Director of Public Prosecutions v Filipov (a pseudonym)

[2017] VCC 372

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGE FILIPOV (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	5 April 2017
CASE MAY BE CITED AS:	DPP v Filipov (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 372

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos
For the Accused	Mr C. Dane

HIS HONOUR:

1George Filipov[1], you have pleaded guilty to two charges of sexual assault.  That crime carries a maximum penalty of ten years' imprisonment.  You pleaded guilty to a settled indictment, and you are now 65 years of age.  I accept that in the ultimate, there is appropriate remorse, and you must of course get the utilitarian benefit of that plea of guilty.

[1] A pseudonym.

2You do have prior convictions, but the last of them is something approaching 30 years ago.  There were two priors in that for indecent exposure or obscene exposure, and I am not confident in your instructions about what they were about, but there is no material to the contrary.  So for these purposes, I do not place any great significance on them.

3Pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you not provide same, police may use reasonable force to take it from you.

4Next, because of the nature of this offending you will be placed on the Sex Offenders Register, and I advise you that the reporting period will be for eight years.  That will be given to you now. 

5The Crown opening is exhibited on the file, so I do not need to go into the complete detail.  I will simply give a brief summary of your offending.  You are the grandfather of the complainant.  There had been little contact between you and your daughter and granddaughter until Christmas 2015, when it was decided that time would be spent together. 

6The family came for New Year's Eve at a winery, which you owned and ran.  At about 7 pm on New Year's Eve of 2015, the family began to arrive.  The complainant, was drinking wine, vodka and lemonade, and Midori and lemonade, and the family was sitting together and talking.  Other family members, including you, were also drinking alcohol.  It is accepted that the complainant was drunk by the end of the night.

7At one point in the restaurant, you were sitting next to her, and placed your hand on her upper thigh.  She noticed that you kept rubbing her thighs and putting your hand inside her thighs, and she would move them away.  That was noticed by others.

8Later in the evening, after midnight on New Year's Day, the complainant's boyfriend was taken back to accommodation on a tractor by you and the complainant. During that drive, you were again touching her in inappropriate spots, and she was using her elbows to push your arms away.  At one stage, you had your hands in her shorts.

9She told her boyfriend, about what had happened.  When you and her returned to the restaurant, the remaining family members were still up, and after a while, the complainant decided to go to bed.  You asked her to stay up.  She went back to the accommodation, and returning there she went out onto the balcony and smoked some cigarettes.  She vomited.  She noticed someone, who would appear to have been you, in the vineyard.  She watched you run inside the house.  She came inside and locked the balcony door.

10She locked the door of the room she was in.  I am told that there were two missed calls from you.  She went to bed, and went to sleep on her stomach.  She was wearing underwear and a top.  She woke up, and her legs were open, and you had your fingers on her vagina.  You then began to lick her on the vagina.  That gives rise to each of the charges of sexual assault.  She said that she could feel the stubble of your chin.  You did not have your whole body on the bed, but you were under the blankets.

11She woke up her boyfriend slowly, who was initially angry.  She said that there was someone in the room.  Initially it was thought it might have been her brother, but clearly it was not.  The two of them noticed you crawl out of the room.  The complainant knew it was you at that point in time, and when you left the room, she told her boyfriend that she had been sexually assault.  You poked your head back into the room and left again.  Her boyfriend saw you and recognised you at that stage.  He then ran out of bed and grabbed a knife.

12He ran into the next room and confronted you, who were sitting in the dark on the bed.  You denied having done anything, and your voice was again recognised by her boyfriend.  You were staying in the room next to the complainant. The complainant’s boyfriend also turned on a light and saw you there.

13The complainant went to the bathroom, her boyfriend returned to the room and contacted her brother, who came up, and he was told what had occurred.

14Complaints were then made very soon after the event.  I do not need to go through the rest of it.  The simple fact of the matter was that you denied any offending at that time, tried to blame others, but that desisted when interviewed by police, ultimately, on 5 January.  You basically said you were blind drunk and could not remember much about it at all.  It is that offending which gives rise to, as I have said, the two charges.

15The offending has to be regarded as serious.  It calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment. 

16I have before me, and have read and taken very much into account, the victim impact statement of the complainant, and the victim impact state of your daughter, her mother.

17Those victim impact statements point out articulately the damage that offending such as this causes.  The mother's victim impact statement describes, as is so often the case, the feeling of having failed their child in protecting them from people such as you.

18The complainant's victim impact statement describes the distrust, the anxiety and the ongoing psychological damage that offending of this sort causes.  It is a situation where submissions have been made, and in the ultimate, I am going to accede to the defence submission, which is not opposed by the Crown.

19So far as the offending itself is concerned, we did discuss in open court various other comparative cases.  The complainant described in one point - "this is all having occurred in a millisecond".  Clearly, it was longer than that, but I do take into account that it would not be described as prolonged.  It was the one incident, and dreadful though it was, it was not repeated.

20Again, as I agree with Mr Dane, I think trying to graduate this sort of offending is a dangerous prospect.  The nature of the offending itself is serious, but is of very short compass, and in situational circumstances. 

21I accept the submission, as I have said, that a gaol sentence with a community corrections order is acceptable.  You have now been on bail for an extended period of time, and have done very well.  Prior to that, you had spent 66 days in custody, and the submission is that that should be sufficient, together with a community corrections order.  In the ultimate, I have had you assessed for a community corrections order, and you have been found to be acceptable, and I think that that is probably right.

22In fact, that is the sentence that I will be imposing in a few minutes' time.  And I make it very clear that a large part of my thinking in relation to this is that it would be not in the interests of justice to send a person who had endeavoured, valiantly I will accept, to rehabilitate back to prison after having already done a sentence.  Were I imposing this sentence de novo, if I could put it that way, the gaol component would have been greater.

23In terms of coming to that decision, I look at matters personal to you.  Since being released on bail, you have seen Dr Aaron Cunningham, and I have read his report.  There is a CISP report, that being the people who were dealing with you when you were on bail, and also a letter from your own doctor,
Mr O'Donoghue, and some volumes of what could be described, I suppose, as civic citations.  You have been described as moderate risk of re-offending.

24Your history is outlined in the report of Dr Cunningham.  You are now 65 years of age, and were 63 at the time of the offending.  You were raised in Macedonia, and brought to Australia when you were 17 years of age.  You had an arranged marriage, by which you had five children.  That marriage ended, and you subsequently have a current partner, with whom you have three children.  She has supported you throughout the trial, whether that continues, I am told, may be a completely different matter.

25In any event, you completed Year 10 in Macedonia, and, arriving in Australia, worked as a butcher until, 2010.  You were then injured, as I understand it, in a workplace accident, and received a very significant payout, and were able to buy the winery, and a lot of the supportive material relates to that.

26Mr Cunningham says that at the time of the offending you were suffering from a major depressive disorder.  I obviously take that into account in a Verdins way.  You were drinking heavily, and as Mr Dane pointed out, you were using alcohol to endeavour to enhance the effects of the anti-depression drugs.  That does not work.  And this is a pretty good example of what happens when it does not work.

27However, I take into account the pleas of guilty, the fact that the matter has been resolved, that the victim has been spared, at least, the prospect of a trial, as have her family.

28You have, according to the CISP report, done everything you can to endeavour to rehabilitate, and I accept that you have now not had a drink for some extended period of time, and you are a member, and a practicing member, of Alcoholics Anonymous. 

29Through all those matters that I have determined, together with, as I have indicated about not sending someone back to gaol, that the disposition is appropriate.

30The prospects of your rehabilitation are up to you.  The risk of your reoffending has been described as moderate, and I cannot take it much further than that.

31I have also taken into account, obviously, the very helpful submissions given to me by Mr Dane on your behalf.  In the end, the sentence is, on Charges 1 and 2, an aggregate - I believe I can do that, of 66 days. 

32I direct that 66 days be reckoned as having been served under this sentence.  You will then be, if you agree, placed on a community corrections order.  That will be with conviction.  It will be for a period of three years.  It will have the conditions referred to that your counsel and yourself undoubtedly have seen, relating to alcohol, mental health, supervision and offending behaviour programs.  The offending behaviour programs will be the sex offenders program, and it is to be hoped that that will have a somewhat salutary effect on you. 

33MR DANE:  May it please Your Honour.

34HIS HONOUR:  Yes.

35MR TRIANDOS:  As Your Honour pleases. 

36HIS HONOUR:  Yes, thanks Mr Dane.

37MR DANE:  May he come to the Bar table, or (indistinct) ‑ ‑ ‑

38HIS HONOUR:  You can go down and see him, if you like.

39MR DANE:  Thank you.

40HIS HONOUR:  All right, that community corrections order is made.  Can you just stand up for me for a second, Mr Filipov?  You are on a community corrections order.  If you breach that and get brought back before me, if the breach is for anything remotely like this, I will give you a year.  Do we understand each other?

41OFFENDER:  Yes sir.

42HIS HONOUR:  All right. 

43(Short adjournment.)

44MR TRIANDOS:  Your Honour, I just eluded myself about s.6AAA, because it is a sentence that involves a term of imprisonment anyway. 

45HIS HONOUR:  Yes.

46MR TRIANDOS:  So therefore it is under s.6AAA.

47HIS HONOUR:  No, no.  (Indistinct words).  The Sentencing Advisory Committee asked me for a submission on this, and I gave it to them, all right?  They know. If you look at the - I have not looked at this for ages, so it might take a little bit.  Look at s.6AAA.

48MR TRIANDOS:  Yes.

49HIS HONOUR:  Unless they have amended it on me in the meantime as a result of what I told them.  That is a real chance, I should have thought of that before I came out, otherwise I should have just stayed out there.  They might have, too. 

50MR TRIANDOS:  It is first up, Your Honour, it is s.6AAA.

51HIS HONOUR:  What page of the Act is it in?

52MR TRIANDOS:  Well it is after - there is s.6, Your Honour ‑ ‑ ‑

53HIS HONOUR:  I got you, yes.

54MR TRIANDOS:  And it is just after s.6.

55HIS HONOUR:  Right.  "If the sentence imposed on the offender is, or includes, an order under Division 2 of Part 3, or a fine, or an aggregate fine, the court must state the sentence", right?  So it is under Division 2, Part 3.  You have to look at where combination sentences are.  They are not in there.

56MR TRIANDOS:  Yes, but what about ‑ ‑ ‑

57MR DANE:  Yes, but what about ‑ ‑ ‑

58MR TRIANDOS:  There is s.1B, "a community corrections order for a period of two years or more".

59HIS HONOUR:  What are you talking about.

60MR DANE:  We have got the wrong Act

61MR TRIANDOS:  Because I am looking at it off Your Honour.  What is ‑ ‑ ‑

62HIS HONOUR:  I am looking at the Sentencing Act, silly of me I know. 

63MR TRIANDOS:  Yes, what is the date of the Sentencing Act?

64HIS HONOUR:  What is the date today?  No, it is December 2016.  No, what are you looking at?

65MR TRIANDOS:  No, I am looking at But anyway, where it says "and includes s.1B", s.1B, a community corrections order for a period of two years or more.  So there is s.1A, s.1B, then s.1B(i) ‑ ‑ ‑

66HIS HONOUR:  What?

67MR TRIANDOS:  Which is an order under Division 2 of Part 3.  And then ‑ ‑ ‑

68HIS HONOUR:  No, I do not know what you are talking about.  What date is that?

69MR TRIANDOS:  This is just Your Honour.  My primary submission was because it involves a gaol sentence, even in combination ‑ ‑ ‑

70HIS HONOUR:  No, it was never right.  No, no, no.  It is an order under Division 2 of Part 3, right?

71MR TRIANDOS:  Which is straight sentence.

72HIS HONOUR:  That is right.  And look, I am telling you, I spoke to ‑ ‑ ‑

73MR TRIANDOS:  That is fine, I just needed to raise it for Your Honour.  I just needed to raise it to make sure Your Honour was aware of the s.6AAA.  If Your Honour refuses to make ‑ ‑ ‑

74HIS HONOUR:  No, because I have been doing this for - this is my argument.  They rang me and said "Why don't you do it?", and I said "Because the combination sentence is not part of", and they said "That is right".  So where does your combination sentence come from?  It does not come from - unless it does now, Division 2, Part 3.

75MR TRIANDOS:  There is - I will just check.

76HIS HONOUR:  I do not know what you are reading from, because it is not in this Act, and this is December 2016.

77MR TRIANDOS:  I am looking at the electronic version of and it is s.1B, 1D inserted by no.65 of 2016, s.5. So I do not have a hardcopy of it, Your Honour, that is all I am saying, and it says a community corrections order for a period of two years or more, but ‑ ‑ ‑

78HIS HONOUR:  So I have finally made a submission that has been acknowledged and put into effect?  I reckon I could retire now.  I reckon that will do me.

79MR TRIANDOS:  So just out of an abundance of caution, Your Honour.  There is not ‑ ‑ ‑

80HIS HONOUR:  No, it does not invalidate the order. 

81MR TRIANDOS:  No it does not.

82HIS HONOUR:  Well I think you are wrong.

83MR TRIANDOS:  Yes, that is fine Your Honour.  I have been wrong many times before.

84HIS HONOUR:  All right, yes, no, and probably will be again. 

85MR DANE:  It does not necessarily effect your career.

86MR TRIANDOS:  No.

87HIS HONOUR:  I am going to just stay quiet about it.  In fact, I reckon it enhances it, judging by what I see here on circuit.  The cascade of error usually leads to a very successful criminal career.  Yes, but this is why s.6AAA should never be used ‑ ‑ ‑

88MR TRIANDOS:  Absolutely yes, Your Honour.

89HIS HONOUR:  Should never be used on settled indictments, for starters.  This would have gone - if he was going to be found guilty by a jury, he would have been found guilty of a rape and a sexual assault.  That is what he would have been found guilty of.  And what I would say, if I go the s.6AAA, would be meaningless.

90MR TRIANDOS:  Meaningless, yes Your Honour.

91HIS HONOUR:  That is what concerns me.  I also find it absurd that we are supposed to s.6AAAs on rolled-up counts, on representative counts, because you can never be found guilty by a jury of them.  So if he had pleaded not guilty, the charge would have had to have been different.

92MR TRIANDOS:  Yes Your Honour.

93HIS HONOUR:  It is a total fiction.  If you want me to, I will simply say that - well, if you had been convicted of these after a jury - well I have not thought about, so I will not say anything, but it would be a lot more than 66 days, I will give you the drum.

94MR TRIANDOS:  Yes, well that is (indistinct), Your Honour.  Yes.

95HIS HONOUR:  If that is a s.6AAA.

96MR TRIANDOS:  Yes, I am happy.  I am content with that, Your Honour.

97MR TRIANDOS:  Thanks Your Honour.

98HIS HONOUR:  But I am sure - it has obviously been amended.

99MR TRIANDOS:  I will ‑ ‑ ‑

100HIS HONOUR:  No, no, clearly it has been, because this is up to December.  Whether that is in effect yet, whether that is in force or not, I do not know, but there was discussion about this, because the combination sentence did not fall within ‑ ‑ ‑

101MR TRIANDOS:  The Division?

102HIS HONOUR:  ‑ ‑ ‑ the Division, yes.

103MR TRIANDOS:  That is right.

104HIS HONOUR:  So as I say, I have not thought about it, so I do not want to say anything.

105MR TRIANDOS:  As Your Honour pleases.  I am happy with that.

106HIS HONOUR:  Because I think it is meaningless anyway, but yes, I hear what you are saying and you can ‑ ‑ ‑

107MR TRIANDOS:  Well, given my sentencing submission, this will not go any further obviously, so ‑ ‑ ‑

108HIS HONOUR:  No, we are all pretty safe here.

109MR TRIANDOS:  Yes.

110HIS HONOUR:  Yes, all right.

111MR TRIANDOS:  Thank you Your Honour.

112(At this stage the court proceeded with another matter.)

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