Director of Public Prosecutions v Kovachev (a pseudonym)
[2023] VCC 689
•27 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW KOVACHEV (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Latrobe Valley and Melbourne |
DATE OF HEARING: | 27 and 28 February 2023, 1 - 3 March 2023, 13 April 2023 |
DATE OF SENTENCE: | 27 April 2023 |
CASE MAY BE CITED AS: | DPP v Kovachev (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 689 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Sexual penetration of child under age of 12, sexual assault of child under age of 16, producing child abuse material, accessing child abuse material, possessing child abuse material
Legislation Cited: s6AAA Sentencing Act, Sex Offenders Registration Act,
Cases Cited: DPP V D’Alessandro (2010) 26 VR 477
Sentence:Imprisonment, Total Effective Sentence 13 years and 6 months. Non-parole period, 9 years and 6 months. Sexual Offenders Registration for life; Class 1 and Class 2 offences, Forfeiture and Disposal orders.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Dr J. Harkess | Mr. B. Oswald, Office of Public Prosecutions |
For the Accused | Mr T. Sullivan | Ms S. Kilic, Seda Kilic and Associates. |
HIS HONOUR:1Andrew Kovachev[1], you have been convicted by a jury of one charge of
sexual penetration of a child under the age of 12 years; three charges of
sexual assault of a child under 16 years; and one charge of producingchild abuse material under indictment C221538.2[1] A pseudonym
2Subsequent to those verdicts, you pleaded guilty to indictment C221538.2A.1 to one charge of accessing child abuse material and one charge of possession of child abuse material.
3Turning to the facts in relation to the matter for which you were convicted by the jury. Your offending occurred between March and April of 2019. At that time, you were 52 years of age and lived alone at an address in regional Victoria[2]. You were a long-time family friend of the Groves family[3]. You were a father figure to Abbie Travis[4], the mother of two children, Evelina[5], then five years old and her brother Milan[6]. You were often babysitting these children.
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
[6] A pseudonym
4In March 2019, Abbie Travis and other family members went on a 10-day holiday to Thailand. You looked after the two children whilst she was away and moved into their home in regional Victoria[7] for that purpose. You slept in
Abbie Travis's bedroom whilst you were staying at that house.[7] A pseudonym
5On 29 March 2019, Evelina Groves went to bed in her own room. She had a nightmare and went first to her brother's room, but he was asleep, then she went to her mother's room and got into bed beside you. You reached over and put your hand inside her underwear and touched her vagina with your fingers. The jury was satisfied beyond reasonable doubt that you inserted your fingers into her vagina. Evelina told the police in her VARE, 'He kind of hurt me while he was doing that 'cause like my bone was pushed in and that it was really hurting'. When asked to explain how it hurt, she said, 'It's hard to explain, like he was not near the top, he went down a bit and it like hurt a bit'.
6Some weeks later Evelina disclosed your offending to her mother. She told her mother that you had touched her vagina. Her mother asked whether it was outside or inside the vagina, and Evelina said it was inside the vagina.
Refer to transcript p108.7You did not give evidence at your trial; you exercised your right to make a
no comment interview when arrested for this offence. Your counsel attempted to convince the jury that the evidence of Evelina could not be accepted beyond reasonable doubt, and that the jury should not find that any of the touching occurred at all. The jury were directed that they could not convict you on
Charge 1 unless they were satisfied beyond reasonable doubt that the touching did occur, and that in the course of that touching your finger or fingers actually penetrated Evelina's vagina to any extent. They were clearly so satisfied.8On the day after this offending, Evelina's aunt, and her cousin Willow Tanner[8], visited the Travis home. Evelina asked if Willow could stay the night, Willow was then eight years old. She was allowed to stay, together with her brother and your young granddaughter Alyssa[9]. You set up a mattress on the floor of the lounge room, so the children could lay on it and watch television. Willow changed into her pyjamas over her underwear and lay on the edge of the mattress closest to where you sat on the floor beside them. Evelina was on her other side.
[8] A pseudonym
[9] A pseudonym
9During the night Willow was awake but facing towards Evelina. You placed your hand on her back and moved it down underneath her pyjamas and underneath her underwear. You touched her buttocks and put your hand between her legs over her vagina. You then removed your hand and placed it over her leg and down her pants from the front again touching her vagina.
10Willow pretended to wake up and got up and hid in the toilet to avoid you. When she finally returned to the mattress you started stroking her hair. She asked for the television to be put back on, and you ceased touching her.
Your touching of Willow’s vagina was the basis of Charge 2, sexual assault of a child.11The following day Willow's mother, Avery Travis[10] returned to pick up her daughter. She helped you with the housework whilst the children were having a bath. She walked past Evelina's room and saw Evelina naked on her bed on all fours with you applying cream to her anus and vaginal area. She asked Evelina if she was okay and you snapped at her that you [sic] were fine, that what you were doing needed to be done.
[10] A pseudonym.
12Evelina had suffered from eczema which required creams would be applied to her skin once a day after her bath. She normally applied the cream herself, and got assistance only if it was required. Whilst Evelina was under your care you applied cream to her body including her genitals multiple times a day before and after she had a bath. It was the prosecution case that you had a
sexual interest in Evelina and that your application of cream was unnecessary.13The jury convicted you of Charge 4, sexual assault of a child which related to the incident described by Avery Travis on 31 March 2019 when she saw you applying cream to Evelina's anus and vagina. Whilst you were staying at the Travis home, whilst Abbie Travis was in Thailand, you took 13 photographs of Evelina which the jury found constituted producing child abuse material. Police found the photographs on your phone when you were arrested. The photographs are Exhibit O on your trial. Seven of them show Evelina in the bath, all seven show her genital area, and three of those seven focus only on her genitals.
14In other photos Evelina is posed in a posed sexualised position. The remaining six photographs were taken whilst a child is lying on pink sheets in a bed.
All photos focus on the child's vagina and three of those six photos, a male figure has pulled away her underwear to expose the child's vagina. In the last photograph male fingers are depicted to opening the lips of the child's vagina.15After police became involved and interviewed you in April of 2019, you approached Abbie Travis at her home and told her that you had taken a photograph of Evelina's vagina as the eczema cream was not working and you were going to use the photo to take to the doctor but had deleted it when her eczema improved. You said she was asleep when you took it, but were worried the police might retrieve the photograph.
16Your assertion that any photograph or photographs were for a legitimate medical purpose is not only ridiculous when the photographs are examined, but was clearly rejected by the jury.
17On 10 April 2019, you were at your home in regional Victoria. You went next door and spoke to your neighbour, Ashleigh Heywood[11]. You asked if her children would like to come to your house to help you put away some new chickens you had acquired. She agreed and Charlie[12] aged six and Clarissa[13] aged four came to your property. You fed them, they watched movies and played with toys. Mrs Heywood came over to check on her children before returning to her home. She later attended again to further check on her children. You told her that Clarissa had complained that she had a sore wrist, a sore ankle and a sore giney, g-i-n-e-y, meaning vagina. You said that you had applied band aids to the ankles or arms and that you had wiped her vagina with a tissue.
[11] A pseudonym
[12] A pseudonym
[13] A pseudonym
18Mrs Heywood was disturbed by your revelation and discussed it with her husband. Clarissa told her later that you, Andrew, had wiped her vagina and pointed out to her mother where you had done so. She pointed to the 'Flapped [sic], the hole, the clitoris and all around the vagina'. She said this happened in your room on your bed. Clarissa was taken to the hospital for examination and the police were involved. In a VARE conducted with Clarissa on 11 April it is evident that she was a boisterous unfocused child and saying some wild and weird things. She behaves like a very young child. She did say that you touched her private parts on your bed. She said you touched it with your hands and she demonstrated a wiping motion. She said you did so because she had a sore giney.
19You were interviewed about this allegation on 12 April 2019. You told police during your interview in relation to this alleged offence against Clarissa Heywood,
'During the course of the visit, [Clarissa] said she had sores on her, on her toes, and I can't even remember, I think her hand. And I asked if she wanted me to put band aids on them and she said yes. And then she told me she had a sore giney and I said, do you want me to wash it, and she said yes. We went up to the bedroom, she lay on the bed, I warmed the water and wet some tissues and wiped her vagina down, she put her clothes back on and went back out. We continued on; I made some chicken nuggets.'
20You later said,
'There's no way in any shape or form, I touched that girl sexually at all. When their mother came back, I told their mum that [Clarissa] had complained of a sore giney.'
21The jury convicted you of sexual assault of a child in relation to that conduct. The issue in this charge was whether the jury was satisfied beyond reasonable doubt that the touching was sexual and contrary to community standards of acceptable conduct. The jury's verdict indicates that they were clearly
so satisfied.22The facts relating to the indictment to which you pleaded guilty subsequent to the jury verdict, are set out in Exhibit A, tendered upon your plea. Your counsel Mr Sullivan conceded that I can treat that document as an agreed statement of fact. I incorporate into these reasons for sentence.
23On 12 April 2019, police executed a search warrant at your home in regional Victoria. A phone, laptop computers and a number of hard drives were seized.
eCrime technicians analysed these items and child abuse material was located on your phone, on three laptops and on three hard drives. The internet search history established that these items had been used to access child abuse material, and that is the basis of Charge 1, accessing child abuse material charge.24One hundred and sixty-six child abuse images were located on your phone, including three images of your four-year-old granddaughter Alyssa, and
161 images of Evelina Groves. The children were naked or partially naked and the focus was on their genital region. Your white Toshiba laptop contained 4,067 images and videos of child abuse material. These depicted naked children from newborn infants to teenagers, posing suggestively or engaging in sexual acts of the most graphic nature. Sometimes with adults, and with other children.25Your black Toshiba laptop had 19 child abuse images as well as encrypted files and a dark web browser. Your compact laptop contained 117 images and videos classified as child abuse material. One portable hard drive
contained 7,783 child abuse images and videos, whilst two other hard drives contained 258 and 245 images and videos respectively. The different categories of the 13,039 total of child abuse videos and images is set out in Exhibit A, 437 of them depict penetrative abuse of children and 89 depict sadism, bestiality, and child abuse.26Over 12,000 images and videos depicted category 1 images, no sexual activity but sexually suggestive in nature. These images and videos found Charge 2, possession of child abuse material. In relation to those charges, you exercised your right to make a no comment interview to police.
27You have admitted a prior criminal record, you have some very dated theft offences and a reckless injury charge in 2002. In 2003, you were fined in Queensland for weapons, drugs and fraud offences. That history has no relevance to this offending for which I am to sentence you. The offending for which you have been convicted - the offences for which you have been convicted are extremely serious offences. The maximum penalty for
sexual penetration of a child under 12 years of age is 25 years' imprisonment. Sexual assault with a child under 16, producing child abuse material and accessing and producing child abuse material all carry maximum penalties of 10 years' imprisonment.28Victim impact statements were filed by Willow Tanner, one of your young victims, and on behalf of Willow Tanner by Willow’s grandmother and by Avery Travis her mother; David Heywood and Ashleigh Heywood, the father and mother of Charlie and Clarissa Heywood, Abbie Travis, mother of Evelina, and Vanessa Kovachev[14] your daughter. All your victims and their families have been seriously damaged and traumatised by your offending. Your daughter described her life as hell on earth. She is angry, hurt, afraid, irritable, guilty, stressed and sickened by your crimes. She describes herself as completely broken.
[14] A pseudonym.
29Your victim Willow has trouble sleeping, is anxious and nervous, she feels uncomfortable and ill when visiting her aunt's house, the scene of your crime. She does not like being around men. Clarissa Heywood's parents are devastated by your conduct. David Heywood feels guilt and believes he failed as a father and a husband to keep Clarissa safe from you. He feels sadness and despair, he drinks to help him cope. Ashleigh Heywood describes the upheaval to her family life caused by you and describes how Clarissa awakes crying and wetting her bed. And Clarissa has lost confidence and requires maternal reassurance. Ashleigh states, 'Their whole lives have been torn, totally torn apart'. She is hyper protective of her daughter; she is anxious and has trouble sleeping.
30Abbie Travis, Evelina's mother has watched her withdraw from life over the past four years. Abbie has done the same. Both of them have trouble sleeping and nightmares. Evelina vomited and was scared by the court processes. You have clearly no comprehension of the damage you have inflicted on Evelina and her family. Abbie is anxious and depressed, she says,
'Nothing will ever prepare a mother hearing her young daughter who's hurting so much, that she tells you that she wants to kill herself and that she hates herself and that she wishes she'd never been born. She has the worst life. I lost my sweet, happy, cheeky [Evelina], I got an angry, hurt, troubled girl whose behaviour I struggle with daily. I cop the brunt of it and I'll never get those years back. I trusted you with my kids, and my kids are my life. You destroyed that; I cannot trust anyone'.
31I take all the victim's impact material into account in sentencing you.
32Turning to your personal circumstances.
33You are now 55 years of age, being born in Dandenong in September 1967. Your personal history is set out in the psychological report of Jeffrey Cummins, Exhibit 2 on your plea. Both your parents are deceased. Your father who died of a heart attack at the age of 58, when you were only 11 years of age. You were living in Doveton at that time. Your mother remained single after the
death of her husband.34She died of multiple strokes when you were in your early 20s. You are the youngest of seven children. You have five sisters and one brother, but they have no contact with you since these offences were revealed.
35You were raised in the family committed to the Jehovah's Witness faith. You broke away from that faith in your teenage years, but that faith caused you some stress as a young boy. You attended Doveton High School, you were expelled for being a troublemaker, maybe Year 8, or 9 you believe.
36Your family moved to Coronet Bay and you then went to Wonthaggi Tech and then afterwards attended Wonthaggi High School. You passed Year 10 level and you left Wonthaggi High School in mid-Year 11.
37The age of 16, after leaving school you moved on your own to Tooradin, where you initially lived in the Tooradin Caravan Park and over the next two years,
you worked in a local pizza parlour and a pizza parlour in Cranbourne. You also worked as a builder's labourer and carried out some farm work. You then moved back with your family at Coronet Bay, and by the time you were 18, you had started working as a communications technician with Telecom and you remained with them for some six years.38Whilst you were working there you met and married your first wife. You dated for about two years and then married and remained married for about six years. You separated when you were in your late 20s. You had two children from that relationship. Your son Michael[15] who is aged 22, who lives in Brisbane and your daughter Vanessa from whom we heard in the trial. You have no longer any contact with your children.
[15] A pseudonym
39At the time you were still married, you accepted a retrenchment package from Telstra and you established an automotive business and you operated that
for about two years. The age of 34, you moved to Queensland lived in
Surfers Paradise for three years. Where as you worked as a self-taught welder and a mechanic and a chef.40You met online a new girlfriend named Barbara[16] and you lived with her for about six months and then you moved into your property in the Latrobe Valley[17], but you separated from that relationship some 10 and a half years ago. After returning to the Latrobe Valley, you obtained work, and you worked as a boilermaker for two years.
[16] A pseudonym
[17] A pseudonym
41Around 2011, you established your own business, and you fitted aerials, television cabling, cabled residential properties and offices, and installed some security systems as well. You have had some health issues. You underwent a hip replacement surgery about nine years ago, you have got sleep apnoea and you have the appropriate machine and about five years ago you had a coronary stent fitted at St Vincent's.
42You have been single for the past 10 and a half years, and you have not had any partner in that period of time.
43You told Mr Cummins that you denied having any specific interest in child abuse material. You stated that your viewing and possession of child abuse material occurred in the context of it popping up when you were accessing adult
sex pornography. When you were being assessed by Mr Cummins you told him that you had never any specific interest in under aged person, or in
pre-pubescent females specifically. Mr Cummins report, by definition, the charges did not relate to which you have now been convicted, confirmed that you did have a special interest in underaged persons specifically pre-pubescent females. He says, that your denial raises levels of concern. Mr Cummins concluded,'In my opinion I would expect that whilst incarcerated he would be directed to participate in the sex offenders' program. I would certainly hope that in the course of participating in that program, he would develop more insight into why he accessed and possessed child abuse material, and why the jury found him guilty of the charges as set out in the indictment'.
44Mr Cummins said that you have no psychological disorders.
45I have referred to some health issues that you have experienced in your life and Mr Cummins sets out some of those details in his report. Those issues I accept are likely to make your time in custody more onerous for you and I take those health issues into account in sentencing you.
46References were tendered on your plea from firstly Yvonne Jones[18], a neighbour and secretary treasurer of a Men’s Shed in regional Victoria.[19] You have donated your time to that organisation, and she described you as acting in a professional manner.
[18] A pseudonym
[19] A pseudonym
47Tessa Valdez[20] met you when you moved into premises she managed in
Caulfield South in 2019. You are said to have been practically helpful, have a great sense of humour and have a compassionate nature.[20] A pseudonym
48Thirdly, Mick Nicastro,[21] your accountant described you as honest and respectful. I take the character reference material into account in sentencing you, together with the fact that you have no relevant prior history and fall to be sentenced as a man with otherwise good character.
[21] A pseudonym
49I take into account your pleas of guilty to the two charges on indictment C2215382A.1. Those pleas of guilty entitle you to a reduction in sentence. That reduction in sentence is greater because of the increased utilitarian benefit of those pleas of guilty in the time of the COVID-19 pandemic and the difficulties it has caused to our justice system.
50Because I propose to impose a term of imprisonment in respect of all charges, you fall to be sentenced as a serious sexual offender in respect of
Charges 4, 5 and 6 of the trial indictment and on both charges of the
plea indictment. I am obliged to ensure the protection of the community from you, as the principal sentencing consideration. To achieve that purpose the court may impose a disproportionate sentence.51The prosecution concede that I do not need to impose a disproportionate sentence in your case, I can adequately protect the community with the sentencing options otherwise available to the court. I direct however that it be recorded in the records of the court that you have been sentenced as a
serious sexual offender on Charges 4, 5 and 6 of the trial indictment, and
Charges 1 and 2 of the plea indictment.52Your offending against your young victims was a gross breach of the trust placed in you by the family of these children. Your conduct has had a powerful effect on your victims and their family. Although this court all too often has to deal with offending such as yours, and your sexual penetration offences properly described as a mid-level example of such offending, overall, the breach of trust and the young age of your victims demonstrate your moral culpability to be extremely high.
53You exhibit absolutely no remorse for, nor insight into, your offending. You possess a significant quantity of child abuse material which is not only alarming but demonstrates the tendency you acted upon when you offended against your young female victims. You traded on your prior good character to put yourself in the position to commit these crimes. Your prior character then has less weight in the sentencing process.
54Both the offence of sexual penetration of a child and sexual assault of a child fall within the standard sentencing scheme. The standard sentence for sexual penetration of a child is 10 years' imprisonment. The standard sentence for sexual assault of a child is four years' imprisonment. The standard sentence is similar to the maximum penalty for an offence. It is one of the legislative signposts to be taken into account as part of the intuitive sentencing synthesis. It does not set a determinative figure for sentence. A standard sentence represents the sentence for a mid-level example of such an offence, taking into account only the objective factors affecting the relative seriousness of that offence.
55The court must make such an assessment without reference to matters personal to you and wholly by reference to the nature of your offending. Because of the factors to which I previously referred; I regard your sexual penetration of a child under 12 years offence as a mid-level example of such an offence of that kind. Insofar as your sexual assault of child offences are concerned, your offending against Willow Tanner I also regard as a mid-level example of such an offence. It was protracted, involved touching her vagina in circumstances where you were supposed to be caring for her. You only offended against her once.
56Your sexual assault of a child offence Charge 4, relating to Evelina, is in my view a lower-level example of that offence. You had a legitimate medical reason to apply cream to Evelina's genitals, even though you went well beyond what is required to be done and the number of times such treatment was required.
57Similarly, your offending against Clarissa Heywood, Charge 6, represents a low or mid-level example of that offence. Your offending was opportunistic. Clarissa did complain of having a sore vagina and you took the opportunity to touch with a tissue. You clearly should not have done so. Your offending was brief and occurred in response to a request for assistance.
58Overall, however, your offending is serious. Your moral culpability is high, given that you deliberately offended against very young children entrusted to your care. You were motivated by deviant personal sexual interest. General deterrence, I must deter others from acting as you did. Specific deterrence, you need to be deterred from further offending and denunciation of the significant sentencing considerations for sexual offending against children.
59Your child abuse material offending is also, in my view, serious. Firstly, you took photographs of Evelina that were highly inappropriate. It appears that you were touching her vagina and photographing that touching. You lied to her mother about that photography, in addition you had significant quantities of depraved child abused material on your devices. That material included images of your very young granddaughter.
60I have had regard to the principles set out in D'Alessandro[22]as reproduced in the prosecution's sentencing submissions at paragraph 17 in assessing the gravity of your child abuse material. I find it to be mid-level examples of that offending. Clearly principles of totality affect the issue of cumulation of sentence in your case. Your offending against each victim must be recognised in the sentence imposed, with some concurrency is appropriate to reflect totality principles.
[22]DPP V D’Alessandro (2010) 26 VR 477
61On all charges you are convicted.
62On Charge 1, sexual penetration of a child under the age of 12, you are sentenced to be imprisoned for seven years and six months.
63On Charge 3, sexual assault of a child, you are sentenced to be imprisoned for three years.
64On Charge 4, sexual assault of a child, you are sentenced to be imprisoned for two years.
65On Charge 5, production of child abuse material, you are sentenced to be imprisoned for two years.
66On Charge 6, sexual assault of a child, you are sentenced to be imprisoned for two years.
67I order that two years of the sentence imposed on Charge 3, one year of each of the sentence imposed on Charges 4, 5 and 6, are to be served cumulatively on the sentence imposed on Charge 1, the base sentence. That is an effective term of imprisonment of 12 years and six months, in respect of that indictment, the trial indictment.
68In respect of the plea indictment.
69On Charge 1, accessing child abuse material you are sentenced to one years' imprisonment.
70On Charge 2, possession of child abuse material, you are sentenced to
two years' imprisonment.71I order that both these sentences are to be concurrently, that is a total effective sentence of two years on that indictment.
72I order that 12 months of the sentence on the plea indictment be served cumulatively on the sentence imposed on the trial indictment. That is a total effective term of imprisonment of 13 years and six months. I order that you serve nine years and six months of that sentence before being eligible for parole.
73Pursuant to s6AAA of the Sentencing Act, I indicate that but for your pleas of guilty to the plea indictment, I would've imposed a total sentence of three years with a non-parole period of two in respect of that indictment.
74I will deal the issue of Sex Offenders Registration Act. Sexual penetration of a child is a class 1 offence, sexual assault of a child is a class 2 offence. You are therefore required to report under that Act for life.
75I make the disposal orders sought by the prosecution. And I declare that
74 days of the sentence just imposed not including today has already been served by way of pre-sentence detention. Are there any other orders required Mr Prosecutor?76DR HARKESS: No, thank you, Your Honour.
77HIS HONOUR: Mr Sullivan do you have any?
78MR SULLIVAN: No.
79HIS HONOUR: All right, I'll terminate the links and Mr Kovachev can be provided with his obligations under the SORA registration whilst he's in custody.
80MR SULLIVAN: As it please Your Honour.
81DR HARKESS: The court pleases.
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