Director of Public Prosecutions v Dardha
[2015] VCC 1943
•9 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-02104
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL DARDHA |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 May 2015 | |
DATE OF SENTENCE: | 9 June 2015 | |
CASE MAY BE CITED AS: | DPP v Dardha | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1943 | |
REASONS FOR SENTENCE
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Subject:Sexual penetration of a child under 16 – Failing to comply with reporting conditions
Catchwords:
Legislation Cited: Sex Offenders Registration Act 2004
Cases Cited:
Sentence: 6 months imprisonment with 2 year community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | ||
| For the Accused |
HER HONOUR:
Charges
1 I am ready to sentence in this matter and the accused can remain seated until I get to the end of the sentence. Michael Dardha, you have pleaded guilty to one charge of sexual penetration of a child under 16 years. The maximum penalty for this offence is 10 years imprisonment. You have also pleaded guilty to one charge of failing to comply with reporting conditions pursuant to the Sex Offenders Registration Act. The maximum penalty for this offence is five years imprisonment.
Charge 1
2 The facts relating to charge 1 of sexual penetration of the complainant, Angela Pace,[1] on 8 July 2014, were set out in detail in the prosecution opening. It will suffice to say for the purposes of this sentence that on 8 July 2014, you took advantage of Angela who you knew was 15 years old at the time.
[1]A pseudonym
3 At the time of your offending, you had been dating her older sister, Rachel.[2] You had met Angela earlier that day and become friends with her on Facebook. You exchanged messages in which you informed her of your desire to sleep with her. Angela spent the night at her sister’s and you had sexual intercourse with her on the couch in the lounge room.
[2]A pseudonym
4 Sometime later, Rachel discovered that you and Angela had had sex. You initially denied having sexual intercourse with her. However, semen was found on the tracksuit pants that she was wearing the night she had intercourse with you and DNA matching yours was detected.
5 You have priors for such offending. On 25 June 2008, you were convicted of three charges of sexual penetration of a child under the age of 16 and one charge of performing an indecent act with a child under the age of 16. As a result of this conviction, you are a registered sex offender pursuant to the Sex Offenders Registration Act for life. On 25 June 2008, you were served with a notice of your reporting conditions or obligations under the Act and they were explained to you.
Charge 2
6 Charge 2 of failing to comply with your reporting conditions relates to your breach of your reporting obligations pursuant to the Act. By on or about 11 December 2012, creating an internet username of Murgrim Dardha, you used this identity on Facebook and failed to report the use of the name to the Chief Commissioner of Police by 25 December 2012 as required by the Act.
7 In addition, on or about 11 July 2013, you created an internet username of Michael Dardha, and used this name on Facebook and Pinterest. You failed to report the name to the Chief Commissioner of Police by 25 July 2013 as required by the Act.
Victim impact statement
8 Before moving on to your personal background, it is important that I refer to the victim impact statements which reveals that your crime has greatly affected not only Angela, but also her mother and sister.
9 Angela’s mother’s statement was read to the court at your plea hearing. I will not repeat it all here, but I remind you that she blames herself for not being able to protect her daughter and it breaks her heart to see how her once close and loving daughters are now distant and cold towards each other. In her victim statement, Angela refers to how she suffers from anxiety and panic attacks, she feels very angry about what has happened to her and how it has affected her life. She confirms that your crime had a massive effect on her relationship with her sister. She is attending counselling on a fortnightly basis and her studies have been greatly impacted.
Personal background
10 Your personal background was outlined to the court by your counsel and further details were contained in a report dated 15 May 2015 from Dr Matthew Bath, psychologist, and a report from Mr Jackson from Neuropsychology Proprietary Limited dated 16 November 2014. You were born on 27 June 1987 and you are the eldest of three siblings. Your parents separated when you were about one. You were raised in the western suburbs by your mother and stepfather who commenced a relationship when you were about three.
11 You had behavioural difficulties which manifested from an early age and you were diagnosed with attention deficit hyperactive disorder when you were five and prescribed Ritalin. The reports describe your condition as one of the worst of its kind and the circumstances were the subject of a Four Corners television documentary. The neurological report states that you are one of 30 per cent of sufferers who will not outgrow their condition and that you will continue to have the symptoms throughout your adult life.
12 Despite this condition, you were educated to Year 10 at Bayside Secondary College in Altona North. You have had several jobs since leaving school, including as a labourer, farmhand and a forklift driver. Your longest period of employment was for two years. You commenced an eight-year relationship when you were aged 18 and this relationship ceased in 2013. You have always resided with your mother and stepfather, but for periods you resided temporarily with your grandmother and her defacto partner.
13 As I mentioned earlier in this sentence, you have a related prior conviction. In that case, the disparity in the respective ages between you and the complainant was not sufficient to justify a term of imprisonment and you were convicted and placed on a community-based order for 18 months. You breached that order and on 22 July 2009, you were sentenced to nine months on each count concurrent and this sentence was suspended for two years.
14 Since your offending on 8 July 2014, you have committed further offences. On 19 December 2014, you received three months sentence for failing to appear, failing to comply with reporting conditions and unlawful assault. On 5 February 2015, you were charged with recklessly causing injury and sentenced to 15 months of imprisonment. I understand the release date is 21 October 2015.
Plea submissions
15 In the plea on your behalf, your counsel described your offending as being opportunistic in a situational context. It was submitted that but for the prior similar matter in 2008, the offending would not ordinarily have attracted an immediate term of imprisonment. The complainant was 15 years and 10 months at the time of sexual intercourse and it was submitted that the conduct was arguably consensual. While it was accepted by your counsel that the offending was relatively serious, he submitted that the assessment of the objective gravity of the offending left open a discretion for the court to consider a Community Corrections order.
16 The mitigating circumstances relied on were:
· your plea of guilty to the charge;
· your participation in various courses while you have been in custody; and
· the fact that you were remanded in custody on 24 July 2014 and you have been in protective custody since then.
17 Your prospects of rehabilitation were said to be enhanced by the fact that your family was supportive and you were visited by them in custody. You had a complex psychological profile and needed individualised treatment which could be provided for in the Community Corrections order.
References
18 Two references were tendered on your behalf; one from your grandmother and one from a former employer, Scott Harvey. In her letter, your grandmother, Cathleen Joan Lachlan, related how your attention deficit hyperactivity disorder had affected your life. She described you as lacking maturity and struggling to fit in with friendship and society in general. However, she also said that you had discussed your offence with her. You had told her that you were extremely remorseful for what you had done to the complainant and for what you had put her family through.
19 Your grandmother described visiting you in jail as being heartbreaking for her, as you were wasting your life. However, she believed it was not too late for you to turn your life around, as you had an extended family who loved and supported you.
20 Scott Harvey reported that you had worked for him for two years when you were living with your grandmother. He found you to be very honest, hardworking and reliable. While sometimes you showed signs of immaturity due to your health condition, he believed that you had the ability to fulfil your ambition to gain an apprenticeship.
21 The prosecutor submitted that both general and specific deterrence were important in your case. Your poor impulse control and propensity for sexual disinhibited behaviour were a matter of concern. A period of imprisonment was submitted to be appropriate, followed by community corrections order.
Sentencing Remarks
22 In sentencing you, I’ve taken into account all the mitigating factors referred to by your counsel. I’ve given you an appropriate discount for your plea of guilty, and I accept that you are remorseful.
23 I accept that your attention deficit hyperactivity disorder contributed to your offending. In this respect, I note that in his psychological report, Dr Bath reported that you had a long history of attention deficit hyperactivity disorder which had adversely affected your development and impaired every aspect of your life. You had experienced significant problems adjusting to a meaningful life in the community, and continued to report symptoms consistent with this condition. You had a history of being impulsive, reckless and making poor decisions. Your coping and social skills were poor. Your personality traits were problematic and only narrowly failed to meet the diagnostic criteria for personality disorder.
24 You have a history of alcohol abuse and a recent period of heavily abusing methamphetamines, and this was significant enough to warrant a diagnosis of alcohol abuse and stimulant abuse. You had deviant sexual arousal problems relating to underage females and poor impulse control and a propensity for sexually disinhibited behaviour. There was a high risk of sexual recidivism in your case, and specialist sex offender treatment was unequivocally warranted to contain your risk of reoffending.
25 In the neurological/psychological report, Mr Jackson concluded that your perpetual intellectual disabilities are generally in the borderline to low average and that there is no evidence of an acquired brain injury. However, he described your profile as being typical of people seen with attention deficit hyperactivity disorder. He considered that you would experience a range of problems on a day-to-day basis. He said it was imperative that you be referred to an adult attention hyperactivity specialist, with a view to recommending stimulant medication.
26 Bearing all these matters in consideration, I consider that you are not an appropriate vehicle for general deterrence, and I have moderated your sentence to a small degree in accordance with the principle in Verdins’s case. Given your attention deficit hyperactivity disorder and the issues relating to it, I consider that the most appropriate sentence is a sentence of imprisonment together with a community corrections order. The advantage of such a sentence is that the community corrections order can be structured in such a way that there is treatment for your various conditions.
Sentence
27 Would you please stand up. On the charge of sexual penetration of a child under the age of 16, you are sentenced to six months imprisonment. On your release, you will be placed on a community corrections order for a period of two years. On the charge of failing to comply with reporting conditions, you're sentenced to three months imprisonment. The sentence on count 1 is cumulative on any State sentences you are currently serving. The community corrections order will contain conditions for treatment and rehabilitation for drugs and alcohol, mental health issues and programs to reduce offending. It should also deal with issues to do with your attention deficit disorder.
28 Given your high risk of reoffending, you are to be supervised and, as I said, the community order will be for two years. Charge 1 is a class 1 offence so that, pursuant to the Sex Offenders Registration Act, you have a prior for a class 1 offence. You also have two offences which I think were class 2 offences, so you are subject to mandatory reporting for life on these particular offences. The prosecution sought a disposal order, and I make that order. But for your plea of guilty, I would have sentenced you for four years, to serve two years and six months. Now, you need to sign the sex registration documents.
29 I am concerned that part of the offending here today is for breach of those conditions. I would ask that counsel who’s representing him here this morning spend some time going through those conditions with him and pointing out that next time he breaches those conditions, the penalty would be harsher. So he’s not to breach them. He has got take them seriously.
30 COUNSEL: Yes, Your Honour.
31 HER HONOUR: But given his condition, I believe that some time is needed to explain that to him.
32 COUNSEL: Yes, Your Honour.
33 HER HONOUR: Yes. You can approach him. Is there anything arising from the sentence? Your presentence detention.
34 COUNSEL: Correct, Your Honour.
35 HER HONOUR: How many days?
36 COUNSEL: Presentence detention I calculated as 39 days, not including today. So that is including the 18 days that was submitted on the plea and another 21 days that has been served in relation to 19 May, but he is serving a sentence, so it may just stand at the 18 days.
37 HER HONOUR: Is it 39 or 18 days?
38 COUNSEL: Well, it’s 39 days as of today that he has been in custody, but I’ve taken it from 24 July 2014 to 11 August 2014. That’s 18 days. And then from 19 May to 9 June this year is 21 days.
39 HER HONOUR: So it would be 18 days, wouldn’t it, presentence detention.
40 COUNSEL: It may remain at 18 days.
41 HER HONOUR: Yes. All right. Presentence detention is reckoned at 18 days.
42 COUNSEL: Your Honour, there is also – at the plea, there was an oral application for a 464ZFB retention of forensic sample.
43 HER HONOUR: You will need to hand me up the documentation.
44 COUNSEL: It’s now an oral application for a retention order, rather than a fresh - - -
45 HER HONOUR: It’s an oral – there's already a – all right. Is that objected to?
46 COUNSEL: I wasn’t aware of it. I suspect not, but if I could approach - - -
47 HER HONOUR: Well, you can approach with those documents anyhow, and you can ask him at the same time. Just explain that he doesn’t have to do another test. It’s retention of the sample he has already given.
48 COUNSEL: Yes. Certainly, Your Honour.
HER HONOUR:
49 Mr Dardha, you understand in relation to the community corrections order that you’ve got to obey the terms that apply, the standard terms that apply, and you’ve got to obey the special conditions in relation to undergoing assessment and treatment for drug and alcohol and mental health assessment, and any other programs that address your various problems.
50 I suspect that you would not get such an opportunity again, because although you have real difficulties – and I understand that – the court will at some stage say that there is no alternative with someone like you other than just leaving you in jail. Do you understand? So you’ve got to make the best of your opportunity and, once you get out of custody, you cannot afford to breach this order. If you were, unless there were exceptional circumstances, you would go inside and you would serve the time in jail. All right.
51 COUNSEL: If Your Honour pleases.
52 HER HONOUR: Yes. You can take the prisoner down. Thank you. Yes. We will stand the court down briefly to allow counsel to do an exchange.
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