Director of Public Prosecutions v Marino

[2017] VCC 59

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-16-00973

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARCUS MARINO

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September & 13 December 2016, 9 February 2017
DATE OF SENTENCE:	10 February 2017
CASE MAY BE CITED AS:	DPP v Marino
MEDIUM NEUTRAL CITATION:	[2017] VCC 59

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:              Sentence – sexual penetration of a child under 16 years

Legislation Cited:      Disability Act 2006 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:            Boulton & Ors v R [2014] VSCA 342
Sentence:                  Convicted and sentenced to a CCO for 2 years with Justice Plan

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Zebrowski (Plea) Ms S. Ballek (Mention) Ms G. Overend (Sentence)	Solicitor for the Office of Public Prosecutions
For the Offender	Mr S. Payne (Plea) Mr J. Makary (Sentence)	Victoria Legal Aid

HIS HONOUR: 

1Mr Marcus Marino pleaded guilty to one charge of sexual penetration of a child under the age of 16 on 20 March 2013.  The charge was set out in Indictment No.G10935702.  At the time, Marcus was aged 21 and the victim was 15.

2As the evidence in this case demonstrates, because of Mr Marino’s intellectual disability, the actual difference in ages was probably not as pronounced as that.  The actual sexual penetration to which he pleaded guilty, was an act of fellatio.  There were a number of other sex acts leading up to this.  However, the Court is concerned only with the ultimate act. A breach of this particular section, as a demonstration of the seriousness of such crime is the penalty prescribed by Parliament, which is a maximum period of ten years' gaol.

3On the plea on 9 September 2016, Mr Zebrowski appeared for the Director and Mr Payne appeared for the defendant. Since that time, at the next mention on 13 December, Mr Ballek appeared and yesterday and today Ms Overend has appeared for the Director.  Mr Makary appeared for the defendant on both 13 December, yesterday and today.

4The circumstances of the objective criminality in this matter are obviously very serious, and there was no issue in that regard.  They are set out in the prosecution opening, Exhibit A, and I will refer to a number of matters in that regard. 

5I have already spoken about the ages.  They knew each other and had known each other for a couple of months, and indeed, Mr Marino knew the actual age of the victim.

6On the night of offending they had come together by way of a Facebook communication, and the victim caught a train from Beaconsfield to Pakenham.  There he met Mr Marino, and travelled to Mr Marino's premises on foot.  Whilst there, they smoked a couple of cones of cannabis, involved themselves in various texting, had various discussions about sexual activity, discussed pornography, and watched some heterosexual pornography on the Smartphone of Mr Marino.  There was then some various touching of the victim's penis, which had become erect during all these discussions. 

7Paragraph 15 of the opening says this:  "The victim did not say anything, as he felt scared because the accused was bigger and older than him, and he didn't want to say anything in case the accused became violent."

8As is noted by the victim in the VARE at Question 191, albeit he said that he did not know Mr Marino in any way prior to that to be a violent person, and indeed, given the fact he has no priors whatsoever, that seems to be so.

9The fellatio then took place, as I have indicated.  The victim did not ejaculate.  However, it became clear to Mr Marino that the victim was not enjoying the process, especially when Mr Marino discussed continuing the sexual activity.  The victim said that he wanted to go home and immediately
Mr Marino desisted, took the victim back to the Pakenham station, discussed with him why was he crying. The victim caught a train back home and sought help by way of contacting a number of persons, in particular a residential youth worker, Mary Van Deelen.

10Because of Mr Marino's concern as to what had happened, he sent a number of texts to the victim, apologising, indicating regret, and those matters are set out at paragraph 22 of the opening.

11When the victim was picked up by someone from the Anglicare Residential Unit, he complained of Mr Marino having taken advantage of him.  He was taken to hospital and met various investigators.  Subsequently, as a result of the investigation, a search warrant was executed and Mr Marino ultimately participated in a record of interview.

12In that record of interview Mr Marino was quite upfront, indicated that he should not have done it, and he knew the victim was underage.  He said, to use his words at Question 102, "I went down on him for two seconds."  When he had seen the victim's emotions and how awkward he had become, he simply stopped.  That was his comment at Question 122.  He stopped because of the awkward situation he had put the victim in.  He said this at Question 131:  "Like you could see the kid…it was awkward and he didn't want that. But he did want it, if that makes sense.  Like, I can't really explain it."  He said at Questions 230 through to 231, "When I'm on the puff (ice), I tend to get a little bit sexually active as what puff does to you,” and later when on a ‘come-down’ he feels even more sexually active.  He then talks about the relationship between the two of them and what he thought was the victim's thoughts about him and then described the actual acts. 

13Mr Marino said at Question 412 as follows:  "I haven't done the wrong, like, I've seen what I've done with this guy has put him in a state and probably messed his head completely because he's in and out of psych wards apparently himself, he's got trouble - had a troubled life with the family, the last thing he needs is a friend - a friend doing what I did. But I didn't really think it was a bad thing at the time."  Perhaps that is again indicative of what we have ultimately found to be Mr Marino's intellectual state. 

14At any rate, that is the summary of the record of interview, which was agreed to by counsel appearing on behalf of Mr Marino.

15Filed with the Court was the victim impact statement, Exhibit B.  I have read this a number of times, and having re-read it last night, there is nothing in it that seems to me, given the background of the victim, that is particularly inappropriate, and there was no suggestion by counsel that anything was actually exaggerated.  It is hard to know, when a young person has had multifaceted social problems, exactly the impact of an action such as this.  However, it is quite clear that he certainly has found it particularly difficult as to his own thought about himself.  The victim has suggested that essentially it has exacerbated the pre-existing depression and anxiety of which he has suffered, and as he said in the last paragraph under ‘Physical Impact of the Crime,’ "I just want to say my life has completely changed forever and the person I am today, I have had so many emotions driving all of this hurt, anger, grief, pain and sadness, and still do to this day, which has contributed to the person I have changed into today.  I miss my old me and my life and so does everyone else.  I miss being the happy, smiling boy who loved his life, and now I have become the lonely social outcast, depressed boy."

16I think, as is becoming more and more evident to the community, it is very difficult to understand the impact of sexual abuse.  However, there does not seem to be anything inconsistent with the matters set out as to the impact in this particular case.

17Insofar as the plea in this matter from Mr Payne, he tendered Exhibit 1, which was the written material where he detailed by way of outline, the plea submissions.  Essentially he did not resile from this being an inherently serious offence, that the section was obviously designed to protect underage children and the fact that Mr Marino accepted full responsibility. 

18Mr Payne noted the matters in mitigation, being the genuine remorse, which was immediate, the ongoing expressions of such remorse, the complete cooperation with the police, the plea of guilty being made at the earliest opportunity, the utilitarian benefit of such plea and the fact that, even with
Mr Marino's own history, he has no priors and certainly nothing of this type of offending and is otherwise of good character.

19Mr Payne took me through Mr Marino’s background, the difficulties that he had as a result of his own mother's early death, the fact that he was essentially a displaced person for many years, from the age of 14, the informal arrangements generally with his schooling and housing since those times, the impact upon him of the diagnosis of ADHD while in primary school and his attendance by way of senior school, at a special school, albeit it would appear that he was able to at least complete a VCAL Year 12 equivalent at that school.

20In regard to his employment history, Mr Marino has had approximately 18 months with McDonald's, where he did an extra hospitality course, and also has worked at an insulation manufacturing business.

21Mr Marino has had limited relationships, in the sense of emotional or sexual relationships, however, has been impacted from a young age by the effects of drugs.  He was introduced to cannabis at an early age, which increased to daily use and continues to be an issue even as of today, and then the problem with ice.  That led to a situation of him losing his housing with a close friend, Ms David. 

22Mr Payne relied in particular on the complete lack of prior offending in the circumstances of this case.  He took me through the various guidelines and the emphasis and need for a person in these circumstances, the concept of punishment, and for rehabilitation to be considered strongly in regard to punishment.

23By way of conclusion in the written submission, Mr Payne conceded that the offending would ordinarily call for the imposition of imprisonment.  He submitted that such is not the course that should take place in this particular case, due not only to the drug and background issues, but in particular the mental health issues.

24Now, unfortunately, the precise classification by this Court of the relevant mental health issues was a matter of difficulty.  At the time of the original plea, that is in September 2016, I had the report of Dr Cunningham.  Fortunately, that was an excellent report.  That report being Exhibit 2, dated 6 September 2016. 

25The actual formal intellectual assessment of Mr Marino is a figure of 71 within a range of 68 to 76, described as extremely low to borderline.

26In his summary at p.4, Dr Cunningham noted the impact of the post-traumatic stress disorder with the issues of abuse, neglect and abandonment during young age and emanating from his own mother's death and, unfortunately, a predilection to drugs and reckless behaviour in her life prior to that.  He spoke of the family's lack of structure, support, care or love during his young age.

27Dr Cunningham considered that on his psychometric assessments, Mr Marino's thinking and reasoning abilities were in the bottom three per cent of his age peers and thought that a disposition that facilitated rehabilitation was the appropriate sentence.  He was concerned about a gaol order in regard to Mr Marino because of the risks of self-harm.   

28I must say that I was somewhat concerned about the background as I understood it and, as a result, it would appear that despite the call for a justice plan associated with a community correction order (CCO), this young man, as he now is, has fallen through the cracks, so to speak, and up until this Court case, has never been assessed for his intellectual capacity, and whether he in fact suffers from an actual disability.

29We adjourned for that purpose and, as I say, reassembled in December last year.  The assessment made on that occasion was that he did not meet the appropriate assessment for disability, and indeed, was not disabled according to the definitions.  As I say, I was concerned about such assessment and fortunately, with the assistance of his instructing solicitor, a further
re-assessment was sought, ensuring in this instance that the Department had the full history.

30Subsequent to that time, the Court, as of yesterday, formally had tendered in this matter, firstly, Exhibit D, which is a statement of intellectual disability.  That statement acknowledges the findings, as I said, made by Mr Cunningham and determined that indeed Mr Marino has a disability within the meaning of the Disability Act 2006 (Vic). Exhibit E was tendered, which is the client overview report, which was given to the Court. It noted, as I said, that Mr Marino had no contact with Disability Services prior to the Court's request. Following the assessment, he was found to be within target group and therefore eligible for disability services. I thank the persons who prepared that report, in particular Ms Tilley, who I understand is here again at Court, and indeed the additional signatory, Karen Heedy.

31In addition, as sought pursuant to s.80 of the Sentencing Act 1991 (Vic), was provided a justice plan, Exhibit F, again prepared by Ms Tilley, and the Court has noted that Ms Tilley has been here in the last two days, and I thank her for that.

32Insofar as the assessment of these matters, having heard the submission by Mr Payne at the last hearing, the Crown accepted that the sentence sought, that is, a CCO without a period of imprisonment, was within range.  Albeit the very serious offending that we are dealing with, the Crown accepted that the question, given the full understanding of the victim in this matter, was raised as to the utility of sentencing a person such as Mr Marino to gaol and indeed the grave dangers surrounding such a sentence. 

33As I say, to try to confirm these matters, we adjourned to get these reports on 13 December.  Unfortunately they, as I have explained, were not available.  The matter was then adjourned to yesterday when Ms Overend appeared. 
Ms Overend confirmed to the Court that a sentence of a CCO without a period of immediate imprisonment was within range, and referred the Court to the particular recommendation and the pre-sentence report as to the period of any such order, the requirement for community work.

34Mr Makary further addressed the Court insofar as the sentence and confirmed that apart from the initial engagement for the purpose of the materials being prepared by the Department for the report, Mr Marino has not had the assistance of the Department for his disability throughout his life.  He is now, and hopefully, as a result of the justice plan, going to engage in weekly meetings with, hopefully, Ms Tilley.  It is hoped that she can work closely with the Corrections worker.  It is hoped that the drugs issue and the peer association issues can be overcome.  He has, of course, ongoing support from Ms Davies, who is a long-term supporter, and, of course, housing support from Ms Ros May, all of whom appeared in Court yesterday.

35Mr Makary confirmed the submissions of Mr Payne that given all of these matters, given the obligations under the Sex Offenders Registration Act 2004 (Vic), that the prospects were high for effective rehabilitation and confirmed the submissions put by Mr Payne that this would be an appropriate case, albeit the seriousness of the matter, where a period of immediate imprisonment was not imposed.

36In addition to those matters, the Court also sought a pre-sentence report, which was also tendered yesterday and is Exhibit C.  Again, I thank the persons who prepared that report and, in particular, Marc-Andre Letarte, who is the assessor and prosecutor at Ringwood Community Correctional Services, and her superior. 

37It was deemed, pursuant to the provisions relevant to a CCO, having analysed all of the matters that I have now spoken about, that he would be suitable for a CCO.  It was noted the ongoing issues with cannabis and the need to overcome that, and indeed, even further issues with ice.  Fortunately, at the day of this assessment he had not used ice for the past 30 days.  However, as I say, the cannabis continues.  He has indicated a desire to quit using drugs but is, at that time, not actually ready.

38The conclusion and recommendations were that he was suitable, that in order to assist him and give him the assistance that has not formally been available, particular provisions be imposed, and I accept those matters, and that a justice plan be utilised in regard to those issues.  The particular provisions are set out, and I will not detail those because they will be put on the plan.

39Despite his disability and intellectual capacity, despite a traumatic background, we have a young man here before the Court who has never had any priors whatsoever, much less for a matter as serious as this.  It seems to me in the circumstances that the submission put by Mr Payne, therefore, and indeed seen as within range by the prosecution, is appropriate.

40As detailed by the Court in regard to the analysis of these matters in Boulton & Ors v R [2014] VSCA 342, this is just the sort of person for whom such an order is envisaged. It is hoped that with the totality of the assistance now being given to him, as I have identified, hopefully rehabilitation can be effective.

41Mr Makary, of course, one of the difficulties with both the sexual reporting regulations, the CCO and the attached justice plan, is that there are issues with breach of all of them, so again, I do not think it is appropriate not to give him these because of those risks. However, it is necessary, if you could point out to all of the various workers who are trying to assist him to make sure he does not commit another offence, that it is important to comply with these conditions.

42It is my view, in all the circumstances, in particular, given his intellectual deficits and the background, and importantly, against those, the fact that he has had no priors prior to this time, that the submission put by Mr Payne is an appropriate submission.

43If you would stand, please, Mr Marino. 

44What I am going to do is place you on a community correction order for two years. 

45ACCUSED:  Yeah.

46HIS HONOUR:  Mr Makary is going to explain to you, and you have got any number of dedicated persons who want to see you do well, all right?  It is very important that you take their assistance.  I think also for you, as you explained, the only reason you finally got into difficulty is probably a consequence of having drugs on that night.

47ACCUSED:  Yes, Your Honour.

48HIS HONOUR:  And you have got to make sure, if you can, that you eliminate those from your system so those risks do not happen. 

49There are a number of conditions in regard to community work which I am going to impose on you, and they will be explained to you fully in due course, but if there are any issues with compliance, then it is very important that you see the appropriate workers as soon as possible so that you do not suffer from any breach, and you will find that Ms Tilley will work in with the Corrections persons, all right?  But you must keep in touch, all right?

50You can take a seat. 

51So, as I say, I will impose a community correction order by way of sentence for a period of two years. 

52I will impose the community work of 200 hours pursuant to s.48C. 

53As you said, Mr Makary, yesterday, and as has been indicated, I also indicate that 48CA(3) will apply so that that community work can be credited by way of assessment.

54The conditions as to drug and mental health assistance set out in 48D; that he be supervised pursuant to 48E; and that he undergo offender behaviour programs as set out in 48D.

55In addition, the justice plan be imposed as was prepared for the Court; that justice plan, as recommended, be for the period of two years, which is the same period as the CCO; and I order, pursuant to s.80(5) of the Sentencing Act 1991 (Vic), that a copy of the order is to be supplied to the Secretary of the Department of Health and Human Services following on the material supplied to this Court pursuant to s.80 relevant to the justice plan.

56MS OVEREND:  The Sexual Registration Act, Your Honour, the 15 years.  You have already done that, I think, Your Honour.

57HIS HONOUR:  I don't actually do it.  I just note that it's 15 years.

58MS OVEREND:  Yes, Your Honour.

59HIS HONOUR:  And there's no issue at the Bar table in regard to that?

60MS OVEREND:  No.

61HIS HONOUR:  That's a matter imposed by Parliament, and perhaps I'll leave at that without saying anything more.

62MS OVEREND:  Yes, Your Honour, there's no further orders sought.

63HIS HONOUR:  All right.  I thank everyone.  Mr Marino, we do not expect to see you back in this Court, in particular on serious offences, all right?

64ACCUSED:  Yes, Your Honour.

65HIS HONOUR:  Thank you very much.  We will just get the CCO prepared. 

66Ms Overend, if you can convey to the person above you anyway in the DPP, the Court appreciates in cases such as this the professional approach it has taken.

67MS OVEREND:  Yes, Your Honour.

68(Community Corrections Order signed and acknowledged.)

69HIS HONOUR:  Mr Makary, in a more relaxed atmosphere, if you would be good enough to do as best you can to convey my issues as to making sure of compliance with the conditions.

70MR MAKARY:  Yes,  Your Honour.

71HIS HONOUR:  Yes, all right.  Good luck, Mr Marino, all right?

72ACCUSED:  Thanks, Your Honour.

73HIS HONOUR:  All the best.

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