Director of Public Prosecutions v De Oliveira, Manuel
[2013] VCC 240
•28 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MANUEL DE OLIVEIRA |
---
JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 February 2013 | |
DATE OF SENTENCE: | 28 February 2013 | |
CASE MAY BE CITED AS: | DPP v De Oliveira, Manuel | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 240 | |
REASONS FOR SENTENCE
---
Subject: Aggravated burglary, indecent assault and robbery.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: TES 5 years and 2 months with 3 years and 8 months non-parole period
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Nilson | OPP |
| For the Accused | Mr M.E. Dempsey | VLA |
HIS HONOUR:
1 Manuel De Oliveira, you have pleaded guilty to one charge of aggravated burglary, one charge of indecent assault and one charge of robbery.
2 The prosecutor, Mr Sonnet, opened the circumstances of the offending. The facts being common ground. The prosecution opening was tendered and read in open court. Very briefly, however, on 31 July 2012, your crimes were directed at a 22 year old female who had travelled to her home by train after attending a dance in inner Melbourne. She noticed that you took an interest in her on Flinders Street Station and travelled in the same carriage as her, watching her. She got off at Rosanna station and as she opened the door to her apartment block she noticed you were close by. You followed her through the door, committing the crime of aggravated burglary, and grabbed her after she ascended some stairs and reached a landing.
3 You grabbed her from behind, turned her around and grabbed her vagina. She pushed you away and you grabbed her vagina again damaging her tights. This constitutes the indecent assault.
4 She broke free, ran up some stairs and you followed. A struggle occurred as she tried to fight you off. You then tried to grab her handbag and demanded her phone. Her car keys fell to the floor. You picked them up and fled. This constitutes the robbery.
5 She reported the matter immediately. She suffered minor physical injuries.
6 You were not arrested until 23 August 2012. You declined to be interviewed.
7 You have been in custody since this date, that is a little over 6 months.
8 On 17 October 2005 I sentenced you to a total effective term of 10 years' imprisonment with a non-parole period of 7 years for one charge of rape and 2 charges of indecent assault.
9 You were released on parole on 26 March 2012 and accordingly were on parole at the time of the current offending. Accordingly, s.16(3B) of the Sentencing Act 1991, is enlivened. Your parole was cancelled at the time of your arrest and you have continued to serve the sentence imposed by me during the last 6 months. There is about 2 years and 2 months of this sentence left to run.
10 The imposition of imprisonment is inevitable for each charge.
11 Application was made for a discretionary sex offender registration order pursuant to s.11 of the Sex Offenders Registration Act 2004. There was no resistance to the Order by you. Nevertheless, I have to be satisfied that the provisions are met before making the order. The critical issue in your case is whether I am satisfied, beyond reasonable doubt , that you pose a risk to the sexual safety of one or more persons in the community. Given your history and the current offending I am so satisfied the relevant period is for life.
12 You are to be sentenced as a serious sexual offender on Charge 2. This is to be noted in the court records. Protection of the community is the principal purpose for which the sentence is to be imposed however the prosecution does not seek and I will not impose a disproportionate sentence.
13 It was common ground between the parties and I agree that the base sentence should be imposed on Charge 2, the most serious of the offences, and that some accumulation of part of the sentences imposed on Charges 1 and 2 was appropriate.
14 The total effective sentence imposed by me is to be served cumulatively on “the parole sentence” unless exceptional circumstances are shown to exist. Your counsel did not argue for the existence of exceptional circumstances and there are none that I can identify. Accordingly, the total effective sentence imposed by me is to be served cumulatively on the earlier sentence imposed by me in 2005.
15 The current offending is serious. Your victim, a young female, was targeted and pursued by you. You were on parole for offending that has considerable similarities to the current offending. Although there is obviously a relationship between the current charges and some overlap, about which I need to be careful, you entered the victim’s premises as a trespasser, albeit not into her apartment as such and it was there that the assault on her occurred.
16 When sentencing you in 2005 I said your offending demonstrated a very troubling pattern. You chose those victims because they were alone and vulnerable. All were young females albeit considerably younger than the current victim. In 2005 I noted that your pursuit of your victims was likely to activate a deeply entrenched fear of being followed by strangers experienced especially by women. I also noted that each victim was selected when using public transport, a place where all people, particularly the young and young females are entitled to feel safe. I stated that young people, in particular, are dependent on public transport and the community needs to feel confident that its members, especially the young, can travel safely in the community. Offending such as yours undermines that public confidence.
17 You have prior convictions predating the offending dealt but I stated when sentencing you in 2005 that it was of little significance in determining that sentence. In 2005 a body of psychiatric and psychological material was tendered. You have a history of psychiatric problems dating from your mid teens. A report from Dr Ruth Vine was tendered in which she noted that many of your psychiatric symptoms occurred in the context of marijuana use. Dr Vine noted your turbulent late adolescence, drug abuse, self harm and episodes of drug induced psychosis.
18 Additionally, in 2005, two psychological reports from Elizabeth Warren were tendered. A critical factor, emphasised, at the earlier hearing was the vital need for you to avoid drugs.
19 Other material concerning your mental health was also tendered in 2005.
20 When sentencing you in 2005 I stated that it was very difficult to make any clear prediction concerning your prospects for rehabilitation. I did accept at the time of sentencing you in 2005 that you were remorseful.
21 Your counsel, Mr Dempsey, presented a highly professional and succinct plea. Your personal history was briefly summarised. I have noted it and do not intend to repeat any details except to note your difficult upbringing, your relatively limited education and the fact that you were on the streets using drugs, fighting and stealing by your mid teens. Nevertheless, you have been able to find and keep employment. You are currently aged 32. I am particularly conscious that you have spent all but about 5 months in prison since I sentenced you in 2005 and now must face another lengthy term of imprisonment.
22 Your counsel, Mr Dempsey, noted the “backdrop of illicit drug use in the present matter” but did not suggest that your mental health has played any role in the current offending.
23 Your counsel outlined your experiences in prison. You received family visits but your wife, with whom you had shared a troubled drug history, only saw you once. Your former partner’s mental health declined whilst you were in custody and your mother took over raising your son, who was born in 2003.
24 You have improved your education in custody and obtained other qualifications to assist obtaining employment. You completed the Sex Offenders Program as well as anger management and drug and alcohol courses. You were able to save money in custody.
25 When released on parole you lived with your mother, who is currently in poor health. Initially, you seem to have made good progress on parole but when you failed to obtain a particular type of truck licence because of your poor eye-sight you seem to have regarded this as an insurmountable setback.
26 Shortly thereafter you re-united with your former partner who resorted to prostitution to finance her drug use. You also began using drugs. You needed money to buy drugs. You had left your savings with your brother but began to eat into them to buy drugs. You pawned property for the same purpose. You told your counsel you could not confide in your parole officer and felt ill prepared for life outside prison. Within a short period, as I follow your counsel, experiencing a state of despair you engaged in the current offending. You had been to Centrelink during the day of 31 July 2012, but received nothing.
27 Your counsel submitted that you should receive a substantial benefit for pleading guilty. The prosecution strongly supports this. Mr Sonnet submitted that the fact that the victim was not required to give evidence was particularly important. Additionally, of course your pleas acknowledge your responsibility for the offending and save time and expense. They facilitate the course of criminal justice. I agree that you should benefit significantly for your pleas which were made at the first reasonable opportunity.
28 There was considerable agreement between you and the prosecution concerning the applicable sentencing principles. Your counsel acknowledged the importance of specific and general deterrence, denunciation and just punishment.
29 I need to keep in mind the principle of totality. It is relevant when making concurrency and accumulation orders. Additionally, it is relevant to and I need to keep in mind the time you have spent in custody to date including about an additional 6 months for breach of parole as well as the fact that you have about 2 years and 2 months to serve on the sentence imposed by me in 2005. Since your arrest in December 2004 you have spent only the period from late March 2012 until your arrest in late August 2012 at liberty.
30 Mr Sonnet submitted that a total effective sentence of between 5 and 6 years with a non-parole period of between 3 and 4 years was appropriate.
31 Mr Dempsey declined to respond to this submission.
32 Mr Sonnet referred me to the Sentencing Snapshots concerning indecent assault. The sentences I imposed upon you for this crime in 2005 were at the upper end of penalties imposed for this offence. The maximum penalty is 10 years' imprisonment. I am aware of the need not to punish you for the crime of assault with intent to rape of which you were initially charged. As noted earlier I am aware of the need to avoid double punishment given your entry into the victim’s apartment block was with the intent to assault. The indecent assault is particularly serious in my view and should be seen as the focal crime.
33 Plea submissions were made on Monday this week. On Tuesday I asked my Associate to contact the parties and request identification of any cases they were aware of where sentences in excess of 3 years for the crime of indecent assault had been imposed. Your counsel, Mr Dempsey noted that the 2005-2006 to 2009-2010 Sentencing Snapshots indicated that during that period 4 offenders were sentenced to between 3 and 4 years' imprisonment for a single count of indecent assault. It seems you were one of those offenders but your counsel initially could not identify the other 3.
34 Mr Sonnet provided me with a folder of 8 cases, 7 of which involved sentencing for indecent assault. In 3 of those cases, sentences of 3 years were imposed (Forde, Martin and Tognolini). In the well known case of Xydias the Chief Justice imposed 2 years for some counts of indecent assault, 3 years for others and 3 ½ years for rolled up charges of indecent assault. In JG the Court of Appeal reduced a sentence from 4 years to 3 years for a representative count of indecent assault. In Devaldez the Court of Appeal increased a sentence of 18 months to one of 4 years. In Welsh the Court of Appeal approved of a sentence of 7 years for a representative count of indecent assault. I recognise that comparisons with other cases is of limited help.
35 You will be convicted of each charge.
36 You will be sentenced to 2 years and 6 months imprisonment on Charge 1, aggravated burglary; to 4 years imprisonment on Charge 2, indecent assault, and to 12 months imprisonment on Charge 3, robbery.
37 Charge 2 is to be the base sentence.
38 I order that only 10 months of the sentence on Charge 1 and only 4 months of the sentence on Charge 3 is to be served cumulatively on charge 2, otherwise those sentences are to be served concurrently. That makes for a total effective sentence of 5 years' and 2 months' imprisonment.
39 I order that 3 years and 8 months be served before you are eligible for release on parole.
40 These sentences have been constrained by the principles of proportionality and totality. I am mindful of the fact that you may have to serve the whole of the sentence imposed by me. Your limited rehabilitation prospects and breach of parole might have justified a longer period before being eligible for release on parole.
41 Had you not pleaded guilty I expect I would have sentenced you to a total effective term of at least 7 years imprisonment, and fixed a non-parole period of about 5 years and 9 months, perhaps more.
42 HIS HONOUR: Anything that I have got factually wrong that counsel needs to draw to my attention?
43 MR DEMPSEY: Just doing the maths one more time, sir.
44 MS NILSON: I think it is right.
45 MR DEMPSEY: Yes.
46 HIS HONOUR: 4 and 10 and 2. All right. Thank you both and thank you – and Mr Sonnet, in particular - for your help.
47 (Short adjournment.)
48 HIS HONOUR: Obviously, I forgot about the Sex Offender Registration documents which I am going to ask your client to receive. Could you assist, can you – I see you have got no instructor, Mr Dempsey, can you assist with - - -?
49 MR DEMPSEY: He is a work-experience student, Your Honour.
50 HIS HONOUR: All right.
51 MR DEMPSEY: So I do not have an instructor, you might have heard.
52 HIS HONOUR: Would you mind assisting with the signing of the document?
53 MR DEMPSEY: Of course.
54 HIS HONOUR: It is merely an acknowledgment that you have received it, Mr (indistinct).
55 MR DEMPSEY: (Off microphone)(Indistinct.)
56 HIS HONOUR: All right, thank you.
- - -
0
0
0