Director of Public Prosecutions v D'Costa

[2025] VCC 1055

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

CR 22-00557

DIRECTOR OF PUBLIC PROSECUTIONS

v

NOEL D'COSTA

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2025, 5 June 2025
DATE OF SENTENCE:	25 July 2025
CASE MAY BE CITED AS:	DPP v D'Costa
MEDIUM NEUTRAL CITATION:	[2025] VCC 1055

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW- SENTENCE

Catchwords:   Indecent act with a child under the age of 16; Suspended sentence imposed due to medical conditions.

Legislation Cited: s 47 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991. s11(3) Sentencing Act 1991(Vic).

Cases Cited: R vDuncan (1983) 47 ALR 746; R v Merrett (2007) 14 VR; Henry v R [2023] VSCA 100 392, 400; R v AP [2009] VSCA 249.

Sentence:Two years imprisonment. Pursuant to s27(2A)(h), a suspended sentence for three years will be imposed and the Accused must be of good behaviour for that period.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Vasiliou	Office of Public Prosecutions
For the Accused	Mr J. Kantor	Victoria Legal Aid

HIS HONOUR: 

1The matter of DPP v D'Costa, was mentioned before me as a trial on 19 March 2024. He was subsequently arraigned before me on
20 November and pleaded guilty in regard to the five charges in Indictment No.M11740836.2, which was filed that day.  The plea was heard on 19 March of this year, adjourned for mention to 5 March, and finally the plea was completed on 5 June of this year.

2Mr D'Costa was born in December 1946.  He is now 78 and at the time of this offending was aged 58-59, all of the offences having occurred in 2005.  The victim during such offending was aged between 10-11, and is now aged 28.

3On 5 June Mr Kantor appeared, as he has throughout, for Mr D'Costa. 
Mr Hardisty appeared on behalf of the prosecution and Ms Vasiliou appears today.

4On 19 March 2025 Mr Kantor at the start of the plea accepted Exhibit A, the prosecution opening, as the facts upon which I am to sentence Mr D'Costa.

5Mr D'Costa currently resides at St Mary's Retirement Village in Noble Park. As I said he is 78. The victim is now 28. The offences are all offences under s47, being the commission of an indecent act with a child under the age of 16, for which the maximum sentence prescribed is one of 10 years imprisonment.

6The first three charges are all rolled up charges and relate to two particular instances. 

7The first of those occurred during school holidays.  Mr D'Costa, who knew the mother of the victim, through his role in assisting with technology at the school where she was business manager, drove the victim to the school and was in the computer room with her.  On this first occasion as to Charge 1, he kissed her lips and put his tongue in her mouth.  He then lifted her shirt and licked both of her breasts, Charge 2, and subsequently in regard to Charge 3, pulled her pants down to her knees and licked the outside of her vagina.

8Those circumstances are repeated, and make up the balance of the rolled up charges, on a further occasion also in the holidays, when he picked her up from her home, that is the victim, and drove to his home ostensibly to show her his cats.  On that occasion each of the same actions occurred, making up the rolled up charges of Charges 1, 2 and 3, by him performing exactly the same actions.

9Charge 4 involved a situation where he had gone to the mother's home and subsequently the mother and the victim arrived.  After the mother had gone into the home, he then got into the mother's car where the child was and rubbed her vagina over her underwear.

10Charge 5 arose from his presence at the mother's home. The child and him were in the computer room, where he rubbed both buttocks of the child over her pants. 

11The victim told her mother of these crimes in 2012, but she was not prepared to take the matter further. At that stage she was aged 17 or 18.  The victim reported the matter somewhere around the time she was 24 or 25.  As a result of that report Mr D'Costa was asked to undergo a record of interview.  Such record of interview was essentially a no comment record of interview, and in a  subsequent pretext call he denied all wrongdoing.

12As part of the plea a victim impact statement has been filed by both the mother and victim. 

13Pursuant to the SORA legislation, Mr D'Costa is subject to the mandatory requirements under that Act for the rest of his life, because all of these offences are class 2.

14The only additional matter to note is that there was a committal which took place on 7 April 2022, when both the victim and her mother were cross-examined.

15As is probably evident from the matters I have already raised, the background of the offences was that Mr D'Costa worked with the complainant's mother at a primary school, where she was the business manager.  Mr D'Costa was employed to provide IT services to the school.  Mr D'Costa attended the victim's home to provide services for the mother's home computer.

16After those five offences, there was no further contact after a period of some three months between the parties. As I have said, the matter was reported in 2019, proceeded as a trial, and the plea was made in regard to a new indictment in 2024. In those circumstances Mr D'Costa gets the benefit of a plea made at the earliest time.

17The prosecution submitted that the criminality in regard to these charges can only be seen as serious criminality.  They are of course provisions passed by the Parliament to protect young children from sexual experience, and the penalty involved is designed to try to ensure that young children are not accosted and utilised for sexual purposes by adults, see: Clarkson & Anor VR (2011) VSCA 157, [26], [27], [333].

18The prosecution pointed to the age difference at the time, being the age of 58 and 10, to the persistence, in the sense of four separate occasions when such offences took place, and to the obvious seriousness of the impact of these crimes as set out by the intent of Parliament and the sentence imposed by way of maximum.

19Insofar as sentencing was concerned, the prosecution said general deterrence is particularly important given the role of these sentence, see Clarkson [86]. Due to the current age and medical condition of Mr D'Costa, the role of specific deterrence falls away.

20As I said, the plea was accepted at being at the earliest and being utilitarian.  It certainly was of assistance to justice because given the state of Mr D'Costa's health, one wonders how we would have ever got through a trial, but we were intending to do so. Hence, the plea was particularly utilitarian in those circumstances. It also saved the victim from giving evidence.

21In regard to the victim impact statements, can I thank both parties for providing those statements to the Court.  It is not easy in these circumstances to provide such statements. I thank them for their openness, the statements are not exaggerated in my view.

22The immediate impact to the victim of course was as she said, immeasurable, in that she has suffered from trauma.  The feeling, as she gets older, of realising that her 'innocence', as she phrases it, was lost in such circumstances.  And indeed, as she says, she continues to suffer nightmares when memories are triggered of these crimes.  This can happen when she is in particular contact with persons who smell similar to what she can remember, when she is inside a car, and when she is next to some people.  When she was young, she felt unsafe with older men.  The lingering court process has been difficult for her, and it was difficult to be cross-examined at the committal, I did not think any of those matters were exaggerated.

23As to the mother's statement, of course one has to live as a mother with that guilt.  There is of course in fact no guilt; it had nothing to do with the mother, but one always has the feeling these matters came about because of a person, she deemed to be a friend and workmate, was invited into the home.  The legal process has proved difficult for her and of course again she was subject to cross-examination. I did not think again the statement was exaggerated in any way and I thank her for that.

24Insofar as the defence submissions are concerned, Mr Kantor pointed to the early plea, which was accepted by the prosecution, the utilitarian nature of that, the assistance to justice and the particular assistance in the circumstances of this case.

25The second matter was the fact that Mr D'Costa had no priors and no criminal offences since the happening of these crimes.  Again, given the time that has passed and the health of Mr D'Costa, there is in reality a very low chance of any reoffending by him.

26Insofar as the lapse of time, there are powerful mitigating factors from that lapse, the delay being no fault of Mr D’Costa. There was a difficulty with the hearing and getting the hearing on. The principles in Duncan (1983) 47 ALR 746, [8] and Merrett (2007) 14 VR 392, 400 apply.

27Mr Kantor particularly relied upon Henry v R [2023] VSCA 100, as being of relevance here, there was a suspended sentence in that matter of three years. It involved an indecent assault, a digital penetration and there was a trial. There were course of conduct charges and particular medical issues involved. The suspension that was ultimately imposed was because of a medical condition and with an operative period of some three years.

28In talking of the sentence, the Court of Appeal referred to the trial Judge’s comments at [82] of the offending, against the sister-in-law, “as a shameless and reprehensible breach of trust.”  The age in that matter was late 30s, compared to the child who was aged 13.  There is a close analogy of course to this case. 

29Insofar as the issue of age of a person at the time of sentencing, it is necessary to refer to the determination of the Court of Appeal in R v AP [2009] VSCA 249, and in particular I quote from the reference there at [36], when referring to a person's age at the time of sentencing as being a predominant sentencing factor, the Court said this:

At 77 years of age any sentence I impose is likely to be described as crushing. Your age is clearly a relevant sentencing consideration but cannot be allowed to be a justification for an unacceptable [or] inappropriate sentence. I have reduced both the head sentence and the minimum term I am about to impose to give full weight to your age.

30Clearly, the age and medical condition in this case must equally be predominant.

31The defence submitted therefore that a suspended sentence, which was available at the time of this offending, was appropriate in the circumstances given the age and medical condition of Mr D'Costa.  As I say he is now aged 77.  The time that has elapsed is some 20 years.  There is no further offending and as was stated in Henry, there is reality as to reformation in those circumstances, given such a lapse of time, as set out at [105].

32The mental anxiety and depression suffered by Mr D'Costa brings in principle 5 and 6 of Verdins insofar as a consideration of immediate imprisonment. Further consideration must be given to the medical exhibits set out during the plea, Exhibits 1-3B.  The conditions suffered by Mr D'Costa are firstly a laryngeal tracheostomy, which has required a voice prosthesis.  Secondly, the suffering from pulmonary embolism which produces chronic breathlessness and dynamic airway collapse.  Thirdly, the condition of lung cancer, which is being treated.  And finally, cardiac failure which has resulted in swelling of the legs, issues with walking, and back pain.

33The Court has had the benefit of the assistance of the forensic pathologist, Byron Collins, originally by way of Exhibit 3A from September 2024, given to the Court to advise on the ability of Mr D'Costa to attend Court and be part of the trial, which as I have indicated, upon such evidence looked to be a very difficult exercise.

34For the purpose of the plea, Exhibit 3B was obtained which was an update of Mr Byron Collins’ dated 4 June 2025.  It confirms the chronic nature of the oesophageal stricture with a high risk of aspiration.  The evidence given, as set out by the forensic pathologist, was detailed in the first paragraph as to the serving of a prison sentence given his disabilities and health issues.  The conditions of which Mr D'Costa suffers I have already detailed.  The treatment required is such that to use Dr Byron Collins’ robust opinion the potentially life-threatening oesophageal stricture could not be properly treated or safely managed in the circumstances of gaol.

35Given that report, and my consideration of all of the medical evidence, as a matter of humanity, I find that immediate imprisonment is simply not appropriate for Mr D'Costa, despite this serious offending.  Clearly, upon the medical evidence prison is not equipped, and could not be equipped, to cater to the seriousness and immediacy of Mr D'Costa's medical conditions.

36Verdins principles, [2007] VSCA 102, [32] operate, in particular 5 and 6, insofar as the placement of him into gaol to both exacerbate and make those conditions ever present.

37Now a further factor which I must take into account is that had these matters been dealt with at the time of the offending, it is my experience that an immediate sentence of imprisonment of three years would not have been handed down by the Courts at that time.  

38Taking account therefore of all of the matters that I have detailed I sentence Mr D'Costa as follows.  Mr D'Costa, you just remain where you are.  You do not have to do anything or stand up.

39Insofar as the first charge, that is the rolled up Charge 1, I sentence you to imprisonment for six months.

40In regard to the rolled up Charge 2, I sentence you to imprisonment for eight months.

41Given the period of imprisonment imposed on the first two charges, the serious sexual offender provisions apply. In regard to Charge 3, I sentence you - that is again a rolled up charge involving the two occasions of the licking of the vagina to imprisonment for 15 months.

42Charge 4, imprisonment for 10 months.

43Charge 5, that is the touching of the buttocks, a period of imprisonment of three months.

44The prosecution made no submission that the circumstances called for anything over and above a sentence based on the culpability of the offending.

45The question of cumulation brings with it the difficult balance in dealing with the serious sexual provisions and the principle of totality, indeed, the tension between those two.  I refer to RH McL v R [2000] 203 CLR 452, [476]-[477], and the tension between the serious sexual offender provisions and the principle of totality as detailed by Redlich J.A. in Gordon v R [2013] VSCA 343, [74]-[75].

46Charge 2 will be the base sentence of eight months.  To be cumulated upon such sentence will be 12 months from the sentence imposed in regard to Charge 3, and four months of the sentence imposed on Charge 4, making a total effective sentence of two years.

47In the circumstances obviously pursuant to s11(3) of the Sentencing Act 1991 it is not appropriate to set a non-parole period. I, pursuant to the then s27(2A)(h), totally suspend that period of imprisonment for three years on the basis that Mr D'Costa will be of good behaviour during that time.

48In regard to the obligation to declare what would have been the sentence had Mr D'Costa not pleaded guilty, the sentence would have been a total effective sentence of three years.  It is to be recorded that Mr D'Costa in this sentence, is sentenced as a serious sexual offender in regard to Charges 3, 4 and 5.

49Madam Prosecutor or indeed counsel for defence, Mr Kantor, any matters that aren't clear in regard to that?

50MR KANTOR:  No, Your Honour.

51MS VASILIOU:  No, Your Honour.

52MR KANTOR:  Everything has been mentioned by Your Honour.  I am sorry, everything has been addressed.

53HIS HONOUR:  Not many people can remember the days of suspended sentences,  a suspended sentence is simply made pursuant to the statute at the time.  No one had to enter into any documentation or anything like that, simply three years, in which one is required to effect good behaviour over that period.

54MR KANTOR:  That's so.

55MS VASILIOU:  Yes.

56HIS HONOUR:  Yes, thank you.  Thank you for our assistance.  To both the victim and your mother, one would hope that this sentence assists you in getting over these very unsavoury circumstances. The fact that this litigation has finally finished, one can only wish that it does serve that purpose or at least assists in that purpose.  I thank you for your cooperation.

57COUNSEL:  As Your Honour pleases.

58HIS HONOUR:  Yes, thank you.

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