Director of Public Prosecutions v Jarrett (a pseudonym)
[2023] VCC 752
•21 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GERALD JARRETT (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE HOLDING | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 December 2022; 19 January 2023; 25 Janaury 2023 | |
DATE OF SENTENCE: | 21 February 2023 | |
CASE MAY BE CITED AS: | DPP v Jarrett (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 752 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentencing.
Catchwords: Rape – sexual assault – in the course of professional massages – multiple complainants – resolution on the eve of the trial – significant impact on victims – victims broadly defined – troubled childhood of offender – sexual dysfunction – first offence – relevant mental conditions of the offender.
Legislation Cited: Crimes Act 1958 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).
Cases Cited:Berichon v The Queen(2013) 40 VR 490; DPP (Vic) v Pell[2019] VCC 260; R v Mason [2001] VSCA 62; DPP v Davis [2017] VSCA 34; R v Verdins (2007) 16 VR 269; Sayer v R [2018] VSCA 177; Bowden v The Queen (2013) 44 VR 229; Formosa v R (2012) 36 VR 679.
Sentence: 5 years and 11 months’ imprisonment, with a non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Y. Hardjadibrata | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms T. Skvortsova | SLKQ Lawyers |
HIS HONOUR:
1Gerald Jarrett,[1] you have pleaded guilty to:
(a) Two charges of sexual assault, (charges 1 and 2, contrary to s 40 of the Crimes Act 1958 (Vic));
(b) One charge of rape, (charge 3, contrary to s 38(1) of the Crimes Act 1958 (Vic)); and
(c) One charge of possessing a drug of dependence (charge 4, contrary to
s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)).[1] A pseudonym, adopted to ensure that victims of sexual offences cannot be identified.
2The maximum penalties for these offences are 10 years' imprisonment for sexual assault, 25 years' imprisonment for rape, and one year’s imprisonment for possession of a drug of dependence in the circumstances of this case, where it is not alleged that your possession was for a purpose related to trafficking.
3Your charges were listed for trial in the Shepparton Circuit of this court in September 2022. The matter proceeded to the point where some pre-trial rulings were delivered by me in relation to the admissibility of tendency evidence and evidence of incriminating conduct. After those rulings were delivered, and on the day the jury was to be empanelled, negotiations took place between your counsel and the prosecution and the trial resolved. A fresh indictment was filed with fewer charges than the trial indictment, and you were arraigned and pleaded guilty to the charges as referred to above.
Circumstances of the offences
4The circumstances of your offending are described in a Prosecution Opening dated 17 November 2022.[2] That Opening is not disputed by you, and I sentence you on the basis of the facts outlined in that document. The Opening should be read in conjunction with these reasons. However, I will briefly describe your offending.
[2] Exhibit A on the Plea.
5Charges 1, 2, and 3 were all committed when you were working as a masseur in your wife’s massage business, which operated in Wangaratta.
6Charge 1 was committed in the winter months of 2018, when a woman named Kristina Muller[3] attended that business to obtain a massage. She had sore shoulders and lay face down on the massage table. You commenced massaging her back and then her legs. You bent one of her legs at the knee and then massaged her thighs in a circular motion towards her inner thigh and crotch. You touched her vagina over her underwear with your fingers. You repeated the same movements on the other leg, massaging in circular motions and again pushing up to the point where you touched her vagina, again over her underwear.
[3] A pseudonym, adopted to ensure that victims of sexual offences cannot be identified.
7The complainant did not say or do anything to indicate that she consented to you touching her vagina, and by your plea of guilty, you have admitted that this was intentional sexual touching in circumstances where you did not reasonably believe the complainant had consented to such touching.
8Charge 2 was committed on 4 March 2019. A woman by the name of Claudia Wolff[4] attended the massage business and asked for a full body massage with the focus to be upon her sore shoulders.
[4] A pseudonym, adopted to ensure that victims of sexual offences cannot be identified.
9You met Ms Wolff in the massage cubicle and asked her to undress completely. She complied with your request and lay face down on the massage table with a towel over herself. You were ‘chatty’ with Ms Wolff, massaged her glutes and hips, and told her she had a lot of tension. You requested that she roll onto her back. She did this and she placed the towel across her body. You massaged her shoulders, neck, armpits, and chest.
10Ms Wolff felt exposed and pulled up her towel. You then said you would work on the front of her hips using a technique where you would move from her quads to her inner thigh to loosen off the tightness. The complainant said that this was fine.
11You then parted the complainant’s legs and she felt exposed. You massaged her right side outside the knee and made a circular motion into the inner part of her thigh. You went very close to the vagina until the complainant felt something touch the middle and outer lips of her vagina. The complainant could not tell if this was your hand or the towel. You then moved to the other leg and repeated the same process and again the complainant felt contact with her vagina.
12The complainant had not done anything to indicate free agreement to the touching of her vagina, and again by your plea you have acknowledged that this was intentional sexual touching in circumstances where you did not reasonably believe the complainant had consented to such touching.
13Charge 3 was committed on the afternoon of 19 March 2020. On that day, a woman by the name of Maddi Ruggiero[5] attended the massage business and asked for a 30 minute deep tissue massage on her lower back. Ms Ruggiero was pregnant and had been experiencing lower back pain. You met Ms Ruggiero and before the massage commenced she told you that she was pregnant and had been experiencing lower back pain.
[5] A pseudonym, adopted to ensure that victims of sexual offences cannot be identified.
14You told Ms Ruggiero it would be easier if she took her underwear off.
Ms Ruggiero went into the massage bay, removed her underwear, and lay face down on the massage table. She still had her dress and bra on. She pulled up her dress to expose her lower back and placed a towel over her bottom covering her private parts.15You then instructed the complainant to remove her upper garments including her bra. The complainant complied and lay face down on the massage table completely naked with a towel over her backside.
16You commenced massaging the upper body of the complainant and initially everything appeared to the complainant to be ‘normal’. As the massage progressed you positioned the towel lengthways along one side of the complainant's body, exposing the buttock on the other side of her body. You moved a hand to the inside of her thigh and up into her groin. You brushed the outer labia of the complainant’s vagina with your fingers repeatedly.
17The complainant felt increasingly uncomfortable. She felt 'frozen' and she could not breathe. At about this time during the massage, the complainant asked if she could put her underwear back on, and you said it was easier if she did not.
18After massaging the upper body for a time you resumed massaging the complainant’s legs and upper thigh. You moved the towel to the upper body region exposing the complainant’s whole lower half of her body.
19As the massage continued you moved the right leg of the complainant into a ‘kicked out’ position with a bent knee. You massaged the complainant's right ‘butt cheek’ running your fingers inside her butt cheeks and along her anus. You squeezed her cheeks between your thumbs and fingers, and frequently applied oil.
20As you continued to massage in the area of the complainant’s anus you inserted one of your thumbs into her anus. At the same time you rubbed the complainant’s clitoris with your other hand. You pressed hard on the complainant’s vagina and this caused the complainant pain.
21You then inserted a finger into the complainant’s vagina and moved it in and out, while at the same time you performed a similar motion with your thumb in her anus. During this you continued to rub the complainant's clitoris.
22After an interruption during which you left the massage bay, you returned with some ‘hot stones’. You resumed the massage, and again began rubbing the complainant over her anus and vagina.
23You then again inserted your thumb into the complainant’s anus and pressed ‘in and out’. At the same time you inserted a finger into the complainant’s vagina and pressed ‘in and out’. While penetrating both the vagina and anus of the complainant with your thumb and finger of one hand you rubbed the complainant’s back with your other hand.
24You then placed a ‘hot stone’ (which was no longer hot) over the complainant’s clitoris and ‘massaged’ her clitoris with it. You then inserted another finger into the complainant’s vagina so that you had two fingers in her vagina and continued in a motion described as ‘vigorous’.
25Throughout these events, the complainant did not say or do anything to indicate free agreement to these multiple acts of penetration. You have pleaded guilty to the offence of rape and it is not in dispute that this charge is a rolled up offence constituted by a number of acts of penetration of both the anus and vagina as described above.
26The complainant after the offending returned home and broke down sobbing in front of her husband and infant son. The complainant’s husband was a serving police officer and he made a recording of part of the detailed complaint, made by his wife, about your offending conduct. The matter was reported to the police who spoke with the complainant that evening.
27Despite being understandably traumatised by your offending, the complainant bravely and intelligently engaged you in ‘pretext messages’, between 24 and 26 March 2020, in an effort to gain evidence of your offending. You initially responded in terms suggesting that there was no sexual activity that occurred during the massage. However, the complainant pretended that she had enjoyed the experience and enticed you into responding in a way that a jury might have regarded you as admitting to some of the sexual activities you perpetrated during the massage.
28On 30 March 2020, police arrested you and conducted a search of your residence. In the search police located a quantity of temazepam prescribed in another person’s name. It is the possession of this drug that constitutes charge 4 – possession of a drug of dependence.
29In your interview with police on 30 March 2020, you admitted you had given
Ms Ruggiero a massage but denied the offending conduct. You told police you had completed two years of a massage course at a college. You admitted some of the text message exchanges between yourself and the complainant, but suggested that you were only responding to advances made by the complainant. As far as the massage was concerned you told the police the complainant had during the massage masturbated herself to the point of orgasm and you had not touched her sexually and that it was her idea to get undressed completely.30You were interviewed by police at a later point of time, being 24 August 2020, relating to the allegations made by Kristina Muller and Claudia Wolff. Again, you denied committing any of the offences, or ever instructing Claudia Wolff to remove her underwear.
Victim Impact
31There is no doubt your offending has had a traumatic effect on the psychological wellbeing of the complainants.
32Kristina Muller describes how she initially avoided reporting your conduct out of fear of not being believed. She found the whole idea of disclosing your offending confronting. She describes finding it difficult to trust others and how this has had an effect upon her relationships. She feels that every part of herself has changed.
33Claudia Wolff describes experiencing real difficulty in coming to terms with your offending and feeling confusion, thinking initially that she must have misread the situation. When she saw a Facebook post regarding your subsequent arrest, she describes feeling an enormous sense of guilt for not reporting what had happened to her. She describes how she previously believed the best in people and how your offending has shaken her core beliefs and affected her own sense of identity. She has experienced panic attacks and has become hypervigilant about her safety.
34Ms Wolff felt massage was an essential treatment for a sport she loved. After your offending, she felt she could no longer feel safe being massaged, and as a result lost the ability to perform her sport at her previous high standard. Her body image and physical wellbeing have been compromised in ways that have had a significantly adverse effect upon her quality of life. She states: 'This assault has had a devastating consequence on my social, recreational, personal and working life.'
35Maddi Ruggiero describes how before your offending she enjoyed family time with her young son and husband. They would enjoy bike rides, bushwalks, and walks in the sun. After your offences, she experienced a severe panic attack on her first walk, terrified she might inadvertently meet you. She now experiences fatigue by her own troubled thoughts, and feels she is short tempered, emotional, and sad. She feels like she has a ‘life sentence’ with a poor mindset, and is constantly subject to a rollercoaster of emotions. Her young children have seen her cry on many occasions and she feels this is unfair on them.
36She has graphically described in her victim impact statement how your offending severely compromised the enjoyment in giving birth to her baby daughter. Instead of the joy she anticipated, she describes being in ‘a dark place mentally’, and that she 'couldn’t cope with the constant state of depression'.
37She had to have surveillance cameras installed at her home in an effort to feel safe. She says, 'The offender left me a complete wreck. I now have PTSD, depression and anxiety. I am on daily anti-depression, anti-anxiety and antipsychotic medication just so I can sleep and function. I engage regularly with a psychologist.'
38Ms Ruggiero had taken time off from her profession as a nurse but the psychological impact of your crime has made it difficult for her to return to the workforce and cope with the stress and pressures normally encountered in her work. She feels the additional financial burden on her family by her inability to return to work. She states, 'The offender has ruined my life and left me neurotic and emotionally and socially inept'.
39The rape you committed upon Ms Ruggiero has had a profound impact upon her intimate relationship with her husband. She feels tense when physically touched and states that, 'I hate myself for feeling this way… I just want to be normal again.'
40Robert Loyola,[6] the husband of Maddi Ruggiero, also made a victim impact statement. The Sentencing Act 1991 (Vic) (‘the Act’) defines a 'victim' as someone that 'has suffered injury, loss, or damage (including grief, distress, trauma, or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss, or damage was reasonably foreseeable by the offender'.[7] Your counsel, Ms Skortsova, submitted during the plea hearing that although
Mr Loyola’s description of the effects of the offence upon him were understandable, these effects could not be regarded as direct results of the offence as defined by the Act. I reject that submission. The definition of 'victim' and the terms of the Act have previously been considered by the courts, and it has been stated that the definition of who is a victim of crime should not be construed narrowly, and extends beyond those who might be regarded as the immediate victims.[8][6] A pseudonym, adopted to ensure that victims of sexual offences cannot be identified.
[7] Sentencing Act 1991 (Vic) s 3.
[8] Berichon v The Queen(2013) 40 VR 490, 495 [19], 498 [36] (‘Berichon’); DPP (Vic) v Pell[2019] VCC 260, [43], n 12.
41Mr Loyola described how he was part of a young happy family in circumstances where life seemed joyful and bright with excitement at the prospect of another child coming into the family. He says it all suddenly changed on the day of your offending upon his wife. He feels a sense of helplessness for not being there to protect his wife.
42He describes the rape as having a devastating impact upon his partner and how she has struggled with intimacy and how he struggles to recognise the person she is today.
43He describes in very personal terms how your offending adversely affected the pregnancy of his wife and the subsequent birth of their baby daughter. He states that he has difficulty putting into words how stressed and strained their family life has become as a result of the rape.
44He was worried his wife might harm herself and he became depressed and resorted to anti-depressants and began to consume alcohol excessively. He took medication for alcohol dependency. He understandably states, 'I am still in complete disbelief that in 2020 in Australia a young pregnant woman can be raped by a stranger mid-afternoon in a private business on one of the busiest streets in Wangaratta CBD. It feels so unfair that it happened to my family. The damage caused to my wife’s mental health is irreversible and my life with her will never be the same again.'
Personal Circumstances
45Your background is described in a psychological report prepared by Ms Carla Ferrari,[9] and written plea submissions of your counsel,[10] both of which were tendered on your plea hearing.
[9] Exhibit 2 on the Plea – Psychological Report of Carla Ferrari dated 7 December 2022.
[10] Exhibit 1 on the Plea – Outline of Defence Plea Submissions dated 15 December 2022.
46You are now 48 years old and were born in Palestine and raised in Israel. You told Ms Ferrari your upbringing was unhappy and difficult. You were the eldest of four siblings. Your parents were uneducated and your mother stayed at home caring for the children and your father worked as a taxi driver. You described to Ms Ferrari that Palestinians were treated poorly in Israel with daily security checks at checkpoints, with invasive questioning, and a requirement to carry ID and personal papers at all times in case of interrogation.
47You described your father as having been abusive towards your mother and the children, and recalled how on one occasion you had to threaten your father with a knife in order to protect your mother. You described how, due to family conflict, you were sent to reside with your maternal grandmother for two years in Nazareth.
48You described to Ms Ferrari how in 1990 you were beaten by riot police when you were present at a mosque that was raided. You also told her of how at the ages of seven and 10 you were sexually offended against by two separate individuals; the first occasion by a family friend, and the second occasion by a shopkeeper. You never disclosed this offending, and told Ms Ferrari how you continue to experience nightmares about these experiences.
49You met your wife in 1999 and married her in 2000. During this time you were studying nursing at Hebrew University in Jerusalem. You graduated with a nursing degree in 2001, and in 2004 your first child, a son, was born.
50You migrated to Australia with your wife in 2005, and worked for a time as a nurse in Western Australia. Your second son was born in 2008 in Australia.
51In 2009, you moved to Melbourne, and your wife who had become unhappy in Australia, returned to Israel with your children. You were somewhat isolated and suffered workplace bullying in Melbourne. You returned to Israel and re-joined your family around 2009.
52In 2015, you and your family returned to Australia hoping to settle here. Your wife had a background in Chinese medicine and was intent on purchasing and running a massage business in Wangaratta.
53You worked for a time in an aged care facility in Benalla. You told
Ms Ferrari the work was stressful and there was a high staff turnover.54You and your wife purchased land in Wangaratta, and commenced building a family home on that property. You took out a mortgage and engaged a person in good faith who you regarded as a reliable builder. Unfortunately, the builder, despite being paid close to $500,000.00, did a poor job and then became uncontactable. The subcontractors who had been employed to work on your house had not been paid and sought payment from you.
55The materials used by the builder were found to be non-compliant with Australian standards and you suffered considerable stress and financial problems throughout 2019 and 2020.
56I accept that this was the case, and note that when your matter was listed for trial before me I read a number of the witness statements from women who were massaged by you. A number of those statements made reference to you, during their massage sessions, speaking of the financial problems you suffered as a result of this dispute you had with the builder you had employed to build your home. You told Ms Ferrari you estimated having lost at least $200,000.00 during a three-year dispute that has not been resolved. Your house was never completed in terms of being insulated or air conditioned, despite payments you had made for those jobs to be completed.
57In 2018, your wife was struggling with her massage business and asked you to assist with providing the massages. You enrolled in a massage course in a local college, however never completed the course.
58You had started working as a nurse at Wangaratta Hospital but as a result of work-related issues, resigned from that employment in 2019. Your wife was critical of your resignation and this led to marital issues, whereupon you were in effect separated from your wife despite living in the same household. You managed to obtain work as an agency nurse in Violet Town where you were working at the time of your arrest.
59In the context of the financial strain and emotional strain within your marriage you became anxious and depressed.
60Ms Ferrari describes how you attended five sessions with a psychologist or counsellor through an Employee Assistance Program, while experiencing the work-related issues regarding your employment as a nurse. You reported a history of suffering from anxiety. This history is corroborated by handwritten notes from a medical practitioner that you saw on 16 April 2019 that refers to you stating that you had been 'diddled by a builder' and were suffering from anxiety.[11]
[11] Exhibit 6 on the Plea – medical notes from Ely Street Clinic Wangaratta.
61You told your counsel and Ms Ferrari how you resorted to using cannabis and benzodiazepine medication (leftover from patients’ webster packs in the Wangaratta Hospital) in an attempt to treat your feelings of anxiety and depression.
62Your wife has written a letter on your behalf that I have read carefully.[12] She states how it was hard for her to believe what you did in her business. She frankly states that your relationship with her may be over but she is clear in stating that your responsibilities to your family have always been important to you. She is of the view that you regret deeply that your time in custody will result in you being absent from your sons' lives for a significant period of their development.
[12] Exhibit 7 on the Plea – undated letter from the wife of the accused.
Psychological Evidence
63I have read Ms Ferrari’s report carefully a number of times. I mention only parts of the report necessary to explain my sentencing reasons.
64Ms Ferrari got you to take a number of psychological tests and interviewed you and recorded your detailed personal history.
65In Ms Ferrari’s opinion a number of factors were relevant to your offending behaviour.
66Under the heading of 'Diagnostic Impressions' she stated that 'the following diagnoses were indicated in accordance with the DSM-5.'
Clinical Disorders:
(a) post-traumatic stress disorder;
(b) persistent depression with major depressive episodes;
(c) generalised anxiety disorder; and cannabis use disorder.
Personality disorders, traits, or intellectual Impairments:
· dependent and melancholic traits.
67She commented that the results of the tests she administered are 'consistent with Mr Jarrett’s history, presentation, and self-report, and indicate significant personality and clinical dysfunction which would affect his cognition, behaviour, and functioning.'
68She went on to state:
'Mr [Jarrett] is a 47-year-old male presenting with a prejudicial history in the context of an oppressive upbringing and violence under the ongoing Israeli-Palestinian conflict, in addition to family violence perpetrated by his father at home. These experiences contributed to Mr [Jarrett] developing depression and anxiety symptoms from a young age, as well as ongoing trauma symptoms. His symptoms meet criteria for Persistent Depressive Disorder (PDD) with superimposed episodes of major depression, Generalized Anxiety Disorder (GAD), and Post-Traumatic Stress Disorder (PTSD).
Trauma and/or invalidating early environments such as that which Mr [Jarrett] has experienced, are often implicated in development of personality disorders and traits, and are known to undermine cognitive and emotional development and exert a negative effect on behavioural trajectories. An individual's personality structure affects how they perceive themselves in relation to others and indeed the world around them, thus impacting their cognition, emotions, and behaviour, and their interactions in interpersonal relationships. There is evidence of dependent and melancholic personality traits, which would further exacerbate his depression and anxiety conditions when he perceives that he is unsupported or emotionally invalidated, as he did at the time of the offending.'
69Ms Ferrari describes you experiencing workplace pressures, stress from the issues relating to the building of your home, and the deterioration of your relationship with your wife during the time of your offending.
70She describes how you had no intimate relationships outside your marriage, and how you described a long history of erectile dysfunction requiring pharmacological intervention. She referred to academic literature that highlights psychological vulnerabilities to sexual offending which can be triggered by situational factors such as life problems or the availability of stimuli. She stated:
'This suggests that deviant sexual interest could be a factor alongside other contributing factors such as relationship issues, low self–esteem, loneliness, and/or antisocial beliefs that could increase an individual’s risk for committing a sexual offence. These risk factors are consistent with Mr [Jarrett], who has no quality relationships in his life outside his marriage and immediate family; he appears to struggle to maintain social relationships.'
71In relation to your cannabis use and your use of prescription medications (benzodiazepines) in the time of your offending, Ms Ferrari stated:
'Substance abuse and intoxication can further impair cognitive ability and decision making, as well as increase levels of impulsivity, risk-taking behaviour, and behavioural disinhibition (i.e. a lack of restraint and self–control). These factors increase his risk of criminal misconduct.'
72She opined that ‘Depressive symptoms can alter cognition and behaviour, impairing the ability to rationalize, consider alternative responses, and impact decision-making. His pre-existing conditions, specifically the PDD and GAD, are likely to have been exacerbated during this period due to the stress he was experiencing, poor coping mechanisms, and perceived lack of support which further triggered his dependent personality structure’.
73Ms Ferrari opined that your feelings of social and sexual inadequacy may have strengthened unhealthy sexual preferences and that given your first and only sexual experience outside of marriage was with sex workers, this, with other social deficits, made you more likely to engage in inappropriate sexual behaviour.
74Ms Ferrari explained in her report the method by which she assessed your future risk of re-offending. She concluded that you fell into the category of moderate risk of future sexual offending.
75Ms Ferrari states that you expressed remorse for your offending and that you acknowledged the impact your conduct had on the victims. While she stated that you expressed sorrow for the distress your offending caused the complainants, she also noted under risk factors that you had entered a plea of guilty in circumstances where you still denied details of your offending.
Objective Gravity of the offending
76The three sexual offences with which you are charged are all serious instances of offending. Charges 1 and 2 carry a maximum penalty of 10 years' imprisonment, and charge 3 carries a maximum of 25 years' imprisonment.
77The rape charge is defined as a standard sentence offence. The standard sentence of 10 years’ imprisonment is the sentence that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle range of seriousness. It is thus a factor, like the maximum sentence, to be taken into account in the application of the intuitive synthesis approach to sentencing. Importantly, it is not intended to be a 'starting point', and does not permit some sort of 'two stage' process of sentencing. Each case must be assessed according to the individual circumstances pertaining to that particular case.
78Some aggravating factors often present with a charge of rape are not present in this case. The fact that your offending involved digital rather than penile penetration means the complainant was not exposed to the risk of sexually transmitted diseases. It is also the case that violence beyond the acts of penetration, or threats of violence, were not associated with your conduct. It was also not a case where the complainants were physically isolated from others and therefore likely to be in fear of grave physical injury should they resist.
79To some extent your offending may be regarded as opportunistic rather than premeditated, however, this aspect is counterbalanced by the fact that your sexual offending occurred on a number of instances against more than one complainant over a period extending over some 20 months.
80The defence concedes, and it could not realistically be disputed, that your conduct was a gross breach of trust. These complainants all understandably placed themselves in a vulnerable position on the understanding that you would provide a service that might alleviate their physical ailments. They agreed to pay you for this service. You used the guise of providing this service to molest two of them sexually and rape one of them.
81Whilst I regard your offending as not premediated in the sense that you had not planned to commit any individual offence before commencing the massage, you used the guise of performing a massage to get physically closer and closer to the genital region of each complainant as the massage progressed. Once you formed the view that each complainant was not likely to actively resist your conduct, you took advantage of their vulnerability and embarked on sexual touching in relation to Ms Muller and Ms Wolff, and sexual penetration in relation to Ms Ruggiero, in order to gratify your own desires.
82In the case of Ms Ruggiero, the charge of rape is a rolled up count that represents the fact that your offending involved both penetration of her vagina and anus simultaneously on more than one occasion. A rolled up charge simplifies the court’s task in allowing multiple instances of similar offending to be dealt with in a single charge rather than by a number of separate charges. However, the court must in sentencing you consider all the circumstances of the offending, including the fact that the offence represents a number of instances of similar conduct.
83As referred to above, your offending has had a severe emotional impact upon the complainants. In relation to the offence of rape, Winneke P in the Court of Appeal stated:
'It should not be forgotten that the crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effect on the victim. But the effects include not only those which flow from the physical invasion of the victim’s person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim’s rights and freedoms.'[13]
[13] R v Mason [2001] VSCA 62 [8] – cited with approval in DPP v Davis [2017] VSCA 341.
84Your counsel in her written submissions has conceded that these offences of sexual assault and rape are 'at a mid-range of objective seriousness'. That concession is consistent with the parties' agreed position that in the circumstances of your offending, there is no sentence appropriate other than a sentence of imprisonment involving a head sentence and non-parole period.
85It is also not in dispute that should you be sentenced to periods of imprisonment on charges 1 and 2, you are to be sentenced on charge 3 as a serious sexual offender. As a serious sexual offender, protection of the community is the principal purpose for which a sentence is imposed, and cumulation of the sentence imposed for that offence with other sentences of imprisonment is required unless the court otherwise directs. It is not in dispute that this principle has to be balanced also with the principle of totality.
Submissions of the Parties
86There are some factors in mitigation that are not in dispute between the parties and which I will take into account in your favour.
87Although your plea of guilty was entered on the day a jury was to be empanelled to hear your trial, it is not in dispute that this plea warrants significant amelioration of your sentence. It was entered in the time of the pandemic when conditions of imprisonment are more restrictive, and where there is reduced access to rehabilitative programs in custody. It is also the case that it is not uncommon, despite a strong Crown case, that offenders persist in contesting the charges. Your plea has relieved the backlog of cases in this court and saved a trial where a significant number of witnesses were to be called, and where it might have been expected that they would have to give evidence concerning matters that may have caused them some distress. You are not entitled to the full discount accorded to a person who enters a plea at the earliest opportunity, however your plea of guilty must still result in a marked reduction of your sentence. It is hoped that your plea of guilty will offer the complainants a degree of validation regarding the trauma that they experienced and the veracity of their complaints.
88I accept that your plea of guilty represents some evidence of remorse, however, I regard your remorse as limited. You only pleaded guilty after the strength of the Crown case was made clear to you by pre-trial rulings, and Ms Ferrari notes in her report that you still dispute details of the offending. Having said that, you have accepted, by entering your plea of guilty, your responsibility for the offending.
89I granted you bail after you were arraigned until the plea could be heard. I accept that in that time you wanted to support your son who was in the final years of his secondary education. I accept that while on bail you have attempted as best you can to support your family by obtaining employment in whatever field of work you could find, and you attended court accepting your fate that you would have to serve a significant gaol sentence.
90The parties are agreed that the delay in your matter coming to trial is a factor in mitigation. Although this was obviously a very difficult time for the complainants, you are not to be punished for exploring aspects of the Crown case. It was not in dispute during your plea hearing that some witnesses who had made complaints were cross-examined, and eventually charges relating to those witnesses were not proceeded with by the Crown. The fact that it took over two years for your matter to come to trial was not your fault. The fact that you had these charges hanging over your head for this period of time will be taken into account in amelioration of your sentence.
91It is also not in dispute that as a result of being charged with this offending, you spent a considerable amount of time on remand.[14] Much of that time in prison was in difficult circumstances where programs in gaol were restricted and there were lockdowns caused by the pandemic. I accept that during that time you were assaulted and had to spend time in isolation. I will take these more difficult circumstances of imprisonment into account.
[14] At the time of the first plea you had spent 361 days on remand by way of pre-sentence detention.
92Your counsel submitted, and I accept, that your convictions and imprisonment for these offences will have a devastating impact upon your ability to work again as a nurse. It is not alleged that your employment as a nurse was in any way used in the commission of your offending and therefore I accept that your loss of opportunity to work as a nurse as a result of your conviction and imprisonment for these offences is a form of extra-curial punishment which I will take into account.
93Your counsel also submitted that given your wife has left you, and you have limited family support, your time in prison will be difficult and you will experience a high degree of isolation. Your case received significant publicity in the media and when you were previously remanded in relation to this offending you had to be placed in protection as a result of intimidation from other prisoners. Ms Ferrari is also of the view that your depression and anxiety will make your imprisonment more difficult than if you were not suffering from those mental health issues. I accept that I should take these matters into consideration in moderation of your sentence.
94Your counsel also submitted under the heading of extra-curial punishment that 'the victims to the index offences are intending to pursue compensation' against you and that as a consequence I should take into account that you, either solely or jointly with your wife, stand to lose the family home and additional assets.[15] No authority was cited in support of this proposition, and I am not satisfied that I can have regard to the prospective orders for compensation in considering what is the appropriate sentence. I note that the Victorian Sentencing Manual published by the Judicial College of Victoria states that compensation orders which benefit private victims of crime are not to be regarded as punitive sanctions.[16]
[15] Exhibit A on the Plea (Defence submissions), [77].
[16] At paragraph 7.7.1.
95Your counsel in oral submissions clarified that what was relied upon in this regard was the impact on you psychologically in considering the possibility of causing future financial hardship to your children and wife, and that this will bear heavily upon you during your period of custody. I accept that this will have an impact on you and is part of the punishment you will suffer. I take that aspect of the prospect of compensation orders against you into account.
96The main dispute between the parties as to the sentencing considerations is whether your mental health conditions as outlined in the report of Ms Ferrari engages the principles of the well-known case of Verdins,[17] as well as the assessment of the objective gravity of your offending by reference to comparable cases.
[17] R v Verdins (2007) 16 VR 269.
97Your counsel relied upon written submissions that your mental health conditions engaged limb 1, and limbs 3-6 of Verdins. During oral submissions I expressed the view that I did not regard your mental health conditions referred to in
Ms Ferrari’s report as being of a nature or degree of severity as to significantly moderate or eliminate specific and general deterrence in the way envisaged by principles 3 and 4 of Verdins. To some extent Ms Skortsova, in my view, conceded this point. In any event, I regard the principles of general deterrence and specific deterrence as relevant sentencing considerations in your case. Although to some extent I regard principle 1 of Verdins to be engaged, I do not regard the nature and severity of your mental health conditions to significantly moderate the need to have regard to these sentencing considerations.98I accept, and the Prosecution does not dispute,[18] that principle 5 of Verdins is engaged and that your mental health conditions will make the period of imprisonment that you will have to serve more difficult. I will take that fact into account.
[18] Prosecution sentencing submissions (dated 22 December 2022) [13].
99I do not accept that principle 6 of Verdins is engaged. While Ms Ferrari’s report refers to imprisonment creating a risk of decompensation, I am not of the view that this brief reference to that possibility meets the evidentiary requirement of principle 6, namely that there is a 'serious risk' of imprisonment having a significantly adverse impact upon your mental health.
100In relation to principle 1, I accept that you had mental health issues at the time you committed these offences that contributed to your offending. The evidence that you sought treatment for anxiety in 2019 and counselling for your employment problems does provide evidence that you were experiencing these problems in the period of your offending. I accept on the balance of probabilities these conditions affected your cognition and behaviour in a way that made you more likely to offend. To some extent, I regard these conditions as explanatory of your offending. However, in my view the moderation of your moral culpability as a result of these conditions is modest. Ms Ferrari at no point in her report suggests that your conditions would have affected your appreciation of the wrongfulness of your conduct. She does not refer at all to your account of why you offended. She makes a brief reference to your remorse for your offending, while noting that you denied some of the details of the offences.
101In relation to your motivation in committing the offences, Ms Skortsova submitted that it was open to me to find, on the balance of probabilities, that in relation to Maddi Ruggiero you had an unreasonable but honest belief that she consented to the acts of penetration you committed upon her. I reject that submission. There is in my view insufficient evidence to support such a finding. It is inconsistent with the account you gave in your record of interview and your initial responses to the pretext messages Ms Ruggiero sent you. While your offending against Ms Ruggiero was extraordinarily brazen, in the sense that others were close by, you were the one that instructed Ms Ruggiero to remove her underwear. When she asked whether she could replace her underwear you told her it would be easier if she did not. Whatever motivated you to commit these criminal acts, there is not, in my view, an evidentiary basis for me to find that you believed Ms Ruggiero was consenting to this conduct.
Current Sentencing Practices
102The parties referred in written submissions to a number of cases suggested to be comparable in terms of current sentencing practices. Almost all of the cases referred to by the parties were cases where the offending was committed before the introduction of the standard sentence for rape and were therefore proscribed from consideration as examples of current sentencing practices by virtue of s 5B(2)(b) of the Sentencing Act 1991 (Vic).
103While I have had regard to current sentencing practices, I have not found the other cases, to which I was referred, to be of great assistance in the particular circumstances of your offending, other than by reference to very general statements of principle related to sentencing for this type of offence.
104I am persuaded that given the balancing of various sentencing considerations including matters personal to you, a just and proportionate sentence is one that is not as long as the standard sentence for the offence of rape.
Sex Offender Registration
105It is not in dispute the charge of rape is a class 3 offence as defined in the Sex Offenders Registration Act 2004 (‘the Act’).[19] The Prosecution has pointed to s 11(3) of the Act which confers a discretion on the court to make an order that the person comply with the reporting obligations of the Act. Section 11(3) states:
'(a) The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons or of the community.'
[19] Class 3 offences are offences that involve sexual penetration committed against an adult by a 'serious sexual offender' (see s 8(1) and Schedule 3 of the Sex Offenders Registration Act 2004 (Vic).
106I have been referred to the cases of Sayer v R [2018] VSCA 177, Bowden v The Queen (2013) 44 VR 229, and Formosa v R (2012) 36 VR 679. I have read those cases. It is apparent from those authorities that the discretion conferred by s 11(3) of the act involves a two-stage process. The first question is whether the court is satisfied beyond reasonable doubt that the person poses a risk to the sexual safety as defined. Such a risk must be real rather than fanciful. The 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. This 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. Such a balancing exercise involves considering the magnitude of the risk, including the degree of likelihood of the risk eventuating, and the gravity of harm against the serious consequences for the offender.[20]
[20] See Bowden v R (2013) 44 VR 229, 236-9 [30]-[42] cited with approval in Sayer at [92].
107In applying this two-stage process I am satisfied beyond reasonable doubt that you do present a risk to the sexual safety of the community as defined. I accept the Prosecution submission that in assessing that risk I am entitled to have regard to the depositional material and in particular the evidence of other witnesses that I ruled admissible as tendency evidence. While I find that you do pose more than a fanciful risk to the sexual safety of one or more persons in the community, I do not regard that risk to be so great as to warrant an order that you comply with the reporting obligations under the Act upon completion of your sentence. My reasons for this are as follows:
(a) All of the offending occurred in the context of you performing massages in a business operated by your wife;
(b) I am not of the view that you are likely to be employed in such activity in the future. Your counsel during the plea hearing indicated that you did not intend to work as a masseur again;
(c) You have no prior criminal history and reached a relatively mature age before being charged with this offending;
(d) It is almost three years since you were first charged in relation to the offending against Maddi Ruggiero. In that period, you have complied with bail conditions and have not reoffended while released on bail;
(e) You have ultimately pleaded guilty and accepted responsibility for your offending conduct. I regard you as a man of some intelligence and insight and I am of the view that you will be specifically deterred from future offending by the punishment you will receive as a result of the sentence I will impose upon you;
(f) Although the psychological assessment of you describes your overall risk of reoffending as moderate, Ms Ferrari is of the opinion that with a moderate level of intervention this risk is likely to reduce;[21]and
(g) In considering the balancing exercise, I have had regard to the fact that the Act has a particular emphasis upon the registration of offenders who have committed offences against children. Several of the reporting obligations are directed towards the protection of children and consequently restrict employment opportunities and social interactions with children. I am of the view that part of your rehabilitative process upon your release will involve your resuming your fatherly responsibilities to your two sons. Your exercise of that responsibility and involvement in their social arrangements may be severely compromised by placing you on such an order.
[21] See in particular the elaboration of Ms Ferrari’s opinion as outlined in an email lodged with the Court dated 24 January 2023 (Exhibit 3 on the Plea.
108Mr Jarrett, the purposes for which a court may impose sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions, and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances. I must impose a sentence which expresses the denunciation by the court of the serious criminal conduct you have committed and impose a sentence that is just in all the circumstances, balancing the above considerations, some of which pull in different directions.
109Having regard to all relevant matters, the material placed before me and the oral and written submissions of the parties, I have decided the appropriate and just sentence is as follows:
(a) On Charge 3, rape of Maddi Ruggiero, you are convicted and sentenced to five years and three months' imprisonment. This is the base sentence.
(b) On Charge 1, sexual assault of Kristina Muller, you are convicted and sentenced to 10 months' imprisonment. I order that four months of the sentence be served cumulatively upon the sentence imposed on charge 3 and all other sentences imposed this day.
(c) On Charge 2, sexual assault of Claudia Wolff, you are convicted and sentenced to 10 months' imprisonment. I order that four months of the sentence be served cumulatively upon the sentence imposed on charge 3 and all other sentences imposed this day.
(d) On Charge 4 of possession of a drug of dependence you are convicted and fined $300.
110That makes a total effective sentence of five years and 11 months’ imprisonment. I order that your serve a minimum of four years' imprisonment before being eligible for parole.
111Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty I would have sentenced you to a total effective sentence of eight years and six months’ imprisonment, with six years and three months to serve before being eligible for parole.
112Pursuant to s 18(4) of the Sentencing Act1991 (Vic), I declare that the period of 428 days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the court.
113Pursuant to s 6F of the SentencingAct1991 (Vic), I order that it be entered into the records of the court that in respect of charge 3 you have been sentenced as a serious offender.
114Are there any other orders that are sought?
115MR HARDJADIBRATA: No, Your Honour.
116HIS HONOUR: Ms Skvortsova?
117MS SKVORTSOVA: No, Your Honour.
118HIS HONOUR: Mr Jarrett, you must appreciate that when you get released, if you do get granted parole, you should follow all the conditions very strictly and you now have a very serious criminal history. Thank you, we will adjourn the court.
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