Director of Public Prosecutions v Granieri
[2019] VCC 1105
•23 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Un Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 17-01694
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW GRANIERI |
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JUDGE: | HER HONOUR JUDGE RIDDELL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 23 July 2019 |
CASE MAY BE CITED AS: | DPP v Granieri |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1105 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Coppini | |
For the Accused | Mr J. Stavris |
HER HONOUR:
1Matthew Granieri, you have pleaded guilty to three charges of indecent act with a child under the age of 16.
2Those offences were committed between 1 January 2013 and 31 December 2014. They were committed against two separate victims who were the stepdaughters of your friend.
3The offending involved you having one child touch your penis and you touching and licking the vagina of the other child. At the time those girls were between 9 and 12 years old. You were a man in your late 50s.[1]
[1] Date of birth - 13 March 1956
4The context of this offending is as follows.
5The two victims, Amber[2] and Ebony[3] are biological sisters. Their mother is Francesca Denise Trevisan.[4] Amber was born in June 2002 and Ebony in June 2003.
[2] Pseudonym used
[3] Pseudonym used
[4] Pseudonym used
6Between approximately 2009 and 2014 Ms Trevisan was in a relationship with your friend and co-accused, Sean Keats.[5] Mr Keats was living at
Ms Trevisan's premises in Airport West. He and Ms Trevisan have one child together, born in August 2010.[5] Pseudonym used
7You were a friend of Mr Keats. You would often visit the Airport West home, staying on after Ms Trevisan went to bed. You and Mr Keats would watch TV and have a drink together.
8On one such occasion, when Amber was aged between 10 and 12 years old, you entered her room. Amber was in bed. You made her touch your penis through your clothes and play with it. That is Charge 1. Her mother was asleep in another part of the house.
9On the same night you observed that Mr Keats spent some time in Ebony's bedroom on his own with Ebony before leaving the room. You then entered Ebony's bedroom. She too was in her bed. You touched the outside of her vagina. That is Charge 2. After touching her vagina you then licked the outside of Ebony's vagina. That is Charge 3. Ebony pushed you off and you left the room.
10You said to psychologist, Matt Staios, that you had not been drinking on that night.
11Both Amber and Ebony have made separate allegations against Mr Keats. Those relate to seven charges of indecent act with a child under 16 and nine charges of incest. There are some similar allegations of him coming into their bedrooms and offending against them.
12Mr Keats is pleading not guilty to those charges. Indeed, he ran a trial in July and August of last year and the jury could not reach a verdict. His matter is again listed for trial in September of this year.
13At some point Amber and Ebony disclosed to each other what was happening with you and Mr Keats. However, they were too scared to tell their mother. In mid-2015 Amber made a complaint to her cousin and in
May 2016, after some issues were raised at their school, both girls disclosed the offending to their mother.14You were arrested and interviewed by police on 17 May 2016. You made no comment and were released on summons.
15The maximum penalty for indecent act with a child under 16 is 10 years imprisonment. If I sentence you to a term of imprisonment on Charges 1 and 2 you will fall to be sentenced as a serious sexual offender on Charge 3.
16It is trite to say that sexual offending against children is serious.[6] These courts and the community much better understand the impact of such offending on a child is both immediate and can be long-lasting. Sexual offending against a child has the capacity to impact their meaningful relationships, their ability to trust others, their sexual relationships and their sense of self. While I do not have victim impact statements from either of these children I can accept the likely impact on them would involve some of those consequences.
[6] See for example Burnett (1993) 70 A Crim R 469; Ryan (2001) 206 CLR 267; DPP v Dalgliesh (a Pseudonym) [2017] HCA 41; DPP v Riddle [2002] VSCA 153; DPP v Toomey [2006] VSCA 90; Browne (a Pseudonym) [2015] VSCA 274; Clarkson; EJA (2011) 32 VR 361.
17In assessing the gravity of your specific offending against them I note the following.
18You were a family friend trusted to be present in their household, trusted by their mother to enter their bedrooms from time-to-time and to remain at the house even when she was asleep. You have breached her trust in a gross fashion. The secondary impact of such offending on her is no doubt significant.
19Both girls were pre-teens. You were in your late 50s.
20The offending occurred in the sanctity of their bedrooms, a place usually cherished by a young girl. It occurred in the very place where each of these girls was entitled to feel safe.
21You were aware that the family of the victims were struggling with a number of issues. You were aware that their stepfather was expressing sexual interest in them and that they were vulnerable to sexual activity. Though describing yourself as something of an ‘uncle’ or additional adult carer in that setting, you took advantage of them with specific knowledge of that vulnerability.
22The prosecution accept that each of the three offences occurred on the one night. They occurred close in time. Specifically Charges 2 and 3 occurred as part of the one event. Despite the closeness in time I am satisfied that there was opportunity for you to come to your senses in between the separate offences and to desist. I am satisfied that the girls were sleeping in different rooms and that you moved from one to the other, increasing your opportunity to stop what you were doing. You did not do so. Moreover, your offending escalated with the events of Charge 3.
23There is no penetrative event alleged here and in that sense the two touching offences are at a lower end of the range of seriousness in terms of a sexual offence. Specifically, the case law demonstrates that indecent acts with or in the presence of a child covers a wide range of factual scenarios. I have given consideration to the cases[7] provided by the learned prosecutor, also to DPP v Dalgleish (a Pseudonym)[8] and to the Judicial College Sentencing Manual. Comparisons, though helpful and instructive, always have their limitations. Make no mistake that touching a young girl on her vagina is a serious offence. The act of licking the victim's vagina is at a higher end of offending under the umbrella of indecent act. It must have been, for your young victim, a most confronting event. Fortunately, the offences seem to have been of short duration. Though I note the licking only stopped because your victim pushed you off her.
[7] In particular Lin Seng Soo v R [2014] VSCA 304; Brad Moore (a Pseudonym) v R [2018] VSCA 2; Dylan Elton Cole (a pseudonym) v R [2015] VSCA 44; Director of Public Prosecutions v Wightley [2011] VSCA 74
[8] Director of Public Prosecutions v Dalgleish (a pseudonym) [2017] HCA 41
24You have given your own explanations as to how these offences occurred. You have attempted to shift blame to your victims, claiming that the first victim not only called you to her bedroom, but then grabbed your penis and played with it. I reject both aspects of that claim entirely.
25Further, you claim that your hand came into contact with the second victim's vagina as you were tucking her in and that you licked her vagina in the context of blowing raspberries on her stomach. I reject those claims entirely.
26By your pleas of guilty you accept that you deliberately touched these girls in the way that they allege and which has been outlined in the prosecution opening tendered, with your consent, on the plea and it is on that factual foundation that you fall to be sentenced.
27The prosecution accept that this offending was opportunistic rather than predatory or premeditated. That is a significant concession, but an appropriate one in my view. Nonetheless, it is clear that your moral culpability for this offending is high.
28I must impose a sentence which takes into account general deterrence and specific deterrence. These courts must express the community's denunciation for this type of offending, committed in secret against children where there is a complete power imbalance and where it is very difficult for complaint to be made.
29Your matter proceeded to a committal hearing in August 2017, however without the victims being cross-examined. During February and March 2018 there were extensive negotiations between your representatives and the Office of Public Prosecutions to settle the matter.
30Of note, on 6 February 2018, a plea offer was made by you, as well as an offer to give evidence for the prosecution against your co-accused. Both were rejected at that time. A counter plea offer made by the prosecution was accepted by you on 20 March 2018 and a plea opening and final plea indictment were provided to your representatives on 29 March 2018. You were arraigned and pleaded guilty on 4 April 2018, which was the original trial listing date.
31This is not a plea entered at the first available opportunity. However, I accept it is still an early plea. Most importantly it was accompanied, even at that early stage, by the offer to assist the prosecution.
32You are entitled to the benefit of your plea of guilty. By that plea you spared the two victims and their mother, and other family members, from giving evidence and being cross-examined in relation to your specific offending. You must and will receive the benefit of having avoided any additional trauma to those witnesses through the legal process in your case.
33Similarly, your plea of guilty has the utilitarian benefit of avoiding the cost and time taken up with a criminal trial.
34Turning to your personal history.
35You are a 63 year old man of Italian-Australian background, born and raised in Melbourne. You are the elder of two brothers. You parents were hardworking migrants who provided you and your brother with practical and emotional support throughout the course of your life. Your formative years, you report, were positive and stable. Your mother passed away in 1989 and your father in 2014.
36You left school after completing Year 11. You moved out of the family home at 21 years of age. You were married for a period of approximately 20 years and have a son, Jared, who is now 34 years of age. You say that marriage was positive, however eventually broke down leading to divorce. Following separation you became aware that your wife was carrying on an extramarital affair, which led to a period of depression for you.
37You remarried in 2000, with this union lasting for a period of approximately eight years. There were unresolved issues in that marriage which ultimately led to its demise.
38You have now been involved with your current partner, Linda, for approximately six years. You reported that you provide each other with practical and emotional support and also that you share a positive and fulfilling intimate relationship.
39You have a number of strong friendships dating back to your primary school years. You say these friendships are supportive and positive influences in your life.
40You have a strong relationship with your son Jared and through him with your granddaughter, now aged eight, and your grandson, aged five. You see Jared and the children regularly, including picking the children up from school.
41You have a very solid work history, working full time throughout the course of your adult life primarily in retail sales roles in the menswear industry. You initially worked in entry level positions before progressing to management roles. You are currently employed full time as a sales assistant at Sires Menswear. You have been with them for approximately 30 years. No doubt as some testament to your positive work and your positive relationship with that employer you have been able to advise them of this offending and they remain fully supportive of you and of your continued employment with them.
42You have not committed any offences of any kind before or since this occasion. That fact and your personal history, which I have just outlined, bode well for your prospects of rehabilitation and allow for the reduced importance of specific deterrence.
43Specifically there are a number of matters in your favour which point positively towards your prospects of rehabilitation. Your plea of guilty, as I have outlined. Regardless of your limited insight you have by your plea of guilty admitted your wrong doing. I accept that your plea is a reflection of remorse.
44You have made such expressions of remorse, importantly expressing empathy for your victims and some level of understanding of potential consequence for them.
45Your counsel has made clear that you are willing to make a payment of compensation to the victims. Finalisation of any payment is only being delayed by the trial of your co-accused, Mr Keats. I consider that undertaking by you represents a real demonstration of remorse. It goes beyond mere words to actions intended to assist those against whom you have offended.
46You have also expressed your remorse for others affected by your actions. By this I understand it includes the girls’ mother, who had become your friend, and also your son and partner and the impact on them.
47Importantly, you have willingly engaged in psychotherapy since May 2018, as soon as this matter resolved. This was undertaken voluntarily by you and at your own expense. You have been seeing a psychotherapist, social worker from that date initially weekly, but since about December 2018 on a fortnightly basis. You have required time away from work to attend on her. You have been committed to that treatment and that therapy is ongoing. Your work with her has focused on emotional regulation, as well as going to some of the issues around your offending.
48You have not undertaken offence specific treatment, which may account for the lack of insight you have demonstrated. But I understand you have not been referred to any such treatment. It is clear that you are struggling to fully grapple with the underlying reasons for your offending. Until you do you will remain at risk of reoffending. For that reason offence specific treatment is critical.
49One of the most important factors on your plea is your offer to assist the prosecution in their case against Mr Keats. That is significant. It demonstrates your regret for your own offending and your broader acknowledgement that such behaviour against children is unacceptable and in this sense it points positively towards your rehabilitation and to lowering your own risk of reoffending.
50This is an unusual sexual offence case against known children victims, involving as it does two co-offenders. Rarer still in those circumstances is a willingness on the part of one offender to give evidence tending to inculpate the other. As a matter of policy courts must recognise such cooperation and encourage it by allowing for a significant discount in sentence.[9]
[9] R v Duncan [1998] 3 VR 208, at 214-215; R v Nagy [1992] 1 VR 637; Evans & Tsagaris (2000) 112 A Crim R 234; R v Feretzanis [2003] VSCA 8 at 31 and 34; R v Markarian (2005) 228 CLR 357
51Your offer to cooperate was made in February 2018. Initially rejected it was the prosecution who made contact after the trial of your co-accused, Mr Keats resulted in a hung jury in August 2018. You have now made a statement outlining a number of discussions you had with Mr Keats, wherein he made sexual comments about the two victims; his stepdaughters. You have sworn the truth of that statement and undertaken to give evidence in his trial in September. That is not an easy thing. You will likely give evidence at a s.198 preliminary hearing and again in front of a jury. You will likely be extensively cross-examined.
52There is no suggestion that your safety will be threatened, but I accept as common sense that a person who has cooperated with prosecuting authorities may be subject to unwanted negative attention if in a custodial setting.
53You are entitled to a discount in your sentence reflective of your cooperation. In assessing the nature of that discount I must assess the value of your cooperation. As discussed with counsel that is not an easy task here. Your statement has some limitations, however, I have no details about the taking of it or what you were asked to detail.
54The prosecution have indicated they intend to call you at the trial of Mr Keats. The prosecutor at your plea accepted my characterisation of your evidence, namely that taken at its highest your evidence is capable of demonstrating
Mr Keats had a sexual interest in his stepdaughters. Given Mr Keats denies all and any sexual misconduct, that evidence if accepted by the jury, is likely to be important. In that sense your cooperation is of some real value to the prosecution. The sentence I impose will reflect that fact.[10] To my mind your cooperation and your plea of guilty are the most significant aspects of your plea. In the absence of those features, the likely sentence I would impose would be one of immediate imprisonment.[10] Co-operation which is somewhat limited has been held to warrant a discount nonetheless. See for example R v Su [1997] 1 VR 1; R v Belal El-Ahmad [2004] VSCA 93
55You have been assessed twice by psychologist Matthew Staios. He assesses you in his most recent report as being of low to moderate risk of sexual reoffending. You have not had the benefit of offence specific treatment to specifically address issues around your offence pathways, potential triggers and protective factors. Your ongoing lack of insight reflects that fact. Until you grapple with those factors you will remain a risk of reoffending. That is concerning, in particular as you have direct and unsupervised access to a female child approaching a similar age to the victims here. I understand you have expressed a willingness to undertake sexual offence specific treatment.
56I do not accept your counsel's contention that your rehabilitation is my ‘paramount’ consideration. I must impose a sentence which punishes and deters, while allowing for your rehabilitation by recognising the mitigating factors.
57However, in my view all principles of sentencing can be met here by the imposition of a community correction order. That disposition has capacity to punish, as well as to cater to specific rehabilitative objectives.[11] Here that will include the undertaking of a sex offender program. It is in your interest, those close to you and the community’s interest that you undertake such a course.
[11] Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342; McGrath v The Queen [2015] VSCA 176; DPP v Borg [2016] VSCA 53
58I note also that having been found guilty of two class two offences you are subject to mandatory registration under the Sex Offenders Registration Act. The period of that obligation is 15 years. That too provides for some protection of the community, as well as reinforcing specific deterrence and just punishment.[12]
[12] Though this is an ancillary order and I do not take it into account in determining the appropriate sentence as per s.5(2BC) Sentencing Act 1991
59Can you stand please, Mr Granieri.
60In relation to the three charges before me I propose to impose an aggregate sentence. You are convicted and the sentence I impose is one of a three year community correction order.
61The conditions of that order, as well as the mandatory conditions, will be that you undertake 250 hours of unpaid community work. Specifically that you undertake offence specific programs, namely sex offender treatment and also that you undertake mental health assessment and treatment as directed by the office of Corrections.
62In relation to those treatment aspects of your order I allow for the offset of up to 100 hundred hours of treatment against the unpaid community work. So in other words it provides an incentive for you to undertake more treatment so that that will come off the hours of unpaid community work.
63Mr Granieri, do you agree to undertake that order?
64OFFENDER: Yes, I do.
65HER HONOUR: And do you understand any breach of that order, whether it is by any further offending or by not complying with the condition, will bring you back to me to be resentenced.
66OFFENDER: Yes - yes.
67HER HONOUR: All right, have a seat there and I will have the order printed out. While that is being done I will also indicate pursuant to s.6AAA, but for the pleas of guilty in this matter the sentence I would have imposed would have been one of three years' imprisonment with a minimum non-parole period of
18 months.68Any issues counsel?
69MR STAVRIS: No, Your Honour.
70MS COPPINI: No, Your Honour.
71HER HONOUR: All right, thanks.
72MS COPPINI: There's just the forensic sample order that was applied for.
73HER HONOUR: I thought it was an automatic - I might be confusing that with another matter but ‑ ‑ ‑
74MS COPPINI: I don't believe a sample was taken, Your Honour, so there was an application for a fresh sample.
75HER HONOUR: I am sure you are right, Ms Coppini. No, ancillary orders - yes, forensic sample order will be sought, yes. I think from memory there was no opposition to any of the ‑ ‑ ‑
76MR STAVRIS: No, there was no opposition.
77HER HONOUR: Yes, all right. So I will make that s.464ZF order.
78MS COPPINI: Thank you, Your Honour.
79HER HONOUR: Mr Granieri, so your signature on this order represents your promise and agreement to undertake that order.
80OFFENDER: Yes.
81HER HONOUR: You understand that?
82OFFENDER: Yes.
83HER HONOUR: All right and you will also be provide with the package of materials in relation to the Sex Offender Registration Act. All right. All right, thanks very much. Thanks, counsel.
84MR STAVRIS: May it please the court.
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