Director of Public Prosecutions v Kovac

[2018] VCC 1258

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01123

DIRECTOR OF PUBLIC PROSECUTIONS

v

VILI KOVAC

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	13, 27 July & 10 August 2018
DATE OF SENTENCE:	10 August 2018
CASE MAY BE CITED AS:	DPP v Kovac
MEDIUM NEUTRAL CITATION:	[2018] VCC 1258

REASONS FOR SENTENCE
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Subject:  Sentencing – Plea of guilty

Catchwords:             Historical sexual offences; indecent assault of male under age 16; two victims; offences in 1960s; physical education teacher; offender now aged 85 and in poor health; multiple convictions subsequent to offending for similar offending in same period and similar circumstances; totality.

Legislation Cited:     Sentencing Act 1991, ss 6AAA; 6D; 6E; 6F; 15

Cases Cited:R v Van Boxtel [2005] VSCA 175; DPP v Hopson [2016] VSCA 303; R H McL v the Queen [2000] HCA 46.

Sentence:TES 8 months imprisonment; two months cumulative on sentences being served.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms N. Burnett	OPP
For the Accused	Mr A. McMonnies	Allan McMonnies Barristers & Solicitors

HER HONOUR:

1Vili Kovac, you have pleaded guilty to two charges of indecently assaulting a male person under the age of 16. 

2At the time when the first offence was committed, the maximum penalty for that charge was ten years imprisonment and at the time of the offending under the second charge, the maximum was five years imprisonment. 

3The circumstances giving rise to the offending are set out in the prosecution opening which was tendered and I shall only repeat enough description, to enable assessment of the general circumstances and seriousness of the offences.  I shall not name the victims of the respective charges, not out of disrespect to them, but to protect their privacy on publication of these reasons.

4The first charge relates to your conduct over some months between April 1964 and the end of December 1965, while you were a “phys ed” teacher and sports coach at Xavier College, and the victim of that offending was a student at that school.  He was aged between 12 and 14 during that period.  This is a representative charge encompassing four separate acts by you, on three occasions.

5One night after football training, you offered him a lift home, and on the way stopped in a suburban street and offered to let him steer the car.  While he did so from the passenger's seat, you remained in the driver's seat, driving slowly down the road and you lent across and fondled his genitals over his clothing for a short time.  A short while later, you repeated that fondling in a similar manner.  He became scared and uncomfortable.  Approximately a month later, you again offered him a lift home, detoured to the same street, again let him steer your car, and again indecently touched him over his clothing.  Approximately two months later, when he injured his groin area during a physical education session, you told him to go to the toilets and that you would come to him.  When you did so, you had him pull his pants down to show where he was hurt and you then fondled his penis, masturbating him until he ejaculated. Charge 1 is a single charge, representative of these three occasions, on the first of which there were two separate, but close in time, acts of indecent assault. 

6Charge 2 relates to your conduct in 1969, when you were a “phys ed” teacher at Marcellin College, and involves your conduct towards a boy aged between 11 and 12 who was a student there.  On an occasion after cross country training at the senior college, he was in the toilet urinating when you came to stand beside him.  He felt your penis at first brush against and then be guided into his left hand.  You then ejaculated into his hand and onto his clothes.  He was shocked and froze and felt humiliated.  The humiliation extended to having to go home on a tram, hiding wet patches on his shorts.

7I must assess the seriousness of your offending.  In each case, you were a person in authority, as a teacher, and abused your position for your own sexual gratification.  Your offending was not spontaneous in that you deliberately set up a situation in which the relevant boy would be alone and vulnerable to your actions.  Each boy, as both were at the time, was in early adolescence, and at a vulnerable age, so far as discovering or experimenting with any sexual activity.  One came from a deeply religious family and was ignorant about sexual matters.  You may also have been somewhat immature, due to your experiences before you came to Australia, but you were some twenty years older than each of your victims and must have understood that you should not be abusing their trust and your position of authority over them.

8The ongoing impact on their lives has been serious enough that your conduct has been remembered and caused them to come forward some forty or more years later.  Through their Victim Impact Statements, I am satisfied that each of these students was shocked and felt humiliated at the time, and felt unable to tell anyone at the time.  Each describes the emotional consequences on his life since.  One speaks of your actions having undermined his self-esteem and left him feeling that he has underestimated his potential and abilities. The other describes having developed serious antisocial behavioural problems, leading to substance abuse, violent misbehaviour, ejection from his family in his later teens, and ultimately having developed psychotic illness.  I am not able to determine the extent of the contribution of your offending actions to all of the consequences that this victim describes.  But I accept that your actions had a long lasting impact on him, and that he believes that your offending towards him, that is under Charge 2, has had devastating consequences on his life.

9You have pleaded guilty to both of these charges and for that are entitled to some leniency, for saving the community the time and cost of a trial, and for sparing both of the victims from having to give evidence and relive these events.  Your pleas of guilty also reflect accepting responsibility for your conduct, even though there is some question as to whether you recall it specifically.  You are entitled to some leniency for facilitating the course of justice.  Although remorse may not be deeply felt, I have previously been told that that is consistent with paedophilia for which diagnosis you qualify. 

10You are now aged 85 and in poor health.  When I sentenced you last December, I outlined at some length your personal background and also the history of your other offending of similar nature to the charges that are now before me.  I shall not repeat all of that detail, but I accept that your childhood in Germany and teenage there under Nazi rule and subsequently in your parents' native Yugoslavia, included some discrimination and social isolation without close friendships for you.  You achieved recognition with your sporting prowess, but that was difficult for you to handle.  In 1961 you immigrated to Australia, joining your sister here and at some stage, your mother also moved here. 

11Although having no formal teacher training, and also not fully fluent in English, you were employed from 1962 by Xavier College as a sports coach and “phys ed” teacher.  You started organising camps during school holidays for boys for that school, and extending it to boys from other schools.  At the end of 1967, you left Xavier and moved to a similar position at Marcellin College where you remained until the end of 1969.  You liked mixing with adolescent boys outside of school hours, including giving some of them a lift in your car, and as under Charge 1 here, letting a boy steer it.  You also took some boys back to your flat, although that does not arise under either of the two charges here.

12In 1970, you were first charged with sexual offences against adolescent boys, and in the County Court were convicted of some ten charges involving six different boys aged between 10 and 14 or 15 at the time of the offending.  You received a total effective sentence of two years and six months imprisonment, with a non-parole period of twelve months.  All of those offences were committed between 1963 and 1970.

13As a result of that conviction, you were never again able to obtain employment as a teacher, and although you worked in the hospitality industry over a number of years, you never found a long term career.  You had some interaction with the law over the following couple of decades, mostly irrelevant to the present case, but in one instance in 1984, you were fined for publishing an obscene article involving children, and in 1997, for possessing child pornography.

14Of much more significance is that in 2005 you were sentenced in the County Court for further sexual offending against other boys, that had occurred in the 1960s, and one charge relating to an offence in the late 1970s.  Those offences were against three boys, the offending in the nature of indecent touching and fellatio, and several of the charges were representative charges.  The sentence you received of a substantial term of imprisonment was not reduced by the Court of Appeal.

15Then, in 2008, you were again sentenced by Her Honour Judge Jenkins, having pleaded guilty to further charges in relation to three further boys of similar ages, again mainly for offending in the 1960s.  A new head sentence was fixed of eleven years and ten months imprisonment, with a new single non-parole period of three years, nine months,  the latter taking into account that you had already served over three years on the earlier sentence.

16Ultimately, on those two sentences, you served six and a half years in prison before obtaining parole in June 2012.  You were over 70 years of age whilst serving that sentence and completed the parole period only last year, at age 84. 

17Last year, charges of your sexual offending against two further students in the 1960s came to court.  You stood trial on a charge of buggery.  This is the only charge to which you had ever not pleaded guilty over the years, and you disputed it because you deny that you ever committed an act of sexual penetration of any boy.  A jury found you guilty.

18You pleaded guilty also to a charge of indecent assault of another boy, involving taking him for a drive in your car, permitting him to drive the car near an off road track while you fondled him over his clothes, and asked him to do the same to you.  These events allegedly occurred in approximately 1962 to 63 and clearly bear considerable similarity to the conduct which is the subject of Charge 1 now before me. 

19I sentenced you last December to a term of imprisonment with a shorter than usual non-parole period, having regard to all of the circumstances.

20Your prior offending is relevant to your sentence on the current charges in several ways.  First, although you had not been brought before a court for any of that offending, prior to committing the conduct which is the subject of the current charges, and therefore for the purposes of sentencing on the current charges you are formally to be regarded as having no prior convictions, it is clear that you had been offending in a similar way over that period.

21The two further victims of the current offences bring to a total of fourteen, on my calculation, the number of young persons against whom you committed sexual offences in the 1960s or 70s.  Most were connected with one of the two schools at which you taught during the 1960s, as with the two victims of the current offences.  It is clear that your offending was not isolated or out of character.  Indeed, for previous court hearings, there has been expert opinion that you qualify for diagnosis as a paedophile.

22The next relevant aspect of your criminal history is that, given the nature of those other offences, you fall to be sentenced as a serious sex offender. Under s.6F of the Sentencing Act, on both of the charges with which I am now dealing,  that will be entered in the court record.  Under s.6D, protection of the community is to be the principal sentencing purpose.  To achieve that, I could impose a disproportionate sentence, but the prosecution did not seek that in this case and I do not consider it required in the circumstances that I will explain further.

23Although s.6D directs that protection of the community is to be given greater sentencing weight, or is to be the principal sentencing factor, I regard general deterrence and community denunciation of offending of this nature as of very high importance in your sentence on this occasion.  Sexual offending against children by an adult, and in particular by an adult who has either a position of authority or respect in relation to such children, must be unequivocally condemned, and a sentence imposed that sends a message to any other person who might seek to engage in such activity, that he or she can expect stern punishment.  Protection of children as vulnerable members of the community must be reflected in court sentences for this type of offending.

24The further relevance of your criminal history is that you have already served very significant time in prison for similar offending.  All of that is in relation to offending of similar nature, that is sexual offending against adolescents and teenagers, in the same overall period of time, namely the 1960s and once in the 70s, and mainly against boys who were students at schools where you taught at the time.  This means that had all of these offences come before a court at the same time, there would likely have been some considerable concurrency in the sentences to reflect that the charges were in respect of similar offending during the same period.  It is no fault of yours, nor of the victims, that some of them did not report your conduct to police until very many years later, and I take into account that the current two charges arise from matters reported to police early last year, and had charges been brought sooner, might have been dealt with in my sentencing of you last December.

25The principle of totality has application for all of these reasons, even though through s.6E, it must be recognised that that section countervails to an extent, the principle of totality.[1]  I take into account that while s.6D requires protection of the community be the principal purpose of the sentence, there was medical evidence before me late last year as to your state of health, and I was then, and remain, satisfied that it is highly unlikely that you could physically commit any offence of this nature again, even if you ever came into contact again with adolescent boys.  That in itself is highly unlikely, as prior to your being imprisoned in December last year, you had barely been able to leave your flat unescorted for the past few years.  The last known sexual offending by you was committed almost forty years ago.  For these reasons, I consider that protection of the community from you does not require much time in prison at this stage.

[1]DPP v Hopson [2016] VSCA 303; R H McL v the Queen [2000] HCA 46.

26I must also take into account the impact of both your physical and psychological health on any term of imprisonment.  It is a circumstance of mitigation that a sentence of imprisonment will be significantly more burdensome for a prisoner in poor health, than for a person of normal health.[2] 

[2]R v Van Boxtel [2005] VSCA 175.

27I shall not set out details of reports before me last December, but I note that I had reports confirming a variety of medical conditions and disabilities from which you suffer.  I had reports and oral evidence from clinical and forensic psychologist Mr Michael Crewdson, and accept again, as I did then, that the impact of imprisonment on you is likely to be more difficult for you than on most people serving time in prison, due to your physical difficulties, increase in dementia, ongoing anxiety and depression and social isolation.

28I asked for a report from Justice Health to update me on your current condition, because I was informed by your lawyer when the matter first came on for hearing, that since I sentenced you last December, you had spent most of your time in custody in a hospital unit in prison.  Two brief reports have now been provided, which confirm that you have been in that twenty bed unit since three days after I sentenced you, and are being well managed medically and psychologically in that unit.  You have numerous health conditions that are being managed there, and your medical needs are being appropriately met.  It is also confirmed that it is most likely that you will need to spend the rest of your prison time in that unit.  You are said to have adjusted well to being in that unit.

29On this information, I do not find it likely that your health will be adversely effected by further time in prison.  I accept, however, that the fact that you are in the prison hospital unit increases your confinement because, as has been submitted by your lawyer today, it effectively confines you to hospital rather than prison. That means that you do not have the ability to move around as much or go outside as much as a prisoner without your health conditions.

30Although I understood that you were living a quite confined life even before imprisonment, I accept that being confined to a hospital unit is likely to be making your time in prison heavier to bear.  I also take into account that at your age, any marginal increase in your sentence would be proportionately more burdensome. 

31I have decided, taking all of these matters into account, that there ought to be terms of imprisonment imposed in respect of each of the two charges on which I am now sentencing you. I have also decided that some modest cumulation on the sentence you are currently serving is required, and to recognise that the two charges before me reflect that there are two further victims of your offending,  and that these charges reflect further occasions of your offending. 

32I am going to sentence you now.  I do not require you to stand given your health. 

33Vili Kovac, on each of the two charges, you are convicted.  On Charge 1, a representative charge, you are convicted and sentenced to six months imprisonment.  On Charge 2, involving a single incident, you are convicted and sentenced to five months imprisonment. 

34I direct that three months of the sentence on Charge 2 be served concurrently with the sentence on Charge 1, so that two months will be served cumulatively.  That creates a total effective sentence on these charges of eight months imprisonment. 

35I direct that six months of this sentence, that is this total effective sentence, be served concurrently with other sentences currently being served. That means that two months of this total sentence will be served cumulatively on the sentences you are currently serving. On my understanding, under s.15 of the Sentencing Act, these sentences will start immediately because they are straight sentences, and the sentence I imposed last December will be suspended for the two months which is not concurrent, thereby delaying the minimum term before eligibility for parole by two months, as well as extending the head sentence by that two month period.  The reason I have to direct concurrency is that pursuant to s.6E, the sentences would all otherwise fall to be served wholly cumulatively.

36Under s.6AAA of the Sentencing Act, I must state what sentence would have been imposed if you had not pleaded guilty to these charges, but had been found guilty of them after a trial. That is artificial in respect of Charge 1, that being a representative charge. Nevertheless, as best I can say, taking into account the extent of the offending reflected under Charge 1 and taking into account Charge 2, I would have imposed nine months imprisonment on Charge 1, seven months imprisonment on Charge 2, and I would have directed four months concurrency making a total effective sentence of twelve months imprisonment.  I would have directed that eight months of that total effective sentence be served concurrently with your current sentence, thereby extending the current sentence, including the non-parole period by four months. 

37I declare pursuant to s.6F of the Sentencing Act, that on each of these two charges, you are sentenced as a serious sex offender and direct that that be entered in court records. 

38The net effect, as I have said Mr Kovac, is there is an extra two months for you to serve, before you can be eligible for parole, and that will also be added to the head sentence. 

39Have I covered everything I needed to cover in the formal orders?

40I will then give both sides a chance to just check that the sentence operates as I have said I intend it to. That is, I have to direct concurrency not cumulation, both as between these two charges and in relation to the sentences currently being served. I think one of them might by now have been completed, but it depends because - anyway - I am intending two months concurrent - two months cumulation. So I have ordered six months concurrency of this total effective sentence with the sentences currently being served. As I understand it, under s.15, these fall to be served first, so they suspend the operation for that two months of both the non-parole period and the head sentence. Does that - do you both want to think about it or ‑ ‑ ‑

41MR McMONNIES:  I believe that's correct, Your Honour.  What I was going to suggest, if it was possible, is once a sentence is provided, that we will be able to check with Central Records to make sure it reflects what Your Honour is saying.

42HER HONOUR:  Mr McMonnies, Central Records always check these, but I do want to get it right as best I can ‑ ‑ ‑

43MR McMONNIES:  Well I think you have.

44HER HONOUR:  ‑ ‑ ‑ at this stage and it is not a question of you referring it to Central Records.  It is always checked and if they see a technical problem with it, it comes back to me.

45MR McMONNIES:  That's right.

46HER HONOUR:  It gets referred back to me.

47MR McMONNIES:  Exactly right, Your Honour.

48HER HONOUR:  But I try very hard to get it right at this stage.  These are technically torturous to construct, and I want lawyers on both sides to check as best it seems to them at the time, that it does achieve what I say it is intended to achieve.

49MR McMONNIES:  From my point of view - - -

50HER HONOUR:  Yes.

51MR McMONNIES:  - - - I believe it does.

52HER HONOUR:  All right.

53MR McMONNIES:  But I do not always - I have said my piece anyway.  I understand.

54MS BURNETT:  We also believe that that is right, Your Honour.

55HER HONOUR:  All right, thank you.  There were no ancillary orders?

56MS BURNETT:  No and no pre-sentence detention either.

57HER HONOUR:  And there cannot be pre-sentence detention.

58MS BURNETT:  No.

59HER HONOUR:  Yes.  All right, I will then adjourn the court.  Do you want to talk to your client here or downstairs Mr McMonnies?

60MR McMONNIES:  Maybe I could have a word.  If they would leave enough - a couple of minutes, I could quickly speak to him, but I think it is pretty clear.

61HER HONOUR:  Yes, I allow that.  I know it takes a time for Mr Kovac to be taken back down backstairs.  So if he could stay here and let his lawyer talk to him.  Mr Kovac, as I have said, the net effect is an extra two months in prison for you, before you are eligible for parole, before you can be considered for parole.

62OFFENDER:  Thank you, Judge.  This extra two month - two months and that, I mean it's good that I stay at the same hospital, of course I have my steady meal, my steady walk, walk - my steady - everything's doing - it's just that, as I feel more - more effective that I could things again if I go on parole.  If I could do things like what I was doing for five years, well when I was in - - -

63HER HONOUR:  All right, Mr Kovac I've taken all of those sorts of matters into account.  It's not up to me whether you actually stay in that hospital unit, but I've got a report saying that it's most likely that you will.

64OFFENDER:  Yeah.

65HER HONOUR:  And it's not up to me what you get parole at the earliest opportunity.  These are matters that you've got to explain to the Parole Board when the time comes.

66OFFENDER:  Thank you, Judge.

67HER HONOUR:  All right, I'll ask that Mr Kovac remain here for a few minutes so that his lawyer can talk to him and otherwise adjourn the court till ‑ ‑ ‑

68MR McMONNIES:  Your Honour pleases.

69MS BURNETT:  As Your Honour pleases.

70HER HONOUR:  I'm not sure what's around in reserve cases.  Sorry?  It's busy?  All right, well just stand the court down.

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