Director of Public Prosecutions v Figota
[2012] VCC 931
•11 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00267
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT FIGOTA |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 July 2012 | |
DATE OF SENTENCE: | 11 July 2012 | |
CASE MAY BE CITED AS: | DPP v Figota | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 931 | |
REASONS FOR SENTENCE
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Catchwords: Indecent assault with a child under 16; Assault with intent to rape
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. B. Stougiannos (Plea) | Office of Public Prosecutions |
| Mr N. Donaghy (Sentence) | ||
| For the Accused | Ms. K. Blair | Patrick Dwyer |
HER HONOUR:
Introduction
1 Mr Figota, you have pleaded guilty to one charge of indecent act with a child under 16, namely touching the child’s vagina, and one charge of assault with intent to rape the same child, who was 14 years old when these offences were committed. The maximum penalty for each offence is 10 years’ imprisonment.
Antecedents
2 You are 21 years of age with no prior convictions or outstanding offences. However, I was told that, having in March 2012 pleaded guilty to a robbery offence which involved some level of violence and had been committed with your younger brother and a cousin in 2008, a Magistrate imposed a 12 month Community Corrections Order (‘CCO’). This order apparently requires you to perform 120 hours of unpaid community work and to comply with conditions involving, among other things, supervision and assessment for treatment of drug and alcohol issues. I was also told by your counsel you had been assessed as suitable to undertake, but have not as yet commenced, an adaptation program for young offenders designed to address alcohol-related anti-social behaviour. The Assessment Report received by me indicates that you have so far demonstrated a willingness to comply with all aspects of this order and that you have generally done so to a satisfactory standard.
The circumstances of the offending
3 The summary of the Prosecution's opening (as amended) was read into transcript and tendered as an agreed statement of the facts. I do not propose to repeat all of the matters outlined.
4 When these offences were committed on 26 June 2011 you were 20 years old and, as I have ready said, the complainant was 14 years old. You and the complainant were strangers.
5 On this date the complainant travelled by bus from Knox arriving at the Bayswater train station bus stop area at approximately 8.27pm. You were at the bus stop with another male. The complainant caught your attention by tapping on the window and asking you for a cigarette. There followed a conversation during which the complainant apparently told you that she was 17 years of age. The prosecution has accepted that during the earlier part of your encounter with the complainant, you reasonably believed that she was older.
6 When you met, the complainant she was already affected by liquor and she was carrying a coke bottle containing alcohol. You apparently asked her if she wanted liquor. She said she did and you both walked to a liquor store. On finding the liquor store closed you and the complainant walked around to the back of the store where you sat on a flight of stairs with the complainant seated in the middle of your legs.
7 It appears that the complainant had continued drinking and she described herself as “really drunk” at that stage. Indeed, the prosecution has accepted that these offences were committed whilst both you and the complainant were affected by alcohol.
8 You apparently placed your hand under complainant’s top onto her skin and touched her breast before putting your fingers down her pants and inserting your finger into her vagina.[1] Based on the account you gave to the police on this first occasion when you touched the complainant, she had permitted you to move your hand down to her vagina.
[1]VARE A 83, 88, 90.
9 Having told the complainant that you would take her home and get her something to eat at McDonalds, as you both walked towards a park and McDonalds you pushed the complainant against a fence, kissed her on the mouth and gave her what is colloquially called a “hickey” or love bite on the neck.
10 This behaviour apparently prompted the complainant to tell you that she was 14 years of age. However, undeterred you placed your hand down her pants and touched the outside of her vagina. This conduct constitutes the indecent act offence, Charge 1 on the indictment.
11 Having indecently touched the complainant, you then pulled her arm and pushed her causing her to fall to the ground where you straddled the complainant and, whilst attempting to pull off her pants, you managed to pull them down. You then removed your penis from your pants and tried to gain an erection by masturbating your penis by hand. As you did this the complainant defended herself by kicking your penis. She jumped up, pulled up her pants and ran away towards the station where she contacted her mother by telephone. These matters constitute the assault with intent to rape charge, Charge 2 on the indictment.
12 On 27 June 2011 the complainant recounted this incident to her caseworker who took her to the police on the same day.
13 The complainant was medically examined on 27 June 2011 at the Monash Children’s hospital. The genital examination was normal with findings that do not refute or exclude the possibility of sexual assault.
14 Some weeks later on 23 July 2011, you were arrested at home. A sports bag, a windcheater and shoes worn by you at the time of the offending were seized and you were interviewed by police and subsequent to the interview you spent three days in custody before being bailed on 25 July 2011.
15 Initially you denied allegations of sexual penetration and rape. However, very shortly after the interview was re-commenced you made admissions indicating that you had:[2]
[2]Answers, 783, 791, 786, 792, 949, 962 to 975, 845, 956, 846, 836, 901 to 903, 917, 934 and 857
· Touched the complainant on the breast.
· Penetrated her vagina with your fingers.
· Been told that she was only 14, although you were confused about when this had occurred.
· Touched her vagina again.
· Forced her to the ground, grabbed her legs and put her on the ground.
· Pulled down her pants.
· Tried to do it but " just wouldn’t stand”.
· Masturbated.
· Heard the complainant telling you “no”.
· Being “very tempted” and wanted to have sex.
Impact on the victim
16 I was told that the complainant has declined the opportunity to submit a victim impact statement. I have nonetheless taken onto account a number of factors relevant to assessing the impact of these crimes on her. These include your obvious size and powerful build, the fact that the offending occurred at night in a relatively isolated location and the complainant’s statements to the effect that she was frightened by your initial behaviour and after leaving the liquor store, she had relied on your promise to take her home and buy her food. In the circumstances described, I have no doubt that this was a very frightening experience for a young girl.
17 This is not to ignore the fact that, as the complainant also confirmed in her statement, after she kicked you, you backed away. Whilst it is unlikely that someone of your size and strength was overwhelmed by being kicked, the complainant’s actions probably did, as your counsel said, very quickly curtail the encounter and brought you to your senses.
Personal Circumstances
18 Your personal circumstances have been summarised in counsel's submissions, the reports of forensic psychologist, Mr Cummins who assessed you on 28 October 2011 and 26 June 2012, the report of consultant clinical neuropsychologist, Mr Jackson who on 31 January 2012 was asked to assess your level of psychological functioning and its impact, if any, on the interview process and in the Assessment Report ordered by me and prepared by Corrections following the plea hearing.
19 Letters written by your mother on 23 February 2012 for the Magistrates’ Court hearing earlier this year, by your current employer, QGM Pty Ltd on 29 June 2012 and on 14 February 2012 by a Pastor of the church attended by you in Queensland in 2007 and 2008, were also tendered.
20 I was told that you were born in New Zealand and that you moved to Australia with your parents and siblings at the age of four. It appears that you were about 14 when your parents separated and, some time later, your mother and four sisters returned to live in Samoa leaving you and your brother in the care of your father.
21 You do not have a close relationship with your father who has remarried and, despite being aware of this and the earlier court proceeding, he has not supported you. There is some indication that whilst living with your father you and your younger brother, who I was told has been in a lot of trouble, were largely unsupervised and without parental guidance. This circumstance is to some extent reflected in your history of expulsion from two schools, the last occasion being at the age of 15 or 16, because you had been involved in fighting outside the school ground and by the fact that you commenced smoking cannabis intermittently between the ages of approximately 14 and 19.
22 If your account to Mr Jackson is correct, from age 18 you were binge drinking on weekends, although after meeting your partner in May 2010, for a period of time you apparently stopped smoking cannabis and gave up alcohol.
23 Following recent testing, Mr Jackson assessed a borderline Full Scale IQ of 74 with the majority of your cognitive abilities in the low average to average range (or better). Based on the results reported, I think it clear that your specific problems with educationally-based skills and your limited learning capacity probably contributed to some of the difficulties you reported experiencing at school.
24 As I have already noted, the robbery offence was committed in 2008. I was told that in 2009 you breached bail by leaving Australia to be with your family and assist in the recovery work after your homeland, Samoa, was devastated by a tsunami. One sister and 14 members of your extended family were killed and two other sisters were flown to Australia for medical treatment. No doubt you were, as submitted, traumatised by this event and its aftermath. However, in the absence of any formal assessment and diagnosis, I could not be satisfied that at the time of the offending in 2011 you were suffering from or for that matter still suffer from the effects of post-traumatic stress disorder.
25 You do not hold a driver's licence. However, since leaving school you have held down various unskilled jobs and, as the reference from your current employer confirms, you have worked since March this year packing and unloading cow hides. Whilst your employer is not aware of this offending, your employer's evident good opinion of you is a factor I have taken into account in formulating this sentence.
26 In 2011, your partner fell pregnant and you were married prior to your son’s birth in December 2011. However, I was told that initially after meeting your partner, you needed to live during the week, with your family in Bayswater because this was near your place of work, whereas on weekends you lived with your partner and her family in St Albans. It appears that these earlier living arrangements had led to some stress between you and your partner who needed encouragement to move to your family home to allow you to remain close to your place of employment.
27 I was told that when the offending occurred, you were travelling from St Albans back to Bayswater for the week. Despite a period of abstinence, you had resumed using cannabis and because you had been arguing with your partner, you smoked cannabis before you left St Albans. After meeting a stranger on the train you also started drinking with him and continued to drink with him at the bus stop until you encountered the complainant.
28 In all the circumstances, I think it reasonable to accept, as Mr Cummins evidently did, that unresolved conflict with your partner and the opportunity to have sexual contact with the complainant, who herself was very intoxicated, were the primary triggering factors to your offending behaviour on this occasion. He also formed the view that at the time of this offending your binge drinking and intermittent dependency on alcohol represented a significant risk factor. By your account, you have not consumed alcohol since the date of the offence in June 2011, which was some weeks before your arrest by police.
29 Your psychosexual history has not raised any particular concern. Indeed, Mr Cummins’ assessment of the risk of sexual re-offending as being low to moderate, was not challenged by the prosecution. However, I note that from the Assessment Report, that Corrections has assessed you as presenting as a moderate risk of re-offending and has recommended that Supervision be a condition should, as sought on your behalf, a Community Corrections Order be imposed.
30 Since marrying late last year you, your wife and your son, have lived with your family. Currently, this household includes your mother and sisters. Apparently your mother drives you and your younger brother to and from work and she collects your pay cheques which are applied to the family's upkeep.
31 Significantly, you have not revealed this current offending to family members other than your mother, who supported you in Court. I share Mr Cummins' concern that the revelation of this serious offending, in due course, could undermine the stability of your current living arrangement. Moreover, the failure to tell your wife to some extent reflects an inability on your part to face up to and manage potential conflict in your relationship.
32 Mr Cummins, nevertheless, assessed you as a person who "wants to do the right thing," who wants to "comply with the law" and who, due to your personality style, would benefit from cognitive behaviour treatment methods and supportive psychotherapy. He has also identified an adjustment disorder with anxiety and depressed mood developed as a response to your legal problems and, in particular, to these charges.
Mitigatory Factors
33 A number of matters were raised in mitigation of this sentence.
34 In addition to the sentencing discount for the early admissions made, I have discounted your sentence to allow for the plea of guilty entered on the first day this matter was listed for hearing. I was told that resolution of five earlier charges was not available at committal stage, which, incidentally, involved a straight hand-up-brief.
35 Through this plea, you have spared the complainant the further, likely trauma of pursuing justice for these crimes, the witnesses the inconvenience of attending court and the community the cost of a contested trial. The Court of Appeal in WCB v R[3] has emphasised the particular value of a plea of guilty and the discount given in cases involving sexual offences because this kind of offending is notoriously difficult to prove and the plea typically enhances the victim's prospects of recovery. Moreover, by substantially discounting the sentence in these cases, offenders who have committed similar crimes are encouraged to acknowledge their guilt.
[3][2010] VSCA 230.
36 Your admissions during the record of interview and your plea are indicative of remorse, as are your expressions of shame and evident concern about your sexual conduct. In this regard, I accept that you probably are genuinely remorseful and apologetic and that you understand the gravity of your behaviour.
37 You have no prior convictions, although as I have already explained you were recently convicted in respect to a robbery offence which involved some level of violence and was committed three years prior to the current offending.
38 Whilst acknowledging the disparity in age between you and the complainant and the seriousness of particularly the assault with intent to rape charge, your counsel has rightly emphasised that the circumstances of this offending are not such as to eliminate sentencing considerations for youthful offenders. Where appropriate these typically modify general deterrence as a sentencing consideration in favour of rehabilitation in the community, especially in cases where there is no prior or subsequent offending and there are good prospects of rehabilitation.
39 Nevertheless, general deterrence remains an important sentencing consideration, particularly with regard to Charge 2 on the Indictment, as this sentence must act to deter sexual offending involving a child.
40 At this juncture, your prospects of rehabilitation are probably largely dependent on your capacity to implement strategies in the future to continue to remain abstinent from alcohol and cannabis abuse, to address any underlying conflict with your wife and to maintain a stable and supportive family environment. Whilst, on the one hand, your close and supportive relationship with your mother probably does, as Mr Cummins believes, reduce the risk of reoffending, it seems to me that your mother’s failure to discuss this offending with her daughter-in-law enhances the potential for conflict and instability in your current household. Even were I satisfied that it was appropriate to impose a sentence that allows you to remain in the community, you need to understand that a Community-Based Order would not prevent disclosure of your offending to your wife, particularly in circumstances where the conditions of any order required participation in the Sex Offender Program with supervision and home visits.
Sentencing considerations
41 In this instance punishment, denunciation and to a lesser extent specific deterrence remain important considerations in bringing together a just and effective sentence.
42 Various submissions were made on your behalf in respect to the disposition of this sentence. In short, you seek a sentence that will allow you to remain in the community through the imposition of a wholly suspended sentence in respect to Charge 1 on the indictment and a Community Corrections Order in respect to Charge 2. You have been assessed as suitable for a Community Corrections Order, the recommendation being that the order include conditions to perform unpaid community work, to be assessed, treated and tested for drug and alcohol use, to be subject to supervision and to participate in assessment and intervention within the Sex Offender Program as directed.
43 However, the prosecution called for an immediate total effective sentence of between 2 1/2 and 3 years imprisonment with a non-parole period of 6 to 12 months. This range, so the prosecution submitted, took into account the seriousness of, particularly, the second charge, through which the legislature undoubtedly intended to protect children under the age of 16, the age disparity, the fact that you were both affected by alcohol, the fact that the attack took place in a public place, the element of violence and force involved and the evidence which indicated that some level of trust had been engendered prior to this sexual attack.
44 Under the new sentencing regime, whole or partial suspension of a sentence for a serious offence such as the assault with intent to rape charge is prohibited. The new Community Corrections Orders regime is intended to offer a community-based sentence for a wide range of offending behaviours and, in appropriate circumstances, no doubt this provides an opportunity for an offender who has pleaded to a serious offence such as assault with intent to rape offence to remain in the community. However, the sentence imposed on each of the charges, albeit for offences committed a short time apart must properly reflect the nature of the offending involved and the objective seriousness of each offence.
45 I have accepted that, in addition to the mitigatory matters to which your counsel has referred, there are other factors which distinguish your offending from other cases of assault with intent to rape, such as those cited in R v Burke [4] and Leeder v R, [5] involving, as they did, more predatory behaviour by offenders without earlier consensual contact. Nevertheless the intellectual deficits afflicting both these offenders were somewhat more pronounced and, accordingly, of greater significance in the formulating of their sentences.
[4][2009] VSCA 60
[5][2010] VSCA 98
46 On balance, allowing for the mitigatory factors mentioned and the principles of totality and proportionality, I was not satisfied that, in your particular circumstances, it was desirable to suspend the sentence in respect to Charge 1 on the indictment or, for that matter, to impose a Community Corrections Order in respect to the more serious offending constituted by Charge 2.
47 The indecent act offence which involved some level of violent contact arises out of the same set of circumstances, but as a separate instance of sexual assault, it calls for some cumulation on the sentence imposed on Charge 2.
48 Factors such as your youth, limited criminal history and comparatively good prospects of rehabilitation have, however, persuaded me that a shorter non-parole period is warranted to allow a longer period of supervision in the community.
49 As required by subsection 5(2BC) of the Sentencing Act, in sentencing you I have ignored the consequences that may arise, and in your case do arise, under the Sex Offenders Registration Act 2004 from the imposition of this sentence today. In other words, the reporting burden you carry as a registered sex offender is not a matter that can objectively influence the imposition of a just sentence today.
Sentence
50 On one charge of assault with intent to rape, you are convicted and sentenced to two years’ imprisonment.
51 On one charge of an indecent act with a child under 16 you are convicted and sentenced to three months’ imprisonment
52 I direct that one month of the sentence imposed on the indecent act offence be served cumulatively on the sentence imposed on the assault with intent to rape offence and on each other.
53 The total effective sentence is two years and one month's imprisonment, with a non-parole period of 12 months’ imprisonment. That sentence starts today.
54 Pursuant to s 6AAA of the Sentencing Act, I indicate that but for your plea of guilty a sentence of three years’ imprisonment would have been imposed.
55 Pursuant to s18(4) of the Sentencing Act, I declare that the period of 3 days is to be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be recorded in the records of the Court.
56 As I have already indicated, the offences to which you have pleaded guilty are registrable offences pursuant to the Sex Offenders Registration Act 2004. By reason of your conviction for these offences, you are a registrable offender obliged to comply with reporting obligations imposed by that Act. According to that Act, Charges 1 and 2 are Class 2 offences and as they relate to offending from the same incident, they are classified as a single Class 2 offence. Consequently, you have pleaded guilty to one Class 2 offence, which means that you are required to comply with the reporting conditions for eight years.
57 Section 50 of that Act requires that you be given written notice of the reporting obligations and the consequences that may arise if you fail to comply with these obligations. I am also required to inform you of the length of the reporting period which, as I have said, is eight years. Shortly, my associate will hand you the notification of reporting obligations form ,which I will sign before she hands it to you. Your representative will ensure that you understand the requirements set out in this form. I will ask you to sign the form to acknowledge that you have received the notification and return the signed acknowledgement to my associate.
58 At the plea hearing, pursuant to s 464ZFB(1) of the Crimes Act 1958, the prosecution sought an order for the retention of a forensic sample. I have acceded to that order and in doing so I have taken into account the seriousness of the circumstances of the offending, the fact that the order was consented to and the interest the public has in obtaining such a sample. I have signed that order and it will be returned to the Crown shortly.
59 My associate will approach you now, Mr Dwyer, please feel free to approach your client. Counsel and Mr Dwyer, are there any other matters I need to deal with.
60 MR DONAGHY: No, Your Honour.
61 MR DWYER: Thank you, Your Honour.
62 HER HONOUR: Thank you for your assistance. Please remove the prisoner.
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