Director of Public Prosecutions v Giuseppe (a pseudonym)

[2020] VCC 786

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANCIS GIUSEPPE (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF SENTENCE:	5 June 2020
CASE MAY BE CITED AS:	DPP v Giuseppe (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 786

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	Ms K. Thompson	Office of Public Prosecutions
For the Accused	Mr K. McLoughlan	Paul Vale Criminal Law

HIS HONOUR:

1Francis Giuseppe[1], you are to be sentence for four charges of indecent act with a child under 16 years, one charge of incest and one charge of sexual assault of a child under 16.  The maximum sentences are 10 years' imprisonment for indecent act and sexual assault of such a child and 25 years' imprisonment for incest.

[1] A pseudonym.

2You were arraigned and pleaded guilty for these offences on 17 October 2019.  When interviewed by police on 8 May 2019, you steadfastly and quite vehemently denied the offending, expressing shock and disappointment at your granddaughters' allegations.  There was no committal.  Negotiation occurred and the matter was resolved in October of that year.  I was told, and it was not challenged,  that you essentially admitted the offending to your lawyer early and what negotiation followed was directed at the form and  contents of the indictment to which you would plead.

3You receive the benefit of your plea of guilty and that level of cooperation in the proceeding.  Your plea has facilitated the interests of justice, accepted of responsibility and is an expression of remorse.  Your two grandchildren have not had to give evidence about what you did to them.

4At your plea hearing on 22 May, Ms Clancy for the Crown tendered a written summary of the prosecution opening and the victim impact statements of your granddaughters, Danielle Eyrie[2] and Moira Douglas[3], their parents and the sister of Danielle.

[2] A pseudonym.

[3] A pseudonym.

5Ms Avis for you tendered the reports of treating psychologist, Geoffrey Burrows, and forensic psychologist, Patrick Newton, dated 11 and 9 2020 and the letter of your general practitioner, Dr Peter Wolf, together with a clinical summary and a spinal X-ray report.  She tendered a number of letters of character reference.

6Both counsel provided written submissions on sentence.  Ms Avis also provided a written chronology.

7The circumstances of your offending are set out in the tendered Crown summary which is Exhibit A.  My own summary may therefore be shorter.

8As stated, Danielle Eyrie and Moira Douglas are your granddaughters, the children of your two daughters.  You committed these offences against them in the period of 2009 to 2018,  against Danielle in 2009 to 2014 and Moira in 2015 to 2018.  They were aged respectively between about eight and 14 (Danielle) and about six and nine (Moira).  You were aged between 66 and 75 years of age.  The sexual conduct against them occurred mainly at your homes in Box Hill and then Heathmont;   but also at Danielle’s home in Lara.  There was also an occasion against her,  not specifically charged,  at a youth camp in Doncaster.  Moira and her family lived for a time with you in Box Hill.  That was in 2010 to 2017.

9Charge 1 is a representative charge.  On four occasions in the period, you touched and/or rubbed the breasts and nipples of Danielle.  On the first occasion of it, this is Charge 1, you also put your hand in her underpants and touched her buttocks,  an uncharged act.  On the last occasion, also an uncharged act, you were touching Danielle’s thigh.  When you went to fondle her breast, she told you to stop.  She was then 14.

10As to Charge 2, on Christmas Day of 2010 or 2011,  when Danielle was nine or 10 years, you touched her nipple, this time over her clothing, massaged her back and played with her vagina also over her clothing.  You moved your hand back and forth across her vagina.  This act is Charge 2.  A number of occasions began or were associated with rubbing her back. 

11On Charge 3, you progressed to sexual penetration of her and therefore the offence of incest.  Danielle was about 12.  On a couch of her home in Lara, you began to massage her back, touched her nipples and then pulled her pants down.  You again played with her vagina and touched within the vaginal lips around her clitoris.  Her father came into the room and you explained that you were giving a back rub.

12Charge 4 happened at a Lara restaurant.  Sitting next to her which you had requested, you slid your hand on her upper, inner thigh.  This continued intermittently throughout the meal.

13Charges 5 and 6 were committed against Moira Douglas.  Charge 5 is representative.  There were two occasions of touching her vagina.  The charged act lasted 10 to 15 minutes under her clothing.  Another time,  in late 2015 or early 2016, the uncharged act, Moira's father saw you seated on a recliner with the child on your lap reading to her.  Her legs were spread and you were circling your finger over her vagina on top of her pyjama shorts.  When Moira’s parents later confronted you, you denied doing it.  You said that you could not believe that they would think you capable of it.

14Charge 6 was in about December 2018. Moira was nine. At your Heathmont home, you began touching her stomach, then moved your hand under her clothing to the top part of her vagina. This lasted five to 10 minutes. Because of change of legislation, this is alleged sexual assault of a child under 16, under what is now s.49D of the Crimes Act. 

15As to the representative nature of some charges, you are to be sentenced only for the offences alleged on the indictment and to which you have pleaded guilty.  However, it cannot be said on your behalf that the relevant representative charges were isolated occasions; rather, part of the broader conduct described.

16In late April 2019, Moira told a friend at school about the sexual abuse of her.  She then told her father.  This led to Danielle’s family being contacted.  Both girls were interviewed by police on 30 April.  Danielle was interviewed again on 3 September.  As I have stated, you were interviewed by police on 8 May 2019.

17The tendered victim impact statements provide a telling picture of the harm caused to  victims and their families by offending such as yours.  Most were read by your victims to the court.

18Danielle Eyrie, now 19, has suffered and,  in many respects,  continues to suffer major impacts on schooling, work, family and social life.  There have been intrusive memories and flashbacks.  There are problems with intimacy, loss of trust, irrational feelings of guilt, fear and loss of security for the future.  There are psychological symptoms such as depression, anxiety and problems with eating.  There is loss of self-esteem and of a sense of safety.  The proceeding has caused stress and impact on family relationships.  I am not complete.  Moira Douglas is much younger at 11 years.  She states how hurt and sad she felt when you did these things to her.  That you have damaged her should be presumed.

19Their families,  which include your own daughters, have also suffered major impact.  There was a great shock at discovery of what you did.  Your daughters and their husbands feel deceived and betrayed;  and are angry.  A once valued relationship has been lost.  Feelings of guilt have affected people.  There is sadness for their children and for others in the family.  Already existing depressive illness has been worsened.  Her sister feels great sadness at Danielle’s stolen innocence.  Both fathers valued their friendship with you and feel that betrayal.  There are feelings of fear, disbelief, helplessness and isolation.  The family presents as a religious one.  Some feel of that to be compromised.  The investigation and proceedings have caused further impact.  Family relationships are damaged and seen as broken.  Correspondence to your family, in breach of bail conditions,  has only caused further victim impact.

20As I have said, I am not complete.  The victim impact here has been very substantial and must be taken into account in my sentence of you.

21An implicit aspect of the victim impact has been the former high regard in which the family held you.  There is accordingly some resonance in the attitude you took to earlier confrontation and then the formal police allegations; that is in the record of interview.  In my view, you exploited that regard,  or at least had the benefit of it,  in your emphatic denials and somewhat pious expression of disappointment.  This was raised with counsel at the plea hearing.  At one point of the record of interview, you raised the depressive condition of your daughter, Moira’s mother, and at another what seems one of your granddaughter’s alleged sexual approach to you, at age eight or nine.

22I see your denial to Moira’s parents in 2015 or 2016, Charge 5, and its tone to be an adverse feature to your repeated offending in Charge 6.  I see this and your answers in the police interview to be relevant to the assessment of the quality of your stated remorse.  It is also relevant to the level and kind of victim impact here.

23You are a 76, almost 77 year old man without a criminal history who was placed into remand custody to await sentence on 22 May,  after the plea hearing. 

24You were raised in Perth and have one younger sister.  You obtained the third year high school certificate, Year 9, and started your first employment at 15 or 16 as a copy boy with the West Australian newspaper.  You moved to Melbourne with your family soon after.  You completed an apprenticeship with the Victorian Government Printing Office and worked consistently for 50 years in the printing industry,  retiring in 2008.  You met your wife in a church group and married in 1966.  You have three children, your daughters and a son, and now 10 grandchildren.

25You and your wife have remained living together and it is expected that upon release from prison, you will resume that.  However, it is unsurprising that what you have done has impacted upon your relationship.

26You are a religious man having been raised in the Baptist Church community.  You have been prominent in that but have been forced to stand down from leadership positions.  You are supported by your pastor who counsels you.

27Your explanation for the offending to forensic psychologist, Patrick Newton, included that your wife had lost interest in a sexual relationship and you felt frustration about that; that you perceived a positive response from your older granddaughter  (There was no stop sign', you said);  that you came to feel a sort of mutual agreement between you.  You had difficulty in seeing or at least discussing damaging effects upon your victims of what you did.

28Part of Mr Newton's assessment in respect of this and your offending more generally is at paragraph 38 as follows.  I quote unfortunately a relatively long passage,

'The offending to which Mr Giuseppe has pleaded guilty encompasses a variety of types of sexual contact with two of his grandchildren.  They were both clearly prepubescent at the time.  The behaviour persisted for an extended period and then progressed from touching them outside their clothes to at least one act of sexual penetration.

'While Mr Giuseppe rationalises his conduct as being affectionate, he also acknowledged that he derived sexual gratification from it and that it assuaged his loneliness and other emotional needs which had been unmet since his wife brought an end to their sexual relationship.'

'Even with the benefit of his treatment and education with Mr Burrows, Mr Giuseppe conceives of the child complainants as being willing and mutual participants in the activities  who were able to give some form of consent for the continuation of the sexual activities between them rationalising that they  therefore welcomed  this contact between them, he believed that he was free to pursue his own sexual and emotional desires…..

These aspects of the offending are seriously problematic.  They point to entrenched problems with Mr Giuseppe’s psychosexual adjustment suggesting significant disorder, deviant arousal patterns and prominent offence supporting cognitive distortions about young children and the effects of sexual contact between them and adults.  Such concerns are magnified by Mr Giuseppe’s difficulties outlining the basis for the laws surrounding the age of consent and the superficiality of his understanding of the potential effects of his conduct upon the complainants.'

29Mr Newton diagnoses a psychosexual disorder as follows,

'paedophilic disorder, non-exclusive type, sexually attracted to females limited to incest.'

30Testing and his clinical judgment, particularly bearing in mind that diagnosis, is that you are of moderate risk of reoffending.  He states that you have depressive symptoms reactive to your legal and family situation but short of psychological  disorder. There was a strong need for a therapeutic sexual offending program.

31You have voluntarily commenced that with Mr Newton's associate, Geoffrey Burrows.  There have been about 15 sessions since July 2019.  Consistent with Patrick Newton, Mr Burrows reports,

'Relatively slow progress and limited understanding of the destructive impact of child sexual abuse.'   There is said to be developing insight.

32At 76, you have a number of physical health problems.  They are set out in the tendered materials and written submissions.  They include degenerative back and neck conditions, malignant melanoma which have been treated, high blood pressure and cholesterol, peripheral neuropathy affecting your feet, epilepsy and an injured knee which may require surgical replacement.

33As my earlier description of your crimes and their consequences must make clear, this was very serious offending.  It breached a trust (care and nurturing of a family's children) which is critical to any community.  It betrayed your children's trust.  It invaded and insulted innocent children.  The victim impact is high.  Contrary to your attempt to explain to the psychologist, both children emphatically did not want this to happen to them.  There is evidence of their attempts to resist and to stop you.   Such circumstances make important the sentencing considerations of your high moral culpability, deterrence, particularly general deterrence, the need to condemn what you did and proportionately punishment. 

34A sentence of imprisonment with a minimum term is the only appropriate one.

35You are to be sentenced as a serious sexual offender under Part 2A of the Sentencing Act on Charges 3 to 6 and community protection thereby becomes the principal sentencing purpose on those sentences.  I do not see it as necessary to impose a longer than proportionate sentence to achieve that.  Also I will not direct fully cumulative sentences, bearing in mind the competing principle of totality.

36On Charge 6 only, sexual assault of a child under 16, you are to be sentenced in accordance with the Standard Sentencing Provisions under s.5A of the Act.  The Standard Sentence is four years.  It is one of the factors relevant.  One difficulty is that I must ultimately impose appropriate individual sentences;  but also a just total sentence for all six charges, including Charge 3 incest, committed over a prolonged period against two victims.   I have also been asked to bear in mind the significance of amending legislation which created the offence under Charge 6 and the effect that upon the resolution negotiated.

37I take into account moderating matters, mainly personal to you.  They include the following.   

1.   Your plea of guilty and cooperation.  It is conceded that your plea should be seen as early. 

2.    The question of your remorse is raised.  Bearing in mind my earlier remarks and the expert opinions before me (made as recently,  in Mr Burrows' case,  as 11 May)  I am guarded about whether your remorse is a genuinely insightful one.  It is hard not to see a strong self-focus about your offending and subsequent response.  It was put that proper insight and remorse is developing.  As I have said, I am guarded but do not utterly discount that,  given ongoing sexual program treatment.

3.    Consideration of your prospects for rehabilitation is affected similarly.  You have no criminal history,  which is not unusual in sexual offending in this setting.  However, you are entitled to the appropriately balanced benefit of that good character.  A pragmatic view would suggest that,  given your age, your family's response and rejection of you and the likely impact of  the proceeding and this sentence, further offending is less likely.  You present as a person likely to be specifically deterred by these things.

4.   Your age is relevant and raises issues of health and a likely greater hardship in prison.  You should be seen for example as in a vulnerable category regarding the COVID-19 health situation,  and as it presents in the prison system.  I accept that there will be added stress and anxiety.  You will be subject to the more restrictive circumstances presently imposed including, for example, lesser family or other such contact, less available programs et cetera.

5.    I must apply the principle of totality which impacts upon what is directed on cumulation or concurrency and the need for some moderation of individual sentences.  As I have said, the ultimate aim is a just total sentence.

38I have been provided with so-called comparative cases on sentencing for these offences.  However, I also bear in mind the need to sentence individually to your case. 

39I told you yesterday that the effective total sentence is  six and a half years with a minimum term before eligibility for parole of four years.  I now formally sentence in relation to the offences.

40After considering what I see to be the relevant and competing matters, I sentence you as follows.  On Charges 1 and 2, you are sentenced on each to two and a half years' imprisonment.  On Charge 3, you are sentenced to four and a half years' imprisonment.  On Charge 4, you are sentenced to 18 months' imprisonment.  On Charge 5, you are sentenced to three years' imprisonment.  On Charge 6, you are sentenced to two and a half years' imprisonment.

41I direct that six months of the sentence for Charge 1 and 18 months of the sentence for Charge 5 be served cumulatively upon the sentence of four and a half years for Charge 3, incest, and upon each other.  That is a total effective sentence of six and a half years.  I set a minimum term before eligibility for parole of four years.

42I will return to the s.18 pre-sentence declaration in a moment.

43Under s.6AAA, I am obliged to indicate what sentence I would have imposed had your not pleaded guilty.  This is never easy.  Doing the best I can, I indicate I would have imposed a sentence of eight years with a minimum term of six years if you had not pleaded guilty.

44What is the present s.18 pre-sentence detention period please?

45MR McLOUGHLAN:  Your Honour, I have it as 13 days not including today, Your Honour.

46HIS HONOUR:  All right, I always declare the day of sentence.  So I declare under s.18 14 days of the sentence already served.

47Ms Thompson, are there other orders sought, a forensic sample order for example or has that already been taken, what is the situation?

48MS THOMPSON:  Your Honour, I believe if you are found guilty of an indictable offence, there is no need as of July for a forensic sample order.

49HIS HONOUR:  Well there are no other orders to make then, is that right?

50MS THOMPSON:  No, there are no other orders, Your Honour.

51HIS HONOUR:  All right. 

52Might I say this to the victims of this offending and to their families.  It is never easy, I think impossible for others to truly recognise and certainly feel the impact of offending like this.  What you all stated in your victim impact statements was not only telling but a dignified and insightful statement of what harm was caused.  I wish you all the very best for the future.

53I now adjourn the court.

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