Director of Public Prosecutions v Leuzzi

[2016] VCC 748

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00061

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOMENICO LEUZZI

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 June 2016
CASE MAY BE CITED AS:	DPP v Leuzzi
MEDIUM NEUTRAL CITATION:	[2016] VCC 748

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms O. Go
For the Accused	Mr R. Gipp

HIS HONOUR:

1Domenico Leuzzi, on 31 May 2016, you pleaded guilty to two charges of using a carriage service to transmit child pornography material. These charges are contrary to s.474.19(1) of the Criminal Code (Cth).  The maximum penalty set down by Parliament for each of these offences is 15 years' imprisonment.

CIRCUMSTANCES OF OFFENDING

2You came to the attention of the Child Safety and Sexual Crimes Group within Queensland Police between 25 June 2013 and 18 August 2013.  Taskforce Argos, was conducting undercover operations through an internet based chat room known as mIRC in a forum labelled "dad and daughter sex."  The police undercover operative passed herself off as a 43 year old mother known as “Sharon Smith” and her 14 year old daughter “Bree Smith”.  You engaged in chat room with each of these “persons”.

3The actual facts of your offending are set out in detail in the Prosecution Opening and the circumstances are set out as follows.

CHARGE 1

4In respect of Charge 1, after your initial contact, Sharon and you conducted a number of private chat sessions over Skype.  These chat conversations occurred between 25 January 2013 and 18 August 2013.  These conversations included discussing whether Bree could be persuaded to participate in sexual activities with them.

5On 21 July 2013, you asked Sharon for Bree's email address, which you were given.  From this date until 18 August 2013, you engaged in chat conversations both with Sharon and Bree regarding engaging in sexual activities with Bree. 

6During the period of 25 June 2013 to 19 July 2013, your chat conversations with Sharon included the following:

·     Sharon asked you what your sexual preferences were, to which you replied that you ‘would love a mother and daughter’.

·     You stated that ‘it would be hot to have a mature woman and a young girl’.

·     You wrote that you were interested in girls aged between 14 and 16 years old.

·     You asked Sharon to send you a photograph of her daughter, which she refused to do. 

·     You transmitted an image of yourself to Sharon via Skype.

·     You asked Sharon if she thought Bree would be interested.  Sharon said she wasn’t sure and didn’t know how she would go about it.

·     You said ‘if you had a man and did things so she could see and say she would like to join in or touch’.

·     You asked Sharon if she had been having fun with Bree sexually and asked Sharon if Bree would join in with you and Sharon if you and Sharon were engaged in sex in her presence.

·     You stated that it would be ‘amazing’ to be in bed with Sharon and Bree naked and that you ‘would love licking both [their] pussies’.

·     You advised Sharon that you would be willing to travel to Brisbane for the purpose of engaging in sexual activity with Sharon and Bree.

7During the period of 21 July 2013 to 18 August 2013, the chat conversations that took place with Sharon and Bree included the following: 

·     Bree advised you that she was 14 years old.  During the conversation, you asked Bree if she had ever had sex and if she wanted to and if she would join in with you and her mum.  You told her you would touch her all over her tits and pussy and she could touch your cock.  You said if she preferred, he would just be with her.  You then asked if she would like her tits and pussy touched, and that - you would like to feel and suck her tits.  You asked whether she would like to try and suck your cock - and you would lick her pussy and give her an orgasm.

·     You said you would like to see Bree naked and asked her if she had a webcam.  She stated that her webcam was not working.  You asked if she had any naked photographs of herself.  Bree said that she had a photograph of her breasts, and you requested that photograph be sent to you.  Bree forwarded that photograph to you, which depicted a naked female chest with exposed breasts.  You replied "wow you have gorgeous tits" and you would “love to feel and suck them”.  You then asked Bree if she would like to do things with yourself and Sharon, stating that you would like to spend time with Bree and also with Bree and Sharon together.

·     You contacted Bree and Sharon via Skype, advising that you intended to travel to Queensland in October, asking Bree if she would want to sleep with you.  Bree asked you if you were concerned that she was 14 years old, to which you replied that you did not mind, that it would be “so good kissing and touching [her] all over”.  You told Sharon that it “would be heaven to be in bed with you both”.  Nothing further occurred on this chat room from you.  Some ten months later, the police executed a warrant at your home.

1. On 30 June 2014, a search warrant was executed at your address.  Electronic devices were seized.  You were arrested and conveyed to the Moorabbin Police Station, where a record of interview was conducted.  You acknowledged your online contact with Sharon and Bree.  You said that you believed Sharon and Bree were the same person.  You said it was not right to be with someone under the age of 18 and you said you had no intention of going to Brisbane, it was just role playing, all virtually make believe, and you were just playing along with it.

   CHARGE 2

   9In respect to Charge 2, on 4 February 2015, a Cooler Master desktop hard drive, seized under warrant from your house was analysed.  As a result of the analysis, further child pornography material was discovered between yourself and another person with a user ID username of nikkipapps67, just referred to as Nikki for the purposes of this sentence.  The chat logs show the conversations took place between 6 March 2014 and 18 March 2014.

10Between 11 March 2014 and 17 March 2014, you and Nikki discussed engaging in sexual activity involving a young female child named Kels, who was said to be Nikki's daughter.  These conversations included the following:

·Nikki rubbing Kels' foot, "on my clit” while Kels “sucks on my tit";

·Fingering Kels' pussy and stretching it for you;

·You hitting Kels with a leather belt while Nikki "sucks your cock";

·Teaching Kels how to "suck your cock";

·Taking pictures of the accused's "cock on Kels' pussy and mouth";

·That Kels might like it if “a dogs licked her pussy"

·That "Kels might not like “sharing my boobs" to which you replied, "If she wants something to suck on, she can suck my cock while I'm sucking your boobs";

·Using Nikki's vibrator on Kels, "we can hold her down to put it on her pussy."

11You were rearrested in relation to these new allegations on
16 July 2015 and interviewed again at the Moorabbin Police Station.  You admitted to the chat log conversations with Nikki.  You deny that you had ever met her.  You stated that the chat was only role-playing and that you did not believe Kels existed.  You admitted that the chat was disgusting and offensive, but you never intended doing the acts.

12You said that you would never abuse children and it was only role-playing.  You admitted that the conversations might have turned you on a bit.  You said your health was very bad and so you would go to the chat rooms to pass the time.

13The Charge 2 offending has occurred some six months after the Charge 1 offending and concluded some three months prior to the police first executing the search warrant at your home.

14You indicated your intention to plead guilty to the two charges at the committal mention hearing on 22 January 2016.  The plea was indicated at the earliest time and is consistent with your answers to the police in the record of interview.

YOUR PERSONAL CIRCUMSTANCES

15You are now 55 years old.  At the time of your two offences, you were 52 and 53 respectively.  You live with your parents and have done so for your whole life.

16Your father is a 92 year old man and suffers from dementia.  Your mother is 88 years old.  You also live with your older sister.

17Due to your health conditions, you have been on a disability pension since 2013 and now assist your parents around the house and getting them to medical appointments.  You have never left the family home, lived in a relationship at another address, been married or had children.  You have two married sisters who live in a suburb near to your family home.

18Your education was limited to successfully completing Year 10 at Hampton High School.  You attended but failed in Year 11 level.

19After leaving school, you initially worked in a florist shop and at the Victorian Market with an uncle for a period of approximately three years.  Your father then assisted you in getting employment as an assistant printer with your neighbour, Mr Sanfti.

20You changed your employment and became a qualified printer and worked mainly on a bookbinding machine and guillotine machine until the age of 53.

21Due to your ill health, you retired and received a retrenchment payment at that time.  You were placed on the disability pension and you continue to receive that benefit to the current time.

22You suffer very poor health.  On your plea the following exhibits were tendered in respect of your health condition:

23Exhibit A, is a discharge summary in respect of yourself dated 1 September 2015 from the Monash Medical Centre;

24Exhibit B, is a report of Dr Ming-Lee Lin dated 8 July 2014 in respect of your eyesight;

25Exhibit C, is a report of Professor Peter Kerr dated 16 November 2015 which relates to your general health. I will come back to that;

26Exhibit D, is a medical report of Disability Support Pension dated 14 July 2014;

27Exhibit E,  is a medical report of Disability Support Pension dated 16 July 2014; and

28Exhibit F, is a medical report of Disability Support Pension dated 30 July 2014.

29Exhibit G, is a report from Mr Jeffrey Cummins who is a forensic psychologist, dated 12 May 2016. 

30Exhibit L, is a list of your medications that you currently take.

31In August-September 2015, you were an inpatient at the Monash Medical Centre for acute coronary syndrome.  That is set out in Exhibit A on the plea. Your hospitalisation was for some 12 days.  Professor Kerr, in his report as set out in Exhibit C, describes your cardiac condition as significant heart disease.

32Dr Ming-Lee Lin who is an ophthalmic surgeon, in the report which is Exhibit B, diagnoses that you as suffering from significant eye condition causing visual impairment to your left eye.  You are to receive regular injections to that eye as part of your treatment.

33Professor Peter Kerr, a nephrologist, in his report which is Exhibit C, states you have significant medical issues including the following:

·Thalassaemia major with very high antibody status rendering you unable to be transfused with blood.  This leaves you constantly and markedly anaemic;

·End-stage renal failure requiring dialysis;

·Peritoneal dialysis.  This is a daily dialysis routine with strict requirements for adherence to a complicated dialysis regimen and strict adherence to diet and fluid restriction;

·Ischaemic heart disease with a recent myocardial infarction which was in the latter part of last year;

·Peripheral vascular disease; and

·Gout.

34Exhibits D, E and F were medical reports for your disability support pension.  These reports confirmed Professor Kerr's opinion.

35You are on the medications of Folic Acid, Metroprolol, Pantoprayole, Testosterone, Calcium Carbonate, Resonium A Powder, Risedronate, Cholecalciferol and Fusemide.

36You have been assessed by Mr Jeffrey Cummins, a forensic psychologist for the purposes of this court case.  Mr Cummins prepared a report dated
12 May 2016.  That was Exhibit G.

37Mr Cummins' opinion is that the risk of you reoffending in a similar manner to these charges is low.  That is after his testing.  He states you are not suffering from a specific sexual deviance such as paedophilia or hebephillia.  Mr Cummins has diagnosed you as suffering from adjustment disorder with mixed anxiety and a depressed mood.

38All of the above are matters of your personal circumstances I take into account when fixing your sentence.

39It is obvious from the personal references tendered on your behalf, from your sisters Silvana Michelin, Michelle Waterfall and Maria Leuzzi and your first printing employer and family friend Henry Sanfti that you have strong family support around you.

SENTENCING CONSIDERATIONS

40General deterrence is to be a paramount consideration in sentencing child pornography offenders.  Both courts and the legislature consider child pornography offences as grave offending.  In such cases, an offender's prior good character is to be given less weight.

41In Victoria, it is not the law that unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted for these offences.  I refer to DPP (Cth) v Garside [2016] VSCA 74 as authority for that proposition.

42The broad principle of sentencing is that each case must be decided according to its own circumstances.  The basic sentencing principles are set out in the case of DPP v Smith and I will refer to them.

43In DPP v Smith, Nettle JA enunciated the principles which apply in sentencing offenders of child pornography offenders as follows:

1.First, the nature and gravity of the offending ordinarily falls to be determined by reference to the four criteria adumbrated by Johnson J in R v Gent:

a)The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;

b)The number of images or items possessed;

c)Whether the material is for the purpose of sale or further distribution;

d)Whether the offender will profit from the offence.

In the case of child pornography for personal use, the number of children depicted and thereby victims is also regarded as a relevant consideration.

2.Secondly, general deterrence is regarded as the paramount sentencing consideration - because of the public interest in stifling the provision and use of child pornography; and less or limited weight is given to an offender's prior good character because it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character; and

3.Thirdly, a sentence of immediate imprisonment would ordinarily be warranted, but it is recognised that there are cases where a sentence which does not involve a period of actual custody is not precluded.

44In this case, you have been party to the transmission of one image of a child showing her naked breasts.  The child appears to be between 14 and 16 years old.

45The remainder of the transmissions are chat room exchanges between yourself and Bree or Nikki and Kels.  These exchanges between you, Bree, Nikki and Kels are of a grooming nature.  You describe these exchanges as a fantasy and you would not carry through with the activity described in those conversations.

46I find that your offending is at the lower end of the range of offending for the use of a carriage service to transmit child pornography material. 

47You have pleaded guilty at the earliest time in the proceeding. Your plea of guilty and co-operation with police indicate and demonstrate remorse on your part. I accept that to be the case.

48Your plea of guilty also has a utilitarian value.  You have allowed the orderly administration of justice.  There is a certainty of outcome and resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates public confidence in the legal process setup to protect the community.

49You have no prior convictions.  You have lived a quiet life, working in the printing industry and now caring for your parents.

50Your health is very poor and a term of imprisonment, to serve, would be of considerable hardship upon you, particularly the need to access daily dialysis and the constant need for a catheter to facilitate that procedure.

51The Crimes Act (Cth) directs courts that a term of imprisonment is the last option in sentencing.  The Act sets out a number of factors to take into account when fixing a sentence.  They include the following and I have said some of these before but I will to repeat them here:

(a) The principals of general deterrence;

(b) The nature and circumstances of the offences including your moral culpability;

(c) The maximum penalties applicable to the charges that you face;

(d) If the offence forms part of a course of conduct consisting of serious criminal acts of the same or similar character to that course of conduct;

(e) The fact that you have pleaded guilty to the charges;

(f) The degree to which you have co-operated with law enforcement agencies in the investigation of the offences themselves;

(g) The deterrent effect of any sentence or order under consideration may have on you personally.  That is specific deterrence;

(h) The need to ensure that you are adequately punished for your offences;

(i) Your character, antecedence, age, means, physical and mental condition;

(j) The probable effect of any sentence or order under the consideration may have on your family or dependents;

(k) Your prospects of rehabilitation; and

(l) The fact that prison is, as I have said before, the last resort.

52I regard your prospects of rehabilitation as reasonable.  I rely on the opinion of Mr Jeffrey Cummins and the fact that you have pleaded guilty and demonstrated a remorse and an understanding of the impact of your offending on other people.  You are at low risk of reoffending.

53You have been assessed as suitable to be placed on a community corrections order.  Your counsel submitted a community corrections order was the appropriate sentencing disposition for these two charges.

54The prosecutor submitted that your offending calls for a term of imprisonment.  It was submitted that the considerations of general deterrence, specific deterrence and denunciation of your conduct were to be accorded full weight given the extent of your offending both by the time and the nature of the chat room conversations; child pornography related to that.

55I am required to take into account current sentencing practices for similar offending.  Each case is peculiar to its own facts and each case is different in its own respect.

56I have regard to Smith's case, Garside's case and zarb's case in assessing the current sentencing practices.

57However the basic purpose for which a court may impose a sentence of imprisonment are punishment, deterrence, both specific and general and the protection of the community.  In sentencing you, I must have regard to a range of factors including the seriousness of your offence, your culpability for it and your personal circumstances.

58I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you or offenders such as yourself are rehabilitated and reintegrated into society.

59I find that your offending does call for a term of imprisonment but that term is not to be served immediately.

WOULD YOU STAND PLEASE

60On Charges 1 and 2, you are convicted and sentenced as follows:

61I order that you be released, under paragraph 20 (1)(b) of the Crimes Act 2014.  forthwith upon you giving security by recognisance of $1000 to comply with the following conditions:

a)    That you be of good behaviour for three years;

b)    That you be under the supervision of the Deputy Commissioner, Community Corrections Service, and the Sex Offenders Management or his or her nominee for a period of three years; and

c)    That you attend for assessment and, if assessed as suitable, treatment for sex offender programs and programs to reduce re-offending as directed by the Deputy Commissioner, Community Corrections Services and Sex Offender Management or his or her nominee;

d)    That you report to the Moorabbin Community Corrections Centre by 4 pm on 2 June 2016.

e)    That you report to and receive visits from a community corrections officer or officers; and

f)     That you notify an officer at that community corrections centre, of any change of address or employment within two clear working days after the change; and

g)    That you are not to leave Victoria except with the permission of an officer from the Moorabbin Community Corrections Centre;

h)   That you obey all lawful instructions and directions of the community corrections officers.

1. This order has been issued because you, Domenico Leuzzi, were charged with the following federal offences.  They are:

   (a) Transmit child pornography material, using a carriage service contrary to s.474.19(1) of the (Cth) Criminal Code and transmit child pornography material using a carriage service contrary to s.474.19(1) of the (Cth) Criminal Code and;

   (b) the court has sentenced you to a term of six months imprisonment; and

   (c) the court has decided that an offender be released forthwith if you comply with conditions of this order.

2. Do you understand what I said?

3. OFFENDER:  Sorry?  Thank you.

4. HIS HONOUR:  Can that order be prepared?

5. MS GO:Yes, Your Honour.  If Your Honour can just perhaps repeat the term of    imprisonment ‑ ‑ ‑

6. HIS HONOUR:  Six months.

7. MS GO:  In relation to Charge 1 and Charge 2, is that ‑ ‑ ‑

8. HIS HONOUR:  Six months in respect of each and they are concurrent.

9. MS GO:  Concurrent.  Yes, Your Honour.  I can prepare the order.

10. HIS HONOUR: Thanks. As well as that, Mr Leuzzi, pursuant to s.28A of the Sex Offenders Registration Act 2004, you are ordered to be placed on the register for a period of 15 years and the two charges are class 2 offences.

11. Do I have to declare a s.6AAA?

12. MR GIPP:  No, Your Honour because ‑ ‑ ‑

13. HIS HONOUR:  It is a Commonwealth matter.

14. MR GIPP:  Yes.

15. HIS HONOUR:  Yes.  When this document is prepared, I will ask Mr Gipp to go back and explain to you what the order is and you can then sign it.  I will just hand down - so the draft order - Madame Prosecutor, I will just hand down the draft order so you can see exactly what I am ‑ ‑ ‑

16. MR GIPP:  May I approach the dock, Your Honour?

17. HIS HONOUR:  Yes, thank you.

18. MR GIPP:  I have explained the terms of that order to Mr Leuzzi, Your Honour.

19. HIS HONOUR:  Thank you.

20. MR GIPP:  I have also had him sign the document.

21. HIS HONOUR:  Yes.  Thanks.  I will just have the Sex Offenders ‑ ‑ ‑

22. MR GIPP:  This is the recognisance, Your Honour under s.20 (1)(b).

23. HIS HONOUR:  Yes, thank you.

24. MR GIPP:  If I could also hand the other order ‑ ‑ ‑

25. HIS HONOUR:  My associate has to witness his signature. 
    Mr Leuzzi, you will be given a copy of that order.  If you can release Mr Leuzzi, thank you.

26. Mr Gipp, Ms Go, I did not thank you yesterday, but I am now thanking you both for your assistance in this case.  These are very difficult cases for everyone to deal with and thank you for your assistance in dealing with it.

27. Mr Leuzzi, you can go home to your family.  You have got to behave yourself for the next three years or you will be back to see me.  Thank you.

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