view that you had been suffering post traumatic stress disorder for many, many years arising, probably she thought, as a result of the sexual abuse perpetrated upon you and exacerbated by the extreme bullying that you experienced over many years. It was her opinion that a number of factors had contributed to your mental illness and then your offending behaviour, being the early insecurity due to feeling unloved by your parents, leading to poor self-esteem, as I have said, exacerbated by sexual abuse and severe bullying over many years. She believed that the sexual abuse that you received potentially predisposed you to sexual offending behaviours by normalising sexual behaviour in children.
36 At the time of this offending you revealed that you have suffered from extreme anxiety (you still suffer from this) in relation to forming a relationship or a sexual relationship with age appropriate women. All this, she believed, underlay your offending. I refer directly to the report. She stated:
'Specifically Mr Curmi became emotionally dependent upon his relationships with these adolescents which appears to have obscured appropriate adult child boundaries and set the stage for him to cognitively translate an emotional relationship into a sexual relationship. This change in the nature of the relationship was precipitated by cognitive distortions, that is thoughts that justified his behaviours which is served to disinhibit him.'
37 She went on to say at paragraph 11.6:
'Perpetuating factors for Mr Curmi's offending behaviour were his poor self‑esteem, his avoidance of social and intimate interactions with adults as a result of associated fear and distress and his belief that he had an intimate connection, that is feelings of comfort, friendship and connectedness, with his adolescent victims. It further appears that his ongoing interactions with the victims also served to provide opportunities for ongoing offending and therefore are considered a perpetuating factor. Furthermore Mr Curmi utilised cognitive distortions which served to perpetuate his offending behaviour.'
38 In referring to Dr Armstrong's report I am in no way seeking to trivialise the evident distress that this serious offending has caused both to your victims and to their families.
39 Each of the boys in their victim impact statements, and I do not intend to refer to them directly, talk about the extreme discomfort that they felt and continue to feel as a result of your actions. They felt preyed upon at work. They did not know how to respond to what you were doing. They were intensely ashamed of what occurred. They did not know how to tell anyone. They still struggle in the aftermath of what occurred. They are terrified that people will find out what occurred in their close knit community. They know that this has gone on social media.
40 M in particular says he has lost all his friends. He feels socially isolated. We have just heard the victim impact statements of both mothers. Each of them feels intense guilt for failing to protect their sons but can I say it would have been impossible for either mother to have foreseen what would have occurred. It is quite clear that the jobs that these boys were undertaking would have been seen to be tremendous opportunities for their sons. I have no doubt that when each of these boys got their jobs the families would have been excited and thrilled that their boys had obtained employment at this age. It is a real turning point when one's children start to take jobs at the age of 15 and 16. It is a big step and it is, as I have said, usually a step which is welcomed and rejoiced at by families and for each of them to discover that their sons had been dealt with in this way has been the cruellest blow. Both mothers talked about their sense of insecurity in what had been a secure world, their lack of trust in others and their continuing anxiety about the boys.
41 The boys, of course, are teenage boys who have reached a stage where communication is often particularly difficult, and are unwilling to talk about what has happened. That results in parents becoming even more anxious, watching their boys all the time, wanting to talk to them, the boys in turn wanting to push them away and the cycle goes on.
42 There has been immense and terrible damage as a result of your offending against them.
43 Since your departure from the boat yard you have gained employment, as would be expected. You are man who has a strong and hardworking history. You were employed for a period of time working with a boat building firm. First of all you worked for a firm for about a month but then your offending was discovered and your employment was terminated. The second employer was aware of your offending, as you made them aware of it. You worked excessive hours again. Again you were the subject of workplace bullying and you ceased working there. It was your hope that you would be able to undertake a boat making apprenticeship.
44 You continue to enjoy the support of your parents and your sisters. I received a number of references, including from your sisters, all of them talking about your virtues as a brother, as an uncle, expressing their love for you, expressing their continuing support for you.
45 The continued support of your family, of your mother and your father are called protective factors. That is, you come from a law abiding family which continues to support you and is there for you in the long term.
46 This is an extremely difficult sentencing exercise. It is not often the case that a person who has offended against children is as frank about his offending as you have been. All too often, as I mentioned in the plea, offenders against children will do everything they can to avoid the consequences of their actions. They will deny the offending. They will go through every legal machination possible to ensure their own protection. Children are subjected to the trauma of cross-examination, the trauma of being told by defence counsel that what they are saying is not true.
47 You have been exceptionally cooperative. The most serious offending to which you have pleaded arose as a result of what you told police. I have no doubt you are truly remorseful for your offending. That is evidenced by your early plea of guilty and by your cooperation with police. Your sisters have all written of the change in you since this offending came to light.
48 Indeed Dr Armstrong believed you were truly remorseful for your offending. It was her view that you have solid prospects for rehabilitation. She wrote that you had engaged well in difficult therapy which involved painful confrontations of your own behaviour and examination of your own vulnerabilities. It was her view that you have been suffering from post traumatic stress disorder for many years. Additionally, it was her view that you had been suffering a major depressive disorder since probably late primary school/early adolescence and this had worsened at the time of the offending.
49 She did not believe you are either paedophilic or what is called paraphilic. She believed that as a result of psychological testing you do not present a future danger to children, that your orientation is heterosexual with age appropriate partners but that the particular circumstances of your life had led you to a situation so that you offended in what I do accept was uncharacteristic way.
50 One can have great sympathy for the difficulties that you have suffered in your life and the court is presented with an explanation, if not an excuse, for how you came to offend in this way.
51 As against this however, that offending was, as I have said, extraordinarily serious. It involved not one but three adolescent boys who were under your control. The aspect of care, supervision and authority is an aggravating feature.
52 In sentencing for offending against children the court must have primary regard to the principle of general deterrence, that is sentencing which sends out a message to others that offending in this way will not be accepted and will always be met by a stern response from the court.
53 It was also Dr Armstrong's opinion that incarceration would be particularly difficult for you. You have never been in trouble with the law before. You have never been in gaol previously. It was her view that imprisonment was likely to be particularly difficult for you because of your post traumatic stress and depression disorders, and that those disorders were likely to be exacerbated by a term of imprisonment.
54 In sentencing you I take into account the circumstances leading to this offending and your cooperation with police. You are entitled to special mitigation for the information you gave to police which led to the laying of two of the most serious charges against you.
55 I regard you as a person with good prospects of rehabilitation.
56 It was your counsel's submission that I should deal with you by way of a Community Corrections Order. It was the prosecution's submission, however, that I should deal with you by a term of imprisonment and unfortunately, Mr Curmi, the seriousness of this offending involving offending against three adolescent boys has led me to, after anxious consideration, to the conclusion that I must order you to serve a term of imprisonment.
57 However, because of the mitigatory factors which I regard as particularly compelling in your case, the minimum term that you will serve is far less than that which would ordinarily be ordered in your case.
58 I also make the point and I think that it is extremely important that prison authorities are made aware of this and Dr Armstrong's report will be forwarded to the gaol, that in my view you have undergone extensive sex offender rehabilitation, far more than would ordinarily be required of you under a sex offender program.
59 It is sometimes the case that persons who are gaoled will not be given parole because they are required to undertake a sex offender's program. My sentencing remarks will be forwarded to the gaol. In my view, you have undertaken the work of a sex offender's program before entering custody and this should not be a bar to you obtaining parole at the earliest opportunity.
60 Could you stand up please?
61 On Charge 1, you are sentenced to 12 months' imprisonment.
62 On Charge 2, you are sentenced to eight months' imprisonment.
63 On Charge 3, you are sentenced to two years' imprisonment.
64 On Charge 4, you are sentenced to eight months' imprisonment.
65 The base sentence will be the sentence imposed on Charge 3. I order that six months of the sentence imposed on Charge 1 and three months of each of the sentences imposed on Charges 2 and 4 be served cumulatively with the sentence imposed on Charge 3. That gives a total effective sentence of three years. I order that you serve a minimum term of 12 months before becoming eligible for parole.
66 Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of five years and order that you serve a minimum term of three years. Thank you.
67 MR SALIA: There's a 464ZF, Your Honour and it was consented to.
68 MS WARREN: And Sex Offenders Registration Act, Your Honour.
69 HER HONOUR: Yes. It's life, isn't it?
70 MS WARREN: Yes, Your Honour.
71 HER HONOUR: The mandatory provisions are you are to be placed on the Sex Offenders Register for life. The papers will now be served on you, sir and your counsel will explain the obligations under that register. Have a seat, sir, while those materials are served upon you.
72 What are the classes of the offences?
73 MS WARREN: Sorry, Your Honour. The sexual penetration, Charge 3, is class one and the remainders are class two.
74 HER HONOUR: The remainder are class two.
75 MS WARREN: Yes.
76 HER HONOUR: Thank you.
77 MS WARREN: Thank you.
78 HER HONOUR: Have we got the 464ZF?
79 MS WARREN: I believe it was E-Lodged, Your Honour.
80 HER HONOUR: You can forward that to us.
81 MS WARREN: All right. Yes, Your Honour.
82 HER HONOUR: Mr Curmi, can you stand up please, sir. I have ordered that police take an intimate sample from you which will be by way of a swab in your mouth. I need to advise you that should you resist police may use reasonable force in obtaining that sample. Have a seat, Mr Curmi. Thank you.
83 MS WARREN: The only other matter, Your Honour, is the serious sex offender provisions applied at 3 and 4.
84 HER HONOUR: Yes. So that is on Charges - - -
85 MS WARREN: Three and 4, Your Honour.
86 HER HONOUR: Yes. On Charges 3 and 4 you are declared to be a serious sexual offender.
MR SALIA: May I be excused temporarily, Your Honour?
HER HONOUR: Of course, Mr Salia.
MR SALIA: Thank you.
HER HONOUR: Mr Salia, it's appropriate that you explain that to him. Downstairs. I need to leave the Bench. Thank you. All right then, thank you. Yes, thank you. We'll stand down until 10.30. Thank you.
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