Director of Public Prosecutions v Mafrici

[2020] VCC 396

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02277

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL MAFRICI

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2020
DATE OF SENTENCE:	3 April 2020
CASE MAY BE CITED AS:	DPP v MAFRICI
MEDIUM NEUTRAL CITATION:	[2020] VCC 396

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Ms J. Croxford	Sartori Legal

HIS HONOUR:

1Michael Mafrici, in September 2018, you met the victim on a social media platform Snapchat which is popular with the young.  You were 19 and told the victim that.  She was 13 and importantly, told you exactly how old she was.  Thus from the very outset, you knew she was a child.  In fact, she had turned 13 in July 2018 and so by September, was just over 13 years and one month.  By October 2018, that is when she was 13 years and two months, the victim was residing back in Wangaratta.  On 9 October, you arranged to meet face to face for the first time.  You and she went to a movie and walked around the streets of central Wangaratta.  It should have stopped there, but it did not.

2You took her back to your car and engaged in sexual intercourse.  In a few days, the victim's mother learnt of her daughter being in your company, an older man.  Her, that is the mother's understandable concern, led her to confront you and her daughter at the KFC store in Wangaratta.  She told you in no uncertain terms to leave her daughter alone.  You did not heed that clear warning.  Rather, you met up again with the victim and had sex with her in your car and later in the garage at her own home.  This last event occurring on 21 December 2018, after your work breakup party.

3After this last sexual offending, the victim decided to stop seeing you as she was concerned about your controlling behaviours.  Your response was simply dreadful, revealing a concerning side of your character, at least at that time.  On 27 December 2018, you sent the victim two text messages.  They read:

'I want you to burn in hell.  I'll kill you just like in your nightmares.  Expect me when you least expect me.  You'll suffer just like the rest of the people I kill'.

4Then later:

'No one will even care if you're gone.  You're nothing'.

5The victim showed those two text messages to her mother who went straight to the police.  The sexual offences committed on the victim were also revealed by her to her mother and then the police.  You were interviewed by the police on 28 December 2018.  You made full admissions.  Indeed, you told the police of sexual events, particularly in the garage, that the victim had not spoken of and the police would not have otherwise known.  That is to your credit and has been factored into my sentencing synthesis.

6In my assessment of your three offences of the sexual penetration of a child under the age of 16, I must refer to and adhere to the standard sentencing regime as set out in the Sentencing Act.  Of importance is that the standard sentence for each of these three offences of sexual penetration of a child under the age of 16 is six years imprisonment.  This is a legislative guidepost, together with the other legislative guidepost of the maximum term which is 15 years imprisonment.  These guideposts plainly articulate just how serious our Parliament, on behalf of our community, views sexual offending against children.  The statute makes plain that the standard sentence of six years of imprisonment is the sentence for an offence that taking into account only the objective factors effecting the relative seriousness of that offence is in the middle of the range of seriousness.  In determining the objective factors, I must only consider the nature of the offence and not your own personal circumstances.

7I do not, however, start by asking 'Is this an offence for which the standard sentence should be imposed?' and then work my way down or up, as the case may be.  I am asked, as the statute makes clear, adhere to the well known sentencing concept of an instinctive synthesis of all factors.  Here, the key factor in the assessment of the objective seriousness of the serious offences is the young age of the victim.  She was 13 and a few months old.  She was well short and obviously so of the age of consent.  Although you were relatively young yourself, nonetheless, the age difference of six years is very significant.  The Court of Appeal in Clarkson provided guidance to Sentencing Judges in respect of these offences.  The Court of Appeal being a five Bench Court of Appeal, for this important decision said at paragraph 3:

'The absolute prohibition on sexual activity with a child is founded on the presumption of harm.  The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity.  That is, activity before the age when a child can give meaningful consent'.

8The Court of Appeal then spoke of the range of offending in these terms.  Paragraph 6:

'Typically, the giving of consent will be a reflection of the relationship being between the child and the offender.  In very many cases, the consent will be seen to reflect a significant age difference and/or power imbalance between the offender and the victim.  In such cases, for example, the consent given by a pupil to her teacher or by a daughter to her mother's partner, the circumstances will usually reveal the offender's abuse of a position of trust or authority rendering the offence more grave and his culpability greater.

At the other end of the scale, there are exceptional cases.  For example, in a relationship between a 15-year-old girl and an 18 year old boy, where the consent is, relatively speaking, freely given and genuine, and a reflection of genuine affection between the two.  In such circumstances as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender's culpability as reduced.  In such a case too, the offender may be able to establish by appropriate evidence that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity'.

9An example of an exceptional case can be seen in the matter that went before the Court of Appeal on 4 February 2020, that is Treloar v The Queen, 2020, VSCA 6.  A case which the Court of Appeal started in this way. 

'The appellant pleaded guilty to the three charges of sexual penetration of a child under 16 and two charges of a sexual assault of a child under 16.  The complainant was aged 15 at the time.  The appellant was 19.  He had an intellectual disability with a full IQ assessed at 69.  The appellant and the complainant had been in a relationship for a year before the first sexual offences committed'.

10The child in that matter or the complainant was beyond the charging of the accused, deeply committed to him and said as much in the victim impact statement.  The court went on:

'Recognising that sexual offending against children is ordinarily regarded as extremely serious, the Sentencing Judge concluded that this was an exceptional case such that a non-custodial sentence was appropriate'.

11Although it was contended that you and the victim were in a relationship, it cannot be the case that it was one of the kind described by the Court of Appeal as being at the lower end of the spectrum, or anything like the relationship in Treloar.  The victim was simply too young and immature to appreciate what a neutral relationship involved when you were someone who was 19 years of age and she was as young as 13 and a couple of months.  But most importantly, she was not mature enough to understand the sexual aspect of the relationship. 

12The law is to protect children, sometimes from themselves.  You were the adult and you had the obligation to resist any sex, but you did not.  Added into the equation is the objective fact that very early on in the relationship, and the offending, you were warned by the victim's mother and told to leave the victim alone.  You did not do that, in fact quite the contrary.  This substantially adds to your moral culpability.

13There is of course an absence of some of the factors that make some other cases, or elevate some other cases in seriousness, such as the relationship being one of trust or a power in-balance, teacher to student.  Or an offender who perhaps is twice the victim's age, old enough to be a parent.  That is not this case.  But as made clear in Clarkson, there is a presumption of harm in offences of this kind.  In this case, in contrast to others such as Treloar, there is evidence in the form of the victim impact statements of the victim that establish considerable harm.  So too the victim impact statement of her mother.  In her victim impact statement, the victim said that:

'I was so young and naive to know the true meaning of love and at the time, I was never happy with myself, so I look for love in older guys to make me feel happy about myself.  I didn't see it at first', she goes on, 'But slowly my mum and family noticed me stopped doing most of the things I used to.  I stopped wanting to go out with friends and stopped trying in my daily life'.

14She says she has lost trust in people and pushed away those who actually cared.  She became ashamed and she should not have to feel that way, but she became ashamed of what happened and kept it to herself.  Her anxiety got much worse and she does not like meeting new people.  She does not have good social skills like she used to.  She is seeing counsellors for anxiety, but she stopped that because she does not like talking about these sorts of things.  She feels that she has learnt a lot in that year and now, seems to think that she will be able to next time, be able to deal with it.  Importantly in all of that is that her mother has been her number one supporter and has played a big role in her life and for that, she is thankful.

15Her mother wrote in her victim impact statement that ordinarily dealing with a young daughter, trying to navigate, transition into being a young woman is difficult enough, but as she watched and tried to stop her daughter being preyed upon by an older male, she felt helpless and overwhelmed with grief.  There was broken trust, heartache and fear for her daughter.  She has watched her daughter isolate herself from family and friends and spends most of her days in bed.  Has even struggled to get to school.

16Her daughter has lost her spark and confidence.  The mother has witnessed her sadness, anxiety, panic attacks and rage for the smallest reason.  She lacks energy, lacks self-esteem and at times, physically does things to herself that she should not be doing.  I do not need to elaborate.  'But she will often cry, often for reasons that just don't seem evident'.  This is all triggered in the victim's mother pre-existing post-traumatic stress disorder which is a serious matter.  She has tried to talk with her daughter, but she shuts down.  She encourages her to get professional help, but she is not quite ready for it.  These are heartfelt matters that I have taken into account.

17I have identified the objective factors which make the sexual offences serious.  It is not at the lowest end identified by Clarkson but is far closer to that end than the upper end as described in Clarkson.  And as I said, for the particular reasons, your moral culpability is high and concerningly so.  If it is thought that you were too immature to realise the full consequences and wrongfulness of what you were doing, the earlier firm warning from the victim's mother would and should have left you in no doubt.  Your persistence speaks of you not considering the victim at all, but simply your own sexual gratification.

18The text messages which amount to using a phone service to menace, is also a serious example of that offence given the chilling, threatening and dismissive tone of those, which was referred to in the victim's victim impact statement.  The standard sentence scheme refers to consideration of objective factors and not any personal factors.  I must of course, separate from the standard sentencing aspects consider your personal circumstances.

19These matters were set out in your counsel's comprehensive written plea and oral submissions, together with the report from Mr Newton, and the letters from those who know you well, your sister and your brother in law and a previous employer and family friend.  Prominent in your personal circumstances is your young age.  You are to turn 21 in two or so weeks time.  You were 19 at the time.  Ordinarily in these cases where an accused is young, youth and thereby rehabilitation is the primary sentencing consideration.

20There is much in your case that favours giving significant weight to your rehabilitation.  You have no prior criminal matters nor any since.  As I will elaborate on, you have solid prospects for permanent reform and becoming a law-abiding adult.  As a young offender, I am authorised by appellate decisions, to give less weight to general deterrence, which in offences of this kind is usually a very weighty matter. 

21Deterrence to other young men remains important in serious offences of this kind.  And in your case, general deterrence is suitably moderated, but not eliminated, due to your age.  You were raised in a loving family who continue to support you.  They are heartbroken at your crimes and deeply anxious about your fate in the near future.  You were home schooled in an organised and formal way.  You socialised with other home-schooled children and your church community.  You moved from school to TAFE and then onto a panel-beating apprenticeship at about age 17 and you have done well.  You will finish the apprenticeship in 2021.  Your employer knows of your offences and has kept you on.  That has not always been easy, as your workmates have ostracised you because of the publicity of the matter in the town in which you live, but you have persisted to your credit, notwithstanding the legal issues as the legal matters came to a acute point.

22Mr Newton, the experienced psychologist, had findings that you were immature for your age, a lower intellect and because of home schooling, having less developed social skills and an immature set of values about sexual relationships.  He considers you to be understandably anxious and downcast because of the predicament you are in.  Any fragility in your mental health is entirely reactive to your legal issues.

23He considered that following the use of the standard predictive test for risks for reoffending, and in addition his own clinical assessment, you are a moderate risk of reoffending in the scale of high, moderate and low.  He considered with appropriate engagement in sex offender programs, your risk may well be reduced.  Mr Newton noted you expressed remorse to him and this together with your cooperation, and admissions to the police, and your plea of guilty, I am of the view that you are genuinely remorseful and understand the impact of your crimes on the victim and her family.

24The letters from your sister and your brother in law make it crystal clear that you are remorseful and genuinely so and have set about mending your ways.  Your plea of guilty is a matter of importance, especially in light of the suspension of jury trials to further notice.  I note Justice Berg said in sentencing in the Supreme Court in a recent matter of the DPP v Bourke, [2020] VSC 130, that although their plea in guilty in the matter before her was not an early plea, it was nevertheless regarded 'As having substantial utilitarian value at the present time, noting the public health concerns regarding COVID-19 virus which have impacted on the practical management of a jury trial, if the matter had not resolved'.

25I take into account those matters.

26Your plea of guilty came after a failed sentence indication hearing. I made it clear that I was not persuaded to impose a community corrections order and I explained in brief, the reasons for that. I had you assessed for your suitability for a Youth Justice Centre disposition. You were found to be suitable, in the sense that the criteria set out in s.32 of the Sentencing Act are met.  You would be vulnerable in an adult gaol and there are positive signs and prospects of your rehabilitation.  I am firmly of the view that a Youth Justice sentence is the most just and appropriate sentence than adult prison.  I hope it is obvious from the plea that I have revisited this issue of a period of detention and the whole sentence in light of the unprecedented circumstances in which we now operate due to the COVID-19 virus.

27The Court of Appeal in Brown aka Davis and again in Sazimanoska has considered the relevance of COVID-19.  In Brown, the court said:

'In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as the matter stand, and given that the situation is one rapidly evolving, we are hesitant to express the general statement of principle regarding how the court and others should deal with this crisis as regards its effect upon relevant sentencing principles.  We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community.  The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case'.

28I have taken these matters into account, as I have other Supreme Court decisions in bail applications, in child protection matters and sentences in the Supreme Court and also sentences of Judges in my own court, including sentences that I have imposed myself, where I have referred to the unfolding dynamic, an unknown nature of the COVID-19 pandemic.  What is clear is that any Youth Justice sentence will be significant harder on you because visits are no longer permitted. 

29Where there are other aspects of the rehabilitation programs of Youth Justice Centres are likewise constrained or curtailed such as education or vocational or rehabilitative programs is unknown, but I accept that it is likely.  You also will be anxious as to the health and welfare of your own family.  As noted, I have given this matter more anxious consideration, following a sentence indication as a consequence of the outbreak of the COVID-19 pandemic.  In the end, that I consider that a period, but a very much shorter period of Youth Justice detention must still be imposed.

30The crimes are on any assessment serious and have caused real harm.  While your prospects are very good, the sentencing purposes of denunciation, general deterrence, as well as the important consideration of your rehabilitation cannot all be properly met by a sentence other than detention in a Youth Justice Centre.  I have considered all aspects of this matter, as I hope I have fully set out and as such, I will impose a sentence that is much less and appropriately so, and of a different form than the standard sentencing.

31The proper sentence is detention, but in all the circumstances, one that is much less than otherwise would have been the case, as I have said, in fact very much less.  Your broader cooperation with the police is noted through the - and I here refer to the submissions in writing of your counsel and the decision in Hamid, and that has also led to a somewhat lower sentence, but I do not overstate that aspect.

32You fall to be sentenced as a serious sexual offender for the third offence, but that is limited to a declaration that you are serious sex offender by reason of you being sentenced to a Youth Justice sentence.  Because the sentence is one of Youth Justice, I have given much more weight to concurrency than would be the case if imprisonment was imposed.  That is because with imprisonment, I having cumulated and I get to a head sentence, and then I impose the minimum non-parole period.  With Youth Justice, I impose a period of detention and the Youth Parole Board considers when you should be released on Youth Parole.

33I will apply the same consideration to the sentencing for the Commonwealth offence of Charge 4.  It is a serious offence, but in the circumstances, I will run it concurrently with the other sentences that I will impose by operation of the peculiar way that Commonwealth sentences must be articulated.  Mr Mafrici it is always a grave decision to put someone into detention and I never fail to appreciate that, but this is required by law as the just and appropriate sentence in all the circumstances.  It is no more and no less. 

34For Charge 1, sexual penetration with child under the age of 16, you are sentenced to four months in the Youth Justice Centre.  For Charge 2, sexual penetration of a child under the age of 16, you are sentenced to six months in the Youth Justice Centre.  For Charge 3, sexual penetration of a child under the age of 16, you are sentenced to six months detention in the Youth Justice Centre.  Charge 4, the Commonwealth offence, you are sentenced to one month in the Youth Justice Centre.  The Commonwealth sentence starts today.  The base sentence is Charge 2 and I order that one month of Charge 1 and one month of Charge 3 be cumulative upon Charge 2.  That gives a total sentence of youth detention of eight months.  It is to start today.  The Commonwealth sentence also starts today, thus is wholly concurrent.

35Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of two years and six months imprisonment, with a minimum non-parole period of 18 months.  You are to be declared as a serious sexual offender for Charge 3.  I will ensure that this declaration is entered into the records of the court.  By reason of the offences that you have committed, Charges 1, 2 and 3, they are level one offences in respect of the Sex Offenders Registration.  That means that you must be registered on the sex offenders register, that is mandatory.  I have no choice in it.  And the period of time that you must be registered is likewise mandatory, that is for life.

36You must understand that there are serious consequences if you do not register or do not comply with the requirements under Sex Offenders Registration Act.  A document will be provided to you which I have signed, which says that you have been provided with this document and you sign that and it will be your signature will - returned to me so that the Chief Commissioner is provided with that document.  That is your acknowledgement that you have received the documents that you will keep.

37The documents that you will keep outline your requirements and obligations under the Sex Offenders Registration Act.  You need to consider them very carefully.  For all young people, the obligations are very considerable in that it deals with every single aspect of communication that you might have, emails, identities of any kind of any internet medium or platform or social media.  Is there any other orders that need to be made?

38MR BROWN:  No, Your Honour.

39HIS HONOUR:  Any other orders that need to be made Ms Croxford?

40MS CROXFORD:  No, Your Honour, but I just - in Your Honour's opening remarks in terms of the places of Charge 2, it's the lake, not the car.  I don't - there's nothing to cause Your Honour any problem.

41HIS HONOUR:  I thought it was in the car, anyway, thank you very much.

42MS CROXFORD:  Sorry Your Honour, I just thought I better correct that, just as a matter of ‑ ‑ ‑

43HIS HONOUR:  Thank you, makes no difference to the overall sentence as to car or lake, but in any event, thank you very much.

44MS CROXFORD:  (Indistinct words).

45HIS HONOUR:  Mr Mafrici, those at the Wangaratta Court should have with them the signed orders that I - in respect of this and the people that need to deal with you now are the police in the court who will take you to where they will then deliver you to the Youth Justice Centre.  It is usually my court that that happens speedily, and it does not involve lengthy or anytime with last farewells.  That is a matter of course for the people in the court at Wangaratta.

46Your solicitor will deal with the sex offender registration documentation for you.  Now is the registrar to tell me that all these documents are there?  No?

47UNIDENTIFIED SPEAKER:  The registrar's not here, Your Honour.

48HIS HONOUR:  Thank you.  Those documents are there.  They have all been emailed.  It is necessary ‑ ‑ ‑

49UNIDENTIFIED SPEAKER:  We received those documents at lunchtime, Your Honour.

50HIS HONOUR:  No, they're not sent - well one of them was sent, but the order has just been signed.  That is the critical thing that the police officer in the back of the court needs to have.  He can't take Mr Mafrici anywhere unless he's got that.  So Mr Mafrici's to remain there.  The solicitor, could you please get the registrar to bring the documents into the court?  Thank you.  Are they there?

51UNIDENTIFIED SPEAKER:  The police have gone to see to the registrar.

52HIS HONOUR:  All right.  It would appear that the call to the complainant might have been ended by the complainant - the victim's mother, just check her.  Have you got the order?

53UNIDENTIFIED SPEAKER:  I do now, Your Honour, yes.

54HIS HONOUR:  And you say you've got the sex offender registration documentation which - if that's not - the signed one's not there, if it's there, you can give it to Mr Mafrici and you can take that with him, so he understand - it's just that I need, by reason of the legislation or the rules to have it done in open court.  So that's been done.  Is there anything else?

55UNIDENTIFIED SPEAKER:  Nothing further, Your Honour.

56HIS HONOUR:  All right Mr Mafrici you have to go with the police when they're ready to take you.  Thank you very much for your assistance in this regard
Ms Croxford and to the solicitor and to those in the court at Wangaratta for the dignity that's been shown in difficult times.  I am going to end the link if there is no other reason.  Cross fingers that it all works.  Anyway, we can do it in odd ways.

57MR BROWN:  Yes.

58HIS HONOUR:  And we're going to have to do it in further odd ways.

59MR BROWN:  Yes I'm sure.

60(At this stage the court proceeded with other matters.)

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