Director of Public Prosecutions v Esposito (a pseudonym)

[2019] VCC 361

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARIO ESPOSITO (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2018, 4 February 2019, 22 March 2019
DATE OF SENTENCE:	22 March 2019
CASE MAY BE CITED AS:	DPP v Esposito (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 361

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Rape – Supply Drug of Dependence to a Child.
Legislation Cited:  Sentencing Act 1991

Cases Cited:DPP v Hopson (a Pseudonym) [2016] VSCA 303, Gordon v The Queen [2013] VSCA 343, Zhao v The Queen [2018] VSCA 267.

Sentence:Total effective sentence is nine years and six months' imprisonment with a non-parole period of six years and six months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Stefanovic	Director of Public Prosecutions
For the Accused	Mr A. Hands	C. Marshall & Associates

HIS HONOUR: 

1Dario Esposito[1], on 19 October 2018, a jury of 12 convicted you of one charge of supplying a drug of dependence to a child and six charges of rape. 

[1] A pseudonym name

2Plea hearings have been heard in respect of your matter on 25 October 2018,
4 February 2019 and today, 22 March 2019.  The charge of supplying a drug of dependence to a child has a maximum penalty of 15 years' imprisonment.  The charge of rape has a maximum penalty of 25 years' imprisonment. 

Circumstances of your offending

3The victim of your offending was a 15 year old girl at the time you first met her.  The circumstances of you meeting your victim, are that, the two of you commenced a conversation as you alighted a No.19 tram at its terminus stop at the intersection of Elizabeth Street and Flinders Street, Melbourne on 14 January 2017.  Prior to that “chance meeting”, you were strangers to one another. 

4Your victim was, at that time, under the care of the Department of Health and Human Services.  Your victim had been living at an out of home placement, but had run away on that day, 14 January 2017.  She described herself as homeless to you and you offered her a place to stay for that night.  You were then 57 years old. 

5You initially purchased your victim a drink from the Coles store opposite the Flinders Street railway station.  You conversed with your victim and in that conversation, amongst other matters, she told you that she was 15 years old.  You provided your victim with a MYKI card and you both then travelled on the train from Flinders Street station to Rosanna station.  The two of you walked to your home, which was in Rosanna. 

6Prior to entering the house, you told your victim to be quiet because you did not want to disturb your two housemates.  Your bedroom in that house was immediately to the left of the hallway, after you entered through the front door.  You and your victim went directly to your room.  Your victim asked you for a drink of alcohol.  You gave her a can of beer and later in the evening, some grappa.  Your victim observed you had some cannabis in your room.  You shared a joint.  That is the basis for Charge 1, supplying a drug of dependence, that is, cannabis, to a child. 

7You then engaged in kissing and fondling your victim.  You have kissed her all over and undressed her with some compliant, non-resisting assistance from your victim.  You have then digitally penetrated her, performed oral sex on her, including penetrating her vagina and then had penile/vaginal sex with her.  At no time did your victim give her consent to this sexual activity and never gave you any signal or other communication that she was consenting.  Throughout the evening of 14 January 2017, you continued with your sexual activity with the victim.  Your behaviour was persistent and predatory.  After your sexual desires were satisfied, you went to sleep.  Your victim also slept. 

8In the morning of 15 January 2017, you awoke and commenced your sexual attack on your victim afresh.  You penetrated your victim with your fingers, your tongue and your penis all over again.  Your victim wanted to use the toilet.  You guided her to the toilet.  Your housemates, Singh and Stanzopoulos, had a brief glimpse of your victim as you escorted her to the toilet and back to your room.  Your victim only escaped your clutches when she asked to have a smoke outside the house.  Once outside the house your victim made good her escape and was subsequently examined and treated at the Royal Children's Hospital later on that day. 

9You were arrested on 17 January 2017, and interviewed by police.  In your record of interview, you admitted to most of the sexual activity alleged to have occurred between you and your victim.  You told police your victim told you that she was in her 20s and she looked to be in her 20s.  You also stated the victim was the instigator of the sexual activity between the two of you. 

10I reject the veracity of those statements to police. Throughout the interview, you refer to your victim as “a girl”.  Near the end of your interview, you describe your victim as follows: 

Question 993, you described her as "a fucked kid" and;

Question 994, "She's a mixed up kid.  I feel sorry for her actually."

11At all times you knew she was a child, homeless and vulnerable. 

Victim Impact Statement

12The victim of your offending filed a victim impact statement, dated 20 October 2018.  Your victim's description of the impact of your offending upon her is raw.  She describes feeling weak, worthless and like a piece of meat.  She describes how she was scared and now suffers anxiety.  She stated she has a constant feeling of emptiness and does not trust anyone anymore.  Your victim states she has attempted suicide many times and describes a feeling of numbness.  The effect of interrupted sleep and eating problems have impacted on her ability to concentrate and engage adequately in her school classes.  She has a mistrust of boy students and male teachers.  The impact on your victim has been significant and continues unabated some two years since your offending.  Your offending has had a major negative impact on this most vulnerable young girl. 

Your personal circumstances

13At the time of your offending, you were 57 years old.  You are now 59.  At the time of the offending, you were on a disability support benefit.  You were born here in Australia.  Your parents were of Italian heritage.  You have two younger sisters.  You have an adult son, who appeared at court during the course of the trial to support you.  I note one of your sisters and your mother are here today.

14You were educated at North Fitzroy primary school and completed your formal education at Form 3 level at the Collingwood Technical College, as it was then known.  You worked in a number of semi-skilled jobs as a concreter,
auto-mechanical repairs and a warehouse picker and packer.  In 1984 you sustained a back injury and have been on a disability support pension since that time. 

15At age 15, you commenced daily use of cannabis.  You reported to Dr Bourke, that is Exhibit “3”, that you have not used cannabis since January 2018.  You have had minor use of ice and amphetamines over the course of your life. 

16You have a number of prior convictions for dishonestly offences, driving offences and drug use.  You have one previous court appearance for sex offending.  On 2 October 1978, at Melbourne County Court, you were convicted of a charge of abduction within intent to carnally know and indecent assault on a woman.  You were acquitted on the charge of rape.  You were placed on a probation for a three year period.

17Your counsel described that offending in the following terms in the course of his submissions:

"He does have a history of sexual offending, although he was 18 years old.  He was found guilty of abduction with intent to rape and indecent assault on a woman, but acquitted on the rape.  He was in a gang that had abducted a young woman with intent to rape her.  The accused refused to participate in the actual rape."

18That offending took place on your 18th birthday, over 40 years ago.  You have a long-term history of back pain, which is set out in Exhibit “4”.  The medical records otherwise reveal chest infections and coughing complaints, predominantly related to your smoking. 

19I was told by your counsel that you have been assaulted whilst in custody and now have a single cell prison arrangement.  At your age I have no doubt prison will be a difficult environment for you. 

Sentencing considerations

20The basic purpose for which a court may impose a sentence are just punishment; deterrence, both specific and general; rehabilitation and denunciation of your actions; and the protection of the community.  In sentencing you I must have regard to a range of factors, such as the seriousness of your offending; your culpability for it; and your personal circumstances. 

21I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you, as an offender, are rehabilitated and reintegrated into society.

22I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed, particularly but not exclusively, to kinds of sentences imposed in comparable cases and the statistics for the sentences of that time.  I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are for one another. 

23Of course, current sentencing practices is only one of the factors I am required to consider when finally fixing your total effective sentence. 

24You have been found guilty of one charge of supplying a drug of dependence to a child and six charges of rape.  The charges of rape occurred over an evening interrupted by a period of sleep and continued in the morning of the following day.  You have been found guilty of these seven charges after a jury trial and deliberations lasting a total of ten days.  You have shown no remorse or accepted any responsibility for your offending.  You maintain your innocence.  The jury clearly rejected your defence that your victim was in her 20s and you believed that she was in her 20s and that she consented to the sexual activity between the two of you. 

25The serious offender provisions of the Sentencing Act 1991, have application in this sentencing process. Under the serious offender provisions of the Sentencing Act on your conviction and sentence to a term of imprisonment in respect of Charges 2 and 4, I am required, on the sexual offences charges thereafter, to regard the protection of the community from you as a principle purpose for which the sentence is to be imposed. 

26If necessary, in order to achieve the purpose for protecting the community, I am empowered under s.6B of the Sentencing Act, to impose a sentence greater than that is proportionate to the gravity of the offences. 

27This means that the sentencing process in respect of Charges 6, 8, 10 and 12 on the indictment is to be undertaken on the basis that the protection of the community from you is a principle purpose for which that sentence is imposed.  To achieve that purpose, a sentence may be imposed longer than that which is proportionate to the gravity of the offences, considered in the light of the objective circumstances. 

28Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charges 6, 8, 10 and 12 on the indictment, the sentences
I impose on you to be served cumulatively. I note here the prosecution did not call for a disproportionate sentencing for all of the cumulation contemplated in s.6D or 6E of the Sentencing Act, allowing for the matters for which I have already outlined.  In my view, it is appropriate to impose only that degree of cumulation to which I subsequently refer, reflecting as it does, several episodes of offending.  To do otherwise may produce a sentence which is not appropriate and unjust. 

29There is a serious tension between the principle of totality and the operation of the statutory provisions of s.6E of the Sentencing Act 1991. In a case of Gordon, Redlich JA, as he then was, made the following comments, which were repeated and endorsed by the court in Hopson about the operation of s.6E alongside the principle of totality. His Honour said as follows:

"A sentencing judge must evaluate the overall criminality involved in all of the offence for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of the sentence imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s.6E of the Sentencing Act 1991. This tension between the policy under s.6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which a statutory presumption of full cumulation under s.6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s.6E and the principle of totality."

30That is reported at the case of Gordon [2013] VSCA 343 at paragraph 74.

31The effect of this pronouncement from the Court of Appeal is that the full effect of the totality principle is somewhat reduced so that the proper effect can be given to the legislative intent of s.6E of the Sentencing Act.

32More recently the Court of Appeal in Zhao v The Queen, reported at [2018] VSCA 267 at paragraph 99, stated as follows:

"The point of principle enunciated above is important.  Section 6E must, of course, be given its proper effect.  At the same time and balanced against the presumption that it mandates in favour of cumulation.  The sentencing judge should not put entirely to one side the approach usually taken to the commission of several offences as part of a single episode.  In addition, as set out in Gordon and Hopson, a sentencing judge should not set at nought the requirements of totality.  The balance is difficult to strike, but it is a product of the legislative requirement that is in place."

33Mr Hands, on your behalf, submitted that your offending is part of a single occasion, punctuated by sleep in the middle of the six charges of rape. Clearly the offending occurred within a 24 hour period, involved a single victim, but some degree of cumulation in respect of the sexual offending is called for to mark out the separate offences and adhere to the provisions of s.6D and 6E of the Sentencing Act 1991.

34You have prior convictions dating back to the 1970s.  Most of your offending is dishonesty, motor car- related and drug offences.  The most relevant offence was an appearance at the Melbourne County Court in Victoria in 1978.  You were placed on three years' probation for the charge of abduction with intention to carnally know and indecent assault on a woman.  You were, at that time, 18 years old.  It is almost forty years since the sexual offending and the matters that are now under consideration.

35Whilst your offending as a young man does not have the effect on the operation of s.6E of the Sentencing Act, it is a factor in sentencing you in this case.  The offending in this case is one of the most serious nature.  The victim in this case was very young, homeless and demonstrably vulnerable and you took advantage of her for your own sexual gratification. 

36The factors pointing to the seriousness of your offending are as follows: 

(1) At the time of the offending, you were a 57 year old man and you knew your         victim was 15 years old;           

(2) You knew your victim was homeless and offered her a place to say; 

(3) You breached the trust of your victim when you offered her sanctuary at your        residence but then offended against her in the manner you have; 

(4) On two separate occasions, they are Charges 6 and 12, you engaged in       unprotected penile/vaginal penetration, carrying with it the inherent risk of    sexually transmitted diseases or pregnancy; 

(5) Your sexual offending was persistent over the course of the evening of
       14 January 2017 and after a period of sleep, continued on in the morning       of 15 January 2017; 

(6) You gave your victim alcohol and cannabis, which was part of Charge 1, in    the process of offending against her; and   

(7) You deceived your victim so that she was vulnerable to your offending in       your place of residence. 

37Mr Hands submitted on your behalf that the Verdins principles have application to your case.  The report of David Ball, forensic psychologist, dated 6 March 2018, does not give a bases for the application of Verdins case.  The report of Dr Robert Bourke, clinical neuropsychologist, dated 11 April 2018 does not support an application of Verdins principles.  Dr Bourke assessed you as falling into the low/average range of intellectual abilities.  Dr Bourke opined that you had symptoms of depression and anxiety.

38I ordered a pre-sentence report from Forensicare to obtain expert opinion on any acquired brain injury, your depression or psychotic matters relevant to your sentence.  I have received a report, dated 14 March 2019, prepared by Dr Remy Glowinski, psychiatrist.  Dr Glowinski's opinion is that your presentation to the neuropsychologist, Dr Robert Bourke and himself, lead to the conclusion that there is a mismatch between your purported memory difficulties and your clear recollection of the circumstances of the offending. 

39In Dr Glowinski's opinion, you may have an adjustment disorder with anxiety and depressed mood, secondary to the court proceedings and a guilty verdict from the jury.  Your adjustment disorder is at the low end of severity in terms of psychiatric diagnosis.  Dr Glowinski makes no recommendations for psychiatric treatment. 

40The principles of specific and general deterrence, denunciation of your conduct and just punishment require a lengthy term of imprisonment. Protection of the community, which is enlivened by the operation of s.6D and 6E of the Sentencing Act, is to be modified to some extent due to the proper application of the totality principle.

41Would you stand please?

42On Charge 1, you are convicted and sentenced to six months' imprisonment. 

43On Charge 2, you are convicted and sentenced to five years and six months' imprisonment.

44On Charge 4, you are convicted and sentenced to five years and six months' imprisonment.

45On Charge 6, you are convicted and sentenced to seven years and six months' imprisonment.  That is the base sentence.

46On Charge 8, you are convicted and sentenced to five years and six months' imprisonment. 

47On Charge 10, you are convicted and sentenced to five years and six month's imprisonment.

48On Charge 12, you are convicted and sentenced to seven years and six months' imprisonment. 

49I order that three months of the sentence on Charge 2, three months of the sentence in Charge 4, three months of the sentence in Charge 8, three months of the sentence in Charge 10 and one year of the sentence in Charge 12, be served cumulatively upon the base sentence of Charge 6. 

50That is a total effective sentence of nine years and six months' imprisonment. 

51I fix a non-parole period of six years and six months.

52I declare that you have served 154 days pre-sentence detention.

53There was a 464ZF application?

54MR STEFANOVIC:  Yes.  It would have been as a matter of course.  Sorry, I'll just check my notes. 

55HIS HONOUR:  Yes.

56MR STEFANOVIC:  There was a sex offender's registration order.

57HIS HONOUR:  Yes, I am coming to that. 

58MR STEFANOVIC:  Yes.

59HIS HONOUR: I note on the record of the court that you are sentenced as a serious sexual offender, pursuant to s.6F of the Sentencing Act and under the Sexual Offender Registration Act.  As I understand the interpretation of it, that was for a period of 15 years. 

60MR STEFANOVIC:  Correct.

61HIS HONOUR:  Yes.  You are placed on the sexual offender register for a period of 15 years.

62There is only the 464ZF left. 

63MR STEFANOVIC:  Can I seek instructions on that, Your Honour?

64HIS HONOUR:  Yes.  Certainly.  Just on the matter of the summary matter, in respect of Charge 19, which is a related summary matter, you are convicted. 
I make no further order. 

65MR STEFANOVIC:  If the court pleases. 

66MR HANDS:  Thank you very much.

67MR STEFANOVIC:  Your Honour, in respect to the forensic sample, 464ZF, I'm told he gave a sample ‑ ‑ ‑

68HIS HONOUR:  It is already ‑ ‑ ‑

69MR STEFANOVIC:  And it's already retained ‑ ‑ ‑

70HIS HONOUR:  Right, so I don't have to make another order.

71MR STEFANOVIC:  And there's nothing Your Honour needs to do.

72HIS HONOUR:  Yes, all right.  Thanks.  Would you just check my cumulations. 

73MR STEFANOVIC:  Yes.  That is right.  Satisfied, Your Honour. 

74HIS HONOUR:  Thanks.  He has just got to sign up for the sex offender's register.  Yes.

75MR STEFANOVIC:  Your Honour, can I just check in respect of Charge 1? 

76HIS HONOUR:  Yes.

77MR STEFANOVIC:  That was convicted and sentenced for six months and ‑ ‑ ‑

78HIS HONOUR:  Yes.  No cumulation.

79MR STEFANOVIC:  No cumulation.

80HIS HONOUR:  No cumulation.

81MR STEFANOVIC:  Yes, all right.  Thank you.  Yes.

82HIS HONOUR:  I have taken it into account in the all over offending, yes.

83MR STEFANOVIC:  Understood. 

84HIS HONOUR:  Mr Hands, would you kindly attend at the back ‑ ‑ ‑ 

85MR HANDS:  Yes.

86HIS HONOUR:  ‑ ‑ ‑ for this Sex Offenders Registration Act. 

87Thank you.  If you could remove the prisoner, thank you very much. 

88Ms Gilroy, I just want to - I think you are Ms Gilroy, are you not?

89VOICE (from body of the court):  I'm Senior Constable Evans.

90HIS HONOUR:  Evans.

91VOICE:  I'm the original informant, sorry.

92HIS HONOUR:  Yes.  If you can - first of all I just want to pass on the court's gratitude to those and those around you who have persisted with this case.  These are difficult cases, I have no doubt and particularly in a case where
the victim is someone who has her own difficulties and she has not been left alone. 

93VOICE:  Thank you, Your Honour.

94HIS HONOUR:  Ms Everard[2], you might be able to hear me and I cannot hear you and that is a good thing, I think.  I have very carefully read your victim impact statement and I just hope you can do the best to make the most of your life.

[2] A pseudonym name

95I thank counsel and those that instructed for their help.  Thank you. 

96MR STEFANOVIC:  Thank you, Your Honour. 

97HIS HONOUR:  Thank you.

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