Director of Public Prosecutions v Lopez
[2015] VCC 588
•11 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHNNY LOPEZ (a pseudonym) |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 November and 3 December 2014; 2 March and 8 May 2015 |
| DATE OF SENTENCE: | 11 May 2015 |
| CASE MAY BE CITED AS: | DPP v Lopez |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 588 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Indecent act with a child under 16 – Criminal record – History of alcohol abuse – Alcohol affected at the time of the offending
Legislation Cited: Sex Offenders Registration Act 2004
Cases Cited: Boulton v R [2014] VSCA 342; DPP v Poul [2003] VSCA 202
Sentence:Total Effective Sentence 12 months’ imprisonment comb9ined with Community Corrections order of 3 years’ duration – Ancillary Orders – Forensic Sample Order – Sex Offender Registration – s.6AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| Director of Public Prosecutions | Ms C. Parkes | Solicitor for Public Prosecutions |
| The Accused | Mr M. Kozlowski | Revill & Papa |
A pseudonym has been applied to these remarks to maintain the privacy of the victims in this matter. The victim’s name as well other names which may identify or tend to identify victim have been initialised for the same purpose.
HER HONOUR:
1Johnny Lopez you have pleaded guilty to two charges of indecent act with a child under the age of 16 years. This offence has a maximum penalty of ten years' imprisonment, which reflects the seriousness with which Parliament regards the offence.
2The victim, to whom I shall refer as NP, to preserve her privacy, was four years old at the time.
3At the time of your offending, you were living with your auntie’s family and you worked at the same freight company as the victim’s father.
4On Sunday 8 September 2013, the victim attended a Church service with her family. After the service, your aunt drove the victim and her seven year old brother, SC, to her house so that SC could play with her nephew, DF. She then left the house, leaving the children alone with you, DF and DF’s elderly grandmother who was asleep in her room.
5The victim, NP, SC and DF were playing on PlayStation with you in your bedroom. DF went to the bathroom and was absent for some time. You then led the victim from your bedroom and told her brother to stay there. You took the victim to the front room of the house, removed her dress and underwear and touched her on the vagina. This gives rise to Charge 1.
6The victim screamed and SC came out of your bedroom. You told SC to go back to your room.
7You then urinated into a cup and told the victim to drink this. This gives rise to Charge 2.
8The victim and her brother then went back into your bedroom and played on PlayStation. A short time later, the victim’s mother collected her children and took them home. That night, NP’s mother noticed that the victim’s vagina was red in the course of giving her a bath. When she asked NP about this she did not answer her, however.
9On 18 November 2013, SC talked to his mother about ‘things’ that happened at your home. When your name was mentioned, NP clung to her mother and said that you had done ‘something bad’ to her. She then disclosed your offending to her mother. SC told his mother about hearing NP scream and that when he went to look for her you told him to go back into your room.
10The police were notified and the complainant gave a VARE on 19 November 2013.
11You were arrested that same day and took part in a record of interview. You said that you knew nothing about the allegations. You said that you did not know the victims or their family. You said that you drank all weekend and that weekends were a blur to you. You said that you had never spent time with children at your house. At the original plea hearing, Mr Kozlowski, who appeared for you, seemed to be suggesting that these were truthful answers in view of your lack of memory about the events on that day and that you had never been introduced to the children. He told me that you did know that the children were at your house on the day in question, however.
12You said that you could not remember taking off the victim’s clothing and could not recall urinating into a cup and making the victim drink this. You also told police that you could not remember performing either of the alleged acts which gives rise to the charges. Again, Mr Kozlowski said that you maintained this stance.
13I was told that you blacked out at some point after the offending because of your alcohol intake.
14Mr Lopez, your offending is most serious and calls for a punishment which is just in all of the circumstances. Your criminal behaviour must also be denounced. You offended in a most depraved way against a child of very tender years at a time when you were 43 years old. You were not asked to mind the children but you were the only adult in close proximity to them and you clearly assumed a supervisory role in respect of them. You gave directions to the victim and her brother, in order to achieve your purpose, exploiting the fact that you were the adult in the group.
15While you instruct your Counsel and Mr Simmons psychologist that you have no recollection of these events, I must say that I have some difficulty with this. You acted in a deliberative fashion, leading the victim away from any possible witness, and when she screamed, you did what you could to ensure that NP’s brother did not see what you were doing. Charge 2 is aggravated by the fact that, having been alerted to the victim’s distress and her brother’s alarm, you continued on and committed the second indecent act.
16I take into account the victim impact statement, which speaks of the profound effect that your offending has had on the young victim and her family and in particular on her mother who has been devastated by your conduct. NP suffers nightmares and her behaviour has changed from being a confident little girl to someone who is very insecure. Her mother has suffered a great deal, describing feelings of anger and psychological upheaval. She is a broken person, unable to trust others and unable to properly function as a human being. This has had ripple effects upon her family. These are the very real effects of your offending, Mr Lopez.
17At the original plea hearing I was told that you had no prior convictions. Your counsel, Mr Kozlowski, specifically told me, on your instructions, that you had no prior matters here; nor in Samoa or New Zealand. However, I was told subsequently that this was not the case.
18On 16 January 2001, you were convicted and fined in respect of resisting police, disorderly behaviour and wilful damage.
19On 20 January 2012, you were convicted and fined $400 for lurking/loitering/peeping/peering near a dwelling. I requested a summary in respect of this matter but this summary was not available. The record of the offending indicates however that you were found peering through a window, and your counsel told me that you were peering into a neighbour’s window whilst intoxicated. On the last occasion of the hearing before me, that is on the last further plea hearing, your counsel told me that you have no recollection of this particular matter and that in relation to all prior matters, you took the view that these were not relevant especially in view of the fact that the prosecution had not alleged anything. I do not regard this as an entirely satisfactory explanation.
20I was also told by the Prosecution that upon your arrest for the loiter matter, 1300 images were found on your phone depicting sexual abuse of young girls. I was told that you left the jurisdiction before you could be interviewed in respect of this, that is you left New Zealand before being interviewed for this. Insofar as this matter is concerned, your counsel has told me that you dispute the allegation and therefore I have put this matter to one side, and I sentence you on the basis of the prior court appearances which are admitted by you.
21In relation to the prior matters which I do take into account, you relied on a false fact that you had never committed offences before in order to submit through your counsel, that you had no appreciation that you might commit criminal offences whilst affected by alcohol. In the context of an alcohol problem which your mother said has been with you for many years and which you told Mr Simmons you have had since you were 14, it is more than apparent that the previous offences were committed whilst affected by alcohol. Therefore, on any view of things as they now stand, I am not prepared to reduce your moral culpability in respect of the offences before me. Indeed, your counsel withdrew this submission.
22Whilst the prior matters are not nearly of the magnitude of the offences for which I sentence you, they indicate that committing offences whilst affected by alcohol is not a one-off occurrence.
23I make it clear that I have not treated your drunkenness on the occasion of offending before me as an aggravating feature, but I want to also make this clear, there is a link between your excessive drinking and committing criminal offences. If you continue to abuse alcohol and commit offences, then your decision to drink alcohol in the future in such circumstances may well be regarded as an aggravating feature.
24Having said all of this, I note that your criminal history is rather limited. However, such as it is, it may well have impacted on Mr Simmons' opinion and the CCO assessment as well. Therefore I adjourned the matter to enable your counsel to obtain an addenda report from Mr Simmons and for the prosecution to finalise their stance in respect of prior matters. I also wished to arrange for a further assessment for a community corrections order in light of the new matter. Mr Simmons did not think it necessary to see you again, and the further report even had the same date on it as his original report. This was updated however when pointed out by my associate to defence. I must say that I find Mr Simmons' approach to your matter as rather lacking, and I do hope that a good deal of expense was not incurred for such a sub-standard service as you received. It is evident that Mr Simmons has marginally adapted his previous report to accommodate the newly discovered prior matters without any further assessment of you. In any event, for what his updated report is worth, I factor in his finding that you do not have any paedophilic tendencies, which is a matter in your favour and which I do take into account.
25I also take into account the impact of your offending upon the victim and her mother, as I have indicated.
26I take into account your plea of guilty which entitles you to a discount which is not insignificant in all of these circumstances. Whilst you did not spare the witnesses and the community the time trouble and expense involved in committal proceedings, this ought be seen in the context of you facing more serious charges at that time. I was told that you took this step, which is your right, in the context of not recalling any alleged events so as to determine the most appropriate course. As I have said I have some difficulty in accepting that you have no recollection of the events in question. I also note that no offers to plead guilty to lesser charges was made by you before committal, although this was said to be in the context of you having no recollection of the events. Such matters are relevant to the question of remorse rather than your entitlement to an appropriate discount for facilitating justice. In all of the circumstances however, you have saved the witnesses, especially the victim, the time and trauma of running a trial and you have saved the community the time and expense of a trial. As I have said, I allow for an appropriate discount which is not insignificant in all of the circumstances.
27I find that you have some remorse for your offending which you have expressed to your mother and to Mr Simmons. You have remorse for the victim and for the shame that you feel you have brought upon yourself and your own family.
28You have abused alcohol since you were a teenager, but to your credit, since these allegations were put to you, you have abstained from drinking. Your mother gave evidence that as at the time of your offending, you drank every weekend and would often black out. She said you usually drank alone at home. She confirmed that you no longer drink alcohol. She also said that you have distanced yourself from a woman with whom you were having a relationship because she abuses alcohol.
29I was told that you live with your mother and lead a fairly solitary existence You have some work friends but are not very social. You attend Church with your mother every second weekend. You have a good work history, and have worked with the same logistics company for several years now.
30I take into account your background.
31You were born in Western Samoa. Shortly after your birth, your mother took you to New Zealand which is where she finished her studies. You and she remained there until you were five. Your mother then returned with you to Western Samoa, staying there for another five years. You then you moved to American Samoa. You stayed there until you were 24, then moved to New Zealand. In 2012 you moved to Australia, following your mother, who had moved here about six months before. You never knew your biological father but you had two father figures in your life. The first of these father figures sadly, died in an accident when you were 14 years old. After this, your mother formed a relationship with another gentleman, your second father figure, who died in the late 80s. Therefore you have suffered some sadness and instability in your life which I take into account. It appears however that your mother, who gave evidence on your behalf at the original plea hearing, has been a major support in your life and she continues to be so.
32You are an only child, although you have a half-sister who is about 20 years younger than you.
33You struggled academically, but managed to complete secondary school. Mr Simmons, psychologist, assessed you as having average intellectual functioning although at the lower end of this range. After school you went into the workforce, and as I have said, you have a good work history. I have taken these matters into account when sentencing you as well as the general background matters.
34General deterrence is a factor to which I must give strong weight in your case. I must send a strong message to the community that offending such as yours will not be tolerated so as to deter others from behaving as you have. In all of the circumstances relevant to the issue, I find that your prospects of rehabilitation are fairly good but much will depend on your ability to stay away from alcohol or any intoxicating substance in the future. You must embrace any programs which you are assessed suitable to undertake to enable you to further enhance your prospects. You ought look to your mother and any other community supports in the future to develop your pro-social skills. In all of the circumstances, I place some weight on specific deterrence and protection of the community.
35Your counsel submitted that in light of the recent guideline judgment of Boultonv R [2014] VSCA 342, and in view of the circumstances of your case, I ought impose a community corrections order. His secondary submission was that I ought impose a short period of imprisonment combined with a community corrections order. In this regard, he referred me to a pre-Boulton case, DPP v Poul [2003] VSCA 202.
36In Boulton, a Full Bench of the Court of Appeal said that community corrections orders had significantly changed the sentencing landscape which was Parliament’s intention. The court said that in many cases, even those of moderate seriousness, the weight which needed to be attached to all relevant sentencing considerations, including punishment and general deterrence, could be achieved by a suitably crafted community corrections order. However, the court also observed that in some cases, the seriousness of the offending might well require the imposition of a gaol term combined with a community corrections order. In my view, Mr Lopez, your case falls into this category. However, in a bid to ensure that your road to rehabilitation continues, I have imposed a gaol term which will see you released into a supervisory regime provided by a community corrections order as soon as can be justified. I have also factored in that this will be your first time in gaol which will be a far harsher experience than for someone more seasoned in this regard.
37Please stand up Mr Lopez.
38You are convicted of the charges.
39I will first impose the ancillary orders:
40I make an order for a forensic sample to be taken by way of a buccal swab of saliva from the mouth. I make the order because of the seriousness of your offending, because the order is not opposed and because it is in the public interest to make such an order. I warn you that if you do not co-operate in the taking of the sample then an authorised officer may use reasonable force to achieve this.
41 Under the Sex Offenders Registration Act 2004, by reason of your convictions on these offences, you are to be recorded as a registrable offender for eight years. You must report your personal details to the Chief Commissioner of Police annually for eight years. You must first do so, that is, report, within seven days after your release from custody. Details in writing of these reporting conditions will be served upon you shortly by my associate. I will ask your counsel to help you attend to an acknowledgement of that notice and have you sign it.
42In addition to a period of imprisonment, I intend to place you on a community corrections order for three years, but can only do so with your consent so please listen carefully to the order that I propose:
43The mandatory terms that apply to all Community Correction Orders are as follows:
oYou must not commit another offence for which you could be imprisoned during the time that the order is in force;
oYou must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;
oYou must report to, and receive visits from, the Secretary to the Department of Justice or his or her delegate;
oYou must report to the Sunshine Community Corrections Service within two clear working days of your release from gaol;
oYou must let a community corrections officer know within two clear working days of you changing your address or job;
oYou must not leave Victoria without first obtaining permission to do so from the Secretary or his or her delegate;
oYou must obey all lawful instructions from and directions of the Secretary or his or her delegate.
44The conditions that apply in addition to the mandatory terms are as follows:
45Supervision
You must be under the supervision of a Community Corrections Officer for a period of 12 months.
46Treatment and Rehabilitation
You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
47You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, if directed, and as directed by the regional manager.
48You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager. In particular you are to undergo the Sex Offender Advice and Treatment Service program.
49Do you consent to the terms and conditions of the order?
50OFFENDER: Yes, Your Honour.
51HER HONOUR: I should tell you that if you do not comply with all of the requirements of this order, you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to a further period of gaol. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
52Do you understand this?
53OFFENDER: Yes.
54HER HONOUR: Do you maintain your consent to the order?
55OFFENDER: Yes.
56HER HONOUR: Therefore in relation to the charges, in addition to the term of imprisonment I am about to announce, you are to undergo the community corrections order in the terms and conditions that I have just set out.
57I will ask that your counsel to approach the dock and my associate will also assist in having you sign the acknowledgements in respect of the sex offenders register and the community corrections order.
58(Section 464ZF order signed and acknowledged.)
59(Sex Registration order signed and acknowledged.)
60MR KOZLOWSKI: Thank you, Your Honour.
61HER HONOUR: Thank you. I am now going to impose the following periods of imprisonment.
62In respect of Charge 1, you are sentenced to ten months' imprisonment.
63In respect of charge 2, you are sentenced to eight months' imprisonment.
64I declare that you are a serious sexual offender, at this stage, which will be noted on the records of the Court.
65I direct that two months of the sentence on Charge 2 be served cumulatively with the sentence on Charge 1, making a total effective sentence of
12 months' imprisonment.66I make it clear that I have not sentenced you as a serious sexual offender.
67If not for your pleas of guilty I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of 32 months' imprisonment.
68Is there anything arising?
69MS PARKES: No, Your Honour.
70HER HONOUR: Yes, thank you. If you might remove the prisoner. We will now adjourn.
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