Director of Public Prosecutions v Livori
[2019] VCC 1539
•20 September 2019
Meth
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| SEXUAL OFFENCE LIST |
Case No. CR-18-01870
Indictment No. J10320925.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL LIVORI |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 May 2019 (plea hearing) 21 August 2019 | |
DATE OF SENTENCE: | 20 September 2019 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Livori | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1539 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty to one charge of sexual penetration of a child under 16 years – plea of guilty to one uplifted charge of breach of a personal safety intervention order – pleas of guilty to 23 uplifted charges in relation to a breach of an interim personal safety intervention order
Legislation Cited: Crimes Act 1958, s49B(1) amended by Crimes Amendment (Sexual Offences) Act 2016; Personal Safety Intervention Orders Act 2010, s100(2); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004
Cases Cited:Director of Public Prosecutions v O’Neill [2015] VSCA 325; R v Verdins & Ors (2007) 16 VR 269; Phillips v R [2012] VSCA 140; Marrah v The Queen [2014] VSCA 119; Best v R [2019] VSCA 124; Clarkson v The Queen (2011) 32 VR; R v Man [2005] QCA 413
Sentence: Convicted and sentenced to a total effective sentence of three years six months imprisonment with a non-parole period of two years six months imprisonment. 6AAA declaration – four and a half years imprisonment with a non-parole period of 3 years 2 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Hamill | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr S Lindner | Chris McLennan & Co |
HIS HONOUR:
1 Michael Livori, on 22 May 2019, you pleaded guilty to the charge on Indictment No. J10320925.1 that at Werribee, Victoria on 2 January 2018, you intentionally took part in an act of sexual penetration with a child under the age of 16 years, in that you introduced your penis into the mouth of the complainant.
2 Sexual penetration of a child under 16 years is contrary to s.49B(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016 and carries a maximum penalty of 15 years’ imprisonment.
3
A summary charge, Charge No.2, was transferred to this Court pursuant to s.145 of the Criminal Procedure Act 2009. On 22 May 2009 you also pleaded guilty to the uplifted summary charge, in that you, at Caroline Springs, on
14 January 2018, being a person against whom a Personal Safety Intervention Order was made, pursuant to the Personal Safety Intervention Orders Act 2010, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, that is the interim order of the Act, did contravene that Order by attending the affected person’s home.
4 Such offence is contrary to s.100(2) of the Personal Safety Intervention Orders Act 2010 and carries a maximum penalty of two years’ imprisonment or 240 penalty points or both.
5 Also, on 22 May 2019 your criminal record, dated 20 May 2019, was tendered (Exhibit 2). I note the following:
(a) on 4 October 1984, at the age of 17, you were found guilty of a theft of a motor vehicle, unlicensed driving and driving an unregistered motor vehicle. You were fined $500 and placed on probation for 12 months and disqualified from obtaining any licenses until 16 July 1985;
(b) on 16 December 1985, at Williamstown Magistrates’ Court, you were found guilty of possessing house-breaking implements and fined $150;
(c) on 22 November 1988, at Broadmeadows’ Magistrates’ Court, you were found guilty of using indecent language and being drunk in a public place and were convicted and fined $100 and ultimately discharged;
(d) on 22 September 1991, at Williamstown Magistrates’ Court, you were found guilty of cultivating a narcotic plant, cannabis, possessing a drug of dependence (not named) and using other drugs of dependence. You were fined $150 on each charge;
(e) on 14 December 1998, at Williamstown Magistrates’ Court, you were found guilty of possessing cannabis and was fined $200 and a conviction was recorded.
6 Because of a number of matters - the late delivery of a report from the psychologist to be relied on by your counsel; together with the likelihood that there would be further uplifted summary matters, it was agreed that the plea be adjourned ultimately until 21 August 2019.
7 Summary Charges 1 to 17 (with the exclusion of Charge 13 which was withdrawn), were transferred to this Court pursuant to s.145 of the Criminal Procedure Act. The informant in all those uplifted charges was Senior Constable Gibson.
8 On that day -that is 21 August 2019, you pleaded guilty to each of the following charges:
(i) Charge 1, that you, at Altona Meadows, on 28 July 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had the explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending three text messages to the protected person;
(ii) Charge 2, that you, at Altona Meadows, on 1 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending 10 text messages to the protected person;
(iii) Charge 3, that you, at Altona Meadows, on 2 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending 21 text messages to the protected person;
(iv) Charge 4, that you, at Altona Meadows, on 3 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending three text messages to the protected person;
(v) Charge 5, that you, at Altona Meadows, on 4 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending nine text messages to the protected person;
(vi) Charge 6, that you, at Altona Meadows, on 5 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending two text messages to the Protected Person;
(vii) Charge 7, that you, at Altona Meadows, on 9 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending two text messages to the protected person;
(viii) Charge 8, that you, at Altona Meadows, on 11 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending 15 text messages to the protected person;
(ix) Charge 9, that you, at Altona Meadows, on 12 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending seven text messages to the protected person;
(x) Charge 10, that you, at Altona Meadows, on 12 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by making a phone call to the protected person;
(xi) Charge 11, that you, at Altona Meadows, on 13 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending one text messages to the protected person;
(xii) Charge 12, that you, at Altona Meadows, on 14 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending 14 text messages to the Protected Person;
(xiii) Charge 14, that you, at Altona Meadows, on 15 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending two text messages to the protected person;
(xiv) Charge 15, that you, at Altona Meadows, on 16 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending 48 text messages to the protected person;
(xv) Charge 16, that you, at Altona Meadows, on 17 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by sending six text messages to the protected person;
(xvi) Charge 17, that you, at Altona Meadows, on 16 August 2018, being a person against whom a Personal Safety Intervention Order was made pursuant to the Personal Safety Intervention Orders Act, and having been served with a copy of such Order, or had an explanation of the Order given to you in accordance with s.40, interim Order of the Act, did contravene that Order by making three phone calls to the protected person.
9 Such offences are contrary to s.100(2) of the Personal Safety Intervention Orders Act 2010 and carry a maximum penalty of two years’ imprisonment or 240 penalty points, or both.
The Circumstances of the Offending
10 Initially, counsel for the prosecution tendered a document headed, 'Summary of Prosecution Opening for Plea', which deals with the offence on the Indictment and the single uplifted Summary Charge 2 (see Exhibit 2). I was informed by your counsel that you agree with the contents of such document. In particular, I note the following:
· You are presently 52 years of age, having been born in 1967 and was 50 years of age at the time of the offending. At the time of the offending you lived in a boarding house in Myrtle Street, Werribee, with other males.
·
The complainant, was born on 13 February 2002 and was 15 years old at the time of the offending. Prior to December 2017
she was living in a residential care facility overseen by the Department of Health and Human Services, to which I will refer to as the DHHS.
· You met the complainant through the complainant’s ex-boyfriend.
· The complainant was listed as a missing person on 1 December 2017 and was living in your rented room in Myrtle Street, Werribee since that time until she was, 'picked up', by police on 2 January 2018.
· During the month of December 2017 the complainant described sucking your penis until you ejaculated into her mouth and then, in particular, describing this happening, 'All day, every day for a month'. This was referred to as an uncharged act or context material only.
·
On 2 January 2018, shortly before police arrived at 6.05 pm, you penetrated the complainant’s mouth in the way you had previously. The complainant describes you as pulling your pants off and then orally penetrating her mouth with your penis until you ejaculated. That is
Charge 1 on the Indictment, sexual penetration of a child under the age
of 16.
· The complainant did not make any disclosures to the police who attended on 2 January 2018 and first disclosed the sexual misconduct to a Mr Peter Webster, a foster carer, on 5 January 2018. The complainant told him that she was kept in your room for a month without any other housemates knowing of her presence. The complainant also stated that you forced her to give you oral sex and that you supplied her with drugs and food.
· On 5 January 2018 Peter Webster became the full-time carer for the complainant and her younger brother.
· An Interim Personal Safety Intervention Order was made at the Magistrates’ Court at Melbourne on 4 January 2018 against you, identifying the complainant as the protected person. The Order was served on you on 11 January 2018. The Interim Order attached full conditions, including, but not limited to, a condition that you not attend within 200 metres of her address.
· On Sunday, 14 January 2018, the complainant was at home with her carer, his wife and one of their friends. You attended at the front door, knocking for the door to be opened. Mr Webster opened the door but did not know who you were. You told Mr Webster that you were looking for your canary and asked whether Mr Webster had seen it and if you could look for it in his backyard. Mr Webster told you that he did not have a backyard, as a freeway ran behind the house. You then became quiet and Mr Webster told you that he would look anyway, and went into the house to speak with the complainant and asked her for a description of you. The complainant gave a description that matched the man, that is you, who was at the front door.
· Mr Webster then took the complainant back to the front door to get her to identify you but you were no longer there. The complainant did recognise your blue Holden Astra parked beside Mr Webster’s ute on the street.
· Mr Webster called 000 to report your attendance and when on the phone, saw you approach his front door again, which deterred you from entering, and later you drove off in your car. This relates to Summary Charge 2, contravention of a Personal Safety Intervention Order.
· Text messages on your phone were analysed and revealed a number of text messages between you and the complainant wherein you expressed love for the complainant. See Exhibit 4, being photographs of those messages.
· You underwent a record of interview on 1 February 2018 and although admitting that you knew the complainant, largely responded with, 'No comment', responses.
11 In relation to Charges 1 to 12 and 14 to 17, uplifted from the Magistrates’ Court, counsel for the prosecution referred to the statement of the informant, Gibson, which sets out the circumstances of the offending. (See Exhibit 3). In particular, I note the following:
·At the time of your offending you were 51 years old.
·On 19 July 2018 you were granted bail at the Altona North Police Station in relation to charges involving sexually penetrating a child under the age of 16 and encouraging a child under the age of 16 to engage in involuntary sexual activity. On 19 July 2018 you were bailed to appear at the Melbourne Magistrates’ Court on 13 August 2018, which was later adjourned to 12 September 2018.
·At the time of this offending you were living at 78 Lynden Street, Altona Meadows.
·The protected person ('PP') was a fifteen-year-old female, who was then managed and housed by the Department of Health and Human Services ('DHHS') in conjunction with Child Protection ('CP'). The PP had been identified as a child at risk of sexual exploitation and was monitored by the Dandenong SOCIT.
·In July 2018 DHHS and CP identified you were associating with the PP by telephone and had been doing so for a month. When you contacted the PP there was an evident increase in PP’s risk-taking behaviours, including escalated risk of sexual exploitation, absence from placement and significant substance use.
·As a result the DHHS made an application for an intervention order on behalf of the PP against you. On 20 July 2018, the Dandenong Magistrate issued an Interim Personal Safety Intervention Order against you.
·On 23 July 2018, at 5.45pm, the Interim Personal Safety Intervention Order was served and explained to you by Leading Senior Constable Ranner. The conditions of the IVO stated, amongst other matters, that:
§ you must not contact or communicate with the protected person by any means.
§ you must not get another person to do anything to do anything that you must not do under this order.
·Over the period from 20 July to 16 August 2018, 20 days, you have sent the PP a total of 43 text messages and four telephone calls.
·On 29 August 2018 you were arrested at your home address by police and ultimately made a, 'No comment', interview.
12
Counsel for the prosecution informed the Court that in relation to the offence on the Indictment and the single uplifted charge, you were initially arrested on
1 February 2018, but was released on bail on 6 April 2018 (a period of 65 days, including the day of release).
13 On 29 August 2018 you were arrested in relation to the summary matters involving the informant, Gibson, and was remanded in custody. A committal hearing in relation to the indictable offence was heard on 12 September 2018, and you did not make any application for bail.
14 Counsel for the prosecution noted that it also sought a forfeiture order and a forensic sample order, both of which were not opposed.
15 Counsel for the prosecution also highlighted that sexual penetration of a child under the age of 16 is a Class 1 offence under Schedule 1, as defined in s.3 of the Sex Offenders Registration Act 2004. The Act provides for the mandatory registration of an offender who has been sentenced by a court for a child sex offence committed as an adult, and is subject to a reporting period of 15 years, as you are pleading guilty to the single Class 1 offence (see s.34(1) of the Sex Offenders Registration Act 2004).
Your Personal Circumstances and Background
16 Your counsel tendered the following documents:
(a)
a document headed, 'Defence Outline of Submissions on Plea', dated
19 June 2019, together with a document headed, 'Defence Supplementary Submissions on Plea', dated 19 August 2019 (see Exhibit A);
(b) a final progress report from CISP, that is, the Court Integrated Services Program, dated 31 July 2016 (Exhibit B);
(c) two reports from the psychologist, Mr J. Cummins, who assessed you initially on 17 April 2019 and on 1 August 2019 (Exhibit C);
(d)
urine analysis results whilst on remand, dated 6 December 2018,
11 December 2018, 19 December 2018, 12 February 2019, 27 June 2019 and 27 July 2019 (Exhibit D). All such results were negative;
(e) a bundle of certificates of completion of courses whilst being on remand:
– Certificate for Responsible Service of Alcohol dated 12 February 2019;
– Certificate of attendance for a prison legal education and assistance parole readiness program dated 5 July 2019;
– Certificate for Adapt (Adjusting to prison) dated 6 March 2019;
– Certificate of program attendance (positive problem solving program) dated 4 February 2019;
– Certificate of program attendance (building healthy relationships) dated 23 January 2019;
– Certificate for Adapt (adjusting to prison) dated 10 December 2018 (Exhibit E).
17 Partly based on some of the documents which were tendered on your behalf and various other submissions made to me by your counsel, I note the following:
· You were born in Williamstown and when two years old your parents separated and your mother remarried when you were three years old, and such marriage ended when you were nine years old.
· At that time you were then told that your natural father had been, 'Charlie', who now lives in Kyneton and has retired from the railways and is in a long-term relationship. Apparently he and his partner are alcoholics, and that your relationship with your biological father has been, 'On and off over the years'. Your mother is currently in a stable, long-term de facto relationship with a truck driver, and prior to her retirement with a back injury 10 years ago, she was a carer with the Hobsons Bay City Council. You now have a good relationship with her, although the relationship was difficult in early years, as home life was very unstable due to her frequent changes in homes and partners.
· A half-sister, Michelle, and a half-brother, Len, now live with your mother, and another half-sister, Penny, is married and living in Skipton. You have had visits from Penny and telephone contact with your mother, Michelle, and Len, since being in custody. You believe that none of them have any criminal history.
· You found school, 'difficult', attending at least six schools overall and most recently Narooma High School in New South Wales, where you left at the age of 14 years to return to Melbourne to be with a then girlfriend. After two months you returned to your mother and her then partner in Bermagui in New South Wales but never went back to school.
· After leaving school you worked for about 18 months on a tuna boat with your mother’s then boyfriend, after which, during your teenage years you returned to Melbourne, had a number of casual factory jobs and tried out as an apprentice jockey for two months.
· From about the age of 20 you worked steadily as a truck driver, then as a forklift driver, initially in warehouses, then on the wharves until your early 40s. More recently, having suffered chronic back pain, you have relied on a Newstart allowance and only occasional casual labouring jobs.
· From the age of 16 you were in a de facto relationship with Ms Deborah Luck for more than 20 years, living in Altona North. That relationship produced three children, now aged 27, 26 and 18 years. The youngest child, Daniel, is autistic and attended special schools and stayed with you on weekends until mid-2016, when Ms Luck objected to your new partner.
· You lived with your 34 year old partner, Rachael, in 2016 and 2017. You then lived alone in various rooming house premises until 1 February 2018, at which time you were first arrested.
· After separating from Ms Luck you were still working full time and purchased a, 'house and land package', at Truganina. After the house was built you lived there until 2013, when it was sold, with the proceeds being quickly dissipated through escalating amounts of alcohol and methamphetamine use.
· You recall alcohol had been used to excess by your father, stepfather and others in your household, and was freely available to you. By the age of 17 you were smoking cannabis daily and using amphetamines at least on weekends, eventually by injecting.
· Your alcohol, cannabis and amphetamine use was shared by Ms Luck, although you believe she has not come to the attention of the police. Your social use continued during your working years and consumption increased after you left employment on the wharves.
· Your alcohol use did reduce when you became dependent on ice, initially smoking methamphetamine, then injecting, using daily up to the date of your arrest.
· You are in custody at the Karreenga Correctional Centre, Lara, and feel somewhat isolated.
The Evidence of Mr Cummins
18 The consulting and forensic psychologist, Mr J. Cummins, interviewed you initially on 17 April 2019, and later on 1 August 2019, both interviews being conducted by video conference, with you situated at Karreenga Correction Centre.
19 At the time of the first interview, Mr Cummins only had details of the indictable offence and the first uplifted summary charge.
20 When queried about the indictable offence you informed Mr Cummins that:
'Well, I was sort of homeless for the first time and I was living in a room in a hostel for men only. She (the complainant) knocked on my door in the hostel and told me she'd been spending a lot of time at the hostel, smoking dope and using ice along with the other residents. She asked me if she could stay in my room.
The situation just developed where we'd use ice together and she told me she was bisexual. I figured she was under the legal age. She asked me if I wanted her to have oral sex with me and I took advantage of her because of her age, but at the time I was shooting up ice every day. It was my decision to have sexual contact with her. I accept my offending was opportunistic. She ‘consented’ to all of this. I didn’t use any force. She often told me she liked being in my room because I kept my room spotless.'
21 When queried about the single uplifted summary charge you told Mr Cummins that:
'Well, I know it sounds stupid, but I sort of fell in love with her, but I know my emotions were all screwed up at the time because of the ice and this was sort of like a bit of a fantasy. I allowed the ice to take over. I’m taking full responsibility for my offending. It was my decision to sexually assault her, but at the time I didn’t really think it was sexual assault because I thought she was consenting, but I also knew she couldn’t consent.'
22 Mr Cummins reports that he administered a series of tests based on the, 'Current best practice approach', involving risk assessment. Ultimately
Mr Cummins came to the view that it was his opinion that the risk of you committing a further sexual offence against an underage person was low. He was also of the opinion that it was appropriate that you participate in offence-specific treatment in order for you to become more fully informed regarding why it is that laws exist concerning having sexual contact with under-age persons.
23 Mr Cummins also noted during the interview you apologised regarding your offending behaviour, and specifically stated you hoped the victim of your offending was not traumatised as a result of your offending.
24 Mr Cummins did note that you have a minimal mental health history, although you did report becoming depressed shortly after voluntarily ceasing work at age 40, and thereafter was prescribed the antidepressant, Effexor, for approximately two years, and, more recently, the antidepressant, Lexapro, for two years. You are currently medicated on Lexapro.
25 Mr Cummins considered that you did not attract the diagnosis of Hebephilia and did not consider that you were specifically attracted to the victim because of her being under the legal age. In particular, he noted that you were illicit-drug free, and that you acknowledge the wrongfulness of your offending and expressed regret and remorse concerning such offending.
26 Ultimately, Mr Cummins considered that you should participate in offence-specific treatment with a focus on increasing your level of knowledge regarding why the criminal justice system has laws concerning the age of consent.
27 Furthermore, Mr Cummins noted that given your comments at interview, he was prepared to accept that at the time of the offending you may have been suffering from a Major Depressive Disorder which was of moderate severity and recurrent in type, and was triggered by the cessation of your full-time employment. As noted, he was aware that, apart from being prescribed antidepressant medication, you did not seek any psychotherapy.
28 In a supplementary report dated 1 July 2019, Mr Cummins makes clear that when he assessed you on 17 April 2019, he was unaware that you had been charged with the further bundle of uplifted summary charges relating to the informant, Gibson.
29 Furthermore, Mr Cummins, in his supplementary report, refers to the CISP Final Progress Report, dated 31 July 2018 (see Exhibit B).
30 The author of the CISP report, Ms Jessica Soma, notes that you were assessed by CISP on 4 April 2018, and that you were recommended for case management by the CISP team. Furthermore, she notes that your, 'Presenting concerns', were substance-use issues and suspected cognitive functioning issues.
31 In relation to substance-use issues you have a history of methamphetamine use which commenced in 2006 and, also, you gave a history of both binge and fortnightly methamphetamine use via smoking and intravenous methods over recent years. You did also report that you ceased daily use of alcohol in 2005, although acknowledged problematic binge use following this.
32 Ms Soma notes that you indicated a desire to abstain from methamphetamine use, however acknowledged that this would be challenging, given that you 'enjoy it'.
33 You informed Ms Soma that you would like an opportunity to engage in drug treatment, and a comprehensive Alcohol and Other Drug ('OAD') Intake Assessment was scheduled for you on 7 May 2018, with forensic assessor,
Ms Lisa Jackson. You attended this appointment and was referred to Odyssey House in Werribee for a standard session of AOD counselling. At the time of the CISP report, you had completed four sessions that focused on harm minimisation and psycho-education of substance use. At that time you reported that, aside from one lapse, you had continued to remain abstinent from all forms of illicit substances.
34 A neuropsychological assessment was scheduled with Dr Loretta Evans to explore cognitive functioning issues. Such assessment occurred over two sessions and the neuropsychological report authored by Dr Evans indicated that your intelligence is within the normal range for your age group and, 'Based on the results there was little evidence to suggest any alcohol or substance-related brain injury at this point in time'. However, disrupted attentional systems are suspicious of an Attention Deficit Disorder, which may intermittently impact on other cognitive functions.
35 Dr Evans also considered that your attention and thinking can become, 'scattered', when under pressure and that you have difficulty in monitoring your behaviour and responding appropriately in complex social situations.
36 Your general practitioner, Dr Eqbal, was contacted requesting a referral to a psychologist via a Mental Health Care Plan, which involves ongoing psychological counselling. You were ultimately referred to the psychologist,
Ms Catherine Barker, via a Mental Health Care Plan and that at the time of CISP you had attended two sessions with Ms Barker.
37 You also reported to CISP symptoms of social anxiety that had persisted for, 'years', and which impairs your daily functioning across all life domains. In particular, you reported twice during case-management appointments that you planned to suicide should you be sentenced to a prison term. When you became aware of the CISP involvement Dr Cummins noted that you were still involved with CISP when you were associating with the 15 year old PP by phone in relation to the charges relating to the informant, Gibson.
38 In particular, Mr Cummins also commented that, noting that you had already spent some time on remand for sexual offending against a minor, the indictable offence, and your offending while on CISP, your risk assessment should be elevated to that of at least 'low-moderate'.
39 As I have already recorded, Mr Cummins subsequently conducted a further assessment on 1 August 2019. He confirmed that it was his understanding that you were initially arrested on 1 February 2018 and charged with sexual offending against the underage female. On 4 April 2018, you were favourably assessed by CISP and you were released on bail to reside at your mother’s address in Altona Meadows on 6 April 2018. You remained on CISP until 31 July 2018.
40 In relation to the subsequent offending, Mr Cummins records:
'At interview on 1 August 2019 I questioned him concerning the additional charges to which he is now pleading guilty where the informant was
SC Gibson. He acknowledged he engaged in the alleged behaviour in contravention of the Interim Personal Safety Intervention Order issued on 20 July 2018 and served on him on 23 July 2018. Significantly, he stated the whole time he was on bail, including the time he was on CISP, right through until his arrest on 29 August 2018, he remained dependent on methamphetamine and was typically using, usually injecting, methamphetamine on a daily basis. He said it was up against this background he breached the Interim Personal Safety Intervention Order … The explanation which he offered regarding his offending was that he knew … [the PP] via the complainant and he said that when he initially assisted … [the PP] … he understood she was 17 years of age. … .'
41 Mr Cummins confirmed his risk assessment now to be low to low-moderate.
Mr Cummins also noted that in contrast to his earlier understanding, you in fact remained dependent on methamphetamine until your re-arrest on
29 August 2018.
42 In particular, Mr Cummins finally states:
'In the absence of any further relevant information, I remain of the opinion that the offending to which he has already pleaded guilty to in the County Court, and which is now the subject of a part heard plea, should still be regarded, in a clinical sense, as reflective of situational offending committed whilst he was heavily dependent on methamphetamine.
It is my opinion that Mr Livori currently presents as being very motivated to participate in offence specific treatment which will inevitably expose him to more information about victim empathy and relevant aspects in relation to adolescent sexual development, which should then lead to his risk of committing further sexual offending to trend towards low … .'
Matters Submitted to be in Mitigation of Your Sentence
43 Your counsel submitted that the following matters are relevant in mitigation of your sentence:
(a)you pleaded guilty to the indictable offence before the Court, which has utilitarian value in that it saves the cost and time of a trial and, more particularly, obviates the need for witnesses to be called, particularly the complainants. Furthermore, it is submitted that your pleas of guilty are indicative of remorse and your acceptance of responsibility for your actions, all of which was conveyed to Mr Cummins during your two interviews with him;
(b)your prior criminal history all occurred between 1984 and 1998, more than 20 years ago, and were all pleas heard in the Magistrates’ Court (not superior courts), with penalties ranging over moderate fines, probation and discharge, with no sentence of imprisonment. In particular, there was no previous offending involving sexual matters;
(c)your lengthy time on remand has been put to, 'positive advantage', making prospects for rehabilitation, 'favourable'. On remand, you have attended further AA and NAA meetings, and taken courses in occupational health and safety, horticulture, responsible service of alcohol, traffic management, computer/IT training and the ATLAS program (See
Exhibit E). You currently work in the prison meatworks;(d)consistent with your desire to overcome your drug habit, urine analysis results dated 6, 11 and 19 December 2018, 12 February 2019, 27 June 2019, and 27 July 2019 were negative for amphetamines, buprenorphine, cocaine, opiates, benzodiazepines, cannabinoids and methadone.
44 In respect to the nature and gravity of the indictable offence, your counsel noted that although there was a disparity in age between the complainant and you, you are to be sentenced in relation to a single charge, in circumstances where the complainant was close to the age of 16, just six weeks short of her sixteenth birthday. It was submitted by your counsel, that consistent with the opinion of Mr Cummins, the offending was 'situational and opportunistic'.
45 Your counsel also submitted that you had a, 'bad childhood', and the conditions suffered by you in childhood are relevant to the assessment of your degree of moral culpability. Your counsel also submitted that based on the evidence of Mr Cummins, there was the possibility that at the time of the offending you were suffering from a major depressive disorder of moderate severity and recurrent in type.
46 Reference was made to the following quote in Director of Public Prosecutions v O’Neill [2015] VSCA 325, whereat it was stated:
'The determination of an offender’s moral culpability does not depend solely on an objective assessment of the actions and conduct of the particular offender. Such an assessment necessarily involves a careful consideration of matters personal to the offender, … .'
47 Your counsel also highlighted that notwithstanding that you did have a, 'bad childhood', you worked from the age of 14 and eventually was able to buy your own home and land package where you lived for a period of time. When you became more involved in drugs the money quickly disappeared, leading to you being required to live in hostels or the like. Again, your counsel submitted that you had commenced to drink alcohol to excess and use cannabis in your mid-teens, but as time went on you commenced to use methamphetamine initially but eventually on a frequent basis and you were 'controlled' by the drugs at that time.
48 Your counsel expressly disclaimed any reliance on any of the principles enunciated in R v Verdins & Ors [2007] 16 VR 269.
49 Your counsel submitted that your prospects of rehabilitation are, 'good', and in particular, relied on the opinion of Mr Cummins that your risk of re-offending was low to moderate. Furthermore, you were attempting to overcome your drug issues as demonstrated by your activity in prison and your excellent urine results. In this respect it was submitted that you are, 'serious', about continuing on your path to rehabilitation.
50 Your counsel accepted that the context evidence surrounding the indictable offence shows that this was not a chance meeting. Further, there was only one offence charged, and that offending was, 'situational', and, 'opportunistic'.
51 Your counsel accepted, correctly in my view, that general deterrence in relation to each of the offences, particularly the indictable offence, is an important sentencing consideration. By this it is meant that any sentence should generally deter others from committing sexual acts on children under the age of 16.
52 Furthermore, it was submitted that bearing in mind your, 'excellent prospects of rehabilitation', and the unlikelihood that you would re-offend in a similar manner, specific deterrence carries less weight.
53 It was submitted that totality was an important consideration in reaching an appropriate sentence. In particular, it was submitted that any sentence in relation to the offending when you breached an order in searching out the complainant, the first uplifted summary matter, should be served concurrently with the principal sentence on the indictable offence.
54 Ultimately, it was submitted by your counsel that having regard to the personal matters outlined, the conclusion reached by Mr Cummins and the sentencing principles, including current sentencing practice, that a moderate sentence of imprisonment with a substantial proportion as a non-parole period during which your rehabilitation can be monitored by the Adult Parole Board, would be the most appropriate disposition.
Submissions Made by Counsel for the Prosecution
55 Counsel for the prosecution made the following major submissions:
(a) in relation to the sentence for the indictable offence, general deterrence in particular has a significant role to play, but specific deterrence and denunciation also have a role, as does community protection;
(b) in relation to the submission made by your counsel that the complainant in the indictable offence was approximately six weeks shy of her sixteenth birthday when the offending occurred, counsel for the prosecution stressed two matters:
(i) that the offence was defined to be someone under the age of 16; and
(ii) although her proximity to the age of 16 may be relevant where the offender was far closer in age to her, but it must be borne in mind that the age differential between you and the complainant was over 35 years.
(c) counsel for the prosecution submitted that it was not the case of the prosecution that you sought to trade accommodation in relation for sexual favours but you saw yourself as, 'Helping the victim out'. In particular, it was accepted that you had no knowledge that the complainant was under the care of DHHS and was effectively a, 'missing person';
(d) the plea of guilty in relation to the indictable offence, although not an early plea, it was submitted you are entitled to some discount under s.6AAA of the Sentencing Act 1991;
(e) counsel for the prosecution referred to the uplifted Summary Charge No.2 involving your offending on 14 January 2018, as flagrant offending bearing in mind the following:
(i) an Interim Personal Safety Intervention Order was made at the Magistrates’ Court at Melbourne on 4 January 2018 against you, identifying the complainant as the protected person. That Order was served on you on 11 January 2018 and had a clear condition that you were not to attend within 200 metres of her address;
(ii) in breach of that condition, you went three days later to what you believed was the complainant’s house on 14 January 2018 and informed Mr Webster, the then carer of the complainant, that you were looking for a canary, and whether you could look in the backyard. It was submitted by counsel for the prosecution, that given the circumstances surrounding the breach of the Order, a period of imprisonment should be ordered with some cumulation on the sentence relating to the indictable offence;
(f) counsel for the prosecution also highlighted two aggravating factors in relation to the 16 charges involving the breach of the Interim Personal Safety Intervention Order made by the Dandenong Magistrates’ Court on 20 July 2018 in relation to a 15 year old female protected person ('PP'). Those circumstances are:
(i) at the time of that offending, that is to say from 28 July 2018 to
16 August 2018, you were on bail in relation to, amongst other things, the indictable offence; and
(ii) was involved in the CISP program for much of that time. Again, it is to be noted that the Interim Personal Safety Intervention Order was served on you and explained to you on 23 July 2018, with the first breach of that Order occurring some five days later;
(g) counsel for the prosecution submitted that, given the number of breaches, a sentence of imprisonment was appropriate and in the circumstances, an aggregate sentence would be open to the Court;
(h) counsel for the prosecution stated that the prosecution were not as, 'optimistic', as counsel for the defence in relation to your prospects of rehabilitation. In particular, reference was made to the CISP report where, although stating a desire to sustain abstinence from methamphetamine use, you noted that that will be challenging, given that you enjoyed that drug. Furthermore, the flavour of the CISP report is that at that time, you were abstinent from all forms of illicit drug use, aside from one lapse, which would appear to be inconsistent with the submission made by your counsel that all the offending occurred when you were heavily involved in drugs, up until the time you were finally arrested on 29 August 2018;
(i) counsel for the prosecution submitted there was no good basis for accepting the submission of your counsel that you had a, 'bad childhood', and that the conditions suffered by you in childhood are relevant to the acceptance of your degree of moral culpability. In particular, counsel for the prosecution highlighted that any childhood issues have, 'not followed', into your adulthood and in particular, as you had no involvement with the criminal justice system for over 20 years. Furthermore, insofar as your counsel submitted that based on the evidence of Mr Cummins, there was the, 'possibility', that at the time of the offending you were suffering from a major depressive disorder of moderate severity which would have impacted on your moral culpability, such submission seemingly would be inconsistent with your counsel disclaiming any reliance on any of the principles enunciated in R v Verdins & Ors (op cit);
(j) counsel for the prosecution accepted that the prior convictions clearly do not relate to any prior sexual offending but it was submitted they are relevant to show that you are not of good character, although it was accepted that the indictable offence is your most serious offending you have committed.
56 Counsel for the prosecution tendered a sentencing snapshot in relation to the offence of sexual penetration with a child aged 12 to 16, such snapshot being over the period from 2011/12 through to 2015/2016, and also a summary of County Court sentences for sexual offences against children adopted from the Judicial College Sentencing Manual table (see Exhibit 5). Both counsel, appropriately in my view, submitted that although such tables are of some assistance, each case obviously turns on its own facts. Furthermore, many of the County Court decisions referred to as sexual offences against children were based on the maximum penalty being then 10 years’ imprisonment rather than the present 15 years’ imprisonment.
Conclusion
57 The indictable offence of sexual penetration of a child under the age of 16 years is a serious offence, as is made clear by the maximum penalty of 15 years’ imprisonment.
58 Any sexual offending against a child is serious. The law tries to protect children from exploitation by others and from their own unwise decisions. The law says that children under 16 are not mature enough to consent to sexual intercourse.
59 I refer to the recent Court of Appeal decision of Best v R [2019] VSCA 124, wherein the court, consisting of Beach, Kyrou and Kaye JJA, stated at paragraph 39:
'… As this Court made clear in Clarkson v The Queen [2011] 32 VR at 361, the prohibition, prescribed by statute, on sexual activity with a child under the age of 16 years, is designed to protect children from the harm caused by premature sexual activity, and, to that end, to protect them from their own immaturity. As a corollary to that proposition, the prohibition is designed to deter those who might contemplate engaging in sexual activity with a person who is under the age of 16 years [Clarkson (op cit) at [26]. In that respect, the Court noted that the prohibition reflects ‘… a longstanding community consensus that it is not until the age of 16 that a child has the psychological maturity and decision making competence to agree to sexual activity’' [Clarkson (op cit) at [28]]
60 The Court, in Best, also noted that Clarkson (op cit) gave consideration to the question of the relativity of the ages of the offender and the victim. Reference was made to the Queensland Court of Appeal decision of R v Man [2005] QCA 413, wherein the court considered that, in the light of the relatively young age and vulnerability of the offender at the time of the offending, the circumstances disclosed are less serious degrees of sexual exploitation of the two young victims than occurs in which it is a mature adult male that acts in a predatory and clandestine way. In particular, in that case the court observed that there was, 'Greater and maturity age and balance of power', between the offender and the victims so that the offending was, 'At the lower end of the range of seriousness', for offences of that type.
61 At the time of the indictable offence you were 50 years of age and living in a boarding house in Werribee with other males. At that time you had a significant drug habit, mainly involving methamphetamine.
62 Prior to 1 December 2017 the complainant was living in a residential care facility overseen by the Department of Health and Human Services ('DHHS'). On
1 December 2017 she was listed as a missing person. You met the complainant through the complainant’s ex-boyfriend, and from the beginning of December 2017 she was living in your rented room at the boarding house in Werribee and remained there until she was, 'picked up', by police on 2 January 2018.
63 Although I accept you may well not have known that the complainant had absconded from care, you were aware, according to what you told Mr Cummins, that the complainant was 'underage'. Just pausing there, it must be borne in mind that the age differential between you and the complainant was in the order of 35 years.
64 The context material contained in the Prosecution Opening makes clear that the complainant remained with you in your room at the boarding house, during which time you supplied her both with food and drugs. Furthermore, the unchallenged Prosecution Opening, by way of context, describes you being involved in oral sex frequently over that period.
65 The offence for which you are to be sentenced occurred on 2 January 2018, shortly prior to police arriving at the boarding house, and consisted of you penetrating the complainant’s mouth with your penis until you ejaculated, consistent with the activities undertaken over the previous month.
66 In relation to the indictable offence your counsel adopted the words of
Mr Cummins, who described your offending as, 'situational and opportunistic'. Although I do accept that, bearing in mind that the complainant found you, rather than you finding her in a sexual predatory manner, I consider that is not the total picture. It must be noted that the age differential between you and the complainant and, consequentially, the significant difference in emotional maturity, allowed you to bring about the situation that she stayed in your room for over a month, during which time the complainant was fed and also supplied illicit drugs, and also, of course, it was during this time that the subject offending occurred on 2 January 2018.
67 I also accept there was no overt evidence of violence, although the Prosecution Opening does refer to the complainant saying that you forced her to give you oral sex. Again, this all must be viewed in the context that you were over 35 years older than the complainant, having far greater emotional maturity than the 15 year old complainant.
68 When picked up by the police the complainant did not make any disclosures to the police and the first time there was any discussion of sexual misconduct was when the complainant spoke to a Mr Peter Webster, a foster carer, on
5 January 2018. At that time she told him that she was kept in her room for months without any other of the housemates knowing of her presence and that you, 'forced her', to give you oral sex and that you supplied her with drugs and food.
69 On 5 January 2018 Peter Webster became a full-time carer of the complainant and her younger sister. An Interim Personal Safety Intervention Order was made at Magistrates’ Court at Melbourne on 4 January 2018 against you, identifying the complainant as the protected person. The Order was served on you and explained to you on 11 January 2018. In particular, the Interim Order attached a variety of conditions, including a condition that you do not attend within 200 metres of her address.
70 Three days later, on Sunday, 14 January 2018, you attended at the premises where the complainant was situated with her carer, his wife and friends. You knocked on the front door, and when opened by Mr Webster, you explained that you were looking for a canary and asked Mr Webster whether he had seen it and could you look in his backyard. Shortly after this, Mr Webster ascertained that you were the person restrained under the Interim Order.
71 As described by Counsel for the prosecution, such offending is flagrant, given your knowledge at the time of that offending, that the complainant was under care, living with a carer, and that three days prior to your attempt to see her, it had been explained to you that an Interim Order had been made against you preventing any contact. I do accept, obviously enough, that there was no actual contact between you and the complainant as a result of your attempt to contact her on that day.
72 When queried about the indictable offence, you informed Mr Cummins, amongst other things, that you took advantage of the complainant because of her age and at that time you were shooting up ice every day. You accept that it was your decision to have sexual contact with her. When queried about the single uplifted summary charge in relation to attempting to see the complainant on 14 January 2018, you informed Mr Cummins that although it sounded stupid, you, 'Sort of fell in love with her', but you appreciated your emotions were, 'All screwed up at the time because of the ice and this was sort of like a bit of a fantasy'.
73 In related to the uplifted Charges 1 to 12 and 14 to 17, which involved the informant, Gibson, such offending occurred over the period from 20 July 2018 to 16 August 2018, a period of 20 days, during which time you sent to the protected person ('PP') a total of 43 text messages and four telephone calls. PP was a 15 year old female who at the time was then managed and housed by the DHHS in conjunction with Child Protection. The PP had been identified as a child at risk of sexual exploitation and was monitored by the Dandenong SOCIT.
74 In July 2018 DHHS and Child Protection identified you were associating with the PP by telephone and had been doing so for a month. When you contacted the PP there was an evident increase in PP’s risk-taking behaviours, including escalated risk of sexual exploitation, absent from placement and significant substance use.
75 As a result, DHHS made an application for an intervention order on behalf of PP against you. On 20 July 2018 the Dandenong Magistrate issued an Interim Personal Safety Intervention Order against you, and on 23 July 2018, such Order was served and explained to you by a police officer. The conditions of such Order were extensive and, in particular, prohibited you contacting or communicating with the PP by any means.
76 Within five days of that Order being explained to you, you again flagrantly breached the Order over the period from 28 July 2018 to 16 August 2018, nearly on a daily basis.
77 Such offending virtually continued until your further arrest on 29 August 2018, when you were remanded in custody.
78 Furthermore, as pointed out by Counsel for the prosecution, such offending was attended by two aggravating circumstances:
(a) when such offending was occurring you were on bail in relation to various offences but, in particular, the indictable offence; and
(b) since your release from prison on bail on 6 April 2018, you had been involved with the CISP Program.
79 When queried by Mr Cummins in relation to this subsequent offending, you apparently informed him that you did engage in the alleged behaviour in contravention of the Interim Personal Safety Intervention Order issued on
20 July 2018 and served on you on 23 July 2018. In particular, you asserted to Mr Cummins that throughout the whole time that you were on bail, including the time that you were on CISP and right up to your re-arrest on 29 August 2018, you had remained dependent on methamphetamine and was typically using (usually injecting) methamphetamine on a daily basis. You informed
Mr Cummins that you met the PP through the complainant, understanding that she was 17 years of age.
80 Notwithstanding your assertions that you were heavily involved with 'ice' during this period of time, up to your further arrest on 29 August 2018, such assertions would appear to be inconsistent with the material contained in the report from CISP, dated 31 July 2018, which would suggest, following a referral on
7 May 2018, you were referred to Odyssey House in Werribee, where you completed four sessions, focussing on harm minimisation and psycho education and substance use. It is reported that you indicated in case management appointments that aside from one lapse you continued to remain abstinent from all forms of illicit substance use.
81 I have come to the view that the indictable offence can be viewed in the middle of the range of this type of offending, although I consider that your moral culpability is high. Furthermore, I consider that the offending in relation to the initial uplifted charge is quite serious in the circumstances. At that stage you appreciated that the complainant had earlier absconded from care and was now under the care of a further carer and you were subject to an Intervention Order. Notwithstanding you totally ignored such Order and attempted to see the complainant, although I accept contact was never actually made.
82 Notwithstanding that episode, and after being released on bail, some type of relationship was established between you and a 15 year old PP which resulted in a further Intervention Order made against you, which again was flagrantly breached, with the added aggravating factors of such offending occurring when you were on bail and whilst you were undergoing, for part of this time at least, the CIST Program. I accept that although there are a large number of charges in relation to the various breaches, such breaches occurred over a relatively compact period of time and was a continuum of the same type of offending, albeit with a different complainant. I consider that, in all the circumstances, an aggregate sentence would be appropriate.
83 I consider that general deterrence, specific deterrence, denunciation and the protection of the public are all relevant sentencing considerations. I intend to convict you of all the offences. Furthermore, I intend to make a Disposal Order as sought by the prosecution and, in particular, I will also make an order for taking a forensic sample from you because of the seriousness of the offending. Such order was not opposed and it is in the public interest.
84 Furthermore, the indictable offence, that is to say the sexual penetration of a child under the age of 16, is a Class 1 offence under Schedule 1 as defined in s.3 of the Sex Offenders Registration Act 2004. The Act provides for the mandatory registration of an offender who has been sentenced by a court for a child sex offence committed as an adult, and is subject to a reporting period of fifteen years, as you are pleading guilty to such an offence.
85 In mitigation of the sentence I take the following matters into account:
(a) You have pleaded guilty to the indictable offence, although that plea of guilty could not be characterised as being early, but on the morning of when this matter was initially fixed for hearing. However, other charges were then involved, and ultimately, the only indictable offence was that to which you pleaded.
Consistent with the principles enunciated in Phillips v R [2012] VSCA 140, you are entitled to a less severe sentence than otherwise would have been imposed on the basis that such plea of guilty, albeit late, did have the utilitarian value of avoiding a trial with its attendant cost of time and money and, more particularly, obviating the need for the victims of your offending to give evidence and relive the circumstances of such offending.
It is always a matter for the sentencing judge whether remorse or willingness to facilitate the course of justice and acceptance of responsibility is to be inferred from the plea of guilty (see Phillips v R (op cit) at paragraph [96]. In this respect, I note that you informed Mr Cummins during your various interviews with him that you apologised, regretting your offending behaviour and specifically stated that you hoped that the complainant in relation to the indictable offence was not traumatised as a result of your offending. Although I consider that you have some remorse for your offending, it is unclear whether you accept that it is inappropriate to form relationships, such as you have, with young girls;
(b) I also accept that your criminal history all occurred more than 20 years ago and were all pleas in the Magistrates’ Court with penalties ranging over moderate fines, probation and discharge, with no sentences of imprisonment. In particular, I accept there was no previous offending involving sexual matters;
(c)your counsel submitted that you had a, 'bad childhood', and such is relevant to the assessment of your degree of moral culpability. In this respect, your childhood involved different schools and different de facto partners of your mother but seemingly, did not involve any sexual abuse or undue physical abuse. I do accept that seemingly drugs were available at a relatively young age.
I do accept that case law establishes that circumstances of deprivation, abuse and other social disadvantage during the offender’s formative years are more than, 'matters of historical significance to the administration of justice'. As stated in Marrah v The Queen [2014] VSCA 119:
'… The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to the offender’s criminal behaviour. … .'
When one looks at your life after childhood, there are many positive aspects to it where you were working full time and had the wherewithal to buy a house and land package and build a house, and seemingly it is only of relatively recent times that drugs have made an impact or a dramatic impact on your life. Indeed, as already referred to, your criminal record only involves matters of many, many years ago. Accordingly, I put very little, if any, weight on that submission;
(d) your counsel also submitted that based on the evidence of Mr Cummins, there was the possibility that at the time of the offending you were suffering from a Major Depressive Disorder of moderate severity and recurrent in type. It was submitted by your Counsel that such should be taken into account and that somehow it reduced your moral culpability.
I do not accept such submission for several reasons:
- Mr Cummins put forward the proposition only as a, 'possibility', and there is no other evidence to support such a proposition;
- secondly, there is no evidence to suggest that if there was a Major Depressive Disorder it is connected to the subject offending (See Director of Public Prosecutions v O’Neill [2015] VSCA 325); and
- lastly, your Counsel expressly disclaimed any reliance on any of the principles enunciated in R v Verdins & Ors (op cit);
(e) Your Counsel also submitted that your prospects of rehabilitation are, 'good', and based on the opinion of Mr Cummins, your risk of re-offending was 'low to moderate'. In particular, it was emphasised how you were attempting to overcome your drug issues, as demonstrated by your activity in prison, and your excellent urine results. In this respect, it was submitted that you are 'serious' about continuing on your path to rehabilitation.
I accept in general terms that your period on remand has been put to, 'positive advantage', by you attending regular AA and NAA meetings and taking courses in occupational health and safety, horticulture, responsible service of alcohol, traffic management, computer training and the Atlas Program, all of which is to your credit.
Furthermore, urine analysis results dated 6, 11 and 19 December 2018; 12 February 2019; 27 June 2019 and 27 July 2019 had been all negative for drug use.
You are to be commended for your activities in prison and seemingly controlling your drug habit. I consider it early days, and it is unclear that even in the circumstances where your drug habit is controlled, that will affect your risks of re-offending. I tend to the view that your rehabilitation is, 'guarded'. In this respect I take account of your flagrant attitude to Orders which were made.
86 Please be upstanding.
87 I sentence you as follows:
(a) in relation to the offence on Indictment No.J10320925.1, you are convicted and sentenced to three years’ imprisonment. This is the base sentence;
(b) in relation to the uplifted Summary Charge 2, you are convicted and sentenced to two months’ imprisonment;
(c) in relation to Charges 1 to 12 and 14 to 17 of the uplifted summary charges, you are convicted and sentenced to an aggregate sentence of eight months’ imprisonment.
88 I direct that one month of the sentence in relation to the uplifted single charge and five months of the aggregate sentence in relation to the uplifted Charges 1 to 12 and 14 to 17, are to be served cumulatively with each other and upon the sentence imposed in relation to the indictable offence. The total effective sentence is three years and six months, and I order that there be a non-parole period of two years and six months.
89 I declare that you have served, up to but not including this day, 452 days pre-sentence detention and such period should be administratively deducted from the sentence ordered against you.
90 I grant the application made by Counsel for the prosecution for a forensic sample to be taken and, indeed, a disposal and forfeiture order.
91 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that save for your plea of guilty in relation to the indictable offence, I would have sentenced you to four and a half years’ imprisonment with a non-parole period of 3 years 2 months.
92 Pursuant to the provisions of the Sex Offenders Registration Act 2004, and bearing in mind the nature of the indictable offence for which you have been convicted, I order, pursuant to the provisions of that Act, your name to be entered on the Register of Sex Offenders, with the length of the reporting period being 15 years.
93 Yes, anything arising out of that?
94 MS HAMMILL: Just one matter, Your Honour. In relation to the s.6AAA declaration I assume that four and a half years would have been the head sentence. What non-parole period would Your Honour have imposed?
95 HIS HONOUR: Well, I do not think it is necessary I do that.
96 MS HAMMILL: Yes, Your Honour.
97 HIS HONOUR: I have had this - some people have raised this with me before. It seems to me that the Act does not require that and I would have to say 90 - I have never done it and you will probably just say I am wrong about this in the terms you have seen in sentences where people have done it, I have only seen a few sentences where that has been done. I just cannot see any great, good reason for it. Now, you are going to take me to a section, are you?
98 MS HAMMILL: Your Honour, I assume that my instructor has just brought up s.6AAA. It indicates that if Your Honour is sentencing and relevantly, Your Honour has sentenced to a term of imprisonment, 'The court must state the sentence and the non-parole period, if any, that it would have imposed but for the plea of guilty'.
99 HIS HONOUR: Well, anyway, that is in relation to Wyatt. Well, look, again, the difficulty about all this though, isn't it, if I suppose what I would say, four and a half years with a non-parole period of say three years, two months.
100 MS HAMMILL: Yes, Your Honour.
101 HIS HONOUR: But the reason I think it is not of much use, because bearing in mind there is the other offending and if there is other offending the final result does not necessarily reflect that, what would be the non-parole period, but there you are, I have done it now.
102 MS HAMMILL: Thank you, Your Honour.
103 HIS HONOUR: Yes. Any other things arising?
104 COUNSEL: No, Your Honour.
105 HIS HONOUR: Yes. Now, Mr Livori, there is a document which you have to sign. Just remain there. We will bring that to your attention.
106 MR LINDNER: May I approach?
107 HIS HONOUR: Yes. Of course, by all means. Yes, Mr Lindner, is that your client's brother in court?
108 MR LINDNER: That is his brother, yes.
109 HIS HONOUR: Look, I will allow him to approach the dock just very briefly because I understand he cannot visit him downstairs.
110 MR LINDNER: That is correct, Your Honour.
111 HIS HONOUR: Yes, so gentlemen, I will just allow - yes, if you want to, you can approach your brother just very briefly, all right. No touching. Just you can have a quick talk to him.
112 MR LINDNER: Yes, I think the officer has heard Your Honour's remarks.
113 HIS HONOUR: Yes, I will have to bring that to an end now, thank you.
114 MR LINDNER: Could I approach?
115 HIS HONOUR: Sorry?
116 MR LINDNER: Could I - sorry.
117 HIS HONOUR: Yes, very well. Yes, take the prisoner. Yes, very well.
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