Director of Public Prosecutions v Loia
[2016] VCC 868
•23 June 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00930
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GALUAFI LOIA |
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JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 June 2016 | |
DATE OF SENTENCE: | 23 June 2016 | |
CASE MAY BE CITED AS: | DPP v. Loia | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 868 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Livitsanos | Office of Public Prosecutions |
| For the Offender | Mr R. Keating | Slink & Keating |
HIS HONOUR:
1 Mr Loia, you can remain seated there for the moment, I will tell you when to stand.
2 Galuafi Loia, you have pleaded guilty to two charges of indecent act with a child under 16 and two charges of sexual penetration of a child under 16. The maximum penalty for each offence is 10 years' imprisonment.
3 I have heard a summary of the offending. It is not my intention to repeat the whole summary. It has been tendered as Exhibit A in these proceedings.
4 Briefly, you came to Australia from New Zealand on 27 July 2015. At the time of the offending you were living with your uncle and aunt in Hampton Park. You initially made contact with the 14 year old victim through Facebook. On 14 September 2015 you exchanged photos with the victim and discussed her age. She told you she was 14. You were 20 at the time. You agreed to meet the next afternoon at the Hampton library.
5 On 15 September you did meet and at 4.57 pm you both left the library and walked across the road to some parkland. You sat on a swing and the victim sat on your lap. You took some photos on your mobile phone and then began kissing the victim. You lifted her top and fondled and kissed her right breast. You told her you were “horny and wanted to get laid.” You put your hand down her pants and rubbed her vagina before pushing your fingers into her vagina. You then went with the victim to an area behind a tree and tried to pull her pants down while kissing her neck. The complainant got on her knees. You exposed your penis and put it in her mouth. You pushed your penis back and forth and the complainant found it hard to breathe. You ejaculated in her mouth.
6 On the afternoon of the next day, you met up with the victim at the back of the oval behind Hampton Secondary College. You led her up a stairway of the umpire stand. You lay the victim on her back and got on top of her. You spread her legs apart. The victim told you that she did not want to have sex. You undid your pants and rubbed your penis between her legs. You touched her vagina over her underpants whilst rubbing your penis against the top of her thigh. You ejaculated. A car approached the area and you ran off.
7 The victim told her friends what had happened and the school became involved. She was medically examined on 17 September by a doctor at the Victorian Forensic Paediatric Medical Service.
8 You were arrested on 18 September 2015. An interpreter was arranged and you were interviewed by the police on 7 December 2015. You made partial admissions to the offending. You effectively told police that you could not handle “the pressure of the temptation” and that you realised it was the wrong thing to do.
9 Mr Loia, you have committed four serious offences. The law protects young people under 16 from premature sexual activity. This is because premature sexual activity is recognised as causing harm, both physical and psychological, to a child. In this case I have not received a victim impact statement. However, I have no doubt that the victim in this case, at the very least, would have suffered some psychological harm as a result of your offending.
10 When you committed these offences you knew the victim was only 14 years old and you knew that your behaviour was wrong. You had no long term relationship with the victim and you took advantage of her to satisfy your own desires. This was not a case of one isolated criminal act. You committed three separate offences on 15 September, and two of those offences involved acts of penetration. You committed another offence the next day.
11 In a case of this type, general deterrence, denunciation and just punishment are all highly relevant sentencing considerations.
12 I accept that there are important matters in mitigation.
13 You were born in Samoa. You are the eldest of six children and your family live modestly in a village on the second largest island. You were a good son and well regarded. You come from a strong and supportive extended family.
14 In 2013 your uncle in New Zealand adopted you. This enabled you to move to that country and obtain work. Your object was to earn money to send back to Samoa to support your family. In 2015 you moved to Australia to live with other family members. Again, it was your object to earn money to send home to support your family.
15 A number of references were tendered on your behalf. Three of your uncles attended court and one of them gave evidence. Based on those references and the evidence I heard, I am satisfied that you are a young man with very good prospects of rehabilitation. You have strong extended family support. Although family members are devastated by what you have done, they offer you their full support. You have always been a hard working young man and you are involved in sport and your church.
16 You are 20 years old. Because you are a young man, rehabilitation is a highly relevant and central sentencing consideration. It is also highly relevant that you have no prior convictions.
17 You entered an early plea of guilty and I am satisfied that you are very remorseful. In addition, your plea has meant that the victim has not had to give evidence at a trial. Your plea has also saved the cost and expense associated with a criminal trial. I will give you appropriate credit for all of these matters.
18 I accept your counsel’s submission that your sentence should be moderated to a limited extent because you will serve your sentence with the knowledge that you may be deported at the end of it.
19 Your counsel submitted that it would be appropriate to release you on a Community Corrections Order. I am unable to accede to that submission. The seriousness of this offending requires the imposition of a custodial sentence. However, your personal circumstances, and most particularly your prospects for rehabilitation, have persuaded me to have you assessed as to your suitability to serve any period in custody in a Youth Justice Centre. The assessment is favourable and I do intend to make such an order. The matters personal to you that I have just mentioned have also influenced my decision not to order cumulation of sentence on any charge.
20 Would you stand please? Mr Loia, you are convicted and sentenced to a term of 6 months detention in a youth justice centre on charge one; 21 months detention in a youth justice centre on charge 2; 21 months detention in a youth justice centre on charge 3; and 12 months detention in a youth justice centre on charge 4.
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Had you pleaded not guilty and been found guilty after trial,
I would have sentenced you to a total effective sentence of 3 years and 3 months' imprisonment with a minimum term of 24 months before you would be eligible for release on parole.
22 Your offending attracts the provisions of the Sex Offenders Registration Act 2004, and you will be required to comply with the reporting obligations of that Act for a period of 15 years. My Associate will provide you shortly with a document, which details your obligations.
23 Mr Loia, you can be seated there. I will just explain that because you have been sentenced to a period of youth detention, it is not for me to fix a parole period. The fixing of parole will be a matter for the Youth Parole Board. I anticipate someone from the Board will meet with you after your sentence commences and explain to you how parole operates in the youth justice system.
24 Are there any other matters, gentlemen?
25 MR LIVITSANOS: No, there is not, Your Honour.
26 MR KEATING: No, Your Honour, just the mechanics around the order, because - sorry, my voice has gone. For the Sex Offenders Registration, it's probably useful if I've got access to the interpreter to go through the provisions of the registration.
27 HIS HONOUR: Would you ask that Mr Loia, be able to remain in court so that you can go through things with him.
28 MR KEATING: Yes, yes.
29 HIS HONOUR: The alternative would be to do that downstairs.
30 MR KEATING: Yes.
31 HIS HONOUR: Is there a problem with the interpreter being able to go downstairs with you?
32 VOICE from body of court: No, Your Honour.
33 HIS HONOUR: No.
34 MR KEATING: Fine, then it can be done downstairs, that's fine, yes.
35 HIS HONOUR: I think that's the more appropriate way for that to be done.
36 MR KEATING: Yes, Your Honour.
37 HIS HONOUR: My associate will just hand him the information around sex offender registration details. Mr Interpreter, if you could step down, please. I thank you for your attendance and for the assistance that you have provided in this matter. As you have heard Mr Keating will ask you to go with him to speak with the prisoner downstairs just to explain to him what's occurred today, if you can do that that would be greatly appreciated.
38 MR KEATING: Thank you for that, Your Honour.
39 HIS HONOUR: Yes, thank you.
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