Director of Public Prosecutions v Lucciano (a pseudonym)
[2020] VCC 177
•27 February 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ORTENSIO LUCCIANO (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE GEORGIOU |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 February 2020 |
| DATE OF SENTENCE: | 27 February 2020 |
| CASE MAY BE CITED AS: | DPP v Lucciano (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 177 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Unlawful and indecent assault of a girl under 16 years – common assault – gross indecency with a girl under 16 years – historical offending – offences committed in 1962 to 1963 - sex offender registration – serious sexual offender
Legislation Cited: ss 55, 69(1)(b) Crimes Act 1958
Cases Cited: Stalio v R [2012] VSCA 120
Sentence: Total effective sentence of 11 months and 28 days imprisonment wholly suspended for 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G Slim (plea) Ms L Dawson (sentence) | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms C Randazzo SC with Mr J Taaffe | Doogue and George |
HIS HONOUR:
1Mr Lucciano[1], on 10 September 2019, you pleaded not guilty to 11 charges of unlawful and indecent assault with a girl under the age of 16 years, one charge of committing an act of gross indecency with a girl under the age of 16 and one charge of common law assault.
[1] a pseudonym.
2On 25 September 2019 the jury returned verdicts of not guilty on Charges 1 and 2, being charges of indecent assault with a girl under the age of 16.
3The jury found you guilty of Charges 3, 4, 5, 6, 7, 9, 11, 12 and 13 being charges of unlawful and indecent assault with a girl under the age of 16 years; charge 8, a charge of gross indecency with a girl under the age of 16 years, and charge 10, a charge of common assault.
Circumstances of offending
4The circumstances of your offending may be summarised as follows.
5The victim in this matter is your younger sister. She is now aged 71 years. You are aged 80 years.
6You came to Australia from Italy in 1955. Your sister, father and mother and a number of other siblings followed in April 1962.
7Charges 3, 4 and 5 occurred on a single occasion between 1 April 1962 and 31 August 1962. The conduct happened at night in the bathroom of the house in Lilydale in which you were all living. On that occasion you forced your sister to masturbate your penis until ejaculation (charge 3). You also touched her on the breasts (charge 4), and her vagina (charge 5).
8Charges 6, 7, 8 and 9 happened on a single occasion between 1 August 1962 and 31 October 1962. You were again in the same bathroom with your sister when you touched her breasts (charge 6), her vagina (charge 7), and you made her touch your penis (charge 8). You also indecently assaulted your sister by placing your tongue inside her mouth (charge 9).
9In approximately November or December 1962, whilst at home, you kicked your sister forcefully to the back because she had disobeyed your instructions not to dance with the groomsmen at your cousin's wedding. That conduct forms the basis of charge 10, the common assault.
10Not long before your sister turned 15, you, she and other members of your family were at Frankston beach. While purporting to teach your sister to swim, you fondled her breasts (charge 12), her vagina (charge 13) and you rubbed your erect penis against her body (charge 11).
11On no occasion did your sister want to be touched by you. You took advantage of the age difference between you and your position in the family as the oldest son in order to commit these offences.
12It was not until late 2014 that your sister told anyone about the offending. She first told your younger brother, Simon[2], about having been sexually assaulted by you. She detailed more of the offending over the following months to him and others.
[2] a pseudonym
13The allegations were reported to police on 28 February 2016. You were arrested and interviewed on 27 October 2016. You answered, 'no comment' to police questions. You were later charged with these offences.
14The criminal charges came on for trial on 26 August 2019. Following pre-trial argument a jury was empanelled on 10 September 2019 and verdicts were returned on 25 September 2019. Unusually, there were civil proceedings against you arising out of these same allegations which were heard before the criminal trial.
15By way of background to those proceedings, in September 2015 you received a letter of demand seeking compensation from your sister's lawyer. You denied your sister's allegations and her claim for compensation. Civil proceedings were issued against you in October 2015. They were heard in this Court in September and October 2016. Judgment and an award for damages was made in favour of your sister. You appealed that judgment in May 2017 but were unsuccessful.
16The offences of which you have been found guilty occurred some 56 to 57 years ago. You were then a youthful offender aged between 23 and 24 years. Your sister was aged between 14 and 15 years at the time of offending.
17I am now to sentence you on those offences noting that the maximum penalty for a charge of unlawful and indecent assault with a girl under the age of 16 years was then three years' imprisonment; the charge of assault, two years' imprisonment and the charge of gross indecency with a child under the age of 16 years, two years' imprisonment.
18The ‘serious sexual offender’ provisions under the Sentencing Act 1991 will apply to your case in respect of charges 5, 6, 7, 8, 9, 11, 12 and 13. Thus, under s.6(D) of that Act, I must regard the protection of the community as the principle purpose for which the sentences are to be imposed.
19However, the learned prosecutor, Mr Slim, did not submit that I should impose a sentence longer than that which is proportionate to the gravity of the offences.
20Further, s.6(E) of the Sentencing Act 1991, requires that:
‘Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.’
Personal Circumstances
21You are 80 years of age, having been born in Italy in 1939.
22You came from humble origins. Your father owned a cart and worked in transporting goods. Your mother was engaged in home duties raising you and your eight siblings.
23When you were aged 11, your father and his brother travelled to Australia. As the eldest son, responsibility fell to you to assist your mother tending to the family animals and olive grove. You left school at the age of 12.
24Between the ages of 12 and 16 you completed an apprenticeship in joinery and cabinet making. In 1955, at the age of 16, you travelled to Australia in search of a better life joining your father and uncle in South Australia. You all worked building farm fencing. I am told that this was hard, physical work and that you were working seven days a week. After approximately four months you travelled to Melbourne. Your father joined you until his return to Italy in April 1956.
25I will not set out your work history in any detail. It is sufficient to say that throughout your life you have always worked hard. From the age of 26, with your father and several of your brothers, you started a cabinet making business and from 1975, with your brother Donald,[3] you started a window frame business. You managed that business until you sold it in 2006. You are now engaged in property development and assist with the family building business. You attend the office for several hours each working day.
[3] a pseudonym.
26By 1958 you had managed to save sufficient funds to purchase a block of land in Lilydale[4]. You also purchased some adjoining land. You built your first house on that original block. In May 1962 your parents, six brothers and two sisters travelled to Australia and lived with you in the house you had built. You built a second house next to yours and in 1964 your parents moved into that second house.
[4] Lilydale is a pseudonym.
27You married in 1965 and you have three daughters, one son, six grandsons and four granddaughters. Your wife, your children, and several of your adult grandchildren attended Court during the plea hearing to offer their support. I have had regard to each of their references. You are described as a good family man and you spend much of your time with your family and grandchildren.
28I am told that you are not in good health. Ms Randazzo SC, who appeared with Mr Taaffe, tendered medical reports from Dr Stowe (Exhibit D3) and Mr Chan (Exhibit D2).
29Dr Stowe is your family doctor. It is clear from his report that you suffer a number of ailments, the more serious of which are hyperferritinemia, secondary to fatty liver disease, beta thalassemia minor, Type 2 diabetes, hypertension and asthma. You also had prostate cancer and are under the supervision of Mr Chan, urologist. In his report, Mr Chan confirms that you had a laparoscopic radical prostatectomy in 2014 which involved removal of your prostate and lymph glands. Whilst you require ongoing monitoring, it is his view that your prognosis remains excellent.
30Thirty-eight character references were tendered on your behalf. I have had regard to those references and note that each of the referees describes you in very positive, if not glowing, terms. You are described as a good and kind employer and a great mentor and role model. You have contributed to the community by employing many people over the years, offering a large number of apprenticeships and giving employment opportunities to those who might otherwise have struggled to find work. Needless to say, each of your referees finds the offences you committed to be totally out of character.
31You are a man without prior conviction. With the exception of the matters before me, you have not been in any trouble with the law. It is clear that you are man who has fully rehabilitated.
32Clearly, the offences of which you have been found guilty are a side of your character that was not known other than to yourself and the victim in this matter.
33I have had careful regard to the Victim Impact Statement provided by your sister. Mr Slim read it in open court, your sister being too nervous to read it herself. She is much younger than you and, as a young child, she should have had your protection. Your offending has had a profound impact upon her mental wellbeing over many years. She has lived with the secret and shame of what you did to her throughout her teens and most of her adult life. She described your actions as having ruined her life and taking away her innocence.
34You challenged her claims through your pleas of not guilty and she was required to give evidence over several days in this court. You have expressed no remorse for your conduct.
Sentencing considerations
35Ms Randazzo SC accepted that general deterrence and denunciation are paramount sentencing considerations. I agree. Those who choose to engage in such offending must understand that they will be punished, and their conduct condemned.
36With regard to the gravity of your offending, it was submitted that it was not high given that there was no penetration involved. That is so. However, I must also have regard to the power imbalance between you and your younger sister; the fact that some of the offences occurred in the family home, a place where your sister was entitled to feel safe and secure; and that your offending was brazen, occurring whilst other members of the family were at home or nearby. You felt confident that your position of power and threats to your sister if she told anyone would be sufficient to silence her. It did, for a long time. Your offending also spanned a number of months between April 1962 and April 1963.
37I also have regard to your moral culpability at the time of the offences. There are no factors present in your case that would serve to reduce your moral culpability. In all of these circumstances I consider it to be high. You knew that your conduct was wrong.
38It was submitted by Ms Randazzo SC that because of your advanced age, and the fact that you have no prior or subsequent criminal convictions, you do not need to be deterred from further offending as there is no prospect of that happening.
39Given that these offences occurred in the early 1960s and there is no subsequent offending, I accept that you are a man who has fully rehabilitated. This is also borne out by your excellent work history and the many character references tendered on your behalf. I accept that there is little, if any, need for specific deterrence in your case, and that the need for community protection from you is very low.
40Your counsel also relied on the fact of delay occurring between the commission of the offences and sentencing; and the delay that occurred from the time you first became aware of the complaints of sexual assault and being charged and subsequently convicted of the offences.
41Your counsel properly conceded that it is commonplace for there to be a long delay between the commission of sexual offences against a child and the disclosure of the offending. For that reason, the fact of delay in and of itself is not a mitigating factor. However, I am able to have regard to your changed personal circumstances and the extent to which you have achieved rehabilitation during that delay. This is, I consider, a significant mitigating factor in your case.
42With regard to the delay in bringing the prosecution, which is not attributable to you, I am able to have regard to the anxiety and stress no doubt caused to you since you first became aware of the complaints in October 2015, a period in excess of four years.
43I also note the following factors as relevant to the sentence to be imposed.
·You are almost 81 years old. Your age will make service of a sentence of imprisonment difficult;
·Your poor health will make gaol more onerous for you than it would be for a person in good health;
·You were a youthful offender when you committed the offences;
·Your life has been significantly re-ordered since the offending.
44Section 5(2)(b) of the Sentencing Act requires me to have regard to current sentencing practices. As submitted by your counsel, these are sentencing practices at the time of sentencing, not at the time the offences were committed. They are, however, but one of a number of factors that I am required to take into account.
45In Stalio v The Queen [2012] VSCA 120, the Court of Appeal stated at paragraph 9(C):
'[T]he concept of equal justice requires regard to be had to sentencing practices at the date of the offence if those practices can be demonstrated to have required the imposition of a materially lesser sanction for like offences than current sentencing practices would impose for the offence.'
46However, as in Stalio, there is no evidence before me of the nature of the sentencing practice at the time of the offences other than the lower maximums, which were then applicable. In sentencing you, I am guided by those lower maximum penalties.
47I agree with the submissions of your counsel that in the circumstances of your case it is appropriate to wholly suspend the sentences I am about to impose. A suspended sentence is a sentence of imprisonment and may be activated should you commit any offence during the period of its operation. In my opinion, a suspended sentence is able to meet each of the sentencing objectives I am required to consider, including general deterrence and the imposition of just punishment. In fixing the sentences, particularly as to whether they are to be served cumulatively or concurrently, I must also apply the principle of totality.
48I turn now to the sentences to be imposed.
On Charge 3, which is the base sentence, you are convicted and sentenced to eight months' imprisonment.
On Charge 4, one month imprisonment.
Charge 5, three months' imprisonment, one month cumulative.
Charge 6, one month imprisonment.
Charge 7, three months' imprisonment, one month cumulative.
Charge 8, two months' imprisonment, 14 days cumulative.
Charge 9, one month imprisonment.
Charge 10, one month imprisonment, 14 days cumulative.
Charge 11, one month imprisonment.
Charge 12, one month imprisonment.
Charge 13, three months' imprisonment, one month cumulative.
This makes a total effective sentence of 11 months and 28 days.
49I direct that the term of imprisonment be wholly suspended for an operational period of 18 months.
50By reason of the fact that you have been convicted of nine indecent assaults and one charge of gross indecency, which are class 2 offences under the Sex Offenders Registration Act 2004, pursuant to s.34(1)(c)(iii) you will be subject to the reporting requirements of that act for the rest of your life.
51There is documentation that I need Mr Lucciano to be provided with and have signed as having been received. We will just get that documentation to him now.
52Ms Randazzo, the document sets out your client's obligations with regard to reporting, I am sure you are well aware of those and will explain those to Mr Lucciano. But I should tell Mr Lucciano that failure to comply with the reporting obligations may result in serious penalties, including imprisonment.
53MS RANDAZZO: Yes, Your Honour. I will spend some time with him now going through that document and explaining it to him in detail.
54HIS HONOUR: All right, thank you.
55HIS HONOUR: Ms Randazzo, I should have also asked, and I have no doubt you will do this in any event, to explain to your client the implications of a suspended sentence and the consequences for any breaches.
56MS RANDAZZO: Yes, Your Honour.
57HIS HONOUR: All right, thank you.
58MS RANDAZZO: Thank you.
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