Director of Public Prosecutions v Mara (a Pseudonym)
[2019] VCC 1605
•10 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANCIS MARA (a Pseudonym) |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 September 2019 | |
DATE OF SENTENCE: | 10 October 2019 | |
CASE MAY BE CITED AS: | DPP v Mara (a Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1605 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sexual penetration of a child under 16 years (4 charges) – indecent act with a child under 16 years (2 charges) – serious sex offender – opportunistic offending – victim was between 6 and 8 at time of offending – offender was between 27 and 29 at time of offending – no prior convictions – good prospects of rehabilitation
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Sentence:Imprisonment for a period of 6 years and 6 months with a non-parole period of 4 years and 4 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Batten (Plea) Ms I. Moffatt (Sentence) | Office of Public Prosecutions |
For the Accused | Mr N. Rudston | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1 At the outset, I advise that I am using a pseudonym for the name of the accused in these reasons. The accused will be known as Francis Mara.[1] I remind those reading these remarks that the law prohibits the publication of any details likely to lead to the identification of the victim of a sexual offence. That is the reason for the use a pseudonym.
[1]A pseudonym.
2 Francis Mara,[2] on 10 May 2019, a jury convicted you of two counts of indecent act with a child under 16 years (charges 6 and 7) and four counts of sexual penetration of a child under 16 years (charges 1, 2, 8 and 9). The jury found you not guilty to two counts of sexual penetration of a child under 16 years (charges 3 and 4) and one count of indecent act with a child under 16 years (charge 5).
[2]A pseudonym.
3 In the circumstances of this case,[3] the maximum penalty for each of the offences of which you were convicted is 10 years’ imprisonment
[3]Although the victim was under 10 at the time of the offending, the Crown mistakenly did not include this on the indictment as a circumstance of aggravation. For this reason, the relevant maximum penalty is 10 years’ imprisonment.
4 The circumstances of the offending of which you were convicted were set out in the Summary of Prosecution Opening for Trial and I sentence you on the basis of the relevant facts set out in that document. I summarise them here briefly.
5 The victim of all your offending was between 6 and 8 years during the period of the offending (1 October 2004 and 3 April 2006) and you were between 27 and 29 years old. You were in a relationship with the victim’s older sister, who was about 15 years older than the victim.
6 Your offending occurred on three discrete occasions. The conduct the subject of charges 1 and 2 occurred on or between 1 October 2004 and 29 November 2004 (“the first occasion”). The conduct the subject of charge 6 occurred on or between 25 December 2005 and 4 March 2006 (“the second occasion”). The conduct the subject of charges 7, 8 and 9 occurred on or between 25 December 2005 and 3 April 2006 (“the third occasion”).
7 On the first occasion, the victim discovered you in her bedroom. You both lay on the bed and talked. You pulled down the victim’s pants and underwear. You put your fingers in her vagina. This conduct is the subject of charge 1 – sexual penetration of a child under 16 years. You then put your tongue in the victim’s vagina. This conduct is the subject of charge 2 – sexual penetration of a child under 16 years.
8 In late 2005, the victim’s parents left Australia and travelled overseas and she remained in the care of her older siblings. Her parents returned in late January 2006. At the time, the victim was worried about being left in the care of her older sister because it meant she would be in greater contact with you.
9 On the second occasion, you ground your penis against the victim’s vagina, first with your trousers on and then with your trousers pulled down. This conduct is the subject of charge 6 – indecent act with a child under 16 years.
10 On the third occasion, you ground your penis against the victim’s vagina. This conduct is the subject of charge 7 – indecent act with a child under 16 years. You then penetrated the victim’s vagina with your finger. This conduct is the subject of charge 8 – sexual penetration of a child under 16 years. You also penetrated the victim’s vagina with your tongue. This conduct is the subject of charge 9 – sexual penetration of a child under 16 years.
Procedural history
11 You were interviewed by police on 10 February 2017 and admitted your connection to the victim and her family but otherwise denied any sexual offending against her. You were charged and the matter went to contested committal at the Melbourne Magistrates’ Court. You were committed to stand trial on 23 August 2018 and entered a plea of not guilty. You pleaded not guilty on arraignment. At trial, you elected not to give evidence. Evidence was, however, given by your mother and sister. Through your counsel, you denied committing any of the offences of which you were subsequently convicted.
12 Not including today, you have spent 153 days in pre-sentence detention.
Plea hearing
13 You were supported at the plea hearing by your mother, sister and other relatives.
14 The victim made a victim impact statement which was read out in court at her request. The victim stated that she can finally focus on herself now without stressing. She stated that the past three years were a struggle with mixed emotions of anger and fear, but now peace. She thought it was a challenge to speak up and proceed with the court case, but has accepted she cannot change what happened to her some 15 years ago. She does not wish anything bad for you, and wants peace from her past. She considers herself now stronger than ever.
15 I note you have no prior criminal history and no subsequent matters.
16 Your personal circumstances were set out in the psychological report of Carla Lechner dated 29 August 2019 and I deal with those briefly. You were born in Fiji and cared for by your grandparents until the age of three, when you were brought to Australia. Your parents physically abused you and your sisters to the extent that your younger sisters were made wards of the State. You suffered most harshly at your parents’ hands. You struggled at primary school, needed tutoring, and were diagnosed with dyslexia. When you were nine or so, you were exposed to a great deal of conflict between your parents, who separated when you were 10. Your father then died a year later of a heart attack.
17 You moved to a special school for years 7 to 9. During this time, your mother re-partnered, but you had a difficult relationship with your new step-father. When you left school at the end of Year 9, you returned to Fiji to live with your grandparents. You completed your military service there, following a family tradition, and then worked in a number of hotels before returning to Australia in 1995 or 1996 when your mother was ill with cancer. You married in 2006 and have one daughter. You worked three jobs at once during this period, but your marriage broke down when your daughter was a toddler because of your long working hours.
18 You then worked in a steel mill for a number of years. At the same time, you worked as a night cleaner and as a security officer in public venues. You then worked as a storeman for two years, then as a truck driver for two years. You also worked as a glazer and security officer before returning to the steel mill in 2012. You worked there until your arrest in relation to the current matters. You had maintained regular contact with your daughter until charged with these offences.
19 You have also played rugby at a high level, including representing Victoria, until late 2001 when you sustained a third concussive episode and a serious head injury and were advised to stop playing.
20 You have no medical conditions nor any mental health problems. You have had a normal sexual history and reported no sexual interest in children. Religion has always played an important role in your life. You have no history of drug or alcohol abuse. On testing, your verbal intelligence was in the lowest 4% of the population. You demonstrated a concrete thinking style. You performed slightly better on the vocabulary sub-test. Ms Lechner suggested that you need to be spoken to in simple language, to be given bits of information at a time, to have ideas illustrated with concrete examples, and that you need to be encouraged to take a step-by-step approach to problem-solving. Ms Lechner assessed your risk of future sexual re-offending and concluded that it is low. She concluded that you do not present with any psychological issues requiring general treatment.
21 Ms Lechner noted that in spite of the early family instability, the death of your father and your learning problems at school, you have had a very steady employment history. You denied the offending and told her that you were shocked by the allegations.
22 You are now 42 years old, and have taken some time to adjust to being in custody. You work in the kitchen each day, attend gym and multiple church services. You have undertaken courses in safe food handling and stress management.
23 There were personal references from a number of people. Your childhood family friend says that you have been a hardworking, polite and respectful person and have been a role model to her children. You have a large group of friends and extended family and attend church regularly.
24 Your aunt writes that you are a kind, dependable, generous and very hardworking person who never says a bad word about anyone. In the past you helped her by babysitting her daughter.
25 Your pastor and former rugby teammate writes that you are a caring, reliable, family-oriented man who works hard for the community.
26 A family friend from your military service days writes that you are humble, well-mannered and polite person.
27 A close family member writes that in spite of your difficult childhood with an abusive mother you grew up as a friendly, polite and respectful young man. You have been a practising Christian since your teens and excelled at sport. In spite of your size, you have always been peaceful and kind to others.
28 Your counsel emphasised that in spite of your limited intellect, dyslexia and unstable early family life, you have had an excellent work history, and demonstrated a disciplined, ordered and hard-working life. You did military service, excelled in rugby, supported your wife and daughter and worked a number of jobs at once over a number of years. In the past 15 years since your offending, you have financially supported other members of your family, and have proved to be a very responsible father, son and brother. You are strongly supported by your mother and sisters, have strong job prospects and are very committed to your religion. Most importantly, you have no prior convictions and no subsequent matters, no mental health problems and have been assessed as being at low risk of sexual re-offending.
29 In all the circumstances, your counsel conceded that a term of imprisonment with a non-parole period was the only possible disposition. In relation to the issue of cumulation, your barrister submitted that the principles of parsimony and totality ought to be given appropriate weight. It was submitted that there should be substantial concurrency between the sentences imposed on charges 1 and 2, as they relate to the one incident, and, separately, to charges 7 to 9 as they relate to the one occasion.
30 The prosecution emphasised the substantial disparity in age between you and your victim, and the seriousness of your offending in terms of there being four penetrative offences. It was conceded that your offending occurred in 3 separate incidents, and that there could be some concurrency between the sentences imposed on charges relating to conduct on discrete occasions. However, it was also submitted that there was a need to give some effect to s 6E of the Sentencing Act.
31 I turn first to the gravity of your offending. I consider that each of the offences the subject of charges 1, 2, 8 and 9 is a serious example of that kind of offence, given that each offence occurred against a young and vulnerable child, in her own home, in circumstances where you were accepted in the household as the partner of her much older sister. Charges 7, 8 and 9 are more serious in that they are a repeat of offending on earlier occasions. I consider that the offending was opportunistic. As indicated in the Summary of Prosecution Opening for Trial, the offending the subject of charges 1 and 2 occurred when the victim’s brother was in another room.
32 Your victim reports that after the fear and anger of the past three years, she has managed to accept that she cannot change what happened 15 years ago, and is now at peace. It is clear that your plea of not guilty meant that she had to endure a trial in which she was obliged to relive the offending conduct, in front of strangers. However, I treat your plea of not guilty merely as the absence of a factor in mitigation.
33 In terms of your personal circumstances, I accept that you had a difficult early childhood in terms of your family situation and your learning difficulties. I also accept that you are a concrete thinker, but have no deviant sexual tendencies and are at low risk of committing further sexual offences.
34 I give appropriate weight to the absence of prior convictions and any subsequent matters. Apart from your continued denial of your offending, I consider that your prospects of rehabilitation are good. Apart from your offending, you have demonstrated a great deal of discipline in your working, sporting and religious life, and have been a valued and supportive family member since your offending.
35 General and specific deterrence, denunciation and just punishment are the principle sentencing considerations in your case. In relation to charges 6, 7, 8 and 9, to which the serious offender provisions of Part 2A of the Sentencing Act apply, protection of the community is the paramount consideration. In order to give effect to this principle, I have the power to impose a sentence greater than is proportionate to your offence. However, there was no submission from the prosecution to the effect that I should do so, and I indicate that I do not propose to do so.
36 I treat charges 1 and 2 as qualifying offences under Schedule 1 of the Sentencing Act, and note that the presumption of cumulation applies to charges 6, 7, 8 and 9, for which you are being sentenced as a serious sex offender. I recognise that the principle of totality continues to apply alongside the serious offender sentencing regime, and I have considered the need for today’s sentence to reflect the totality of your offending. In the circumstances, I consider that the relevant sentencing principles, including those of totality and parsimony, can be satisfied by directing partial cumulation, which is otherwise than the primary position mandated by s 6E of the Sentencing Act.
Sentence
37 Would you please stand.
38 On charge 1, sexual penetration of a child under the age of 16, you are sentenced to 4 years’ imprisonment.
39 On charge 2, sexual penetration of a child under the age of 16, you are sentenced to 4 years’ imprisonment.
40 I direct that the sentences imposed on charges 1 and 2 are to be served concurrently.
41 On charge 6, indecent act with a child under 16 years for which you are to be sentenced as a serious sex offender, you are sentenced to 12 months’ imprisonment.
42 On charge 7, indecent act with a child under 16 years, for which you are to be sentenced as a serious sex offender, and which represents the second offence of a similar kind to charge 6, you are sentenced to 15 months’ imprisonment.
43 On charge 8, sexual penetration of a child under 16 years, for which you are to be sentenced as a serious sex offender, and which represents the second offences of a similar kind to charge 1, you are sentenced to 5 years’ imprisonment.
44 On charge 9, sexual penetration of a child under 16 years, for which you are to be sentenced as a serious sex offender, and which represents the second offence of a similar kind to charge 2, you are sentenced to 5 years’ imprisonment.
45 I direct that the sentences imposed on charges 7, 8 and 9 are to be served concurrently with each other.
46 The sentence on charge 8 is the base sentence. I direct that 12 months of the sentence imposed on charge 2 and six months of the sentence imposed on charge 6 be served cumulatively upon each other and upon the sentence imposed upon charge 8.
47 The total effective sentence is therefore a period of imprisonment of 6 years and 6 months. I fix a non-parole period of 4 years and 4 months.
48 I declare that you have served 153 days of pre-sentence detention, which is to be deducted administratively from the sentence I have imposed today.
49 The offences for which you have been convicted, are registrable offences pursuant to the Sex Offenders Registration Act and, by reason of your conviction for those offences, you are a registrable offender and obliged to comply with the reporting conditions imposed by the Act. In your case, the reporting will be for life.
50 I am required to give you written notice of the reporting obligations and the consequences that may arise if you fail to comply with these obligations. I am also required to inform you of the length of the reporting period, which as I have just announced, is for life. I will invite your counsel, together with my Associate, to shortly hand you the written notice.
51 The prosecution has also sought an order, pursuant to s 464ZF of the Crimes Act in relation to the taking of a forensic sample and I note that you oppose the order being made. Nonetheless, I will make the order because, having regard to the nature of the offending, I consider that it is in the interests of justice for the order to be made.
52 In making this order, I need to inform you, Mr Mara,[4] that I am signing an order that requires you to undertake a forensic procedure for the taking of a scraping from the mouth and/or a blood sample, until a sample of sufficient standard is obtained for the placement on the database. I advise you that, if at the time of the request for such a sample is made, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted.
[4]A pseudonym.
53 Thank you, we will adjourn.
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