Director of Public Prosecutions v Di Natale (a pseudonym)
[2021] VCC 1812
•12 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOMINIC DI NATALE (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE SEXTON |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 6 September 2021; 13 September 2021 |
DATE OF SENTENCE: | 12 November 2021 |
CASE MAY BE CITED AS: | DPP v Di Natale (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1812 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Indecent Assault
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:R v Merrett (2007) 14 VR 392; R v Todd [1982] 2 NSWLR 517; Stalio v R (2012) 46 VR 426; Bromley v R [2018] VSCA 329; Director of Public Prosecutions v Toomey [2006] VSCA 90; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2016] VSCA 148
Sentence: 2 years’ and 6 months’ imprisonment with 1 year and 8 months of this sentence suspended for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Batten | Solicitor for the Office of Public Prosecutions |
For the Accused | Mr D. Dann QC Mr J. Taaffe | Doogue & George Criminal Lawyers |
HIS HONOUR:
Introduction
1Dominic Di Natale,[1] on 25 June 2021 a jury found you guilty of one charge of indecent assault of Angela Di Natale,[2] your daughter, between 1 January 1984 and 31 December 1985. The maximum penalty applicable for this offence is five years’ imprisonment.[3]
[1]A pseudonym.
[2]A pseudonym.
[3]Crimes Act 1958 s44(1), as amended by the Crimes (Sexual Offences) Act 1980.
2At your plea hearing on 6 September 2021, you also admitted your prior criminal record.
Circumstances of the Offending
3By virtue of the jury’s verdict, the jury must have been satisfied beyond reasonable doubt that you intentionally touched your daughter, Angela Di Natale, by putting your fingers inside the lips of her vagina in indecent circumstances. By virtue of the jury’s verdict, I find that the jury must have been satisfied beyond reasonable doubt of your victim, Ms Di Natale’s account of the incident giving rise to the charge. Accordingly you will be sentenced, essentially, upon Ms Di Natale’s account of the incident. During an incident that took place in 1984 or 1985 when you were aged 37 to 38 years of age and your daughter was aged 11 or 12, you digitally penetrated your daughter’s vagina whilst in your bed. From your position behind your daughter whilst you were both lying on your sides, you put your arms around her, placed a hand under her waistband, and put your fingers inside the lips of her vagina. According to Ms Di Natale, this incident went for several minutes before she removed herself and left the room.
Victim Impact
4A Victim Impact Statement dated 25 August 2021 from your daughter Angela was tendered at your plea hearing on 6 September 2021 and marked Exhibit 1. Ms Di Natale read out the entirety of her Victim Impact Statement on this date. This statement is evidence of the profound impact of your offending on your daughter. Nothing I can now say will do justice to the comprehensive and heartfelt sentiments expressed by Ms Di Natale in her Victim Impact Statement. Clearly, your offending has had long lasting adverse effects on her life. She has been plagued by visions of the assault since the age of 13. For many years she has grappled with a considerable breadth and depth of emotions such as a strong sense of betrayal, turmoil, anger, shame, deep and abiding sadness, and low self-esteem. She has encountered significant problems both as a teenager and into her adult years, including behavioural and substance abuse issues together with health issues. Significant milestones and achievements in Ms Di Natale’s life have been delayed due to her difficulties associated with the offending and its impacts upon her. Ms Di Natale clearly found the legal process, including in particular giving evidence, to be a harrowing experience. Whilst Ms Di Natale has, it seems, managed to create a productive life for herself and her family, it is clear that in many respects she could be described as broken and significantly traumatised as a consequence of your offending.
5Mary Rigoni,[4] Angela’s mother and your ex-wife, completed a Victim Impact Statement on 8 September 2021. This statement was tendered at your plea hearing and marked Exhibit 2. In her Victim Impact Statement, Mary refers to her feelings of guilt and intense worry as a result of her daughter Angela’s problematic behaviour in her teenage and young adult years prior to knowing of your offending. She refers to her stress given Angela’s behaviour, leading to Mary developing serious panic attacks which impacted upon her work. Upon subsequently learning of your offending against Angela, Mary described this as the greatest betrayal imaginable, and she refers to the pain from your betrayal still continuing to this day.
[4]A pseudonym.
6Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process by informing the Court of the often significant and long-lasting impacts of offending behaviour upon them. It is now well understood that the harm caused by sexual abuse of children can be severe and long lasting, as evidenced by the Victim Impact Statements in this case. The Sentencing Act 1991 requires me to have regard to the impact of your offending on any victim,[5] and the victim impact in this case is a matter of significance in the instinctive synthesis of sentencing factors along with the other sentencing factors applicable in your case.
[5]Sentencing Act 1991 s5(2)(daa).
Nature and Gravity of the Offending
7Your sexual offending against your daughter represents a fundamental breach of trust. Self-evidently central to your parental responsibility to your daughter was your duty to care for, nurture, and protect her. Instead, you sexually violated her by penetrating her vagina with your fingers. As conceded by your counsel, your offending must be seen as a very serious breach of trust. Your daughter was very young at the time of the offending, only 11 or 12 years of age, and in contrast you were 37 or 38 years of age, a considerable age disparity accentuating the gravity of your conduct. Contrary to your protestations to police and indeed the nature of your defence at trial, the circumstances of the indecent assault involved digital vaginal penetration. However, you fall to be sentenced on the basis that your offending is limited to a single incident, there is no evidence before me of any concerning or aggravating behaviour on your part in the leadup to the offending incident. By way of example, there’s no evidence before me of any premeditation on your part, any grooming, or threats, or any entreaties to facilitate the offending. While there is a degree to which the precise duration of the incident is somewhat opaque, I am satisfied based upon Ms Di Natale’s account and the jury’s verdict that the offending behaviour on your part was more than fleeting and occurred over a matter of minutes. In all the circumstances, as conceded by your counsel, I find this to be a serious example of the crime of indecent assault involving serious incestuous conduct on your part against your young daughter.
Personal Circumstances
8You are now 75 years old. In your case, your offending occurred literally half a lifetime ago when you were aged 37 to 38 years old. I accept that save for this offending and some antiquated and minor prior convictions from the 1960s and 1970s, which have no relevance to the sentencing exercise, in your case, you have it seems led a law-abiding life. Significantly, you have no prior convictions for any kind of sexual offence.
9Your personal history including family, education, employment, relationship, and medical history was set out in some detail in the defence submissions on the plea following trial dated 2 September 2021, Exhibit A at your plea hearing, and canvassed extensively in the report of consultant forensic psychologist Dr Michael Davis dated 24 August 2021, Exhibit C, and I have considered those matters carefully.
10You are the second youngest of four children to your parents, both of your parents are now deceased, as is your youngest brother. You have described having a good upbringing. You lived in Shepparton where you were born for some four years before the family moved on numerous occasions both into and out of metropolitan Melbourne. In the context of your parents’ business-related activities in fruit shops, a farm, and a hotel, you remained in the family home until the age of 21 to 22 years old.
11You acquired only a relatively limited education to part Year 7 level before entering the workforce at the age of 13. Notwithstanding your limited education, Dr Davis describes you as having had a very good work ethic and an entrepreneurial spirit that has resulted in developing successful companies.[6] It seems after you left school you initially worked on the family farm in country Victoria, and then subsequently worked at an engineering firm, in a concreting business with an uncle, and in the family-owned fruit shop in 1962. You then worked for a fruit company attached to the Victorian Market and ultimately took over six stands at the South Melbourne Market for some 12 months.
[6]Psychological Report of Dr Michael Davis dated 24 August 2021 at [113].
12In 1965 when your parents purchased a hotel in South Melbourne, you took over the family-owned fruit shop. In 1968, you started getting into tree removals and landscape gardening, and subsequently brought in your brother to help run the fruit shop whilst you pursued the tree removal business. You then moved into demolition and excavation setting up a company in 1970. In 1972, you commenced a recycling business.
13In 1975, you had some difficulties with regard to depression, the details of which I will shortly outline. In 1978, you suffered a workplace accident resulting in a broken femur. You subsequently took on a distributorship involving hydraulic hammers and excavators, but in 1983 you ran into financial difficulties and the company went into liquidation. You managed to resurrect the demolition and excavation company following the acquisition of a major project, and into the 1990s you acquired further licenses to enable your company to engage in more heavy industrial work. In 1993, you bought out another excavation company, and in 1994 you purchased a further company, which operated both demolition and recycling business activities. In 2000, you suffered another serious workplace accident which left you in a coma and requiring subsequent extended rehabilitation. From 2008, the demolition business was wound down with recycling activities continuing, and through 2015 and 2016 you were engaged in a series of family disputes as to the running of the recycling business and the ownership of the site. I understand that you are currently engaged in civil litigation with various family members in this regard.
14I accept that notwithstanding some personal difficulties and your own limitations, you have shown considerable tenacity and aptitude with regards to your business activities, at times employing significant numbers of people.
15For the last decade or so, you have lived with your partner, Margaret,[7] and you have been living in country Victoria. For some 40 years you were married to Mary Rigoni, who you met in 1965. You have four children from this relationship, including your daughter Angela. As became clear during the trial and as confirmed in subsequent material, your relationship with your family is clearly extremely problematic as a result of ongoing litigation, together with the consequences of your offending.
[7]A pseudonym.
16You have experienced a number of physical ailments over the years, including the broken femur as a result of the workplace accident in 1978. You have reported to Dr Davis suffering a stroke in 1997, from which you have apparently recovered well. Significantly, you were involved in the serious workplace accident in 2000 and you have reported to Dr Davis sustaining multiple injuries including punctured lungs, broken ribs, spinal injuries, a broken shoulder, a fractured skull, and nerve related issues.
17According to Dr Davis, you have a history of difficulties with regards to depressed and elevated mood, you suffered for many years with episodic breakdowns, or nervous breakdowns, which in the opinion of Dr Davis are more likely to be major depressive episodes. Indeed, according to Dr Davis in evidence before me on 13 September 2021, you have had quite severe depressive episodes to the extent, by way of example, of requiring electroconvulsive therapy, or ECT, in 1975. In the opinion of Dr Davis, ECT is a “pretty severe procedure to undergo for depression.” You have described to Dr Davis having a breakdown in the early 1990s and receiving treatment over a number of sessions from psychiatrist David Sturrock in 2005 and 2006. You were diagnosed with bipolar disorder in approximately 2007 in the context of another serious nervous breakdown as reported to Dr Davis. In that regard, I note in the medication summary dated 22 January 2021, Exhibit B at your plea hearing, that you are prescribed Epilim for bipolar effective disorder. According to Dr Davis,[8] you meet the formal criteria for bipolar II disorder in full remission. The condition is characterised by recurring hyper manic and major depressive episodes. According to Dr Davis in evidence, the average age onset of bipolar II is in the early 20s, and it is, in the opinion of Dr Davis, absolutely inconceivable that your bipolar disorder would have developed later than this period. According to Dr Davis, your bipolar II disorder had to have developed by your mid 20s at the latest. This disorder is characterised by depressive symptoms.
[8]Psychological Report of Dr Michael Davis at [135].
Sentencing Factors
18The Sentencing Act 1991 requires me to have regard to various factors when formulating an appropriate sentence in your case. I have already referred to the maximum penalty for the offence of indecent assault, the nature and gravity of your offending, the impact on your victim, and your previous character.
19I turn now to the issue of your culpability and degree of responsibility for your offending. Your counsel submitted that your moral culpability for your offending was reduced due to your psychological state at the time and the diagnosis of bipolar disorder.[9] In oral submissions before me on 6 September 2021, your counsel relied upon the sentiments expressed by you with regard to relationship difficulties, heavy alcohol consumption, and depression in the pretext conversation with your daughter on 5 August 2017, and in your police interview, in addition to the opinions of Dr Davis with regards to your subsequent bipolar diagnosis. Your counsel argued that this material warranted a reduction in your moral culpability with regards to your depression and bipolar at the time of the offending due to your impaired ability to exercise appropriate judgement in accordance with Verdins[10] principle one.
[9]Defence Submissions on the Plea Following Trial dated 2 September 2021, p 6.
[10] R v Verdins & Ors (2007) 16 VR 269 at [26(a)].
20Mr Batten, on behalf of the prosecution in submissions before me on 13 September 2021, urged me not to find that your moral culpability was reduced in this manner. It was submitted that there was no realistic connection between your bipolar disorder and your offending, and the proposition that you were experiencing depression of a dimension that it impaired your mental functioning was disputed.
21I accept that in the pretext conversation with your daughter on 5 August 2017, in circumstances which could be described as an unguarded moment on your part, you made reference to being desperate to see Mary, being depressed and in a bad state. I also accept that you expressed similar sentiments in your police interview, including a reference on your part to probably crying at the time.[11] However, as I noted during your plea submissions, your narrative in the pretext conversation and record of interview, which included reference to you steadfastly maintaining at the relevant time that you were in a trance and thought you were with Mary, in my view must be treated with caution given the jury’s verdict, which necessarily encapsulates their satisfaction beyond reasonable doubt that you intentionally touched your daughter, as opposed to your wife.
[11]Record of Interview on 8 September 2017, A 271.
22Dr Michael Davis, a consultant forensic psychologist whose expertise and experience were not challenged by the prosecution, gave evidence before me on 13 September 2021 where he affirmed and elaborated upon his comprehensive report dated 24 August 2021. Dr Davis specifically addressed the issue of your mental state at the time of your offending. Rather than your offending being seen as a product of any enduring sexual deviance, according to Dr Davis your offending is, ‘best viewed as Mr Di Natale turning to his daughter as a sexual substitute for her mother when he was depressed and intoxicated with alcohol’.[12] According to Dr Davis in evidence before me, you provided a consistent narrative indicating that you were depressed and intoxicated. As I earlier stated, according to Dr Davis, it is absolutely inconceivable that your bipolar disorder developed later than in your 20s, and accordingly would have been operative at the time of your offending. According to Dr Davis, you were most likely depressed at the time of the offending, and this depression would have contributed to your offending in combination with your alcohol intoxication, by lowering your decision-making capacity, thereby compromising your decision making and clouding your judgment. In cross-examination, Dr Davis maintained the opinions expressed by him. He did say that the severity of your depression at the time of the offending would be very difficult to determine, and it was most likely exacerbated by your alcohol consumption at the time. Whilst acknowledging that it would be difficult to unravel or disentangle the connection between intoxication and depression in your case Dr Davis maintained that intoxication alone does not explain how your offending came about, and that the psychological stressors operating on you at the relevant time made you turn to a sexual substitute.
[12] Psychological Report of Dr Michael Davis at [139].
23Having carefully considered both the report and evidence of Dr Davis, I am satisfied that at the time of the offending you were dealing with the effects of bipolar disorder, which in your case had manifested for some years in depressive episodes. I am satisfied that you were depressed at the time of the offending, though the severity of your depression and the impact of your intoxication at the time clouds any analysis with regards to the impact of your psychological functioning on your offending. Nevertheless, based upon the evidence of Dr Davis I accept that to some degree your judgment was clouded, and your decision-making capacity was impaired by factors which included your depression and the manifestation of your bipolar disorder. Ultimately, your counsel submitted that due to these matters some moderation in your moral culpability was warranted. I agree. However, in my view, your level of culpability remains significant. The fact that your decision-making abilities were somewhat impaired for the reasons I have described does not in any substantial way diminish your responsibility for intentionally digitally penetrating your young daughter in the circumstances I have described.
24As is your right, you pleaded not guilty to the charge of indecent assault and took the matter to trial where a guilty verdict was ultimately returned by a jury. Whilst clearly you are not to be punished for running a trial, you are not entitled to a sentencing discount which would otherwise have applied as a result of you pleading guilty. Nevertheless, notwithstanding your plea of not guilty, your counsel submitted that admissions by you to the offending constituted a matter in mitigation.[13] It was submitted on your behalf that on the prosecution case you had made an admission to Mary Di Natale in 2005 when you said to her, “I knew it was wrong as soon as I did it.” It was further argued that you had, on your own account in your police interview, made admissions to a psychiatrist in the presence of your wife Mary. Furthermore, it was argued on your behalf that on the prosecution case you had made admissions to your daughter, Angela, in the pretext call and the prosecution argued to the jury that those admissions were reflective of your intention to sexually touch your daughter. Having considered these arguments, the comments attributed to you cannot be seen as admissions to the conduct forming the basis of the charge in relation to which you have been found guilty. At best, you have admitted in the pretext conversation and in your police interview to non-penetrative touching. At no stage did you admit digitally penetrating your daughter’s vagina, and at no stage did you admit doing so intentionally. Your comment to Mary in 2005, in my view, is consistent with your comment in the pretext conversation, that as far as you were concerned it was Mary you were touching, and not your daughter. Whilst I accept your counsel’s submission that the sentencing exercise in this regard, as with regard to all matters, is not black and white, the admissions made by you were partial at best and did not encompass an acknowledgement of a key element of the offence, namely that you intentionally sexually touched your daughter. In that regard, whilst it could not be said that you had completely denied any sexual contact, in my view, the mitigatory impact is minimal.
[13]Defence Submissions, p 6.
25On a related issue, your counsel submitted that despite your not guilty plea, there were indications of remorse warranting mitigation in penalty. Your counsel referred to your expressions of remorse on each occasion when admissions were made, most powerfully to your daughter Angela in the pretext call, and reliance was placed upon the reference of Dr Davis in his report, to you expressing considerable remorse.[14] Again, the words attributed to you, in my view, need to be analysed in the context of what it was that you were admitting. I accept in the pretext conversation that you told your daughter that you were truly sorry, that you should not have done it, and you acknowledged that it had had a big effect on her life. But these sentiments of yours were expressed in the context of you not admitting to penetrative conduct, and you maintaining that you thought you were with your wife, not your daughter at the time. Likewise, in your police interview, whilst I acknowledge that you express a realisation that you were doing something wrong and stopped, and that you have regretted it ever since, these sentiments came in the context of you denying penetrative conduct and maintaining that you were in a trance at the time of the offending.
[14]Psychological Report of Dr Michael Davis at [111].
26Finally, turning to the opinions of Dr Davis, whilst he indicated that you had expressed considerable remorse for your offending, he went on to state, ‘but seemed to believe that his daughter had pursued charges now because they are currently involved in a civil court dispute.’[15] Moreover, your narrative of the offending given to Dr Davis and referred to by him at paragraphs 67 to 81 of his report, do not, in my view, support a finding of genuine contrition on your part in relation to the offending for which you have now been found guilty. You denied the age of your victim, and you denied penetrating your victim. Whilst you admitted touching your daughter’s vagina, you denied that it was intentional, and you maintained that you were not guilty of the charge. You questioned your daughter’s motivation for pursuing the charge, and referred to her evidence as, ‘just a litany of lies.’ In these circumstances, any mitigatory allowance with regards to your apology to your victim in the pretext conversation, your realisation with regards to the impact on her life and your feelings of regret ever since, is extremely minimal, in my view.
[15] Ibid.
27Furthermore, your counsel submitted pursuant to s5(2C) of the Sentencing Act 1991, that your conduct in connection with the trial, and the relatively confined basis upon which the trial was conducted, was consistent with your remorse that an incident occurred involving your daughter, and therefore warranted a mitigatory allowance in sentencing. There has been no suggestion that your conduct, through counsel, in connection with your trial has been anything other than appropriate. Whilst I accept that your trial was conducted on the premise that you touched your daughter on her vagina, and in that sense was relatively confined, nevertheless, your defence involved an extensive and searching challenge to the victim and her mother on a broad range of issues, including a motive to lie or exaggerate. In my view, therefore the impact of your conduct in connection with the trial pursuant to s5(2C) of the Sentencing Act 1991 is neutral. Whilst you are certainly not to be punished for taking this matter to trial in circumstances where the underpinning of your defence appears to have been, “I touched you but not when you say, not intentionally, and it wasn’t penetrative”, is not to be reflective of any meaningful remorse on your part.
28You are now aged 75. Any sentence of imprisonment imposed would therefore represent a significant proportion of your remaining life. As highlighted by your counsel, your offending occurred in excess of 36 years ago. You have not reoffended in almost four decades, during that period you have otherwise been a productive member of the community, and it can therefore be said that you’ve demonstrated your rehabilitation in the community. The impressive array of character references tendered on your behalf, marked Exhibit D, highlight your good standing in the eyes of those who know you, and the general consensus that this offending is out of character. You are now an elderly man. In these circumstances, there is a decreased need for any sentence to reflect the sentencing purpose of specific deterrence and community protection. On a related issue, you were first put on notice with regards to this criminal investigation on 8 September 2017 when you were interviewed by police. Almost four years elapsed between your police interview and the jury’s verdict, and I accept that you lived with considerable uncertainty with this matter hanging over your head for this protracted period. The first listing of your trial in April 2020 was delayed due to the COVID-19 pandemic. The trial process was protracted with your first jury being empanelled on 20 January 2021. In total, four juries were discharged due to various reasons including juror issues with COVID-19 testing consent forms, inadmissible and prejudicial evidence being adduced as part of the prosecution case, and highly pejorative sentiments communicated in a juror question. I have no doubt that the protracted nature, as I have described, of the criminal process has caused you considerable anxiety. Due to these delays your counsel relied upon the principles referred to in R v Merrett[16] with regards to the issues of intervening rehabilitation and fairness to an accused, and the principles referred to in R v Todd.[17] In that case, Street CJ, in the context of referring to lengthy delays and an accused being left in a state of uncertain suspense referred to the need for:
“a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of lenience being extended to the prisoner.”[18]
[16] (2007) 14 VR 392 at [35].
[17] [1982] 2 NSWLR 517 at [519-20].
[18] Ibid.
29In response, the prosecution in this case acknowledged the delay, but submitted that the sentencing purposes of general deterrence and denunciation remain prominent. The prosecution drew to my attention the decision of Bromley v R[19] with regards to the benefits flowing to an offender as a result of delay, including not suffering the opprobrium associated with being a convicted child sex offender, and deferring the receipt of just punishment for his serious criminal conduct. I was also referred to the often-cited passage of appeal, Vincent J, in the Director of Public Prosecutions v Toomey,[20] with regards to the difficulties associated with delays for victims and the need to vindicate the victim in such cases. In my view, the lengthy delays associated with this matter, including the delays associated with the investigation, prosecution and trial, represent a significant mitigating factor in your case. The need for any sentence to reflect the purposes of community protection and specific deterrence is decreased. Fairness dictates a mitigatory allowance due to your anxieties associated with the delayed disposition of this matter. However, in my view, the circumstances of this case do not justify an undue degree of leniency being extended to you. Notwithstanding the delays associated with your case, the sentence imposed must, nevertheless, reflect the gravity of your offence, the profound impact on your victim, and the need for the sentence to reflect the important sentencing purposes of denunciation and general deterrence.
[19][2018] VSCA 329 at [53] - [54].
[20] [2006] VSCA 90 at [22] – [24].
30I turn now to a consideration of your advanced age and physical and mental health difficulties, and the impact on sentencing. You are an elderly man aged 75 years old. You have ongoing physical difficulties as a result of your serious workplace accident in 2000, including in particular referred pain in one of your arms. The medication summary from your general practitioner dated 22 January 2021, sets out the multiple medications currently prescribed to you, including medications for cholesterol, hypertension, and diabetes. That medication summary also refers to medications with regards to your bipolar disorder and depression, the details of which I have already referred to. According to Dr Davis, your presentation was suggestive of:
“prominent physical health difficulties, along with variable mood and irritability, some symptoms of depressed mood and anxiety, social detachment, feelings of persecution, and some maladaptive personality features.”[21]
[21]Psychological Report of Dr Michael Davis at [134].
31According to Dr Davis, in addition to your mood disturbance, your ongoing difficulties with chronic referred pain also meet formal criteria for somatic symptom disorder (with predominant pain persistent severe).[22] Dr Davis, in his report, referred to this as “an important diagnostic consideration as it likely contributes to his difficulties with mood.”[23] In evidence before me on 13 September 2021, Dr Davis expanded upon this diagnosis. He referred to you being in severe pain, and the somatic symptom disorder essentially being a psychiatric condition linked to physical symptoms. In all the circumstances, I do not agree with the prosecution’s submission that you appear to be a man in reasonably good health for your age.[24] You are, in my view, an elderly man with both psychological and physical fragilities in excess of those to be expected of a man of your age. I agree with your counsel that not having previously been in custody, your advanced age, and mental and physical health difficulties would make any time in custody more burdensome. A mitigatory allowance in sentencing is therefore warranted.
[22]Ibid at [136].
[23] Ibid at [142].
[24]Prosecution Plea Submissions dated 3 September 2021, Exhibit 3, p3.
32I also accept that any sentence of imprisonment would be considerably more burdensome due to the COVID-19 pandemic and its impacts upon the custodial setting. As it is now well known, the custodial setting has been significantly impacted by the pandemic. To varying degrees, given the unpredictable nature of the pandemic, there have been significant restrictions in the custodial setting with regards to lockdowns, prison visits, access to employment, access to programs, services, and therapies. Quarantining and isolation have become features of the custodial setting. In recent weeks, given the increased case numbers both in the community and in the prison system, there have been considerable lockdowns at various prison locations. There is a requirement for an initial period of self-isolation or quarantine for 14 days for all prisoners entering the system. You face the real prospect of considerable restrictions on your freedom of movement, including the time that you would be able to spend out of your cell each day. Particularly given your advanced age and physical and psychological ailments, any sentence of imprisonment, with its attendant anxieties as a result of the COVID-19 pandemic, would, in my view, be more burdensome for you warranting a further mitigatory allowance.
33I turn now to a consideration of your rehabilitative prospects. Dr Davis conducted an extensive risk assessment with regards to your risk of sexual reoffending and set out his opinions in his report at paragraphs 108 and onwards, and elaborated upon his conclusions in evidence before me on 13 September 2021. After utilising recognised screening and assessment tools, Dr Davis concluded that you are unlikely to have a preferential sexual interest in prepubescent or young pubescent children.[25] You do not meet the diagnostic criteria for paedophilia or hebephilia.[26] In particular Dr Davis expressed the following opinion:
“It is my opinion that Mr. Di Natale’s current sexual offending was at the situational end of this continuum and is best described by reference to a regressed pattern of behaviour. This includes offenders who turn to children during times of difficulty as a sexual substitute for the preferred peer sexual partner. Incest offenders can often be viewed in this fashion. Accordingly, while engaging in sexual activity with one’s pre-pubescent or early pubescent daughter is clearly problematic and destructive, it is my opinion that Mr. Di Natale’s offending was not motivated by sexual deviance.”[27]
[25]Psychological Report of Dr Michael Davis at [110].
[26]Ibid at [138].
[27] Ibid.
34Importantly, this conclusion was not challenged by the prosecution. In terms of your risk of reoffending, Dr Davis came to the conclusion that you have very few risk factors with regards to sexual recidivism. Dr Davis concluded:
“Accordingly, given the low number of risk factors, the absence of any enduring sexual deviance, the lack of any ongoing criminality, the lengthy period of time offence-free in the community, and his advanced age, it is my opinion that Mr. Di Natale currently poses a low risk for sexual recidivism.”[28]
[28]Ibid at [130].
35Significantly, Dr Davis opined that any sexual offender treatment administered through Corrections Victoria is not required and may actually serve to increase your risk, based upon scholarly literature indicating that placing lower risk offenders in group treatment programs with higher risk offenders leads to increased recidivism.[29] Having regard to your background, which includes many prosocial indicia, the passage of almost four decades since your offending with no reoffending, and the opinions of Dr Davis with regards to your low risk of sexual recidivism, your prospects for rehabilitation must be considered good, if not excellent, in my view.
[29]Ibid at [142].
36Pursuant to s5(2)(b) of the Sentencing Act 1991, in sentencing you I must have regard to current sentencing practices. Consistent with that phrase, current sentencing practices refers to those at the time of sentencing, not those which existed at the time an offence was committed.[30] On this issue I have had regard to the decision of Bromley v R[31] with regards to sentencing for historical offences, with a lower maximum penalty than that which would apply for similar but current offending. After referring to the principle affirmed in the High Court decision of Director of Public Prosecutions (DPP) vDalgliesh (a pseudonym)[32] that current sentencing practices are not determinative and do not cap and collar the appropriate sentencing range, the Court in Bromley went on to state the following with regards to current sentencing practices for historical offending:
“The Court can, and should, take into account sentencing practices at the time the offence was committed as one of the factors in the sentencing synthesis because those sentencing practices are relevant to arriving at a sentence which is just in all the circumstances.”[33]
[30]Stalio v R (2012) 46 VR 426 at [178].
[31] [2018] VSCA 329 (‘Bromley’).
[32] (2017) 262 CLR 428 at [9].
[33]Bromley v R [2018] VSCA 329 at [50].
37As the Court in Bromley went on to state:
It is possible to discern from current sentencing practices with regards to child sex offences that there is now much greater understanding of the impact of such offending on child victims. and it is appropriate to consider that understanding, even though it may not have been a feature of sentences imposed at the time the relevant offending occurred.[34]
[34]Ibid.
38In formulating an appropriate sentence in your case, I have considered current sentencing practices as one of the applicable sentencing factors, consistent with the principles I have just outlined.
Sentencing Submissions
39The prosecution in this case submitted that in all the circumstances an immediate custodial sentence was required with a partially suspended sentence, a precondition of which involves a sentence not exceeding three years imprisonment, being within the range of sentences open to the Court. Your counsel submitted on your behalf that the state of last resort had not been reached, which would require an immediate term of imprisonment to be imposed. It was submitted that a sentence exceeding three years imprisonment was not reasonably open, and accordingly I should give consideration to the imposition of a wholly suspended sentence, a disposition that is available given the offending date period. At your plea hearing on 13 September 2021, your counsel further submitted that a Community Correction Order should be considered, either on its own or in combination with a sentence of imprisonment. Likewise, your counsel urged upon me, should I find that immediate imprisonment was required, to consider a partially suspended sentence.
40As conceded by your counsel, general deterrence, denunciation, and just punishment are significant sentencing considerations. Having considered all of the relevant sentencing factors and principles, and having regard to the nature and gravity of your offence, and the profound impact upon your victim, I have determined that notwithstanding the antiquity of your offending, a sentence of immediate imprisonment is required. Anything else, in my view, would not constitute just punishment. In my view, a combination sentence involving a sentence of imprisonment and a Community Correction Order is not appropriate in your case. The sentence I am about to impose will not exceed three years imprisonment, and accordingly a partially suspended sentence is open. I have determined that a partially suspended sentence is appropriate in your case having regard to the various mitigatory matters to which I have referred. Furthermore, in making my decision to impose a partially suspended sentence of imprisonment in this matter, I have had regard to the nature of the offence, the impact on the victim, and the need to ensure that any sentence adequately manifests the denunciation by the Court of the offending, that it adequately defers the offender or other persons from committing similar offences in the future, and reflects the gravity of the offence.
Sentence to be Imposed
41Mr Di Natale, on the charge of indecent assault, you are convicted and sentenced to two years’ and six months’ imprisonment. One year and eight months of that sentence is suspended for a period of two years, leaving 10 months imprisonment to be served immediately.
42The effect of this sentence is that you will serve a period of 10 months imprisonment commencing this day. When you have served the period of 10 months imprisonment you will be released. Your remaining sentence of one year and eight months will be suspended from operation for a period of two years, during which you must not commit any offence punishable by a term of imprisonment. Should you do so, you will find yourself being brought back to Court and save for exceptional circumstances the period of the sentence that I have suspended will be restored.
43I turn finally now to the issue of registration pursuant to the Sex Offenders Registration Act 2004. You have been found guilty of one charge of indecent assault dating from 1984 to 1985, a period predating the commencement of the Sex Offenders Registration Act 2004 in 2004. The prosecution submitted that the reporting period applicable to you is 15 years on the basis that you had been found guilty of a Class 1 offence pursuant to Schedule 1 of the Sex Offenders Registration Act 2004. The prosecution relied upon items 1 and 13(ii) of that Schedule, arguing that at the time the indecent assault was committed, it was an offence of a kind listed in Schedule 1, as it was an offence of a kind involving sexual penetration against a child. In contrast, Mr Taaffe on your behalf relied upon detailed written submissions supplemented by oral argument to argue that the reporting period applicable to you is eight years, as you have been found guilty of a Class 2 offence referrable to Schedule 2 of the Sex Offenders Registration Act 2004.
44Upon consideration, I have determined that the offence of indecent assault, contrary to s44(1) of the Crimes Act 1958 as amended by the Crimes Sexual Offences Act 1980 is captured by Items 26 and 26A of Schedule 2 of the Sex Offenders Registration Act 2004 for the reasons set out in paragraphs 18 to 22 of the defence supplementary submissions on sex offender registration dated 13 September 2021. I agree with the defence submission that to find otherwise, that is to find that the offence to which you have been found guilty is a Class 1 offence, would require me to ignore the explicit references in Schedule 2 and embark on an expansive interpretation of the language in Schedule 1, a criminal statute which should not be so interpreted. In my view, unambiguous language would be required in the Sex Offenders Registration Act 2004 to support the submission advanced by the prosecution. I was not referred to any extraneous materials or appellate guidance which would support the broad approach urged upon me by the prosecution. Accordingly, as you have been found guilty of one Class 2 offence pursuant to s34(1)(a) of the Sex Offenders Registration Act 2004, the reporting period applicable to you is eight years. In a moment, you will be provided with a document setting out the length of the reporting period, your reporting obligations, and consequences should you fail to comply with them.
45HIS HONOUR: All right, thank you.
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