Director of Public Prosecutions v Demasi

[2021] VCC 781

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MILDURA

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

GUISEPPI DEMASI

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	11 June 2021
CASE MAY BE CITED AS:	DPP v Demasi
MEDIUM NEUTRAL CITATION:	[2021] VCC 781

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr R. Thyssen	Hilton-Wood Solicitors

HIS HONOUR:

1Guiseppi Demasi, you have pleaded guilty to 14 charges of indecent act with a child under the age of 16 years.

2That crime carries a maximum penalty of 10 years' imprisonment.  You are now 83 years of age and the offending for which you were charged now happened a significant period of time ago.

3As I understand it one of the victims in this matter did have the courage to complain back in the early 2000s, a VARE was made and the charges were never proceeded with.  I can only assume that the next victim after that was aware of that.

4The plea of guilty at your age of 83 is on my view probably unaccompanied by remorse.  The history of how this matter resolved was that there was material before me relating to ill health, whether that be true or not.  The COVID situation was the state of the lists was such that there was a very real possibility either by means of unfit to plead or simply not fit to stand trial more to the point that nothing would have ever happened.  In those circumstances as a result of discussions between myself and experienced members of counsel it was decided you, having received advice, would plead guilty to these matters and the understanding was that you would not receive an active custodial sentence. 

5I am well aware of the Court of Appeal decision from some years ago which cautions about such a practice.  Can I simply indicate that in these COVID times one has to take certain measures to try and relieve the lists of as much as we can and it is a process which I have now engaged in probably something in the order of 50 times and something like half of those have settled.

6In any event, in your particular situation the utilitarian benefit of your plea of guilty is massive.  It at least gives each of your victims, certainly the ones before me, the opportunity of knowing that you are finally, whether it be reluctantly or whatever, acknowledging the guilt, your guilt, your behaviour and by reason of your plea the consequences that you have visited upon these innocent young girls all the way into their adulthood. 

7I will be referring in a moment to the victim impact statements, they are almost textbook insofar as the consequences of this sort of offending are concerned.  As I made very clear during the course of the plea were it not for the utilitarian benefit of that plea, that being that they at least have some acknowledgment of your guilt and you being convicted by a jury, it would have been a very different story indeed.

8The offending as I will describe in a moment has to be regarded as serious, it calls for both the application of general deterrence and specific deterrence.  I accept at your age specific deterrence probably plays a much lesser role.  The ultimate denunciation is extremely important in your circumstances and there needs to be appropriate punishment.  Whilst I can understand totally that a member of the community would not see a suspended sentence as a punishment, the Court of Appeal on previous occasions has said that it is a punishment.  It is a sentence of imprisonment and whilst I do not take into account in term of this sentencing process a consequence of your plea of guilty, you will be placed upon the Sex Offenders Register for life which will involve certain restrictions upon you and certain obligations.  How long that is in play for is anybody's guess. 

9The circumstances of the offending are frankly appalling. 

10You were born in October of 1937.  You are now 83 as I have said.  In this particular matter there are five female complainants, all of whom were children at the time of the alleged offences.  If they are your only five victims over that period of time, Mr Demasi, I would be astounded.  I do not propose to list the names of each of those victims and I understand that these sentencing remarks will be anonymised so that their plight is not made public and I apologise for doing that as I go through it.

11Each of the victims were sexually assaulted by you between December 1995 and July of 2006 while visiting your home in Hornsey Park in Mildura.  You have offended elsewhere in Mildura whilst they were in your care.  You lived at that address until May of 2007 when apparently it was damaged or destroyed by fire.  I am told from the Bar table that that damage or destruction by fire was a consequence of your offending.  I am certainly not going to try and take that matter any further, but I accept there has been at least an element of community revenge upon you for this.

12Between 1995 and 2006 you had contact regularly with neighbours, a Molly Reid[1] and Hannah Smith[2].  They were also residing in that same street.  They and others were friends of yours and you had contact with children who would appear all over the place.  You were in a position of trust and children would attend your home regularly without their parents.

[1] A pseudonym

[2] A pseudonym

13The first complainant Crystal Reid[3], and that will be anonymised later as I explained, is now an adult.  She was four years old when the first incident happened, and she was there with her older sister.  Sometime between December 1995 and December 1996 she was sitting on a lounge in the room of your house with her sister.  You were sitting in an armchair.  You played a pornographic movie on the television.  The first complainant could see you moving your penis back and forth masturbating in her presence.  That gives rise to Charges 1 and 2 of indecent act in the presence of a child.

[3] A pseudonym

14Complainant 2 is Laura Reid[4].  She was nine to 11 years old at the time of the offending between 1999 and 31 December 2000.  On occasion during that period she was at your home with her younger sister.  She was in the loungeroom lying on your back while you were on your hands and knees.  You then placed your hand inside her underpants and touched her on the vagina.  That is Charge 3.

[4] A pseudonym

15On another occasion during the same period she was again at your home when you took her into the bathroom telling her you had to show her something.  There you began to masturbate in full view of the second complainant and then ejaculated into the handbasin.  That is Charge 4.

16On a third occasion she was at your home, you played a pornographic movie on the television.  This caused her to get angry and she went back to her house.  That is Charge 5.

17On the final occasion over that period of time she was again at your home playing hide and seek with her younger sister.  They were hiding under a bed.  You reached underneath the bed, put your hands inside the underwear of the second complainant and touched her on the vagina.  That is Charge 6.  You did not touch her again after this.  She told her father about the offending while she was a child and I have no idea what came of all that.

18The third complainant is Melissa Hicks[5].  She is now an adult, but she was 10 years old at the time of the offending.  In around December of 2000 you were given permission to drive her and her younger sisters around Mildura so they could see the Christmas lights.  She was seated in the front passenger seat of the car driven by you.  Her younger sisters were sitting in the rear of the vehicle.  They all had their pyjamas on.  During the journey you reached over to her and touched her thigh.  You then moved your hand close to the vagina before touching her on the crotch area of her pyjama pants.  You then placed your hand inside her pyjama pants. 

[5] A pseudonym

19She told you to stop and began to cry.  You said, 'No, no, it's okay.'  You then lifted her underwear and rubbed her clitoris and labial area.  That is Charge 7.  She told her mother what you had done but she was discouraged from reporting the matter to the police.  She subsequently reported the matter to the police as an adult in July of 2016.

20The fourth complainant is now an adult but was five years old when you first sexually assaulted her.  She was in the loungeroom of your home.  There you pulled down her pants and licked the top of her pelvis or groin region.  You said, 'I didn't get to taste it.'  That is Charge 8.

21On another occasion around about the same period of time she was at your house.  You sat on the couch and played a pornographic video on the television displaying it in the view of the fourth complainant.  She then watched it in your presence.  Charge 9.

22On another occasion she was there with a friend and you told them both to pull down their pants.  You then licked this complainant on the vagina.  I suspect the other one may have been as well but there is no charge in relation to that, certainly there were two small children present.  You then encouraged the fourth complainant to touch your penis, pretending it was a game.  That is Charge 11.

23On another occasion you again licked the complainant's vagina whilst you were on a bed.  The other girl was again present.  That gives rise to Charge 12.  She told her mother.  Again, the matter was reported to the police way back in 2003 but charges were not authorised. 

24It is unfortunate for the next victim, April Hird[6], she was 10 at the time of the offending between July 2005 and July of 2006.  On occasions when you visited your home while her mother was outside having a smoke you would nurse her on your knees.  While doing that you would place your hand inside her underpants and touch her on the vagina.  That happened a number of times and that is before me as tendency.  It simply shows what you did next was by no means out of character or unusual.  In any event on a school night in July of 2005 or July 2006 you were at an address in - sorry, I will not say that.  You were at an address in Mildura.  She was in her bedroom having gone to bed.  You pulled down your pants whilst standing near her mother's bedroom door and exposed your penis to her.  That gives rise to Charge 13, indecent act in the presence of a child.

[6] A pseudonym

25On another occasion she went to your house to give you a bracelet that she had made for your niece.  You picked her up, took her into the bedroom, threw her onto the bed, pinned her arms over her chest, you then lay on top of her, placed your hands inside her underpants and touched her on the vagina.  That gives rise to Charge 14.  She said, 'No, no, no', and managed to get away.  She ran away in fear out the door and back to her house.  That was the last time she ever went to your place.  She never told anybody until she told the partner at that time some years later.

26In a police interview which happened in December of 2016 you said it was all a, 'Pack of lies, never happened, fabricated, no way in the world, no way'.

27In any event you now plead guilty.  I indicate very, very clearly that I am satisfied totally beyond reasonable doubt that you are indeed guilty of these offences and the plea was induced by the thought that you would not go to gaol and I do not need to explain that again.

28I have a number of victim impact statements before me.  They are almost textbook as to what this offending does to young children, both boys and girls.  I am not going to quote from each of them, they are essentially the same and display very eloquently, if I may say so, the destruction of lives that conduct such as yours causes. 

29Each of them suffers massively from lack of self-esteem, a fear of intimacy and it would appear that a couple have been fortunate to have very patient partners who understand their circumstances.  They are overprotective of their children.  They live in fear of their children being violated.  They have a sense of worthlessness.  It is clear from a number of them that being of very, very young years they took it upon themselves that it must have been their fault that it occurred.  They carry that guilt and shame with them throughout their lives.  Whilst there is no formal diagnosis of post-traumatic stress disorder in front of me, no doubt it plays a large part in the lives of all these unfortunate girls. 

30As I said before I certainly do not sentence you for matters not before me but I would be stunned if they are your only victims.  The conduct is a massive breach of trust in respect of each of those.  I do not know how their parents feel about all this knowing that they entrusted their children to your care whilst you were violating them and almost destroying their lives.

31A custodial sentence is inevitable.  Because of the fairly unique circumstances of all this it is my view, and as told to me by Crown I would not regard it as  appellable error or out of range, that the custodial sentence should be suspended.

32There has to be a circumstance - some sort of closure can be had for these - I will call them children but now adult young women and the way that they feel.  Hopefully that whilst I have explained already that this is not about you not going to gaol because of your age, it is about you not going to gaol because nothing would have ever happened, that is really what it is about.  Hopefully that is able to give them some sense of closure and give them some assistance in terms of dealing with the dreadful impact that you had on each of their lives.

33That being the case I then can turn very simply to matters put on your behalf.  I have before me a medical certificate which indicates a number of matters of ill health.  It is clear from that that the doctor at least says that you have all sorts of difficulties.  I note from one of the victim impact statements that you still appear to drive around Mildura and you do not seem to show a lot of ill health or incapacity but that it not a matter for me.  I am deeply suspicious about what your real state of health and hearing is but, again, that is the material before me and I think it would have made a trial almost impossible.

34The submissions on your behalf are succinct and that is all they really need to be in this situation.  You were born in Italy and came to Australia when you were 17 years of age and went to early secondary level in Italy and then once you were in Australia you started working with your brother.  You worked at Colac and Myrtleford working on farms and you worked as a farmhand until your
mid-seventies.  You own your own former commission house and receive an old age pension.  As I have already mentioned your previous house was burnt down, it would appear, as a result of the offending.

35You were married for approximately 20 years and have been divorced for about 36.  You have four children from that marriage ranging from about 55 to 45 and you, as I understand it, have no contact with them.  You apparently have nine grandchildren.

36You suffer from chronic arthritis.  I note the submissions say, 'Possible memory loss', and I take it as no more than possible but in any event there are no issues with drug or alcohol abuse and you are able to live independently and apparently you have home help once a fortnight.  You do have two prior matters for assault, but they are of no significance here.  As I understand it, they were again a result of local action about your offending over a period of time.

37The submission essentially comes down to the very significant utility benefit of your plea of guilty.  I appreciate that there was a committal, but the victims did not have to give evidence in a trial.  They probably do not understand but if the matter had gone ahead and you had been found unfit to plead, they would have to give evidence in a trial.  In any event the end result would have been nothing so at least, as I have said before and I will say it again, that benefit has been given to these victims.

38I think that is really all I can say.  The prospects of your rehabilitation at 83, I would be very, very surprised if you did this again.  The risk of you reoffending should be low.  What you are going to have to understand is that you will have a very significant suspended sentence hanging over your head and if you were to breach it by offending of this nature I can simply say this, that I do not think they would be bringing you through the trial system, I think it would be taken through the Magistrates' Court where it could be dealt with much more quickly and much more efficiently.  You would be then brought back before me, if I am still around, to act upon that breach and subject to hearing what I had to hear from your barrister at the time, Mr Demasi, I would make you serve every second of it.

39In any event having said all that the sentence is as follows - I might point out that I do take into account your age obviously.  There are also questions of totality involved in all this and I am conscious that these sentences, in order to achieve the ultimate result of a suspended sentence that make sure there is a period of time related to each of the victims, the individual sentences are less than what I would have done in other circumstances but in any event it is what it is.

40Charge 1, three months.

41Charge 2, three months.

42Charge 3, nine months.

43Charge 4, six months.

44Charge 5, three months.

45Charge 6, nine months.

46Charge 7, nine months.

47Charge 8, six months.

48Charge 9, three months.

49Charge 10, 12 months.

50Charge 11, six months.

51Charge 12, 12 months.

52Charge 13, four months.

53Charge 14, nine months.

54I direct that Charges 2 and 11 be served concurrently with each other and with the sentences imposed upon Charge 10.

55I direct that two months of the sentence imposed on Charge 1, four months of the sentence imposed on Charge 3, two months of the sentence imposed on Charge 4, one month of the sentence imposed on Charge 5, four months of the sentence imposed on Charge 7, two months of the sentence imposed on Charge 8, one month of the sentence imposed on Charge 9, three months of the sentence imposed on Charge 12, one month of the sentence imposed on Charge 13 and four months of the sentence imposed on Charge 14 be served cumulatively upon each other and upon the sentence imposed on Charge 10.

56That that gives a total effective sentence of 36 months which is the highest sentence I can impose before suspending becomes an impossibility. 

57In all the circumstances of this very unusual matter I am satisfied that it is appropriate for that sentence to be wholly suspended.  I tell you that if you breach that suspended sentence, and it will be in place for the next three years, you will be brought back before me and you would have to show exceptional circumstances for it not to be fully imposed.  I have already indicated that those circumstances would have to be exceptional indeed and my present view as I sit here, Mr Demasi, is I would make you do every second of it.

58I say that but for your plea of guilty and it would have been interesting because had it gone to trial there would have been sex pens involved in this so this is just on the basis of you being convicted of indecent acts, do not worry about sex pens, it would have been five with a three.

59In these circumstances I am sentencing you from Charges 3 to 14 as a serious sex offender.  I am aware that cumulation is appropriate unless I order otherwise and for reasons of totality I do so order otherwise.  I am aware that community protection is the principal sentencing purpose although I have said at your age the risk of you reoffending is unlikely.  The Crown do not seek a disproportionate sentence. 

60Because of the nature of your offending you will be placed on the Sex Offenders Register and your reporting conditions will be for life. 

61What I might do, there is not much point handing it to him in the dock I do not think, I will get that signed and I will give it to you or your instructor, Mr Thyssen, and they can give it to him.  So that sentence is fully suspended for a period of three years.

62There are no other orders I need to make, gentlemen, I do not think.

63COUNSEL:  No, Your Honour.

64HIS HONOUR:  Right.  If you could stand up for me please, Mr Demasi.  Stand up please.  I know you say you cannot hear, whether you are feigning or not, I do not know, but I simply want to point this out that had you, as I have indicated already and you know what I am talking about, had you fought this out as a trial and lost, I would have made sure that you died in gaol.  You have got away with this.  Any right-thinking member of the community will think that, and they would be dead right.  You, sir, a filthy old man.  You have ruined lives and those girls are going to have to live with what you did probably for the rest of their lives.  You should hang your head in shame, Mr Demasi. Thank you.

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