Director of Public Prosecutions v Mamo

[2015] VCC 1831

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01590

DIRECTOR OF PUBLIC PROSECUTIONS

v

EDWARD MAMO

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 December 2015
CASE MAY BE CITED AS:	DPP v Mamo
MEDIUM NEUTRAL CITATION:	[2015] VCC 1831

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Accused	Ms S. Keating
For the Director of Public Prosecutions	Ms A. Hassan

HIS HONOUR: 

1Edward Mamo, you have pleaded guilty to 21 charges of indecent assault.  That crime carries a maximum penalty at the time of five years' imprisonment.

2The offending all occurred between approximately 1973 and 1981 at Monivae College in the western district.  Some of the charges are representative and some of the charges were accompanied by agreed assertions of uncharged acts.  In those circumstances I do not propose to differentiate between the charges on that basis as it would be too difficult, and I simply, in one sense, sentence in respect of each individual victim, but also over a general course of activity.

3You pleaded guilty at the earliest reasonable opportunity and you must get the benefit of that.  There would appear to be a degree of remorse, at least these days, and clearly you get the utilitarian benefit of having avoided a situation where these victims had to be put through the serious emotional trauma of a trial.

4You have no prior convictions and I take that into account.

5There has been obviously a delay insofar as the complaints being made are concerned and I will be referring to that again in a moment.

6You were sentenced by His Honour Judge Leckie on 22 February 2013 to a period of imprisonment of two years and three months with a minimum term of 18 months.  That was for very similar offending at Monivae College in respect of other pupils.  I am told, and accept, that you were not given parole because you resided in New South Wales and served that sentence.

7Insofar as delay is concerned, you were interviewed in respect to these matters not long before your release and then not charged until some time after you had been released after completing the entire sentence.  I take that into account so far as delay is concerned, and also in terms of whether you are to be returned to prison for these particular matters because of the offending you are already on, but I understand I have to declare that you be placed on the Sex Offenders Register and the period of reporting will be for life.  You also fall to be sentenced as a serious sexual offender on all the charges before me because of the sentence of Judge Leckie.  I am aware that community protection in that situation becomes the principal sentencing purpose and any sentence of imprisonment is to be cumulative unless ordered otherwise.  The Crown do not seek a disproportionate sentence.

8Essentially, a summary of the offending is as follows.  The offending is very similar in regard to each of the 14 victims, although there is one where I have given a higher period of imprisonment because of the nature of it.  The real argument in this particular scenario is whether I should wholly or partially suspend any sentence of imprisonment that is imposed.

9You commenced as a novitiate with the Mission of the Sacred Heart Catholic Order in 1965 and took your vows in 1967.  You were a brother in that Order until 1982, when you left voluntarily.  You have subsequently been dismissed from the Order, as I understand it.

10The age of your victims was between 11 and 12.  The offending, as I have indicated, all occurred at Monivae College.  That college was a Catholic day and boarding school.  You worked at that college in various capacities; as a groundsman, as a laundry attendant, bus driver and as a sports coach.  As I have indicated, you were a brother and not a priest.

11The general nature of the offending was that you would indecently assault boys in the laundry.  That was an area where the boarders would take their dirty sheets and collect the fresh sheets fortnightly.  Your typical method of offending was to strike boys across the bare buttocks with a strap or a cane or other implement.  Virtually all of the victims that have been before me were in situations where they had been caught smoking.

12Importantly, in my view, you were not authorised to discipline students at all.  Whatever the practice may have been at the school insofar as corporal punishment was concerned, it was not within your job description and it was certainly not your right.  Teachers were able to discipline students and there were masters in position to do so.  You held none of those positions.  You would, on occasion, threaten boys who had been caught smoking that if they did not take corporal punishment from you you would tell the rector.  I do not know what the consequence of that would have been for a boy at that particular boarding school in the 1970s, but it may well have been serious; a number opted to take your punishment instead.  You were the coach of the hockey team and it is interesting to note that a number of your victims were associated with that team.

13The first complainant - and without any offence to the victims I will just simply use initials so that they cannot be identified - is Mr JC.  He was a day student at the college and was assaulted when he was about 14 to 15 years of age, in Form 3.  He did not see what you used to hit him.  You gave him six blows to the bare buttocks, having told him to stand in front of an old box.  He says that he was scared and that he looked at you before he left the laundry and you were smiling.

14The second relates to a victim, JK, who was a boarder.  He was a hockey player and around about the age of 13 or 14.  You came into a locker room and someone said "homo Mamo".  JK says that you saw him doing up his fly and you told him to come with you to the laundry, which he did.  You then questioned him as to whether he and the other boys had been mutually masturbating.  You then grabbed his penis and testicles and held them firmly for around 20 to 30 seconds.  You then took your hand off but again grabbed them another two times while still asking JK what had occurred in the locker room.  This is a representative charge.

15Another incident which was involved with JK was at a school camp where you insisted that you see JK's penis.  You, on that occasion, grabbed his penis and testicles again, again holding them for around 20 to 30 seconds.

16

Charges 3 to 6 are in regard to a victim, PE.  He was a boarder at Monivae College.  You used to drive the bus in which he would go home, as I understand it, on weekends.  When he was around about 14 he was having a cigarette, which seemed to have been common practice, in the area of pine trees at the school oval.  He said that you appeared from behind a bush as soon as he lit his cigarette.  You told him to meet you in the laundry after

9 o'clock to be punished and said it was either that or go to the rector and the rector would tell his parents.  He elected to go to the laundry.  In the laundry he was told by you to drop his pants and underwear and not to look around.  After around about two or three strikes on his bare buttocks, and after a long pause, he did look around and you yelled "no".  He looked forward and never turned around again.  He said that after being struck he had welts on his buttocks.

17Again, in around April of 1977, the same thing effectively happened.  He was struck in that situation; on the bare buttocks, again with an object.  At that particular time, in the same incident, you prodded Mr E's testicles with a cane.  He turned around and said, "What are you doing?"  You just smiled at him and continued to prod his testicles.

18On another occasion in 1977 you took him into the laundry where again he was made to pull his pants and underwear down and you caned him on the bare buttocks.  He turned around to look at you and saw that you had your hand down your pants.  You became angry, removed your hand from inside your pants and screamed at him to turn around.  The next three strikes of the cane, he said, were extremely painful.  That was not the only time that you had behaved in such a way towards him.

19The next victim is SR, who was a day student.  Again, he was caught smoking, again taken to the room, told to bend over and hit on the bare buttocks around six times.  When Mr R was pulling up his pants his cigarettes fell out of his pocket.  You said that if he pulled his pants down again and had six more he could have his smokes back.  He wanted his smokes back so that is what he did and you hit him another six times across the bare buttocks.

20The next charges were LD.  He was a full-time boarder and played hockey.  He said that you would wrestle with the boys and used to give his testicles a quick squeeze.  When he was around 14 years of age you wrestled him to the ground and grabbed his testicles.  He said that he felt totally humiliated.  On another occasion he was taken to the laundry, told to bend over the box, which appeared to have been a tea chest, and stood there with his bare buttocks exposed for some time waiting for the beating to begin.  He said that he could hear you breathing.  He was wondering what was happening.  He heard your breathing become increasingly heavier.  After around about a minute you told him to get up and walk out without looking back.

21The next was GP.  Again this is around about 1977.  He had a scholarship to the school and in his particular situation you took him to the laundry even though he had not been smoking and somebody else had.  It was another student who had been caught at the same time.  GP watched you hit the other student six times across the bare buttocks and when he realised it was his turn to be struck he began to cry inconsolably.  He described you "gently positioning" him where you wanted him.  You then strapped him six times on the bare buttocks over a period, he says, of around about 20 minutes.  Bizarrely, while you were doing this you were endeavouring to console him.  When you had finished beating him you leant over and rubbed the welt marks that the strap had left on his bare buttocks.  You did the same thing to him on two other occasions and that is a representative charge.

22The next, JO, was another situation of a child being taken to the laundry, bending over and being struck on the bare buttocks.

23PS was essentially the same thing and he was punished in that way; as he said, the usual way.

24Another victim - who could also be PS - was caught smoking.  He was given the option of three straps on the bare buttocks or six over the trousers.  He chose the three.  You then told him to lean over an object, which again, I infer, was the tea chest.  You ran your finger over his bare buttocks, asking him where he wanted the hits.  He was then struck.  That was not the only occasion that that happened.

25DR; again the laundry and again the same sort of offending as with GD and DR.

26A further victim, DG, was told that he was to be punished, but he was told to come in three days' time.  During the three days prior to your beating him in the way that you have hit the others you taunted him about the impending punishment.

27JN, the last of the victims, again was taken to the laundry and told to bend over and beaten multiple times on the bare buttocks.  That happened on a number of occasions with him.

28The offending has got to be regarded as serious and calls very much for the application of general deterrence.  In your particular situation; at your age and bearing in mind the history that has unfolded since, I think it is unlikely that you would offend again, and indeed the psychological material suggests that.  Specific deterrence, therefore, does not matter all that much in your sentencing situation.  However, denunciation and punishment clearly do.  Gaol in one form or another in your particular situation is inevitable.  As was described in the case of R v Toomey, Justice Buchanan said:

"The lapse of time since the commission of these offences is not unusual, nor is the otherwise blameless life of the offender.  The crimes themselves and their consequences demanded a significant sentence."

29Further in that case, there were ten separate victims and Justice Vincent said all of whom were quite young, and one only directly under - that is, Toomey's control - but in a physical situation where they were effectively powerless.

"In consequence of their youth, personal circumstances and the fear that they might be further singled out as subjects for corporal punishment, they remained silent.  The situation in this respect can be seen similar to many encountered in the courts where there has been the sexual abuse of young persons.  Often such victims experience unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator, which will continue to remain so for many years.

Accordingly - and very frequently - as in this case, the commission of the offences will not be exposed until long afterwards.  Considered in this light, it is my opinion it is apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration.  Further, it is incumbent the courts, however long ago the offences were committed, express the denunciation of the community of such behaviour through the sentences imposed on perpetrators.  They must be seen to vindicate the values of the society that they represent fundamentally, which is the protection of its children."

30As Mr Justice Mark said many years ago in The Queen v Esposito:

"A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate."

31A number of victim impact statements have been filed and some read out in court.  Those victim impact statements very eloquently confirmed the comments that Mr Justice Vincent made those years ago.  Offending such as this is long term, and the effects are long term.  No disposition of a court can ever, in my view, alleviate the difficulties - psychological and social - that attach to such offending.

32I have made pretty clear a custodial sentence is inevitable.  What has occurred here is a gross breach of trust.  As I have discussed with counsel, this is not just a situation of a right to give corporal punishment being overdone.  You had no right to assault them in the first place.  Common assaults, in this particular situation, could probably have held as well.  Your counsel has argued that you were, in fact, a "dog's body" in the system at Monivae, and accordingly your breach of trust is not as great as people who have been in more senior positions.  I accept that, but it nevertheless remains a situation where powerless boys have been subjected to calculated, measured infliction of physical pain by you for your own sexual gratification.

33It is quite clear from a number of the descriptions given that you were getting sexual gratification from what you were doing whilst you were actually doing it.  You have told the psychologist that it was to do with that was how you were punished, and were not supported and the like.  Those things may all be true, but this was clearly not a method of punishment; this was being done for your own personal gratification.

34I then look at matters personal to you.  Your history was outlined and I take that all into account.  I have read the reports of Dr Pamela Matthews, which were tendered, and whose opinions I always give high regard to.  I accept that in your particular situation you were frustrated; that through your position at that school, and within that order, you were - as I accept what your counsel says - treated as a "dog's body", and you were refused promotion and kept doing fairly menial tasks.

35You did not have an extensive education.  You have worked prior to joining the brotherhood.  Since your having left the brotherhood, and since what is obviously your ultimate expulsion, you have, on what is put before me - and I have no reason to doubt it - performed considerable good in the community in terms of assisting migrants; Vietnamese people and the like.

36I take into account very much that you are depressed, and that would seem to have been brought about by this particular offending and the prospect of being incarcerated.  You have been in gaol before.  You would undoubtedly, I am assuming - and sentencing on this basis - if given a custodial sentence, serve it in protection, and I take those matters into account.

37You are not in good health.  You are of advancing years, being 71.  You endeavoured, in two reports to Ms Matthews, to describe the offending as a "form of discipline".  You initially denied sexual interest, however by the time she saw you again in this year you seemed to making some acknowledgment of the activity which you had engaged in.

38While you were undergoing the previous sentence, I accept from your counsel, that you have done two courses insofar as sexual offending is concerned, and again, I take that into account.  I clearly sentence on the basis that the risk of you reoffending in this way is remote, if not non-existent.

39I take into account, if I have not already said so, all the materials that are put forward in those reports.  Your counsel very ably argued on your behalf that either a CCO or a suspended sentence would be appropriate.  I do not think that this would be a situation where a CCO for this sort of offending - over such an extended period of time with so many victims - would be appropriate.  It is submitted that the actual offending itself falls towards the lower end of offences of this type.

40You are not charged with penetrations, you are not charged with buggery - which sometimes comes out of these matters - but as I think I have virtually made it clear; to take powerless teenage boys in a situation of a boarding school and achieve sexual gratification by the infliction of significant pain on them is, in my view, serious offending indeed.

41I, having given the matter anxious consideration, obviously consider that a custodial sentence is the only available sentence, and I will outline that in a moment.  There has been a loss of opportunity for concurrency with any previous sentence that was undergone, and I accept that.  Taking into account the matters of delay, your age, your plea of guilty and the limited - though I accept by now, at least - genuine remorse, and the concepts of totality.

42As I indicated during the course of discussion with counsel, because of you being sentenced as a serious sexual offender I am unable to impose an aggregate sentence.  I have been in this situation of sentencing before where there are multiple victims, and matters of totality demand that any accumulation obviously be moderated.  It was not suggested otherwise then that a head sentence within range of suspension was not appropriate.  The difficulty with that is that as I give a portion of a sentence to each particular victim it can only be a very limited period of time.  I understand that that can almost seem, to them, to demean their position, but for reasons of totality and because of the nature of the legislation, I have got no choice but to do it that way.

43I also take into account that any period of imprisonment to be served will be done in a different state in isolation.  It was also put to me that you live in isolation in New South Wales on a small property with other people.  From what I can gather of the material that was a situation before you were sentenced by Judge Leckie.  I can just hope that upon your ultimate release that you can return to that, and I do take that into account accordingly as well, and I am expressing this in terms of accumulation rather than in terms of concurrency, because it is much easier to understand, and that is, in fact, what I intend.

44On Charge 1; four months.

45On Charge 2; ten months.

46On Charge 3; four months.

47On Charge 4; four months.  That is to be served concurrently.

48On Charge 5; six months.

49On Charge 6; four months.

50On Charge 7; five months.

51On Charge 8; six months.

52On Charge 9; four months.

53On Charge 10; six months.

54On Charge 11; four months.

55On Charge 12; four months.

56On Charge 13; five months.

57On Charge 14; four months.

58On Charge 15; four months.

59On Charge 16; four months.

60On Charge 17; four months.

61On Charge 18; four months.

62On Charge 19; four months.

63On Charge 20; four months.

64On Charge 21; four months.

65I have made no endeavour to further differentiate between those charges as it would be, I think, an intellectual impossibility.

66I direct that one month of the sentence imposed upon Charge 1;

67One month of the sentence imposed upon Charge 3;

68Two months of the sentence imposed upon Charge 5;

69One month of the sentence imposed upon Charge 6;

70Two months of the sentence imposed upon Charge 7;

71Two months of the sentence imposed upon Charge 8;

72One month of the sentence imposed upon Charge 9;

73Two months of the sentence imposed upon Charge 10;

74One month of the sentence imposed upon Charge 11;

75One month of the sentence imposed upon Charge 12;

76Two months of the sentence imposed upon Charge 13;

77One month of the sentence imposed upon Charge 14;

78One month of the sentence imposed upon Charge 15;

79One month of the sentence imposed upon Charge 16;

80One month of the sentence imposed upon Charge 17;

81One month of the sentence imposed upon Charge 18;

82One month of the sentence imposed upon Charge 19;

83One month of the sentence imposed upon Charge 20 and one month of the sentence imposed upon Charge 21 be served cumulatively upon each other, and upon the sentence imposed upon Charge 2.  That gives an effective head sentence of 34 months.

84I have endeavoured, in assessing this overall matter, to look at the circumstances of you at the time.  As is indicated in the victim impact statements they all have a sense of betrayal by that school.  A number have, if not lost, seriously had their faith jeopardised by it.  It seems extraordinary that in these circumstances you could have continued to offend in this way over years, without anybody doing anything about it.

85I do not know what the practicalities of all that were.  I am told that there is no material in the possession of the school, at least now, that indicates of any complaints, or any disciplinary matters in relation to you.  Accordingly, I have to be careful not to punish you for what the school may have allowed to occur.  I am also - as I have already indicated - I think very conscious of returning a person in your situation to your custody, however with the nature of this offending and the consequences of it, as well as the persistence of it, I think that there has to be an active component.  I have reduced that active component because of all the factors I have taken into account, and I think that it is in the interests of justice to partially suspend that sentence.

86Accordingly, for all those reasons I will suspend 22 months of the 34 months, but you must return to prison for a period of 12 months.

87Pursuant to s.6AAA I am obliged to give a figure, which I do with some reluctance.  Had you been sentenced for all these matters - and including the matters before Judge Leckie - by me, at that time, that sentence may have been different, but on the matters before me, and limiting it to that, I say that but for your plea of guilty I would have sentenced you to be imprisoned for a period of four and a half years with a minimum term of three years.  There is no pre-sentence detention.

88If you could just take the Sex Offenders Register down please?  Ms Keating, if you could go with my associate please?

89In these circumstances the operational period of that partially suspended sentence will be two years.  That sentence having been imposed, Mr Mamo, I indicate to you that if you were to breach it by any sort of offending that carries a gaol term I would automatically, in effect, restore it.  If it was for any offending of this nature, well obviously what the consequences of that would be.  Are there any other orders I have to make?

90MS KEATING:  Your Honour pleases.

91MS HASSAN:  No.

92HIS HONOUR:  All right.  That's all been signed; the Sex Register and the fact he's been sentenced as a serious sexual offender.  I direct that they be entered into the records of the court.

93MS KEATING:  Thank you, Your Honour.

94HIS HONOUR:  All right.

95MS KEATING:  Might I be permitted to speak very briefly with Mr Mamo?  Because I'm due in another court.

96HIS HONOUR:  Yes, all right.  I'll just leave the Bench for a minute.

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