Director of Public Prosecutions v Luca, Domenico
[2013] VCC 750
•3 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02185
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOMENICO LUCA |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2013 | |
DATE OF SENTENCE: | 3 June 2013 | |
CASE MAY BE CITED AS: | DPP v Luca, Domenico | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 750 | |
REASONS FOR SENTENCE
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Subject: Criminal law - Sentencing
Catchwords: Indecent Assault - Historical Offence - Offender Teenager At Time - Non-Conviction Disposition
Legislation Cited:
Cases Cited: R v Mills, R v Boland
Sentence: 12 Month Non Conviction Recognisance
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr W. Stougiannos | OPP |
| For the Accused | Mr A. Dickenson | Brett Tait |
HIS HONOUR:
1 Domenico Luca, you have pleaded guilty to three counts of indecent assault, contrary to s.44(1) of the Crimes Act 1958. Maximum penalty is five years' imprisonment.
2
The circumstances of the offences were set out in the Crown opening,
Exhibit A, which was read in open court earlier today and which I incorporate by reference.
3 In essence, the complainant in this matter was your first cousin, who at the time was aged between five and seven years. You at the time were aged between 15 and 17 years. The three events, the subject of the counts, involved, first, the touching of her vagina one day inside her underwear, Charge 1. Charges 2 and 3 involved licking of the vagina and rubbing your penis against her vagina in a single incident, premised by you tongue kissing her. Another event that is put as part of the context of the event was that you showed the complainant a pornographic magazine.
4 The complainant did not take these matters to the authorities at the time, but did complain to a school friend and a family member about five years later, some time in 1989, but it appears that no action was taken. She finally reported the matters to the police in April 2010. Thereafter she made three pretext phone conversations with you and in one of those, the second of those calls, you stated words to the effect that "If I apologise is that going to be enough. Hope you can forgive me, I really regret it. It hasn't happened ever since and will never happen again. Why did I do it? It's like an experiment." The complainant then stated in the course of the conversation that she accepted the apology.
Assessing the seriousness of the offending.
5 Your counsel, Mr Dickenson, put that this offending must be seen as on the mid to low range of indecent assault offences. The age differential between the two of you is an important consideration. The fact that you were related to each other is a factor. The offending did not involve penetration and I accept the characterisation of the offending as in the mid to lower range of indecent assault cases.
6 In sentencing you, I must have regard to the effect on the victim. She has filed an extensive impact statement which I have read. The victim impact statement canvasses a number of issues in her life. As Mr Dickenson said, given that she is now aged 36, as these events occurred when she was aged between five and seven, it is often difficult to separate out this particular offending from a whole lot of other life events that have occurred between when the offending occurred when she was just a young child and the present time. It is clear even at a bare minimum that as a result of some sort of a sexualisation early in the piece the complainant has had a difficult life, particularly in her sexual relations with others and so it is fair to assume or infer that it has had some impact on her, and I must take that into account in determining what to do with you.
7 I turn to your personal circumstances which were canvassed on the plea by your counsel. You are aged 46 now and no prior convictions are alleged against you.
8 Before me are two character references, one from your brother-in-law, with whom you are working as a carpenter. He has known you for 25 years and indicates that you are an honest family man of good character and he was very surprised to hear of these offences alleged against you, and you remain a calm employee under stress. There was also a reference from Trady Ludixon, who works with your wife in the education sector. She has known the family and she knows you as a person who works extremely hard to provide for your family. Again, she regards you as honest and others who know you have the same opinion.
9 Before me today I heard evidence from your older sister, who gave some insight into the family from which you come. You are one of two children and unfortunately your father passed away when you were aged 13, after having two years of a disabling condition that cost him his life in the end. She indicated that it was a very difficult time for the family. She was two years older than you. It obviously had an impact on your mother and on you at the time. You then left school, soon after your father passed away, after having difficulties and got a job in the auto industry. When you turned about 18 you got a second job and you have been effectively in full employment since that time. Finally, in 2004, you commenced working with your brother-in-law as a carpenter, but you are a qualified carpenter as well.
10 Your wife, a teacher, gave evidence as to your role as head of the family. She has known you since 1988, which would be when you were 22. You have been married for 20 years and have two boys aged 14 and 15 and, unsurprisingly, she indicates that you are a good husband and a role model for your children. She also indicates that from the time that this matter was brought to the attention of the police it has been very stressful for the family. She sees the whole matter as out of character and indicates to me that you have been remorseful in advice to her.
The purposes of sentencing.
11 The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community and seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
12 Your counsel in mitigation put a number of considerations. First, he submitted that you have pleaded guilty to these offences. When the matter was brought to your attention you were charged and you pleaded not guilty, gave a "no comment" record of interview and then the matter was the subject of a contested committal. You were committed for trial and some other more serious offences were alleged against you, which you intended to contest.
13 The matter was finally resolved into a plea to the three counts that you have pleaded guilty to and then you therefore pleaded guilty. Your plea has utilitarian value in that you have saved the system, saved the complainant of a contested trial. Following the resolution of the matter it was at the first available opportunity and therefore you are entitled to the full credit for the plea.
14 Your plea is also evidence of your remorse. I refer to what your wife has said in her evidence and also as evidenced by the apology that you made, or gave to the complainant in the pretext conversation.
15 Your counsel also put as a mitigating factor your age at the time of the offending. The offending is alleged to have occurred when you were aged between 15 and 17. That is important consideration because first of all your sheer age at the time, you were only a youth, a teenager. It is a matter that the court takes judicial notice of that boys, males really at age 15 to 17 are much less mature than girls of that age.
16 Your counsel put that this can be characterised as immature sexual experimentation. I accept that submission and it is quite interesting that reading today's paper there was reference to the pervasive availability of pornography and the effect that has on sexual behaviour. This is a classic case where you are in the workforce at age 16, no father figure, access to pornography and then this experimental activity occurs with a person that you are able to get access to, a child, a cousin. Not having a father figure is an important factor for a person of your age. For two years before your father passed away at a critical stage of your development you were without a father figure and I regard that as a very important consideration in considering that you would have been immature at the time. You left school early, as I indicated, aged 16, and were thrown in the adult world of the motor trade and it not surprising you had access to pornography in those circumstances and this led to this appalling conduct.
17 Since that time, as a further fact to put in mitigation, you obviously matured, married, had children and you are a breadwinner in your family. You are entitled to the credit and benefit for that in the plea. You also have a trade and you are in employment and I have already referred to the two references. I have taken into account the evidence of your older sister on the impact of your father's death on you and as to your good conduct and character in support of your family. I have also taken into account the impact of this offending on your family and her evidence as to your remorse.
18 In sentencing, as pointed out and submitted by your counsel, questions of general deterrence, and denunciation carry lesser weight in sentencing young offenders. Had this matter been brought to the attention of the authorities when these offences occurred, you would have been a young person under the Sentencing Act in those days and you would have been in the Children's Court. Under the Sentencing Act at the present time and under the authority of the case of Mills rehabilitation is the primary sentencing consideration for young offenders, particularly children. In circumstances where you were in employment and your father passed away, it is most likely that you would have been placed on a probation disposition had the matter been dealt with at that time.
19 Given that position, it is not surprising that your counsel submitted that a non conviction disposition ought be the appropriate sentence of the Court. The Crown, in a helpful submission from Mr Stougiannos, accompanied by a reference to some comments by Nettle JA in R v. Boland, conceded that a non conviction disposition was within range.
20 Having considered the matter and in particular taking into account your good character and rehabilitation, and the period since 1983 when these offences have occurred, that 30 year period is a big period and your rehabilitation has been achieved, it would not be in the community interest to do other than place you on a non conviction disposition.
21 As I said before, the Court is required to condemn your conduct and the Court does condemn that conduct, but it is within the context that you were a 15 to 17 year old at the time, immature and lacking in any father figure in your life. You have been able to rehabilitate yourself since that time and the Court must recognise that and treat you as though it was sentencing you back in 1984 and 1985 when you were still a child for the purposes of the Sentencing Act.
22 For all those reasons I accede to the submission of your counsel for a non custodial or non conviction disposition. If you do agree, I will place you on a 12 months undertaking to be of good behaviour, which will require you to be of good behaviour for the next 12 months. If you commit an offence in the next 12 months you will breach that undertaking and you will be brought back here for re-sentencing.
23 The Crown did not seek a registration under the Sex Offender Registration Act and I make no such order.
24 As an aggregate sentence, if you agree, then I propose to place you an adjourned undertaking for a period of 12 months. Does your client agree to that disposition, Mr Dickenson?
25 MR DICKENSON: He certainly does, Your Honour.
26 HIS HONOUR: All right. I have got a document I will hand down shortly and you can have a look at it, Mr Stougiannos. You can explain it to your client, Mr Dickenson, have him sign it and I will reconvene the court.
27 MR DICKENSON: Yes, Your Honour.
28 (At a later stage.)
29
HIS HONOUR: Mr Luca, I have signed the undertaking. No doubt
Mr Dickenson has explained it to you and, as I say, I do not want to see you back here in the next 12 months and I would ask you to put this matter behind you.
30 I congratulate counsel on resolving the matter and thank them for their assistance in the plea.
31 Adjourn until 9.30 tomorrow.
32 (Good behaviour order signed and acknowledged.)
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