Director of Public Prosecutions v Malapanis

[2015] VCC 868

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-02461

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEON MALAPANIS

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2015
DATE OF SENTENCE:	25 June 2015
CASE MAY BE CITED AS:	DPP v Malapanis
MEDIUM NEUTRAL CITATION:	[2015] VCC 868

REASONS FOR SENTENCE
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Subject:             CRIMINAL LAW
Catchwords:      Two charges of using a carriage service to cause offence – clearly offensive material sent to 15 year old girl – serious example of offending because of the age difference, complainant was a child, offending was persistent – impact on victim taken into account – early guilty plea taken into account – person of previous good character – reasonable chances of rehabilitation – need for deterrence considered

Sentence:Sentence herein not applicable - refer to Sentencing Remarks from 29 June 2015 hearing and Sex Offender Registration Act Ruling of 25 June 2015

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Schubert	CDPP
For the Accused	Mr T. Danos	Danos Lawyers

HER HONOUR: 

1Leon Malapanis.  You have pleaded guilty to two charges of using a carriage service to cause offence, a crime against the law of the Commonwealth of Australia which has a maximum sentence of three years' imprisonment. 

2I proceed to sentence you on the basis of the prosecution opening which was read aloud by the prosecutor.  In summary, a number of offence is rolled up in each charge.  You communicated with a girl named Danielle Adamson[1] who you knew to be 15 years old via Facebook and text message, and over a six month period between January and July 2013, sent her offensive material.  You sent her 78 messages on 26 separate occasions, making references to engaging in sexual activity with Ms Adamson (Charge 1).  You sent her five to ten indecent photographs, including one of you holding your erect penis (Charge 2). 

[1] A pseudonym

3I do take into account that you volunteered that this was the number of images sent when interviewed by police, as only one image was recovered by police in their investigation.  I also note that you used your own name and phone number in your communications, and so were not seeking to conceal your identity. 

4The subject matter of this material is clearly offensive to be sent to a 15-year-old girl.  You were a 27-year-old man, and it is apparent from some of the messages that Ms Adamson did not invite you to send this material, that she was offended and told you so, and that despite this, you persisted with the offensive communications. 

5Your conduct represents quite serious examples of such offending because it was a real person as opposed to an undercover police officer pretending to be a 15-year-old girl, because it was a child, the difference in your ages, the duration and persistence of your offending and the impact on Ms Adamson. 

6I received a statement from her and from her mother, providing me with specific information about the impact on her.  She reports suffering from depression and anxiety, posttraumatic stress disorder, feelings of alienation and having difficulty in personal relationships with family and friends.  She has received support through psychological counselling, but this has also had the effect of reviving her feelings and anxieties. 

7I take into account the considerable impact on her, and I express the hope that she will not be affected for life by your crimes, as her mother is concerned will happen.  She has her whole life ahead of her, and it is to be hoped that things will improve for her.  I wish her well. 

8There are a number of matters that I must take into account in your favour as required by law.  The first of these is your plea of guilty.  Because of your plea, Ms Adamson has been spared the trauma of giving evidence and the community has been saved the time and cost of a trial.  In the circumstances, I accept too that your plea indicates contrition for your actions. 

9Further, I am satisfied that you indicated early your intention to plead guilty to the charges you are now to be sentenced on when in February this year these were filed with the court.  Originally, in December 2013, the charges you faced were under the Victorian law and you were going to plead not guilty.  These charges were discontinued in February 2014. 

10This change in the way the case against you was presented also represents a delay in the matter being finalised, and I take that into account in your favour, but recognise that you have committed another offence during that period of delay.  In March 2013, you stole a box of lighters from a shop, and in December that year, you received a good behaviour bond.  It is of course not offending of the same type with which you are charged here, but it means that you have not begun to rehabilitate yourself at that time. 

11No criminal history was alleged against you, but in the presentence assessment report obtained from Community Correctional Services, there is reference to public transport offences committed by you as a child which are irrelevant to my sentence of you.  I therefore sentence you as a person of previous good character. 

12You are now aged 29, shortly to turn 30.  You are the middle child of your Greek born parents, with an older brother and younger sister.  You grew up living in different suburbs as your parents bought, worked in and then sold various milk bars and businesses until the family settled in Prahran where you still live with your parents.  Your parents and sister were in court to support you, and this support is important for your continued rehabilitation. 

13You went to year 11 at school but dropped out after a number of years of using drugs, and during your 20s, this drug use came to dominate your life.  You did not finish a commercial cooking course and worked in different jobs.  At the start of the offending, I am told you had been unemployed for two to three years, were using cannabis in large quantities daily, abusing prescription drugs and feeling depressed.  You lost friends and apparently did not care what you did, and this is said to have led you to begin committing the serious crimes for which you are to be sentenced today. 

14However, you obtained a new job in March 2013 in a sports accessory and apparel warehouse; a position which you still hold, taking home about $700, and which you enjoy very much.  Despite beginning this job, you continued to offend for a further three or four months.  I received a letter confirming your employment, but you had not told your employer about the offences.  Although re-entering the workforce in a job you like did not prevent you from persisting with the offending, being employed is a factor which should contribute to your future prospects of rehabilitation. 

15Further as to your prospects of rehabilitation, in September 2013, you voluntarily began attending a drug and alcohol counselling service and had 16 individual sessions until February 2015.  I received a positive reference from your counsellor, although I note that you still consume cannabis every two to three days and have resumed drinking alcohol after ceasing for a time.  Your counsellor advises that you are aware of the role drugs and alcohol probably played in your offending.

16On balance, I find that the chances of your rehabilitation are reasonable, given you have been in stable employment for over two years now, have committed only a minor offence since then, which was also two years ago, your family is aware of your offending and provides support, and you have recognised the need to address - and have begun addressing - the issues that excessive drug and alcohol consumption have raised for you. 

17However, there is still some work for you to do.  I find that there is a risk of you reoffending, and that risk will probably only be reduced to an acceptable level if you abstain from drug use, maintain a low or zero level of alcohol consumption, continue to be employed, and importantly, undertake a program designed for sex offenders.  I find that you are highly unlikely to reoffend against the same victim.

18As well as those matters personal to you to which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case involving offences of a sexual nature, committed against a child.  That means that by my sentencing of you, I must seek to deter other men from committing the same sort of offences. 

19Also I consider that specific deterrence is still of importance in this case, which means that my sentence must seek to deter you from reoffending. 

20The prosecution submitted that a term of imprisonment was the only appropriate disposition in your case, but did not urge that the term must involve a period spent in custody.  Your counsel submitted that a community corrections order was open, and that as a result, a term of imprisonment was not the only option and should not therefore be imposed, whether or not it was to be immediately served. 

21Following the decision in the Court of Appeal regarding community correction orders and Commonwealth offences, I received further written submissions from your counsel and from the prosecution.  In substance, the outcomes contended for remain the same. 

22I had you assessed for a community corrections order and you were found suitable.  It is of course still a decision for me as to what the most appropriate sentence is.  I have taken into account the matters to which I must have regard under the Commonwealth Crimes Act, many of which I have referred to in these remarks.  I have also had regard to current sentencing practices for this type of offence. 

23These are serious offences, committed over a six month period on a real victim who was a child and who has suffered as a result.  You persisted in the offending, despite her obvious discomfort and despite obtaining employment halfway through the offending period, which should have removed you from the state of boredom fuelling your drug and alcohol consumption and leading to the offending.  Instead, you continued to offend.  You still represent a risk to the community, despite reasonable prospects of rehabilitation. 

24Just pardon me a moment.  I have decided that in all the circumstances, I do not have an alternative to a sentence of imprisonment.  However, I propose to release you immediately, on condition that you give security by recognisance of $1,000 to comply with the following conditions.  Please listen carefully. 

25That you be of good behaviour for 18 months from the commencement of the sentence, which is today;

26That you be under the supervision of the Community Correctional Services for 18 months;

27That you undertake and complete the sex offenders program within that period;

28That you be assessed for, and if required, receive treatment for drug and alcohol abuse or dependency;

29That you perform unpaid community work of 200 hours within that period;

30That you report to the Moorabbin Community Corrections Centre by 4 pm on 29 June which is next Monday;

31That you report to and receive visits from a community corrections officer;

32That you notify them of any change of address or employment within two clear working days after the change;

33That you do not leave Victoria during the period of the sentence without the permission of an officer;

34That you obey all lawful instructions and directions. 

35Yes.  Would you stand up, please, Mr Malapanis.  Do you understand those conditions?

36OFFENDER:  Yes.

37HER HONOUR:  Do you understand that I would be imposing a sentence of imprisonment but then releasing you on those conditions?

38OFFENDER:  Yes.

39HER HONOUR:  Do you agree to abide by those conditions?

40OFFENDER:  Yes.

41HER HONOUR:  You are convicted and sentenced as follows: 

42On Charge 1, two months' imprisonment.  That sentence starts today.  I direct that you be released immediately on the conditions I have outlined.  Charge 2, two months' imprisonment.  That sentence starts two months from the commencement of the sentence on Charge 1, so that the sentences on Charges 1 and 2 are wholly cumulative.  I direct that you be released immediately on this charge also. 

43I confirm that these are sentences of imprisonment for a total of four months, as the sentences are cumulative, but you will be released immediately on a recognisance release order with the conditions that I have outlined, the effect of which is that the whole sentence will be suspended for 18 months.  If you do commit another offence in that time, you will be brought back to court and you will need to serve that sentence of imprisonment and you will forfeit the amount of $1,000.  You do not pay that amount now. 

44The purpose of imposing sentences of imprisonment is to show how serious your offending is.  The purpose of suspending the imprisonment is to promote your rehabilitation with a view to protecting the community. 

45Mr Malapanis, do you understand the consequences of committing another offence during the next 18 months?

46OFFENDER:  Yes.

47HER HONOUR:  I should also tell you that the order I am making can be varied or discharged on application to the court if your circumstances change. 

48In the event that it is necessary to revisit this sentence, I note that you have served no time in custody.

49I will not state the sentence that would have been imposed if you had not pleaded guilty.  Until the Commonwealth legislation specifically provides for this or an authority which binds me states that the Victorian law applies in this instance to a Commonwealth sentence, I do not propose to do so.

50

Just take a seat, Mr Malapanis.  So we have prepared the recognisance releases.  I will just hand it down to counsel to check before I sign it.  I will be turning to the ruling on the sex offender registration next.  

Mr Danos, that appears to be in order?

51MR DANOS:  Yes, Your Honour.

52HER HONOUR:  Thank you.  I will just let you finish reading it, Mr Schubert.

53MR SCHUBERT:  Yes, it all is in order to my eyes, Your Honour.

54HER HONOUR:  All right.  Thank you.  All right, so I have signed that order, Mr Malapanis.  You need to now sign the order as well that you agree to be bound by these conditions.  So perhaps, Mr Danos, you might accompany my associate so that Mr Malapanis ‑ ‑ ‑

55MR DANOS:  Yes, Your Honour.

56

HER HONOUR:  ‑ ‑ ‑ is clear.  Yes, thank you.  You can take a seat again,

Mr Malapanis.  That order is now in force and you will need to attend by

4 o'clock on Monday to the address shown on the order, a copy which you will receive before you leave.

57[The Court proceeded to deliver the ruling under s11 of the Sex Offenders’ Registration Act]

58Are there any other orders required?

59MR SCHUBERT:  No, Your Honour.

60

HER HONOUR:  All right.  Well I thank counsel for their assistance. 

Mr Malapanis, you can be released from the dock.  As I said, the order is now in force.  If you do not comply with the order then we will be seeing you back in court.  If you do, then the period of 18 months will pass.  Yes.  Thank you.  We will adjourn the court until 9 o'clock tomorrow.

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