Director of Public Prosecutions v Gastello
[2023] VCC 769
•11 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Sexual Offences List
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARCO GASTELLO |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 January & 3 May 2023 | |
DATE OF SENTENCE: | 11 May 2023 | |
CASE MAY BE CITED AS: | DPP v Gastello | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 769 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Indecent assault, sexual assault, administer intoxicating substance for sexual purpose, rape, possess child abuse material. Three victims in early 20’s. Mature offender in position of trust. Offender photographed sexual acts with first two victims. Profound victim impact. Offender with no prior convictions or subsequent matters. Role of drugs and alcohol in offending. Three-year delay before report of last offence and arrest. Rehabilitation occurred over that time. Further 2 and a half years on remand awaiting resolution of matter. Lack of complete insight into causes of offending, remorse still present. Low to medium risk of re‑offending with treatment. Serious sexual offender. SORA.
Legislation Cited: Crimes Act 1958, Sentencing Act 1991, Sex Offenders Registration Act 2004.
Cases Cited:R v Verdins (2007) 16 VR 269, Pearce v The Queen (1998) 194 CLR 610, The Queen v Frank (a pseudonym) [2021] VSCA 163, Clarke v The Queen [2022] VSCA 89, Jurj v The Queen [2016] VSCA 57, R v Beary (2004) 11 VR 151, Phillips v The Queen [2012] VSCA 140, Cameron v The Queen (2002) 209 CLR 339, Worboyes v The Queen [2021] VSCA 169, Chenhall v The Queen [2021] VSCA 175, R v Merrett, Piggott and Ferrari (2007) 14 VR 392, R v LD [2009] VSCA 311, Hogan v Hinch (2011) 243 CLR 506, R v Cheetham (2006) 13 VR 304, Bowden v The Queen (2013) 44 VR 229, Sayer v The Queen [2018] VSCA 177.
Sentence: TES of 9 years 10 months (118 months) with NPP of 6 years 4 months (76 months). PSD of 905 days declared.
Section 6AAA declaration – TES 13 years and 4 months (160 months) NPP of 10 years (120 months). SORA registration for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Nibbs | Office of Public Prosecutions |
| For the Accused | Mr W. Barker | Leanne Warren & Associates |
HIS HONOUR:
INTRODUCTION
1You, Marco Gastello, have preyed upon three young women who were unfortunate enough to find themselves in your orbit in the years between 2014 and 2017. You sexually abused them when they were at their most vulnerable. On one occasion you drugged a flatmate for the express purpose of later sexually violating her. The effects on your victims have been profound.
2There are matters that act to mitigate the sentence I impose on you. You have no prior criminal history. You pleaded guilty during the course of the Covid-19 Pandemic. There has been a not inconsiderable delay in having this matter disposed of and you have been in custody for a long period of time before sentence.
3It is inevitable and necessary that a substantial term of imprisonment will be imposed on you, with a suitable non parole period set. The length and structure of that sentence is explained in my reasons that follow.
4Before I do sentence, I want it known that I received a high level of assistance from both Counsel involved in this case which benefitted me enormously in dealing with this serious, sensitive and difficult matter.
BACKGROUND
5You were born in August 1978 in Peru. As an adult you migrated to Australia in around 2001 and you are now an Australian citizen.
Complainants and offending[1]
[1] Exhibit A- Summary of Prosecution Opening dated 19 January 2023 (complainants Jane Thomas &
Margaret Brooks) and Exhibit B- Summary of Prosecution Opening dated 19 January 2023 (complainant
Michelle Scott).
Jane Thomas[2]
[2] A pseudonym.
6Complainant Jane Thomas was 21 years old at the time you offended against her in 2014. You were 35.
7She was working with you during events at a local sports venue.
8You had a non-intimate relationship. Ms Thomas did not consent to being photographed or being touched by you for the purpose of being photographed. In fact, she had no knowledge you did so until long after the fact.
9On the evening of 10 January 2014, you met up with complainant Ms Thomas and her friend Elina Holding.[3]
[3] A pseudonym.
10Ms Thomas was drunk and you and Ms Holding helped her to stand as you both took her to Ms Holding's residence to stay the night.
11You, Ms Thomas and Ms Holding arrived at the latter’s residence in the early hours of 11 January 2014.
12Ms Thomas passed out unconscious on Ms Holding's bed. At the time she was laying on her right side, wearing a white singlet top, pink skirt, pink underwear and white high heel shoes.
13Ms Holding cannot recall if she stayed in another room or not.
14You unzipped Ms Thomas's skirt, pulled her skirt and underwear down to her thighs and repositioned her so that she was laying chest against the bed.
15You touched her buttocks spreading her cheeks to expose her vagina and anus. (Charge 1 – Indecent Assault – 11 January 2014 – Maximum penalty 10 years)
16During this time you used your Apple iPhone 4S mobile phone to take 26 photographs of Ms Thomas depicting these actions.
17The photographs were taken over a period of about 2 hours between 1:01am and 3:13am.
18One of these images depicts an unknown liquid on Ms Thomas's left buttock cheek, which had not been there previously.
19You copied these photos from your mobile phone onto your Gateway laptop and saved the photos in a folder bearing this complaint's first name.
20You saved six other images of Ms Thomas (which she had posted to her Facebook page) in this same folder.
Margaret Brooks[4]
[4] A pseudonym.
21Margaret Brooks was 21 years old at the time of the offences. She arrived in Australia approximately four months earlier on a Working Holiday Visa. You were 38.
22You rented a bed in your bedroom to Ms Brooks who had just moved into your apartment when the offending began.
23You shared that apartment with Ms Brooks and two other males, who were renting a second bedroom in the apartment.
24As was the case with Ms Thomas, you had a non-intimate relationship with Ms Brooks.
25Ms Brooks had no knowledge of the offences and did not consent to being photographed or being touched for the purpose of being photographed.
26On 23 March 2017, you were at home with the complainant, who had moved into the apartment just the day before.
27At 11:35pm, Ms Brooks was unconscious in bed under a white, green and grey floral doona cover. She was wearing black underwear at that time.
28You removed the doona cover and her underwear, leaving her naked with a towel draped over her waist and buttocks.
29During this time you used your phone to take three photographs of her. The photographs were taken between over a period of 2 hours between 11:35pm on 23 March and 1:35am on 24 March 2017.
30The photographs were stored on the micro-SD card of his phone in a folder '\DCIM\Camera\.'The act of photographing her while she is asleep does not form the basis of a charge as I will explain in due course.
31On 26 March 2017, you were again at home with the complainant.
32Ms Brooks was asleep in bed under a white, grey and red doona cover. At the time she was wearing black underwear.
33You removed the doona cover from her and used your phone to take 12 photographs of her buttocks and crotch. The photographs were taken between 4:52am and 5:30am.
34Those photographs were stored on the micro-SD card of your phone in a folder '\DCIM\Camera\.'
35On 8 April 2017, you were at home with the complainant.
36Ms Brooks was asleep in bed under a white, grey and red doona cover. At the time she was wearing black underwear.
37You removed the doona cover and used your phone again to take three photographs of her buttocks. The photographs were taken at 3:49am.
38The photographs were stored on the micro-SD card of your phone in a folder '\DCIM\Camera\.'
39On 13 May 2017 at 8:19am you used your phone to take a photograph of a person in bed, under a white, grey and green floral doona.
40At 5:13 pm, you used your mobile phone and searched the internet (one site in particular[5]) for the following terms:
(a) 'alepan medication'
(b) 'alepan medication overdose'
[5] Exhibit A- Summary of Prosecution Opening dated 19 January 2023 (complainants Jane Thomas &
Margaret Brooks).
41On 16 May 2017 you were at home with Ms Brooks.
42She was unconscious in bed under a white, green and grey floral doona cover.[6] At the time she was wearing black shorts and black underwear.
[6] Ibid.
43At approximately 1:38am you accessed Ms Brooks mobile phone and viewed two images of her wearing a bikini that were stored on the device.
44You used your own phone to take six photographs of the two images on her mobile phone.
45You moved the doona cover to the side, exposing Ms Brooks bottom. You then pulled her shorts down, exposing her underwear. You then used your fingers to pull aside her underwear exposing her vagina and anus (Charge 2 – Sexual Assault – 16 May 2017 – Maximum penalty 10 years)
46You used your phone to take no less than 21 photographs of Ms Brooks depicting these actions. The photographs were taken between over 2 and half hours between 1:55am and 4:27am.
47The photographs were stored on the micro-SD card of your phone[7] in a folder '\DCIM\Camera\.'
[7]Ibid.
48I make it clear now that the earlier times where photographs were taken of Ms Brooks when she was asleep do not constitute offences and I do not treat them as such. They are included as part of the Crown opening as important contextual information regarding your interest in this complainant (which I note commenced within a day of her moving into your apartment) and your habit of sometimes documenting your offending. Naturally I consider this unusual feature of your offending an important matter to consider when considering the motivations for your offending, treatment needs and your risk profile.
49Though there is a suspicion regarding the searches for the effects of certain medications on 13 May 2017 and its proximity to the offending that constitutes Charge 2, there is no allegation that Ms Brooks was rendered incapacitated by you, and I do not sentence you on the basis that you did.
50That is not so when it comes to consider your final victim.
Michelle Scott[8]
[8] A pseudonym.
51Michelle Scott was 25 years old at the time of these offences. You were 38.
52She had arrived in Australia approximately eleven months earlier on a Student Visa to study English.
53At the time of the offence, Ms Scott had just moved into your apartment where you lived with two other women.
54On 4 July 2017, you met with her and showed her the apartment and the room you had available for rent.
55Ms Scott later messaged you indicating she was interested in moving in and you suggested they meet again.
56You met Ms Scott a second time at the apartment, and she discussed the rental arrangement, before she agreed to move into the apartment. She did so on 8 July 2017.
57On the very day she moved in, you and Ms Scott were alone in the apartment.
58You were playing pool whilst drinking beer and smoking cannabis, whilst Ms Scott made her dinner. You invited her to play pool, and you played together until 10pm.
59Ms Scott then made herself a tea, whilst you continued to play pool on your own.
60As she was drinking her tea, you overheard her coughing and suggested she drink some vodka to kill the bacteria in her throat.
61You used a shot glass and prepared three to four glasses of vodka for Ms Scott. She consumed the drinks and then went to the toilet.
62Whilst out of the room Ms Scott could hear the noise of a spoon clinking against a glass.
63When she got back you had another drink ready for her in the glass she had been drinking out of and said, 'drink this', which she did.
64The Prosecution alleges (and I accept) that when preparing these drinks, you had furtively mixed oxazepam or another trade name for this drug into her drink. You did so when she was out of the room and out of your sight. You did not inform your victim you had mixed a substance into her drink. Consistent with your plea to Charge 3, I conclude you did so with the intention that this substance would impair Ms Scott's capacity to give consent to sexual activity and would facilitate the taking part in a sexual act with you. (Charge 3 - Administration of an Intoxicating Substance for a Sexual Purpose – Maximum penalty 10 years).
65Ms Scott recalls it being 'difficult to walk', but she made it back to her bedroom and fell on her bed. To her best recollection, she did not fall on anything else.
66Ms Scott remembers she woke up throughout the night and took off her jacket and threw it on the floor of her bedroom and she was still wearing her dress, pantihose and underpants. She then went back to sleep.
67In a way that is not necessarily entirely clear, Ms Scott ended up in your bedroom. Once in your bedroom, you penetrated Ms Scott in both her vagina and her anus with your penis. You did not wear a condom. You ejaculated in both her vagina and anus. Charge 4 – Rape (Rolled up charge) 8 – 9 July 2017 (maximum penalty 25 years' imprisonment)
68On 9 July 2017 at approximately 10.00am, Ms Scott found that she was lying next to you in your bed when she awoke.
69She was still wearing her grey dress, black bra, black underwear and black stockings and could feel your erect penis pressing against her buttocks through her underwear.
70She quickly left the bedroom and returned to her room where she saw the blinds were down and her jacket was still on the floor.
71At approximately 11:30 am, you sent her a text message asking how she was.
72You said she was 'very drunk last night' and that you were at the gym.
73At approximately 12:28 pm, whilst Ms Scott was alone in the apartment, she made her way to the kitchen, where she found a powder mixture and the shot glass she had been drinking out of, which still had some of the vodka in it. She had the remarkable presence of mind to pour the mixture into a plastic cup and replaced it with coffee and Talcum powder.
74She then contacted her friend and told him what had occurred.
75She took a photograph of the left-over drink you had given her, some of the powder on her finger and the bruises on her leg, which she sent to her friend who helped her go to the police station.
Investigation
Michelle Scott[9]
[9] A pseudonym.
76On 9 July 2017, investigators from the Melbourne Sexual Offences and Child Abuse Investigation Team commenced an investigation in relation to the information received.
77At the time of reporting, Ms Scott provided the plastic cup containing the mixture and the shot glass to police.
78On the same day, she engaged in a pretext conversation with you. During that conversation she:
(a) told you 'I could not remember last night, how I get the room' and you responded, 'I can't remember either, I was very drunk'.
(b) asked you if they had sex and you said, 'not sure', you didn't know stating, 'we were very drunk'.
79Ms Scott stated that you woke up in the same bed together and you did not deny this and suggested you could speak more about it in person.
80Ms Scott then underwent a forensic medical examination at the Royal Women's Hospital.
81During the examination a total of 31 photographs were taken.
82A report of the findings of the examination include:
(a) A bruise to the middle right buttock;
(b) A bruise to the middle right upper arm;
(c) A bruise to the upper left forearm;
(d) Two bruises to the side of the right hip;
(e) At least 12 bruises to right hip, thigh and knee;
(f) At least eight bruises to the left thigh and knee, one of which is on the inner part of the thigh (an area normally protected by the body);
(g) A small abrasion to the entrance of her vagina; and
(h) A small amount of white vaginal fluid which is non-specific and may represent normal secretions, infection or ejaculate.
83The Forensic Medical Officer, provided the opinion that the injuries were most likely the result of infliction rather than by accident.[10] I am unable to conclude, given the state of the evidence though, that you inflicted the injuries knowingly or otherwise. Your victim was drunk, and substance affected and there is no evidence really as to how she made her way to your bed for instance. It cannot be excluded that she tripped, stumbled or otherwise injured herself because of her intoxication and involuntary substance affectedness that she was enduring. I do not sentence you on the basis that you injured her.
[10]Exhibit B- Summary of Prosecution Opening dated 19 January 2023 (complainant Michelle Scott).
84On 10 July 2017, investigators from the Melbourne Sexual Offences and Child Abuse Investigation Team executed a search warrant at your Docklands apartment. You were arrested for introducing a drug of dependence for a sexual purpose.
85At the time investigators executed a search warrant and seized several items including:
(a) Bedding from your bedroom;
(b) your Samsung Galaxy S5 mobile phone;
(c) Ms Scott's clothing;
(d) Two (2) shot glasses;
(e) A small glass with a black front which had significance in the case; and
(f) Small amount of cannabis.
86You were conveyed to the Melbourne West Police Station where you were interviewed.
87On the 10 July 2017, investigators executed a second search warrant at your apartment and seized a number of additional items including a pill container labelled 'Temaze'. Temaze is more commonly known as Temazepam:
(a) which is a prescription medication used to treat sleeping problems;
(b) its effects generally begin within an hour of consumption and last for up to eight hours; and
(c) once ingested the body will metabolize Temazepam into Oxazepam.
88The sample of Ms Scott's blood and urine collected during her forensic medical examination on 9 July 2017 was analysed by the Victorian Institute of Forensic Medicine.[11] The results indicated the following were present in either her blood and or urine:
(a) Paracetamol;
(b) Codeine;
(c) Morphine;
(d) Oxazepam;
(e) Nordiazepam; and
(f) Chlorpheniramine.
[11]Exhibit B- Summary of Prosecution Opening dated 19 January 2023 (complainant Michelle Scott).
89The only medication your victim was taking at the time was for her acne.
90The Victorian Institute of Forensic Medicine also tested the substance provided to investigators by Ms Scott in the plastic cup. The results indicated that Oxazepam Artefact was detected in the sample.
91The preceding paragraphs contain the additional detail about the administration of an Intoxicating Substance for a Sexual Purpose I alluded to earlier.
DNA Results
92The forensic samples obtained during Ms Scott's forensic medical examination on the 9 July 2017 was analysed by the Victoria Police Forensic Services Department. The results indicated:
(a) Male DNA and spermatozoa on endocervical swab/slide;
(b) Male DNA and spermatozoa on anal swab/slide;
(c) A comparison between your DNA and these samples was conducted, and you could not be excluded as the contributor of the DNA profile obtained from the spermatozoa (Likelihood ration 100 billion).[12]
[12]Exhibit B- Summary of Prosecution Opening dated 19 January 2023 (complainant Michelle Scott).
Examination of Phone
93A number of searches of a troubling kind were located on your phone that had apparently commenced in April 2017.
94On 20 April 2017 between 2:23pm and 3:02pm, you used your mobile phone and searched the internet for the following terms:
(a) 'valium';
(b) 'valium vs xanax'.
95You viewed 10 web pages as a result of these searches.
96On 26 April 2017 between 12:09pm and 6:06pm, you used your mobile phone and searched the internet for terms relating to oxazepam and alcohol interactions, including specific references to 'getting high'.
97You viewed web pages as a result of those searches.
98On 27 April 2017 between 4:26am and 7:38am, you used your mobile phone and searched the internet for alepam and its effects.
99You viewed three web pages as a result of these searches.[13]
[13]Ibid.
100On 28 April 2017 between 8:40am and 5:33pm, you used your mobile phone and searched the internet for an extensive search of alepam and its safe (or otherwise) dosage.
101From the search results you accessed six websites.[14]
[14]Exhibit B- Summary of Prosecution Opening dated 19 January 2023 (complainant Michelle Scott).
102On 16 May 2017 between 3:06pm and 3:57pm, you used your mobile phone and searched the internet for the information on alepam, oxazepam and alcohol.
103From the search results you accessed eight websites.
104The Prosecution allege that these searches were done so that you could obtain the knowledge required to commit Charge 4 in July 2017. Because of the assertion in the Forensicare pre-sentence report that you often added anti-anxiety medication to alcoholic drinks while seeking a 'new high' [15] I am unable to conclude that your searches were solely for the purposes of offending the way you did. Through your own use of alepam, you must have been aware of the effects the drug would have, bolstered by whatever you gained from your internet searches.
[15]Exhibit 6- Psychological Report of Dr Joseph Sakdalan dated 28 March 2023.
Margaret Brooks[16]
[16] A pseudonym.
105On that Galaxy phone I mentioned earlier police found images you had taken in relation to Ms Brooks in May 2017.
106Whilst Police were executing the search warrant on 10 July 2017, you told Detective Senior Constable Ramon Garay that you wanted to explain the photographs that were on your mobile phone.[17] Garay audio recorded that conversation, which included the following untruths:
(a) There are some pictures on his mobile phone of a girl you were seeing;
(b) You used to go to the beach and surf;
(c) Sometimes you would spend a couple of nights together;
(d) You slept together.
[17]Exhibit A- Summary of Prosecution Opening dated 19 January 2023 (complainants Jane Thomas &
Margaret Brooks).
107You claimed that you used to take pictures because she wanted to be a model. You had pictures from the beach, pictures that you would share with people and kind of sexy pictures as well as pictures you took of her buttocks.
108A further analysis of your mobile phone identified a photograph which depicts a passport belonging to Ms Brooks.
109Ms Brooks had no idea about the offending against her until she was informed by Police of it. She was approached and made a statement to investigators and disclosed the following:
(a) She moved into your apartment on 22 March 2017;
(b) When she moved into the apartment there was a couple and two guys also living there, but the couple moved out shortly after;
(c) She slept on a small bed against the window in your bedroom;
(d) She was friends with you, however there was never anything intimate or sexual;
(e) Sometimes you would make her drinks, whilst they were hanging out;
(f) One night she got really wasted and blacked out and woke up in your bed;
(g) You and her were the only people home that night;
(h) You had scratch marks down the side of your face, and told her that she had done that to you when you were helping her to the bathroom to vomit;
(i) She believes this night was the 23 March 2017, as she has a photograph of Jägermeister on the bench and you pouring shots on her phone;
(j) She had told a friend about the night she blacked out;
(k) She moved out of the apartment on the 18 May 2017;
(l) There were no other girls living in the apartment at the time;
(m) She has never given you permission to take photographs of her whilst asleep or drunk.
110I repeat what I said earlier. I cannot and do not sentence you on the basis that you administered any substances to Ms Brooks for the purposes of your own sexual gratification.
111On 2 December 2020 Ms Brooks endured the no doubt distressing and humiliating experience of attending a forensic medical examination with Dr Maria Nittis, who took six photographs of her anal and genital region. These photographs were provided to Dr Jo Ann Parkin from the Victorian Institute of Forensic Medicine for comment.[18]
[18] Exhibit A- Summary of Prosecution Opening dated 19 January 2023 (complainants Jane Thomas &
Margaret Brooks).
112The Doctor in question advised investigators that the photographs taken by Dr Nittis of Ms Brooks depicted a skin condition, two skin pigmentations together to the upper left area of her anus, and a single skin pigmentation to the right of her anus. These characteristics are consistent with the images found on your mobile phone from 16 May 2017.[19]
[19]Ibid.
Jane Thomas[20]
[20] A pseudonym.
113An analysis of your Gateway laptop located 26 photographs taken on 11 January 2014 between 01:01am and 3:13am. These images were stored collectively in a folder named 'Jane'. The folder also contained six non-intimate images of a female, which appeared to have been saved from a social media profile or similar.
114Investigators reviewed the saved contacts in your phone and located one saved ‘Jane Thomas’.
115Investigators then reviewed the VicRoads database and identified a female as Ms Thomas as having a similar likeness to the non-intimate photos saved within the folder 'Jane'.
116Investigators spoke with Ms Thomas and showed her one of the non-intimate photos located in the folder 'Jane' and asked her if she could tell them anything about the photo. She responded stating 'yeah that's me.'
117Ms Thomas then made a statement to investigators and disclosed the following:
(a) One of her work colleagues Ms Holding lived in Toorak and she would often stay over there;
(b) You never worked with her;
(c) You were never involved romantically or sexually;
(d) At that age she would often plan to go out and get drunk because she found it fun;
(e) She would often drink too much and her body could not handle it. One night she had been at Shisha Bar where you also worked;
(f) She remembers being at the tram stop with Ms Holding and you and you were both trying to keep her upright. The next morning she woke up alone at Ms Holding's address and the sheets were all wet from sweat;
(g) She attended the Melbourne West Police Station where she was shown six photographs which she recognised as photos of her which she had posted on Facebook. She was also shown seven other photographs and in the first photograph she recognised herself from the clothing and the room;
(h) She did not know the photographs were taken and would not have given her permission for anyone to take them;
(i) She certainly would not have allowed you to touch her in order to take the photos.
Child Abuse Material (CAM)
118On 28 August 2020, Detective Senior Constable Payne analysed your Gateway Laptop. Police located thirteen videos of child abuse material.[21]
[21]Exhibit A- Summary of Prosecution Opening dated 19 January 2023 (complainants Jane Thomas &
Margaret Brooks).
119The child abuse material included one category one video and twelve category four videos depicting girls between the age of two years old and sixteen years old engaging in sexual activities with both other children and adult men. (Charge 5 – knowingly possess child abuse material – Maximum penalty 10 years).
120The files were created as early as 2007 and predominantly last accessed in 2014.
Case history[22]
[22]Exhibit F- Chronology (See Annexure below).
121As I have just detailed, the offending spanned the years 2014 -2017.
122
After your arrest and interview on 10 July 2017, you were released. It was not until
3 years later, on 15 June 2020 that you were formally charged with the matters where Ms Thomas and Ms Brooks were the complainants. The explanation for this delay was that the informant had apparently left the station, the file was left idle or inactive until their return in 2020.
123You were initially remanded in custody for a relative brief period of time until bailed on conditions in July 2020 by the Supreme Court.
124Some six months later, in December 2020, you were arrested and charged in relation to the Ms Scott’s offences. You were then remanded in custody and refused bail. The existing bail you were on was revoked and you have remained in custody ever since.
125A contested committal was conducted in October 2021 (I note which was in part necessary to reduce the number of aggravating features of the rape alleged initially against you), followed by an application for bail again in the Supreme Court which was refused.
126From there a series of case management measures were implemented over a year or more (a case assessment hearing, case conference and an aborted sentencing indication hearing) in an effort to resolve the matter.
127Ultimately you pleaded guilty to the present indictment before me on 5 October 2022.
128The plea proceeded on 20 January 2023 and was adjourned to obtain a further psychological report in order for me to properly explore the motivations and causes for this serious and troubling offending and to better allow me to assess the risk you might pose to the community.
129The matter returned before me on 3 May 2023 to allow further submissions to be made on the report.
130Aside from the 3 year delay between interview and charge, you have now been in custody for more than 2 and a half years awaiting finalisation of these matters. You have accumulated close to 1000 days pre-sentence detention.
131How I consider the delay between interview and charge as well as the time between charge and finalisation of the matter will be dealt with later in these reasons.
Victim Impact
132I received Victim Impact Statements (VIS) from each of your victims. They are powerful, articulate accounts of the damage you left these young women with for nothing more than your own sexual gratification.
133Ms Thomas[23] had a delayed response when she found out what you did to her. When that emotional response did manifest, it resulted in insomnia, severe depression and anxiety. She required medical treatment in the form of private therapy which was expensive. She suffers from PTSD with the idea of looking at herself naked in the photographs presented to her, her relationship with her partner suffered. She is unable to connect with him emotionally and physically. She feels uncomfortable being intimate. She took time off from work just to cope. This VIS was authored in December 2022. You have damaged her sense of wellbeing for years.
[23]Exhibit D – Victim Impact Statement of Jane Thomas dated 30 December 2022.
134Ms Brooks[24] described being ‘torn to pieces’ by your crimes. With no sense of overstatement, she describes that she has been through hell. She spoke very little English when she arrived. Her family remained in France and she cannot tell them what you did to her for a fear of burdening them. She was particularly isolated. She feels isolated and alone. She suffered from the same kind of shock Ms Thomas did, being confronted with intimate images of herself. She suffered terribly with anxiety, nightmares, intrusive thoughts in her waking life. She coped by drinking too much. She lost a lot an unhealthy amount of weight. She had panic attacks in public places. She put on a brave face but she could not work the way she used to, with fatigue and worry. Her performance at school suffered and she did not graduate, thus frustrating her plans for he own future vocation and happiness. She felt like a failure. She allowed others to treat her badly as though she deserved it. She found it extremely difficult to trust others. Such was the corrosive effect on her self-esteem your treatment had on her. Hers has been a long road to try to rebuild herself, but years later, your conduct still affects her deeply. She remains determined to move past this.
[24]Exhibit C- Victim Impact Statement of Margaret Brooks dated 12 December 2022.
135Ms Scott's victim impact statement,[25] also authored in 2022, is very understated. She describes depression and anxiety as part of her emotional response to your conduct. She was depressed for months afterwards, unable to sleep or eat properly. She had bruising all over her body. She stopped work for a few days while she re-organised her life in terms of accommodation and tried to heal emotionally. She is now more cautious with strangers and avoids drinking whenever possible.
[25]Exhibit E- Victim Impact Statement of Michelle Scott dated 23 November 2022.
136Each of these women trusted you as a colleague or housemate. Your abuse of their trust is nothing short of despicable. The emotional damage you have done to each of them is significant and it is a matter that assumes real prominence in the sentencing equation.
MATTERS PERSONAL TO THE ACCUSED
Family and childhood
137You were born in Lima, Peru in August 1978. You were 44 at the time of the plea. You were 35 when you offended against Ms Thomas, 38 when you offended against Ms Brooks and the same age at the time of your offending against Ms Scott (and possessed the CAM).
138Your early years were hard, and despite its harshness, you led a respectable life for many years until you came to Australia.
139Your parents are no longer together. They separated when you were very young, and your father, Eduardo, was not involved with the family. He has also since passed away.
140Your Mother, Ayde, lives in Peru. When she was younger, she worked in a pharmacy and also selling cemetery spots. You are her oldest child and have always had a good relationship with her. She struggled to raise the children on her own and they were very poor. You witnessed a later partner be violent towards your mother as well.
141Being the oldest child, you were the first to reach an age where he could work. You left school immediately when he was around 14 to work and help your mother provide for the family. You later went back to weekend schooling to catch up and graduate.
142You have four siblings – Guillermo, who lives in USA, Katherine, who also lives in USA., Jonathan, who lives in Peru and Nicole, who passed away in 2008 from suicide.
143You speak with your mother and siblings very regularly from custody. You feel that your relationship with them has gotten stronger during remand, assisted by your own reflection on the way that you were living his life and his alcohol use.[26] You speak to at least someone from the family daily, though of course this is not the same as in person visits.
[26]Exhibit 3- Katherine Madrid dated 9 January 2023.
144You have one child to a Peruvian woman you worked with on cruise ship before moving to Australia. Your son and his mother live in Peru. You have a son in Peru, who you do not have any contact with.
145You have been married once from 2013 to 2016.
Education/Employment
146As I noted earlier, you worked from a very young age to support your family. Your education was delayed, but you managed to eventually graduate secondary school in Peru. At 14 you started work as a cleaner at a jewellery shop. You worked full-time for several years in that job. When you were 18 you started as a bartender at a hotel restaurant where you stayed for two years.
147You then did some tertiary study in hospitality. You wanted to do more but you were unable to afford the fees.
148You then worked in various hospitality jobs for another seven years until the age of 27.
149At 28 you left Peru to work on large cruise ships in the hospitality section. You worked for Royal Caribbean for two years then moved to Australia.
150You were 31 when you arrived in Melbourne. You worked as a bartender in Docklands for a year then worked as a casual for recruitment companies for around six months
151After later moving to Australia you studied English, a Certificate 3 in hospitality management, and then a diploma in hospitality.
152You managed to get a job working at a sporting venue where you worked for around five years.
153You left the venue for a managerial position at Sahara restaurant where you worked for about a year.
154You then got your security licence and worked in bar and club security for around two years. You had multiple jobs and juggled the shifts between them so that you were able to work seven days most weeks.
155You were able to save enough money in this work to travel home and visit your family in around 2016.
156When you returned, you tried driving Uber for a year before then working in construction as a labourer. You did this work for about three years, but it dried up in early 2020.
157You did casual work in various fields like traffic control for a short time before your arrest in June 2020.
158Once bailed in July 2020 you worked in warehousing. You did that work until arrested again in December 2020. You have been remanded since then.
159It was put on your behalf that you have a strong employment history and are likely to be able to find work again easily when released. No one can doubt your work ethic, though upon a review of the type of work you have engaged in previously – it has a theme of 'hospitality' connoting social activity inseparable from alcohol use and what is euphemistically called recreational drug use.
Drug and alcohol use
160You have consumed alcohol heavily for most of your adult life. Partying with colleagues appears to be common in the hospitality industry and you would often drink a lot after work or on days off.
161You were drinking heavily throughout the offending period and on the nights that each offence took place.
162I am told that you experimented with other substances but never used them frequently. You certainly abused prescription medication.
163While on bail between July and December 2020 you were able to remain abstinent.[27]
[27]Exhibit 4 – CISP Report dated 8 September 2020.
164I am told that your experience in custody has scared you such that you plan to never drink again.
165You have used your time fruitfully in prison, doing as many courses as possible to control your thinking and actions. To that end I have been provided with a raft of certificates relating to courses that is not limited to your behaviour but also are of a vocational or educational nature. [28]
[28]Exhibits 5 - Bundle of Certificates and Exhibit 8 – Bundle of Certificates (and Urine Screen).
Psychological make-up
166
Two reports were tendered on the plea. The first was a psychiatric report of
Dr Rakov[29] and the second was the report of Dr Sakdlan[30] which I ordered as the issue of the risk you posed to the community was not in my view properly explained in the Rakov report.
[29]Exhibit 2- Psychiatric Report of Dr Rakov dated 18 January 2023.
[30]Exhibit 6 - Psychological Report of Dr. Joseph Sakdalan dated 28 March 2023.
167Verdins[31] was expressly not relied on in any way on your plea. That is not to say the reports were of no use to me. Quite the contrary.
[31]R v Verdins (2007) 16 VR 269.
168Dr Rakov gave particular focus to your problematic alcohol use and the disinhibiting effects of same as the main contributors to the offending. She did not find you had an anxiety related disorder. You have commenced engagement in treatment in custody and there are apparently no impediments to you continuing to engage in same. You appear to accept that you require treatment.
169You denied you held any attitudes permissive of sexually coercive or aggressive behaviour towards women and did not appear to have underpinned an enduring sense of entitlement with regards to sexual activity.[32]
[32]Exhibit 2- Psychiatric Report of Dr Rakov dated 18 January 2023.
170The report of Dr Sakdlan says you reject that notion that you have any deviant sexual interest and denied being aroused or engaging in sexual behaviours with non-consenting partners. You indicated that you did not have to force someone to have sex with you.[33]
[33]Exhibit 6 - Psychological Report of Dr Joseph Sakdalan dated 28 March 2023 at [15].
171This comment warranted some analysis. It appears to me that you very much were aroused by the notion of having an incapacitated subject of your attention. It seems that you were referring to more ‘forceful’ versions of rape and sexual assault, as opposed to ones you committed.
172Dr Sakdlan explored more of your appetite for chemically induced highs using drugs and alcohol and how that disinhibition made you feel – namely carefree.
173In more insightful ways, you told Dr Sakdlan that you somehow envisaged your exploits of drinking with your first victims as fun that would lead to an intimate relationship.[34] You certainly assumed that you were entitled to a level of intimacy with those victims that a consenting partner would enjoy, though of course, you were not their partner, and they were not consenting.
[34]Some of the fanciful things you told Police about your relationship with Ms Brooks support this proposition.
174You explained the ways in which you convinced yourself that what you were doing was okay. You were unable to explain why you kept the photographs of your victims, despite asserting that your own behaviour disgusted you.
175You note that you did not envisage having a relationship with your third victim, but essentially contextualised the offending as one driven by the extreme disinhibition of drug and alcohol use.
176You expressed remorse,[35] but perhaps that remorse is limited by the lack of real insight you at times showed. Your counsel rightly characterised as your level of insight as something that was evolving and was not yet at a high level. You sought to portray yourself in a favourable light to Dr Sakdlan and at times downplayed the gravity of your offending or its causes.[36] The Crown points to the way you downplayed your intentions with Ms Scott given the efforts you went to sedate her and what happened to her once you did.[37]
[35]You did too to your sister.
[36]Exhibit 6 - Psychological Report of Dr Joseph Sakdalan dated 28 March 2023 at [45].
[37]Exhibit G – Prosecution Submissions on Further Plea dated 27 April 2023 at 3(c).
177Having administered a barrage of tests, Dr Sakdlan found you to be a low to moderate risk of sexual recidivism – with that risk increasing if you experience a deterioration in mental health and relapse into substance abuse in the context of social interactions with women – especially with those you develop an emotional connection with.
178Dr Sakdlan was unable to conclude with certainty whether or not your offending involved pre-meditation as opposed to opportunism and impulse.
179You express a willingness to engage in programs and explore why you offend the way you did. This is to a large degree confirmed by the sheer number of courses you have involved yourself in whilst in custody (which is no easy feat during Covid where there was a diminution of services within the prison system).[38]
[38]Exhibits 5 - Bundle of Certificates and Exhibit 8 – Bundle of Certificates (and Urine Screen).
180As best as I can ascertain from the psychological expert material before me, along with other factors such as your lack of prior offending or subsequent offending, as well as your conduct in custody, your risk appears to be low to moderate of sexual re-offending, but it certainly warrants treatment and monitoring.
OFFENDING
Charges 1 and 2
181The offending against Ms Thomas and Ms Brooks are very similar. I am informed that they occurred in the context of heavy alcohol use. You were a man in your mid-30's. Your victims were barely out of their teens. You took advantage of the complainants while they were not able to refuse you or defend themselves. Ms Brooks was offended against in her own bed.
182You must have known how inappropriate and wrong it was to touch and photograph Ms Thomas in the way you did in 2014. Undeterred, or unable to control your urges, you repeated this vile behaviour years later when you violated Ms Brooks. The repetition of your behaviour only accentuates its gravity.
183I am told you took the intimate photos as a form of memory of the complainants. The reality is you objectified these young women, and images taken of them sleeping near naked victims were often taken over a period of hours, not minutes or seconds. It was not transitory offending, and you must have been aware (intoxicated or not) that this was a violation of these young women. Then it progressed to touching them sexually when they could not and did not consent to it. You photographed these acts too and what is more you kept those images. You were aware you took them and retained them when sober. I can only conclude you enjoyed some satisfaction or comfort in having memories of your offending.
184The circumstances in which you committed these offences are serious, concerning, and depraved.
Charge 3
185There is of course an inter-relationship between the acts constituting Charge 3 (administer intoxicating substance) and the later charge of rape. It is a separate offence that carries a maximum penalty of 10 years. It requires separate consideration in the sentencing calculus. Its seriousness is informed by matters such as:
(a) The substance administered (and the harms associated with it);
(b) The manner in which you administered the substance;
(c) Your relationship with the victim;
(d) Your knowledge of the substance and its effects;
(e) The actual effect it had on the victim; and
(f) The sexual activity you expected to engage in after administering the drug.
186In this case you furtively mixed a substance you were familiar with (indeed prescribed) and provided it to a young woman who had just moved in with you (and was obviously not prescribed that drug herself).
187It is harder to discern precisely what form of sexual activity you expected to eventuate from this behaviour. I have resisted the temptation to reason backwards that because there was penetrative sexual activity in your bed that this is what you envisaged when you drugged her.
188I am conscious to impose a sentence that does not doubly punish you for this offence.[39] There ought to be a measure of cumulation on the sentence I impose on this charge, upon Charge 4 in my view. The parties agreed that this was the correct approach for me to take.
[39]Pearce v The Queen (1998) 194 CLR 610.
Charge 4 - Rape
189It is worth underscoring that the offending in this case is objectively serious. Rape is an inherently serious offence.[40] The maximum penalty Parliament proscribes for the offence of 25 years is evidence of that alone. Indecent and sexual assault carry a maximum penalty of 10 years.
[40]The Queen v Frank (a pseudonym) [2021] VSCA 163 at [73] per Emerton JA.
190The offence of rape covers a very wide spectrum of difficult activities, committed in wildly different circumstances with varying degrees of seriousness. Determining where any given case sits on that wide spectrum is 'difficult'.[41] The same can be said of the seriousness of any sexual assault offences.
[41]Clarke v The Queen [2022] VSCA 89 at [28].
191The offending against Ms Scott occurred in the context of heavy alcohol use by both you and the complainant. It occurred in what was her home too, not just yours.
192The complainant was not aware she had consumed a prescription medication on top of the alcohol she had drunk. This was by your design. She was drunk already by the time she consumed the medication. You should have later known that she was not consenting to any intercourse.
193It was asserted that by your counsel that the offence was not premeditated. It was conceded there is some link between the prescription medication administered and the rape, but it was claimed that this was not the purpose of administering the substance.
194As I have alluded to earlier, I have resisted the temptation to reason that because you raped Ms Scott, that the offence of rape must have been contemplated at the time you drugged her. Your sexual offending had up until that point in time involved non penetrative acts. It is obvious that there is an aspect of planning and pre-mediation to your sexual offending more generally, and that you were happy with whatever sexual activity occurred after you rendered your victim, Ms Scott, insensible with prescription drugs. The offending occurs in the context of:
(a) You researching the combined effects of temazepam and alcohol at a time proximate to the offending; [42]
(b) You mixing the alcohol and medication out of sight of the complainant;
(c) You giving that mixture to her without telling her you had done so;
(d) You pleading guilty to charge 1, which itself acknowledges that the drug was administered for the purpose of impairing your victim's ability to consent to sexual activity and in order to facilitate same.
[42]With the caveat that you yourself were not averse to mixing tour medication with alcohol.
195The Court of Appeal in Jurj v The Queen[43] sets out an inclusive list of features to be considered in assessing the gravity of an offence of rape, which was addressed by your Counsel below, who relied on the following matters:
(a) You did not act in company;
(b) There was no attack at all;
(c) There was no use of threats or violence;
(d) No weapons were used;
(e) The complainant had bruises the following day but no injuries;
(f) There was no humiliation in the course of the offence;
(g) You did not use a condom;
(h) There was some vulnerability given the complainant was intoxicated by medication and alcohol; and
(i) There were no protests or warnings ignored by you.
[43]Jurj v The Queen [2016] VSCA 57 at [80].
196These matters were called in aid of a submissions that this particular charge of rape falls toward the lower end but not the lowest end of the spectrum of seriousness for offences of this kind.
197Much of what was advanced in the preceding paragraph must be seen in the context of the way in which the offending actually unfolded. The victim was plied with a substance designed to facilitate sexual activity that she could not sensibly consent to. There was no need to attack, coerce or force anything upon here as she must have been so plainly substance affected. After all, that was the whole purpose of surreptitiously drugging her. The absence of some of the more aggravating features that sometimes accompany the offence of rape is obvious, but in my view, it certainly does not mean that this offending is towards the lower end of seriousness. Intoxicated or not, your moral culpability is extremely high. Your behaviour was deliberate, predatory and purposive.
198It took place within weeks of your offending against Ms Brooks.
199You had unprotected vaginal and anal sex with your victim, placing her at risk of pregnancy or sexually transmitted diseases.
200This violation in such an offence is physical, emotional, and psychological. In this case, the offending has had and will continue to have, a serious impact on her.
Rolled-up counts
201Rolled up charges are different from representative charges because they are a collection of identifiable charges bundled together in a single charge. Rolled-up charges also require the offender's agreement and are only for the purpose of a guilty plea. They simplify the sentencing court's task and work to the benefit of the offender by allowing multiple instances of similar offending to be dealt with as a single charge. That is obviously the case here, and it confirms the ultimately cooperative approach you have taken in resolving the matter.
202When sentencing on a rolled-up charge, I must consider all the circumstances of the offence and the offender, including if the offending was carried out over an extended period, victimised multiple persons, and the totality of the harm described in the charge.
203While the Court may consider all the relevant circumstances of a rolled-up charge, the pleading must still be treated as presenting a single formal charge. The maximum penalty is therefore limited to the maximum for a single charge, in this case 25 years.[44]
[44]R v Beary (2004) 11 VR 151 at [14].
204In this case, I am sentencing you for two acts of penetration, occurring in the way I have outlined above. The totality of this conduct is unquestionably serious. I reject the notion it is towards the lower end of the scale of seriousness for this type of offending.
Charge 5
205You possessed a quantity of child abuse material that was itself disturbing in nature. Material of this kind is the product of a depraved market where children are abused in order to meet the demand for viewers. You possessed 13 videos. They were overwhelmingly what is known as 'category 4' videos – depicting girls between as young as 2 and up to 16 engaged in sexual acts with adults and other children and adult men. There is no evidence you sought them out or sent them on.
206You said that you do not have a sexual attraction to children, but as Mr Nibbs rightly points out in the Crown's sentencing submissions,[45] you made a conscious choice not to delete those files which is the best evidence of your intention to keep them. The number of images you had is not determinative of the gravity of this offending. They were stored and last accessed in 2017.
[45]Exhibit G – Prosecution Submissions on Further Plea dated 27 April 2023.
MATTERS OF SENTENCING PRINCIPLE
Current sentencing practices
207I was not taken to current sentencing practices for any of the offences. Nor was I taken to comparable cases or sentencing statistics. I have familiarised myself with the relevant sentencing snapshots and statistics[46] whilst acknowledging the limited assistance such data can provide.
[46]SAC Statistics “Rape” 1 July 2016 to 30 June 2021, Sac Stat “Sexual Assault” 1 July 2016 to 30 June 2021, SAC snapshot “Rape” August 2021 and SAC snapshot “Sexual Assault” August 2021.
208I have had regard to the data I have just mentioned to the extent they assist me, but emphasise this is a system of individual justice where the full circumstances of each offender and their offences must be considered.
Pleas of guilty
209This matter resolved in two stages. Firstly, there was an early plea of guilty offered to Charges 1 and 2 and 5.
210Charges 3 and 4 took longer to resolve. A committal was held in order to determine the degree of intoxication of both parties and check Ms Scott's movements on the night of the offending when there were naturally gaps in her account. The committal (along with other case management protocols and procedures adopted in this Court) assisted the matter to resolve on the factual basis that I cannot and will not sentence you on the basis that you dragged the victim into your bed, and I do sentence you on the basis that you ought have known she was not consenting.
211No trial ever took place. Thus, the pleas of guilty have been of substantial utilitarian value in that they have facilitated the course of justice by expediting the conclusion of these proceedings and by avoiding the need for any witnesses to give evidence at trial.[47]
[47]Phillips v The Queen [2012] VSCA 140; Cameron v The Queen (2002) 209 CLR 339, [11], [65]–[66].
212Further, during the currency of COVID-19, pleas of guilty are worthy of greater weight in mitigation and should attract a more pronounced and perceptible amelioration of sentence than at another time.[48] The plea of guilty in this matter will be given due weight. The sentence I impose is well short of that which I would impose at the conclusion of a contested trial if you were to be found guilty.
[48]Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175.
Delay
213There was a substantial delay between the time you were interviewed and when you were charged (three years). It was then a further seven months or so delay before you were charged with the further matters – which resulted in his bail being revoked and having to enter custody again.
214In this case, the delay in bringing the matter to court was a result of the Informant leaving their original station and no other officer properly managing the case in their absence for the years he was gone.
215The sentence must be reduced as a result of this delay. You have had the uncertain prosect of these matters being determined hanging over your head for nearly 6 years.
216Secondly, you used the delay to make progress towards reform. There have been no other offences since July 2017. It appears that you were deterred by your involvement with police from the time of your arrest.
217You then complied with bail conditions requiring you to not consume any alcohol for instance.[49]
[49]As well as other conditions imposed by CROP – see Exhibit 4- CISP Report dated 8 September 2020.
218Due to the substantial delay between the offending and the arrest, you have achieved a real degree of reform. The community no longer requires quite the same protection from you that it did in 2017.
219A further discount applies because of that rehabilitation that occurred during the delay.
220In R v Merrett, Piggott and Ferrari,[50] Maxwell P explained the relevance of delay in criminal sentencing in this way:[51]
On a proper analysis … the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. There is, of course, a strong public interest in criminal conduct being investigated and prosecuted as quickly as is reasonably practicable …
[50] R v Merrett, Piggott and Ferrari (2007) 14 VR 392.
[51]Ibid at [34].
221The relevance of delay lies rather in the effect which the lapse of time – however caused – has had on the accused. Delay constitutes 'a powerful mitigatory factor'. In particular, it focuses attention on issues of rehabilitation and fairness.'[52]
[52] R v Merrett, Piggott and Ferrari (2007) 14 VR 392 at [35].
222Further, Maxwell P made the following pertinent remarks concerning the importance of rehabilitation in sentencing, particularly where an offender has demonstrated efforts at rehabilitation between offending and sentence:[53]
[T]he sentencing court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing court does.
[53]Ibid at [49].
223The delay in your case, Mr Gastello, in bringing this matter to a conclusion will be reflected in my sentence for the reasons I have just articulated.
Hardship upon imprisonment
224You have now been on remand now for 905 days and all of that time has been throughout the pandemic.
225I accept that there has not been a more difficult time to be a prisoner than there has been since the pandemic afflicted this state. I am aware that I am committing you to a long term of imprisonment now, years after the offending and at a time when the prison system is still not operating as it once did. I will adjust and moderate the sentence I impose for this reason, which is separate to the issue of delay I have just alluded to.
Serious offender sentencing regime
226Once you receive a sentence of imprisonment for the first two charges on the indictment (indecent assault and sexual assault), you will fall to be sentenced as a serious sexual offender on each of the remaining charges on the indictment.[54]
[54]Sentencing Act 1991 (Vic) Part 2A, Schedule 1 cl1(a)(i) and cl1(a)(ii) and s6B(2) & 6C.
227In sentencing a 'serious offender' to imprisonment for a 'sexual offence', I must have regard protection of the community as the principal sentencing purpose.[55]
[55]Sentencing Act 1991 (Vic) s6D(a).
228This does not mean, however, that all other sentencing purposes have been excluded. Other sentencing purposes are still applicable and operative. The legislative intent is that the prison term is long enough to protect the community from the risk posed by the offender, but how long that is depends on the assessed risk of re-offending. If it is considered that the risk of offending is low, the protection of the community will weigh less heavily than it would if it was otherwise if it was assessed as high.
229The aim of the requirement that a court regard protecting the community as the predominant purpose is to ensure that it gives proper consideration to the question and undertake the 'requisite risk assessment'.[56]
[56]R v LD [2009] VSCA 311 at [27].
230When sentencing a serious offender to imprisonment for more than one offence for relevant offending, the court must order each sentence to be served cumulatively, unless it directs otherwise.[57] This is a prima facie rule, not a mere rule of interpretation, and there must be good reason (not couched in terms of clearing a threshold test of exceptional circumstances or the like) to order concurrency.
[57]Sentencing Act 1991 (Vic) s6E.
231There is a tension between the requirement of cumulation and the principle of totality, but as the objective gravity of the total offending increases, so will the degree of cumulation thereby producing a total effective sentence that meets both.
232In this case, the Crown does not submit that in order to achieve community protection a sentence longer than that which is proportionate should be imposed. Further, it is not in dispute that, with ongoing treatment, you will trend towards presenting a low risk of reoffending.[58]
[58]Exhibit 6- Psychological Report of Dr Joseph Sakdalan dated 28 March 2023 at [50] and [59].
233It was submitted that in all the circumstances of this case, the protection of the community would be best served by facilitating your ongoing rehabilitation. This, it was said, would best be achieved by imposing a low minimum term, making you eligible for return to the community under 'conditional supervision'. I agree that the community is best protected this way, and I will impose what I consider to be an appropriate and meaningful non-parole period.
234I have considered the serious offender provisions carefully and, as I indicated on the plea, I do not consider total cumulation of terms of imprisonment on episodes to be appropriate, nor would I be ordering total concurrency either.
235I have ordered such cumulation on the sentences imposed between all counts as is necessary and appropriate, and I have done so in way to comply with the principal of totality.
Totality
236I am mindful of the significance in this case of the application of the principle which requires me, when sentencing you for multiple offences, to ensure the total term I impose is just and appropriate measure of the total criminality involved. There must be appropriate relativity between the totality of all the criminality and the totality of the effective sentence I impose. This is true when I consider the interaction between charges on the indictment. I have determined an appropriate length of imprisonment for each charge, taking the applicable sentencing considerations into account and designated the highest term as the base sentence, and then I have determined the extent to which there should be any cumulation regarding each count, and I finally stood back and considered in light of totality what an appropriate sentence ought to be.
Synthesis of sentencing objectives, considerations
237Given the objective gravity of the offending in this case, it is recognised that denunciation, general deterrence and just punishment are all important sentencing considerations.[59]
[59]The Queen v Frank (a pseudonym) [2021] VSCA 163 at [73] per Emerton JA.
238The mitigating matters set out above, together with the application of the principles of parsimony and totality, operate to moderate the length of sentence (both as to head sentence and non-parole term) I impose.
239Having regard to your prospects, the absence of any prior or subsequent offending, and the risk assessment I can decrease somewhat the weight to be given to specific deterrence and be reasonably confident that I can fashion a sentence that promotes your prospects for reclamation.
240I agree with the Crown's submissions that you should certainly be given the necessary interventions and assistance in custody in order gain a better insight into your offending so that you may truly be reformed.
241As observed by French CJ in Hogan v Hinch,[60] 'Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.'[61] In that way due regard is also had to the statutory emphasis on community protection.
[60]Hogan v Hinch (2011) 243 CLR 506.
[61]Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [32].
SENTENCE
242Mr Gastello, I come now to the portion of my sentencing remarks where I pass sentence on you. There is no alternative to a sentence of imprisonment some length, to be immediately served. You are sentenced as follows:
243Charge 1, indecent assault of Ms Thomas, you are convicted and sentenced to two years.
244On the sexual assault, Charge 2, of Ms Brooks, you are convicted and sentenced to two years and two months.
245On Charge 3, administer drug to Ms Scott, you are convicted and sentenced to two years' imprisonment.
246On Charge 4, rape of Ms Scott, you are convicted and sentenced to eight years' imprisonment.
247
On Charge 5, possess child abuse material, you are convicted and sentenced to
14 months' imprisonment.
248The base sentence will be that imposed on Charge 4, namely eight years. I direct cumulation of the following amounts on the base sentence on each other. Six months on Charge 1, seven months on Charge 2, five months on Charge 3, four months on Charge 5. This should bring about a total effective sentence of nine years and 10 months.
249I have set the sentence out in the following table form for clarity.
Charge Offence Max Sentence Cumulation*
On base and each other1 Indecent assault of Jane Thomas 10 years 2 years 6 months 2 Sexual assault of Margaret Brooks 10 years 2 years 2 months 7 months 3 Administer drug to Michelle Scott *SSO 10 years 2 years 5 months 4 Rape of Michelle Scott (rolled up) *SSO 25 years 8 years 8 years
Base5 Possess CAM
*SSO10 years 14 months 4 months Total Effective Sentence: 9 years 10 months (118 months) Non-Parole Period: 6 years 4 months (76 months)
OTHER MATTERS
Section 6AAA
250I am obliged to give a declaration under s.6AAA of the Sentencing Act 1991. I can indicate that but for the plea of guilty, Mr Gastello, I would have imposed a sentence of 13 years and 4 months (160 months) with a non-parole period of 10 years (120 months).
PSD
251Pursuant to s18 of the Sentencing Act1991, I declare that you have served 905 days up to but not including today as having already been served in satisfaction of the sentence I have imposed.
SSO
252You are sentenced as a serious sexual offender on Charges 3–5 (inclusive) on the Indictment and that fact will be entered into the records of the Court.
Forfeiture
253Forfeiture order is granted pursuant to the orders sought of the laptop and the phone.
SORA
Application
254During the Further Plea proceeding on 3 May 2023, the prosecution made an application for you to be registered pursuant to s11(1) of the Sex Offenders Registration Act 2004 (SORA).
255The prosecutions submissions in relation to the SORA was that only a discretionary application to be considered, and that if granted, the applicable reporting period is life.
256The classes of the offences were outlined as follows:
(a) Sexual Assault (Charge 2): Class 4;
(b) Administration of an Intoxicating Substance for a Sexual Purpose (Charge 3): Class 4
(c) Rape (Charge 4): Class 3
(d) Possession of Child Abuse Material (Charge 5): Class 2
257Offenders found guilty of Class 3 offences are deemed to have been found guilty of Class 1 offences for the purpose of determining the reporting period. Offenders found guilty of Class 4 (or 'any other') offences are deemed to have been found guilty of Class 2 offences for that purpose.[62]
[62]Sex Offenders Registration Act 2004 s 34(4). See also R v Cheetham (2006) 13 VR 304.
258Given this, the Prosecution submitted that in this matter the 2 x Class 4 offences (Sexual Assault and Administration of an Intoxicating Substance for a Sexual Purpose) become Class 2 offences for the purposes of the reporting period.
259The result of two Class 2 offences then means that the Class 3 offence of Rape becomes Class 1 for the purpose of reporting period.
260Pursuant to s 34(1)(c) of the SORA one Class 1 offence and one or more Class 2 offences requires that the adult reporting period is for life.
The enquiry
261The inquiry as to whether to make a registration order involves a two-stage process.[63]
[63]Bowden v The Queen (2013) 44 VR 229; Sayer v The Queen [2018] VSCA 177 at [92].
262The first question is whether the court is satisfied beyond reasonable doubt that the person poses a risk to sexual safety as defined:
(a) For the court to be so satisfied, the risk must be real rather than fanciful; and
(b) The evaluation of risk is directed to the risk upon the offender's release into the community, assessed by what is presently known.
263The second question, which only arises if the court is satisfied that the requisite risk exists, is whether the order should be made in all the relevant circumstances:
(a) The second stage involves balancing the identified risk, having regard to the purpose of the Act, with the restrictions imposed on the offender's right to enjoy freedom and autonomy of action; and
(b) The balancing exercise involves considering the magnitude and nature of the risk, including the degree of likelihood of the risk eventuating and the gravity of the harm, to be balanced against the serious consequences for the offender.
264Mr Nibbs submitted that the Court must first be satisfied that the offences alleged were committed, and secondly, whether in all the relevant circumstances, the discretion to make a registration order should be exercised.
265He submitted that a discretionary registration order should be made in this case due to the serious nature of the offending, there being multiple victims in this case, and the real risk of reoffending as set out in the reports I have received into evidence. Although there are restrictions placed on you by any order, the balancing exercise means that those orders should still be placed upon you.
266In response, Mr Barker submitted that the Court is to consider all of the rehabilitative factors and establish rehabilitation present at this time in this case, including proof you can rehabilitate and the supports available to you to continue rehabilitation.
267Counsel further submitted that such an order would impede on your rehabilitation and would perversely increase the risk to the community because it will eliminate some rehabilitative and protective factors which may serve the community better in the long run. Mr Barker highlighted relevant circumstances such as your family, employment history (noting that it would impact your ability to maintain your employment which is a strong factor in his rehabilitation), actions post-offence, and your ability to remain in the community as a contributing member.
Length of reporting period
268The Prosecution submitted that there was no discretion as to length of the registration period, and that once a decision was reached to register you was made, the registration period would be for life based on the classes of the offences.
Mandatory order
269In supplementary submissions, the Prosecution now further submits that Charge 5 (Possession of Child Abuse Material) is a Class 2 offence for the purposes of the SORA. As a result, for that charge alone you are subject to a mandatory order (8 year reporting period) if the discretionary application is refused.
270Mr Barker agreed with this further submission and further, submitted that this was a matter I ought to take into account as a form of punishment. The submission is since withdrawn in light of the provisions of the Act. [64] It was said that the imposition of the mandatory order militates against the need to make the discretionary order for life. You will be subject to a period of parole and supervision for 8 years from today under SORA under the mandatory provisions.
[64]Exhibit 9- Defence Submissions on SORA dated 10 May 23 – a submission withdrawn given s.5(2BC of the Act prevent such an approach).
Orders
271I am minded to exercise my discretion in this case to have you registered for life. Having balanced the necessary considerations I conclude you still pose a risk to the sexual safety of the community that is real and not fanciful, remote or theoretical. Your offending is grave. Despite a finding that you present a low to moderate risk of re-offending, circumstances of the kind identified by Dr Sakladan are not hard to conceive of upon your release, which elevate that risk. Should the risk of sexual re-offending in your case manifest in the way it did here, the potential harm to members of our community would be high.
272I am mindful of the impositions that such registration places on your autonomy and freedom, but in the balance, I consider that such an order is justified in this case and I dd so in order to give effect to the purposes of the Act. I do not consider such registration for life will be counterproductive to your path to reform.
273MR BARKER: Your Honour, we lost Mr Gastello about 15 seconds ago. I will be able to relay to Mr Gastello what was said in the last moments, Your Honour, when I have a conference with him.
274HIS HONOUR: Any matters that counsel want to raise?
275MR BARKER: No, Your Honour.
276MR NIBBS: No, Your Honour.
277
HIS HONOUR: Thanks, gentlemen. I am sorry I raced through it, but we were told the link would end at 1 o'clock, which it did. Thanks for your assistance, both of you. You will have an unrevised copy probably tomorrow of my reasons. Adjourn the court please.
ANNEXURE
| IN THE COUNTY COURT OF VICTORIA | Court Reference: CR-21-02230 |
| AT MELBOURNE | CR-21-02229 |
| CRIMINAL JURISDICTION |
Prosecution of Marco Antonio GASTELLO
CHRONOLOGY
| Date of Document: Filed on behalf of: Prepared by: ABBEY HOGAN Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | 19 January 2023 Director of Public Prosecutions Solicitors code: 7539 Reference: Courtney Bristow Telephone: 0437 814 559 File Number: 2006209 & 2002986 |
| Date | Court Reference | Event |
| 11 January 2014 | CR-21-02230 | Offending (complainant Jane Thomas) |
| 16 May 2017 | CR-21-02230 | Offending (complainant Margaret Brooks) |
| 8 and 9 July 2017 | CR-21-02229 | Offending (complainant Michelle Scott) |
| 10 July 2017 | CR-21-02229 | Arrest and Record of Interview |
| 15 June 2020 | CR-21-02229 | Arrest and Record of Interview. Charged (Remanded) |
| 16 June 2020 | CR-21-02229 | Melbourne Magistrates’ Court - Filing Hearing & Bail Application - Application refused |
| 13 July 2020 | CR-21-02229 | Melbourne Supreme Court - Bail Application – Adjourned – Date Fixed |
| 15 July 2020 | CR-21-02229 | Melbourne Supreme Court - Bail Application – Application granted |
| 9 September 2020 | CR-21-02229 | Melbourne Supreme Court – Judicial Monitoring – Vacated administratively |
| 11 September 2020 | CR-21-02229 | Melbourne Magistrates’ Court – Committal Mention – Committal Listed |
| 16 October 2020 | CR-21-02229 | Melbourne Supreme Court – Judicial Monitoring – Vacated administratively |
| 18 December 2020 | CR-21-02230 | Charged. Arrest (Remanded). Melbourne Magistrates’ Court - Filing Hearing & Bail Application - Application refused. Application to revoke bail in CR-21-02229 adjourned. |
| 5 March 2021 | CR-21-02230 | Melbourne Magistrates’ Court – Committal Mention – Administratively adjourned |
| 8 April 2021 | CR-21-02230 | Defence Plea Offer (1) received. |
| 16 April 2021 | CR-21-02230 | Melbourne Magistrates’ Court – Committal Mention – Administratively adjourned |
| 13 May 2021 | CR-21-02230 | Case Abridgement Notice filed - Defence consent to abridgement. |
| 14 May 2021 | CR-21-02229 and CR-21-02230 | Melbourne Magistrates’ Court – Further Committal Mention – Charges relating to L11431384 and L12942911 joined together – Committal Listed |
| 10 September 2021 | CR-21-02230 | Defence Plea Offer (1) rejected. |
| 1 October 2021 | CR-21-02229 and CR-21-02230 | Melbourne Magistrates’ Court - Special Mention – to determine s342 applications – Administratively adjourned |
| 18-19 October 2021 | CR-21-02229 and CR-21-02230 | Melbourne Magistrates’ Court – Committal Hearing – Committed – Not Guilty |
| 16 November 2021 | CR-21-02229 and CR-21-02230 | Melbourne County Court – Initial Directions Hearing – Adjourned for Further Directions |
| 3 December 2021 | CR-21-02229 and CR-21-02230 | Melbourne County Court – Bail Application – Not reached |
| 13 December 2021 | CR-21-02229 and CR-21-02230 | Melbourne County Court – Bail Application – Vacated |
| 16 December 2021 | CR-21-02229 and CR-21-02230 | Melbourne Supreme Court – Bail Application – Adjourned for judgment |
| 22 December 2021 | CR-21-02229 and CR-21-02230 | Melbourne Supreme Court – Bail Application – Application refused |
| 19 January 2022 | CR-21-02229 and CR-21-02230 | Melbourne County Court – Further Directions Hearing – Adjourned for Further Directions |
| 8 February 2022 | CR-21-02229 and CR-21-02230 | Defence Plea Offer (2) received. |
| 4 April 2022 | CR-21-02229 | Melbourne County Court – Further Directions Hearing – Adjourned for Case Assessment Hearing |
| CR-21-02230 | Melbourne County Court – Further Directions Hearing – Adjourned for Case Assessment Hearing Matter resolved | |
| 11 May 2022 | CR-21-02229 and CR-21-02230 | Melbourne County Court – Case Assessment Hearing – Adjourned for Further Directions |
| 23 May 2022 | CR-21-02229 and CR-21-02230 | Defence Plea Offer (2) dated 8 February 2022 rejected. |
| 25 May 2022 | CR-21-02229 and CR-21-02230 | Melbourne County Court – Further Directions Hearing – Trial listed |
| 21 July 2022 | CR-21-02229 and CR-21-02230 | Melbourne County Court – Further Directions Hearing – Adjourned for Case Conference |
| 31 August 2022 | CR-21-02229 and CR-21-02230 | Melbourne County Court – Case Conference – Adjourned Defence Offer (3) received. |
| 8 September 2022 | CR-21-02229 and CR-21-02230 | Melbourne County Court – Mention – Listed for Sentence Indication |
| 27 September 2022 | CR-21-02229 | Matter resolved – To be listed for plea |
| 5 October 2022 | CR-21-02229 and CR-21-02230 | Melbourne County Court – Arraignment - Arraigned on consolidated Plea Indictment C2215478 – Listed for Plea Entered plea of guilty to all charges (Charges 1 – 5). |
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