Director of Public Prosecutions v Macorna (a pseudonym)

[2017] VCC 704

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication with pseudonym

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL MACORNA (a Pseudonym)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2017
DATE OF SENTENCE:	1 June 2017
CASE MAY BE CITED AS:	DPP v Macorna (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 704

REASONS FOR SENTENCE
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Sentence: Subject: Criminal law - sentence        

Catchwords:   Plea of guilty to one charge of indecent assault – offender is uncle of the complainant – she was 15 at the time, 35 years ago – offender then aged 44, now 79 – age disparity - complainant vulnerable- in poor health and grieving after recent death of father – profound life-long effects on complainant and her family – breach of trust - no priors – otherwise good character – chronic anxiety – mild cognitive impairment – Verdins applies  - current sentencing practice –low risk of reoffending -  imprisonment unlikely at the time – delay - agreed suspended sentence within range.  

Legislation Cited: Sentencing Act 1991      

Cases Cited:R v Verdins 

Sentence:      18 months’ Imprisonment wholly suspended for two years.  

NOTE: Pseudonym used to protect the identity of the complainant.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E Tueno	OPP
For the Accused	Mr D Goodard	Bailey Timms

HER HONOUR:

1Michael Macorna[1], you have pleaded guilty to one charge of indecent assault.  It is a rolled up charge covering two separate indecent assaults on the same day and in the same circumstances.  The maximum penalty for this offence is five years' imprisonment.

[1] A pseudonym.

2The complainant is your niece, who was aged 15 at the time, in September 1982.  At that time her father, who was your brother, had recently died, and your niece, with her mother and siblings, was grieving his loss.  You were aged 44 at the time, a married man with children of your own.  The complainant was also suffering from several quite serious medical conditions.

3You began regularly visiting the complainant's home after your brother's death to do odd jobs.  Often this would be when the complainant's mother was at work, away from the house.  Because of her health problems, the complainant was often home from school alone and she had been instructed by her mother to offer you a glass of wine. 

4The complainant did not like you visiting, as she felt threatened and intimidated, so she avoided you, but her mother discouraged this attitude, assuring her that you would not do anything.  In fact, you frequently tried to touch the complainant, grabbing her around the waist or putting your hands on her arms or shoulders to bring her towards you.  You would try to kiss her on the lips.  You would try to calm her down, saying, "Trust me" and "It's all right."  You would say to her that you were not doing anything wrong and that you were just like her father.  This behaviour is the background to the offending that is the subject of the charge on the indictment. 

5The complainant's health deteriorated and she stayed home from school more frequently.  She experienced dizzy spells, fainting, nausea, migraine headaches and back pain and she suffered from the condition of Raynard’s syndrome.  That symptom affected her feet, causing gangrene.  You would often offer to massage her back. 

6On one of these visits you poured yourself a glass of wine and offered one to the complainant.  She had one sip and put down the glass and went into the lounge room, where she played some music, a song about family violence and sexual abuse, which she thought might deter you.  You offered to massage her back and she agreed, thinking you would then stop asking.  She laid down and pretended to be asleep.  You lifted the back of her top and tried to push the top of her jeans down.  She pressed her hips into the couch to stop you from touching her vaginal area.  You moved your hand down her back past the area of her coccyx, causing her to feel afraid, and, with your finger, penetrated her anus.  You moved your finger back and forth rhythmically, causing her pain.  That is the first occasion that is part of the charge on the indictment.

7You tried to move her body with your hands but she resisted, so you recommenced massaging her back.  You stood between her legs so she could not close them.  Again, you put your hand down her jeans and your finger into her anus, moving it in and out several times. 

8There was a loud knock on the window, and when you said, "Who's that", the complainant turned her head and saw you behind her with your trousers unzipped and a wet patch over the groin area of your trousers.  You told her, "It is a secret and nobody needs to know, right?  Nothing happened.  There's nothing wrong with what we were doing.  This is between us.  We are family.  It is okay with us to be like this."  This was the second occasion which is part of Charge 1. 

9The complainant told her mother about three years later, but it was not until May 2015 that she reported it to the police.  In a telephone conversation in June 2015 that the complainant recorded, you told her that you did not want to talk about it, that you had let the matter go and that sometimes men make a stupid mistake.

10You were arrested on 14 July 2015 and interviewed.  You admitted that you had massaged the complainant's back but denied having done anything improper. 

11A contested committal hearing took place in November 2016 resulting in a discharge in relation to a charge of sexual penetration. 

12I heard a sentence indication hearing on 25 May followed by a partial plea hearing which concluded today.  The complainant read to the court her victim impact statement which was a well-written, articulate and moving document delivered courageously and with great feeling.  She described the deep schism caused in the wider extended family, caused by her behaviour which was a direct result of what you did to her.  It caused great emotional stress to her at the time, which worsened her health.  She developed depression, anxiety and insomnia and struggled with her school work, repeating Year 12.  Although she is now a disability support worker, she considers that her achievements have been limited because of this.  She found that her claims of abuse were not believed and instead she was made to feel guilty.  It appears that this was what motivated her to eventually report the matter.

13The victim impact statements provided by her mother and younger sister and brother helped explain the effects of your actions on the whole family.  Her sister described how the complainant changed at the age of 15, becoming angry, withdrawn, attention-seeking and distrustful of her family.  She said it made the family's relationships with her very difficult, and led to arguments, with frequent reference to what you were alleged to have done.  The breach of trust that you committed has had a profound effect on the family.

14Her brother's statement described the same effects and how this has saddened him.  In particular, he feels that his father's trust in you was betrayed. 

15I turn now to your personal background and circumstances.  Much of this is set out in the outline tendered by your counsel and in the psychiatric report provided by Dr Danny Sullivan dated 16 October 2016.  It was prepared in anticipation for trial and partly for the purposes of determining your fitness for trial, and I should add that you were found fit to be tried.

16You were born in Italy and came to Australia with your parents in the 1950s, having had very limited primary school education during the Second World War.  You married and had four children and you worked in a wide variety of jobs, staying with one company from 1963 until 2000 when you retired.

17After this, you developed anxiety and since then have suffered from a low mood and poor sleep.  Since being charged with this offence, you have had suicidal thoughts and plans which would seem to be consistent with your counsel,
Mr Goddard's submission that your plea of guilty, as the acknowledgement of your wrongdoing, was difficult for you, in terms of facing your family.  They have always regarded you as a hardworking, good family man, and clearly that picture has now been substantially tarnished by your own actions.

18Your plea of guilty means that you are entitled to a discount on your sentence, for having avoided a trial, and therefore for having facilitated the system of criminal justice.  It has spared the witnesses from having to give evidence again and it has brought the matter to a close.

19Another mitigating factor is that your mental and physical frailty would make imprisonment more burdensome than for others who do not suffer in the same way.

20Dr Sullivan diagnosed chronic generalised Anxiety Disorder of mild to moderate severity, an Adjustment Disorder with Mixed Anxiety and Depressive Reaction and a mild cognitive impairment.  You also suffer from inflammatory disease, and with a restricted lifestyle you are considerably dependent on your wife.

21Dr Sullivan confirmed his opinion in a recent follow-up report dated 17 May 2017.

22None of those conditions preclude imprisonment, but, as I say, they are to be taken into account, as I have described.

23Whilst taking into account these mitigating factors, I must also take into account that the offending was very serious, that the penetration and the breach of trust are aggravating features and that general deterrence is an important sentencing consideration.

24Mr Goddard, who appeared on your behalf, submitted that a wholly suspended sentence of imprisonment is appropriate, considering sentencing practices at the time and at present. 

25Certainly there need be little focus in specific deterrence given the low risk of re-offending and the absence of any other offending over many years.  I note, however, that despite the plea of guilty, there is no evidence of remorse and that the only acknowledgment of wrongdoing is that implied by the plea of guilty.  Having said that, it would appear that the complainant and her family place considerable weight on that plea.

26Would you stand now, please, Mr Macorna.

27I sentence you to 18 months' imprisonment which will be wholly suspended for two years.

28The prosecution has applied for a forensic sample of saliva to be obtained and I understand that is not opposed.  I make that order in the circumstances of the offending and I need to advise you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.

29You will be placed on the sex offenders register to report your details to the police each year for 15 years.

30Finally, if you had pleaded not guilty to this charge, I would have sentenced you to a wholly suspended sentence of two years, suspended for three years.

31Now, Ms Tueno, is there any matter that I have neglected or omitted?

32MS TUENO:  No, Your Honour.

33HER HONOUR:  All right, thank you.  Mr Goddard?

34MR GODDARD:  No, Your Honour.

35HER  HONOUR:  My associate is just approaching the dock. 
Mr Goddard, with the Sex Offender Registration documentation would you like to go too?

36MR GODDARD:  Yes, Your Honour.

37Sex Offender Registration form signed.

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