Director of Public Prosecutions v Donaczy

[2024] VCC 1243

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-01435

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY DONACZY

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2024
DATE OF SENTENCE:	12 August 2024
CASE MAY BE CITED AS:	DPP v Donaczy
MEDIUM NEUTRAL CITATION:	[2024] VCC 1243

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:          Common law assault - persistent contravention of family violence notice - sexual penetration of child under 16

Legislation Cited: 

Cases Cited:

Sentence:32 months' imprisonment, non-parole period 17 months

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Ms F. Holmes Ms A. Aplin	Office of Public Prosecutions
For the Accused	Mr V. Peters	Victoria Legal Aid

HIS HONOUR:

1Anthony Donaczy, you have pleaded guilty to an indictment charging you with two offences of common law assault, for which the maximum penalty is imprisonment for five years; an offence of persistent contravention of a family violence notice, for which the maximum penalty is also imprisonment for five years; and to an offence of sexual penetration of a child under the age of 16, for which the maximum penalty is imprisonment for 15 years.

2You have no prior criminal history, although you have admitted a subsequent appearance.  That appearance is relevant only to the question of your rehabilitation.

3The prosecution tendered and relied upon a summary of prosecution opening which sets out the facts of the case.  At the time of the offending you were aged just 21.  Indeed, you turned 21 in February 2023.  Your victim was born in April 2009, meaning that at the time of the offending she was between 13 and 14 years of age, on the cusp of turning 14, which indeed she did on the date of the offending the subject of Charge 2, the offence of sexual penetration of a child under the age 16 years.

4The offending arose as a result of you first meeting the victim at the
Footscray Train Station at a time when you were intoxicated.  You were living rough.  Your victim introduced herself and told you that she was 18 years of age.  You went with her to your auntie's house so that she could have somewhere to sleep that night because she was apparently concerned about sleeping rough.  A relationship developed between the two of you from about that time onwards.  It was a sexual relationship. 

5Between 21 February and 24 March 2023 you and the victim were staying at a friend's house in Moreland Road in Brunswick.  At that time you were drinking alcohol and using drugs with older men.  During that period you and your victim had a fight.  You became aggressive with her, slapped and kicked her and pushed her against a wall.  That is the subject of the rolled up Charge 1 on the indictment.

6On the evening of 23 March 2023 you and your victim caught the train to Flinders Street Station where you met up with friends who were smoking ice.  You and the victim became involved in a fight.  The victim started crying.  As a result members of the public called the police who attended and took her into protection.  She was, at that time, 13 years of age and told you as much on that occasion.  That was the first time that you became aware that she was under the age of 16.

7On 24 March 2023 the police obtained a family violence intervention order protecting your victim from you and imposing conditions upon you

8On her 14th birthday, in April 2023, you and she were at the Footscray Railway Station.  The two of you went into a disabled bathroom.  There you had sexual intercourse.  You were aware that she was under the age of 16 years.  During the course of your sexual encounter a knife and an ice pipe fell out of your clothing.  Your victim picked up the knife and left the bathroom.  You followed her, yelling abuse at her.  There was a further altercation between you which gives rise to part of the evidence relied upon in support of the charge of persistent contravention of the family violence intervention notice.

9Other incidents of contact in breach of that order were observed by police when they took possession of your phone after your arrest and found communications between you which form part of the basis of the evidence relied upon in support of that charge.

10The police attended the Footscray Train Station on 14 April 2023.  The victim told police about your sexual encounter with her that day and also alleged that you had assaulted her.    

11Your victim went into protective care.  She told her mother that you had been bashing her and that she had been smoking weed and ice with you.

12On 22 May 2023 you met your victim at the Subway in Footscray opposite the train station.  You then walked to a reserve nearby and you further assaulted her.  You slapped her across the head and, when she was on the ground, you kicked her and punched her to the head and tried to take her phone.  That is the subject of Charge 3 on the indictment of common law assault.

13You were arrested on 23 May 2023 and questioned by police.  Although you admitted that you came to know that she was under age when the apprehended violence order was placed upon you, you denied other offending that was put to you.  As a result of you being arrested, the police examined your phone to which I have already referred and amongst the other material on your phone the police discovered that you had made numerous attempts to contact your victim.  During message exchanges you had sent a message to her which read, 'I'm so sorry, [name], really this time'.

14You were remanded in custody following your arrest on 23 May 2023 and as at today you have been in custody for a period of 447 days, which for a young man now aged 22 years is a very significant period of time.

15You are the subject of the mandatory sentence regime.  The standard sentence for the offence of sexual penetration of a child under the age of 16 is imprisonment for six years.

16The offence of sexual penetration of a child under the age of 16 is also an offence which is a class 1 offence under Schedule 1 of the Sex Offenders Registration Act and you must therefore comply with the reporting obligations under that Act for a period of 15 years.  You will be given a notice which sets out the nature of those obligations.

17Turning to matters personal to you.  Your counsel provided me with plea submissions dated 29 July 2024, which is Exhibit 1 on the plea; a psychological court report authored by Mr Simon Candlish, consultant psychologist, dated 23 July 2024, which is Exhibit 2; a number of certificates of achievement showing the rehabilitative steps that you have taken during the period that you have been on remand, and they are Exhibit 3 on the plea; and a letter from a representative of the GEO Group Australia Pty Ltd in relation to the Nexus program which provides assistance for persons like yourself at the end of sentence to re-establish themselves in the community, which is Exhibit 4.

18The report of Simon Candlish is particularly useful in that it sets out information about your background as well as dealing with your psychological profile.  You had a far from ideal upbringing.  Your father died when you were at a relatively young age in 2007.  Your mother re-partnered.  Your childhood was spent in a disrupted and violent household in which you observed and experienced family violence.  The relationship between your mother and step-father was also attended by substance abuse.

19Mr Candlish expresses the opinion that overall you presented as emotionally and socially underdeveloped and that you presented as indifferent, which he opined was perhaps related to your immaturity as well a possible desire to appear unaffected.  He noted that you did not present as overly anxious or worried.  He noted that you had been bullied at school and that you would turn up to school drug-affected from the age of 15 years.  You indicated to Mr Candlish that your drug use at that time was related to anxiety and your attempts to manage your symptoms.

20Overall, your drug habits, starting as they did at a relatively young age and having their origin in a disrupted childhood, have given rise to a lack of empathy which was noted by Mr Candlish and have given rise to what seemed to Mr Candlish to be some unsatisfactory personality traits and behaviours relating to psychopathy. 

21Mr Candlish did not have the opportunity of going further in exploring the personality issues but opined at paragraph 17:

'He displays social and emotional underdevelopment.  There is insufficient information to suggest the presence of personality disorder at this time.'

22He says you are arguably too young to make such a diagnosis.

'Nevertheless, without exposure to psychological interventions and/or a concerted effort to address his difficulties and adopt a pro-social lifestyle, there is a risk that he develops entrenched characterological issues which manifest as personality disorder.'

23He sums up his assessment of you as indicating that you fall into the low risk category for sexual offending.  He noted that you experienced childhood adversity including exposure to chronic conflict and anger, family violence and substance abuse, and that you experienced accommodation instability and transience.

24All of these factors are rightly relied upon as indicating a basis for concluding that your upbringing has had a significant impact on your capacity to develop a pro-social adult behaviour pattern and has, in many respects, shaped your personality and your behaviour in a manner relevant to your offending.

25I note that you were on the cusp of age 21 at the time of your offending.  Mr Peters, on your behalf, relies upon your youth as a factor that needs to be considered and, along with the facts relating to your upbringing, must be a significant factor in determining appropriate sentence.

26It is fortunate, from your point of view, that the three people who you identified to Mr Candlish as being important people in your life, that is, your mother, your maternal grandfather and your cousin who lives in Shepparton, continue to offer you support and are highly relevant to your ability to rehabilitate yourself as a result of this offending.

27The report of Mr Candlish raises real questions about your ability to discipline yourself sufficiently to cope with structured rehabilitation regimes of a kind that are likely to be or may be available to be part of a community correction order. 

28However, that is not the end of the matter.  You have to appreciate, and your counsel made no bones about it, that the offence of sexual penetration of a child under the age of 16 is a very serious offence.  Not only does it carry a maximum term of imprisonment of 15 years but is the subject of the standard sentencing regime requiring the court ordinarily to look to a sentence of six years as being the yardstick for an appropriate sentence for that offence.  To the extent that I deviate from that sentence, I need to explain why I do so. 

29The offences of common law assault that you committed were ugly.  They were undoubtedly offences that have to be regarded as serious offences of their kind.  You were not just much older but you were a male, attacking a female and whilst that might be a behaviour that you observed in your own home during your childhood and might have been influenced by those experiences, it provides no excuse for your offending.  It may contribute to the reasoning behind it and your lack of empathy but it does not excuse the offending.

30The offence of sexual penetration of a child under the age of 16 years is serious.  The age of your victim was significantly below 16 years.  The one feature of it which mitigates the offending in my judgment, and significantly mitigates it, is that you entered a relationship with her, that is a sexual relationship, prior to discovering that she was under the age of 16.

31I accept that you believed until 24 March 2023 that she was 18 or 19 years of age and so the sexual activity that occurred prior to that date was carried out with that belief.  However, by 14 April 2023 when the offending the subject of Charge 2 occurred, you well knew that she was well under the age of 16 years.

32It seems to me that there are good reasons for deviating from the standard sentence for that offence.  The first being your youth.  The second being your upbringing.  The third being the circumstances in which you entered into the relationship at an age when you believed her to be over the age of 16 years.  The fourth, that you have pleaded guilty to these offences.  The fifth, that you have family support structures which seem to me to be your best prospect of redeeming yourself in future and settling down to a fulfilling life in a structured work environment. 

33It seems to me that your best chance is to fulfil your expressed desire of going to live with your cousin in Shepparton at the earliest opportunity.  To settle down in the home that he has offered you.  To get yourself a job.  To keep in contact with your mother.  To keep in contact with your paternal grandfather who, it seems to me, is likely to continue to have a good influence upon you and to find better ways of spending your time than indulging in continued drug abuse which is calculated to pull you down.

34The thrust of your counsel's submissions was that I should take into account the time you have already spent in custody and enable you to be released into the community at the earliest reasonable opportunity with the support of either the Parole Board or the support of Community Corrections through a community correction order.

35It seems to me that those submissions are sound in these circumstances and although that would require a sentence of imprisonment which is considerably lower than the standard sentence, it seems to me that it is justified given your youth and your family support structures, as well as the absence of any prior convictions and the one subsequent court appearance which occurred on 7 May 2023 involving a number of offences, many of which were no doubt committed well before these offences but they do not amount to prior criminal history.

36Taking all these matters into account I sentence you as follows:

-    On Charge 1 of common law assault you are convicted and sentenced to imprisonment for a period of three months. 

-    On Charge 2 of sexual penetration of a child under the age of 16, you are convicted and sentenced to imprisonment for a period of two years and six months.

-    On Charge 3 of common law assault you are convicted and sentenced to imprisonment for a period of six months. 

-    On Charge 4 of persistent breach of a family violence intervention notice you are convicted and sentenced to imprisonment for a period of six months.

37I treat the sentence of two years and six months on Charge 2 as the base sentence.  I order that one month of the sentence on Charge 3 and one month of the sentence on Charge 4 be served cumulatively upon each other and upon that sentence, making a total effective sentence of two years and eight months.

38I fix a non-parole period of 17 months.

39I declare 447 days of pre-sentence as time to be reckoned as served on the sentence that I have imposed. 

40I am required to draw your attention to the terms of the Sex Offenders Registration Act and your reporting obligations which will be in force for a period of 15 years.

41There is also a forfeiture order which I have already signed in respect of the knife. 

42But for your pleas of guilty I would have sentenced you to imprisonment for a period of five years with a non-parole period of three years and three months.

43Are there any other matters that I have forgotten?

44MS APLIN:  No, Your Honour.

45HIS HONOUR:  Mr Peters, do you want to say anything at this stage?  No?  Thank you. 

46I might say that you will be eligible for parole in quite a short period of time.  You have already engaged in some courses which will assist your rehabilitation.  To the extent that you qualify for parole and are able to get parole, your behaviour within the prison and your willingness to engage in rehabilitative measures will, no doubt, be considered in any application you make for parole.

47You are still a young man.  You have the support of family.  You are fortunate in that support and it seems to me that you need to consider very hard how you are going to settle down once you do get parole and you are released into the community.

48With your family supports it seems to me you have a reasonable chance of rehabilitation.  If you branch out on your own you run the risk of meeting up again with others who are in the illicit drug use habit and they are likely to lead you back into the relative darkness of that behaviour.

49I wish you well and I hope that you accept the support and guidance of your family who, I think, could put you on the right road.

50Thank you.

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