Director of Public Prosecutions v Matavura
[2015] VCC 1971
•21 December 2015
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -15-01088
CR-15-01499
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEMI MATAVURA |
---
| JUDGE: | HER HONOUR JUDGE SEXTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 November 2015 |
| DATE OF SENTENCE: | 21 December 2015 |
| CASE MAY BE CITED AS: | DPP v Matavura |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1971 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Pleaded guilty to two indictments relating to two complainants – two charges of sexual penetration of a child under 16 years – summary offence of contravening a condition of bail – two charges of common assault – two charges of intentionally causing injury – one charge of rape – one charge of making a threat to kill – two summary offences of contravening a Family Violence Intervention Order – one summary offence of committing an indictable offence whilst on bail - offending against both complainants very serious – mild level of intellectual impairment – some rehabilitation whilst in custody - risk of re-offending – denunciation
Legislation Cited: Sex Offender’s Registration Act 2004
Sentence: Total Effective Sentence of eight years, three months’ imprisonment, with a minimum of six years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Martin | Office of Public Prosecutions |
| For the Accused | Mr J. Fitzgerald | Victoria Legal Aid |
HER HONOUR:
1At the outset, I advise that I am using pseudonyms for the names of your victims in these reasons. I remind those listening to these remarks, that the law prohibits the publication of any details likely to lead to the identification of a sexual offence complainant[1]. That is the reason for using pseudonyms.
[1] Section 4 Judicial Proceedings Reports Act
2Semi Matavura, you have pleaded guilty to two charges on two indictments relating to two complainants:
3On Indictment No. F11092055, pleas of guilty were entered on 15 July 2015 to two charges of sexual penetration of a child under 16 years, an offence with a maximum sentence of ten years' imprisonment. For that case, you also pleaded guilty to, and agreed to the court dealing with, a summary offence of contravening a condition of bail, which has a maximum penalty of three months' imprisonment or 30 penalty units.
4On Indictment No. F11113135, pleas of guilty were entered on 12 November 2015 to two charges of common assault, an offence with a maximum of five years' imprisonment; two charges of intentionally causing injury, an offence with a maximum of ten years' imprisonment; one charge of rape, an offence with a maximum of 25 years' imprisonment; and one charge of making a threat to kill, an offence with a maximum of ten years' imprisonment. For that case, you also pleaded guilty to, and agreed to the court dealing with, three summary offences, two of contravening a Family Violence Intervention Order which has a maximum penalty of two years' imprisonment and/or 240 penalty units; and one of committing an indictable offence whilst on bail, which has a maximum penalty of three months' imprisonment or 30 penalty units.
5I proceed to sentence you on the basis of the two prosecution openings read out on the plea, one for each indictment[2]. I was also provided with a chronology which I have marked as Exhibit F. I will attempt to summarise your offending as follows:
[2] Exhibit A – Indictment No. F11092055 and Exhibit D – Indictment No. F11113135.
6You were in a relationship with a woman called Courtney Ryan[3] for about two years. While still in that relationship, in January and February 2012 you sexually assaulted her younger sister, Sally[4], then aged 14. You penetrated her vagina with your fingers on three occasions over that time. Charge 1 on Indictment No. F11092055 is representative of these three occasions. You penetrated her vagina with your penis on two occasions. Charge 2 on that indictment is representative of these two occasions.
[3] A pseudonym
[4] A pseudonym
7Sally told the police about these offences almost immediately after the last occasion. However you were not interviewed for two years.
8Your relationship with her sister ended, probably because of your sexual assault of Sally, and sometime in 2012, you began a relationship with a woman called Kim Frank[5]. Ms Frank had three young children, and you all lived together. Ms Frank became pregnant to you, and gave birth to a daughter in December 2013. Your relationship with Ms Frank was characterised by violence. While Ms Frank was pregnant with your child, during 2013, you came home from work early because Ms Frank had not responded to a text you had sent. You smashed dishes and struck her a forceful blow across the face (Charge 1 on indictment No. F11113135 - common assault).
[5] A pseudonym
9Other incidents of violence took place in 2013 and 2014, not all of which resulted in charges, and these are outlined in the Prosecution Opening marked as Exhibit D.
10During 2013, police were attempting to locate you, without success. In February 2014, police received information as to your location, and you were arrested at home, and interviewed about the allegations made by Sally Ryan. You denied committing any offences against her, although you indicated that you were aware of the allegations. You were released pending enquires. Between February and June 2014 the police were apparently unable to locate Sally.
11On an occasion between March and May 2014, you came home drunk and punched Ms Frank a number of times, including to the face, outside the house and in the bedroom after you followed her there (Charge 2 on Indictment No. F11113135 - intentionally causing injury). You began touching her sexually but she rejected your advances, telling you that was because you had punched her. Your response was to grab her by the throat, lay on top of her, and rape her by putting your penis in her vagina, while still holding her around the throat (Charge 3 on Indictment no.F11113135 – rape). You punched her again, then ejaculated and fell asleep.
12Ms Frank obtained emergency accommodation from a domestic violence service the next day, but she returned to you when you telephoned her and apologised for your behaviour.
13In June and July 2014 you and Ms Frank and her children moved to another house. On an occasion in that time, you disciplined the oldest child for being rude to his mother by sending him to his room, but then hit Ms Frank to the face with the back of your hand. She told you not to hit her in front of the other children, whereupon you grabbed her clothing, lifted her off the ground, threw her back onto the ground and then reached over and slammed her head onto the floor (Charge 4 on Indictment No. F11113135 - common assault). You then forcibly prevented her from escaping the house, and from you, and you punched her, threatened her and held her captive in her bedroom for two hours.
14In July 2014, during an argument between you, you spat in Ms Frank’s face. On a later day, you were arguing about that act, when you threw Ms Frank onto the bed and threatened her with words and by actions. She tried to get out of the bedroom but you slammed the door shut and grabbed her by the jaw, shoving your thumb into her mouth, causing her mouth to bleed (Charge 5 on Indictment No. F11113135 - intentionally causing injury). Because she was screaming, you threatened to kill her before any help arrived (Charge 6 on Indictment No. F11113135 - making a threat to kill). Ms Frank was able to convince you to let her go to hospital, and she caught a taxi there. However, although she was seen by staff there, before she could be treated, she felt compelled to return home to you after you sent a text demanding that she do so.
15The following day, Ms Frank made a complaint to police about your behaviour. You were arrested and interviewed, making no admissions to the alleged offences. On 31 July 2014, an Intervention Order was granted with the purpose of protecting Ms Frank against you. Despite this order, you began living together again.
16Between December 2014 and March 2015, police attempted to locate you and serve you with the brief concerning the offences you committed against Sally Ryan. Eventually you voluntarily attended a police station on 27 March 2015, and were charged and bailed on those charges. On the same day, you were charged with offences against Ms Frank and bailed on those also.
17On 13 April 2015, only 17 days later, you and Ms Frank were living together again, at an address which was not the address to which you had been bailed. This was a contravention of a condition of your bail (Related to Indictment No. F11092055 - summary offence of contravening a condition of bail). This was discovered when you were arrested that day, as a result of you attacking Ms Frank, by yelling at her until she woke, jumping on her, pulling her to the ground when she tried to escape, and putting your arm over her neck. Ms Frank did manage to escape and was able to have police called. You waited until police arrived, you were arrested, charged and released on summons (Related to Indictment No. F11113135 - summary offence of contravening a Family Violence Intervention Order).
18Less than two weeks later, on 25 April, you sent Ms Frank 6 text messages attempting to get her to contact you and saying that you were missing her and the children (Related to Indictment No. F11113135 – summary offences of contravening a Family Violence Intervention Order, and committing an indictable offence while on bail, namely contravention of the Intervention Order). You were remanded in custody and have remained in custody since that date.
19This summary shows what appalling conduct you engaged in over the course of three years. The offending against Sally is very serious, involving multiple occasions of sexual penetration of a girl under the age of 16, and is a form of breach of trust of her family, who should have been able to trust you with their 14 year old daughter in their home. The offending against Ms Frank is also very serious, involving physical and sexual violence perpetrated against the woman with whom you were in a relationship and with whom you had a child, who was entitled to your love and respect, not to be treated in such a way in her own home, in front of her children. The summary offences are also serious examples of that type of offence as the Intervention Order, and bail orders, are made by a court and must be complied with, not ignored, and the Intervention Order was made for the very purpose of protecting Ms Frank from you. Committing offences while on such orders are an aggravating feature.
20It is clear from Sally’s Victim Impact Statement that your offending against her has caused her to suffer considerably, and made her life even more troubled as a result. I also received a statement from her mother. As you were in a relationship with Sally’s sister at the time, the whole family has been torn apart by your crimes. I want to say something to Sally and her family. Sexual offences committed against a child, which is a person under 18 years, are never the child’s fault. Sally seems to have been blamed for the offending, even if only in part, and this is wrong. She was a child, faced with the sexual demands of a tall, strong, fit man of about 30. I cannot know everything that has gone on in that family, but I do know that Sally should be supported by her family, not shunned. Her mother has done her best, but has been caught between the impact on Sally and the obvious hurt of her older sister, being betrayed by her boyfriend. On the accounts given to me, other family members, including the sister and the father, seem not to have recognised that this is all the fault of you, Mr Matavura, not Sally in any way. To Sally, I express the hope that with time, and patience, she will be able to settle to doing something in her life that brings her happiness and satisfaction.
21It is clear from Ms Frank’s Victim Impact Statement that she has also suffered considerably during and as a result of your offending. Her story is of the sort that is now getting publicity, putting out the message that violence by men against the women in their lives is criminal and never justified. By saying that, I do not diminish Ms Frank’s suffering. She believed in you, for a time, and wanted to keep the family together, but then your conduct took away her independence and made her frightened of you, and she remains that way today. Her perception is that she holds grave fears for her safety after your eventual release from prison. I want to recognise her courage in finally reporting you to the police for her own safety, and ultimately making a life for her and her children away from your violence.
22You have a criminal record, which is highly relevant as it contains a charge of recklessly causing serious injury, and a charge of unlawful assault, and also shows that you have been unable to comply with other court orders in the past. In 2009, you received a community based order for the serious injury charge. I was told by your counsel that this apparently arose from you intervening to break up a fight, but then getting involved and seriously injuring someone. You breached the community based order and initially received a prison sentence in the Magistrates’ Court, but on appeal to this court, this sentence was altered to an intensive correction order. You breached that order, and the intensive correction order was extended, but you breached that order, and ultimately, in February 2014, were sentenced to imprisonment. A month later, you received a short prison sentence for unlawful assault and failing to answer bail.
23On the other hand there are some matters that I must take into account in your favour as mitigating the seriousness of your offending. The first of these is your plea of guilty. The community has, by your plea, been spared the time and cost of a trial or more than one trial. Witnesses have been spared the ordeal of giving evidence upon your trial. This is particularly important for Sally and Ms Frank. I can tell you that the sentences I intend to impose are far less than would have been imposed had you been found guilty after a trial.
24Through your counsel, you have indicated that since you have had the opportunity for reflection in custody, you are deeply ashamed of what you have done. Although you initially denied all of the offending against both victims, I accept that you now have some insight, and I treat your pleas of guilty as a sign of remorse.
25I have been told something of your personal history and circumstances[6]. You are now aged 32 years. At the time of the offences you were aged 29 to 31 years' old. You were born and grew up in Fiji where you completed school and undertook some years of a theology course, intending to do pastoral and community work. However you discontinued the course to begin working to assist your family. You were working in a tourist resort when you met an Australian woman on holiday. She returned to Fiji and you were married there. Later, you came to Australia and began a life here. You completed a plumbing apprenticeship, obtained permanent residency, and adopted a son and had a daughter with your wife. You were playing rugby, at a high level.
[6] Exhibit 1 – Outline of defence submissions
26Things were going well but tensions developed with your wife as you were living and working on her family's vineyard, and you wanted a place of your own. You did move to a house off the vineyard, but things did not improve. In about 2008, you and your wife separated. You did not drink alcohol until this time, and you then began drinking alcohol in connection with rugby. At first, you were able to manage your intake, but then you began drinking heavily, and your conduct became anti-social, as reflected in your criminal record. You and your wife were attempting to reconcile, and she wanted you to stop playing rugby. Eventually, your marriage broke down irretrievably in about 2010. You apparently used the drug ecstasy for about three months in that year.
27In 2011, you began the relationship with Sally Ryan’s sister. You were still under the obligations of the community based order, and when your father died in the same year, you were not given permission to leave Victoria to attend his funeral in Fiji. You began using speed (amphetamine), and it was during this time that you committed the offences against Sally.
28Shortly after that offending, you began the relationship with Ms Frank, who you had known for a number of years in the Fijian community in Melbourne. For a while, you stopped drinking and using drugs and were working as a plumber. You had another child, the daughter with Ms Frank, and your children from your marriage frequently visited you. However, your lifestyle again became destructive of everything good in it, when you were introduced to ‘ice’ (methylamphetamine) by some so-called friends. As this court hears all too often, you quickly became addicted, and began the violent course of conduct towards Ms Frank.
29I received a report from Ms Lofthouse[7], a psychologist who assessed you in October 2015. She found that you are of average or above average intelligence, but have a mild level of executive dysfunction for verbal information. She stated that aggressive and dysfunctional responses are often noted where that is found, including against a background of drug and alcohol use and psychiatric issues. While you reported that you initially suffered from depression and anxiety from 2008, after your marriage broke down, and that these symptoms returned after the death of your father, and resulted in a suicide attempt in 2011, it is not suggested that any such symptoms played a role in your offending. I accept that at the time of testing, you had some mild depression and anxiety, probably as a result of being on remand.
[7] Exhibit 2
30In my view, the importance of Ms Lofthouse’s opinion is that your mild level of intellectual impairment related to a verbal processing disorder must be taken into account by anyone seeking to address the issues in therapy to reduce the likelihood of you reoffending. I commend her opinion to any agency with whom you undertake rehabilitation, and emphasise that you may require one on one therapy.
31Since you have been in custody, you have begun work on your rehabilitation, including completing courses[8] in anger management, drug and alcohol dependency, stress management and workplace skills. Surprisingly, Ms Lofthouse reports that you have not undertaken any drug and alcohol programs. Further, you have also been restored to the faith you grew up in, and have connected with a pastor of your church. Pastor Peter Olivia provided a letter[9] which indicates that not only has your faith assisted you in coming to terms with the criminality of your conduct, it has led you to engage with other prisoners to share this lesson and your faith. You have been working in the industry section of the Metropolitan Remand Centre, and keeping yourself physically fit. You have apparently described your time in custody as a blessing, and say you have never been as healthy, mentally, physically, or spiritually. Your wish after your release is to return to work as a plumber, and also use your experience to help others avoid the use of ‘ice’.
[8] Exhibit 4
[9] Exhibit 3
32All of this points toward reasonable prospects of rehabilitation. However, there is a further matter I need to take into account, which will impact on your further time in prison. Because you are not a citizen, upon receiving a sentence of the length you are to receive, your permanent residency will be cancelled and you will be deported to Fiji on release. I take into account that this outcome will be with you as you undertake your prison sentence, with the knowledge that you will not remain in the same country as your three children after release, and thus lose hope of any possible contact in future. Therefore, I take into account that although your prospects of rehabilitation are reasonable, there is no hope of you re-building your life here.
33Your counsel submitted that my sentence should provide for a longer parole period because of your recognition of the evilness of your behaviour, and the support you have in the community through your church. Even though you have shown some insight into your offending, I find that, without rehabilitation, including a completing a sex offender program as well as those referred to by Ms Lofthouse, you are still at risk of reoffending.
34The sentences I impose must seek to deter others from committing sexual offences against children, and crimes involving family violence, which is known as general deterrence, and also deter you from committing such crimes again, known as specific deterrence. The court must reflect in the sentence imposed today the community’s denunciation of your crimes.
35Because you will be sentenced to a term of imprisonment for both charges on Indictment No. F11092055, you are then to be regarded as a serious sexual offender. As a result, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed on the charge of rape on the second indictment. I may, in order to achieve that purpose, impose a sentence greater than is proportionate. I do not propose to do that in this case because the prosecution have not sought it, and I am satisfied that a properly constructed sentence of imprisonment on all charges will meet the sentencing objectives in this case.
36It is also necessary for the sentence for the charge of rape to be cumulative on the sentences imposed on the charges of sexual penetration of a child under 16, unless I order otherwise, because of your status as a serious sex offender. I have kept in mind that the scope for applying the principle of totality is limited by the law relating to sentences imposed on serious sex offenders[10], but I have still considered the need for today’s sentence to reflect to an extent the totality of your offending. I will direct otherwise and there will be some concurrency between the indictments.
[10]HMcL v R (2000) 174 ALR 1 at [76]
37Before I turn to your sentence, there are two other matters. The first is that on Indictment No. F11092055, application has been made for an intimate forensic sample to be taken from you and you have not opposed this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offending, and your criminal record, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. Although you have consented, if you change your mind, I must inform you that the law is that the sample that will then be taken will be a blood sample and the police may use reasonable force to enable that procedure to take place.
38The second matter is that as a result of my sentencing you today, you become a registrable sex offender under the Sex Offenders’ Registration Act 2004. Charges 1 and 2 on Indictment No. F11092055 are class one offences. You will be required within 7 days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders’ Registration Act and be otherwise subject to the Act for the remainder of your life.
39I will now have my Associate hand to you a form which notifies you of your reporting obligations. Mr Fitzgerald, would you accompany my Associate to the dock?
40MR FITZGERALD: Yes, Your Honour.
41HER HONOUR: Mr Matavura, would you please sign where indicated, to acknowledge that you have received this form. While that is happening,
Ms Martin, I might receive back those 464ZF draft orders just to make sure that I have got the right orders. Thank you.42Stand up please, Mr Matavura. You are convicted and sentenced as follows:
43On Indictment No. F11092055:
44Charge 1 – Sexual penetration of a child under 16 (representative) - 3 years 6 months’ imprisonment;
45Charge 2 - Sexual penetration of a child under 16 (representative) - 3 years 6 months’ imprisonment;
46On the related summary offence of contravening a condition of bail (charge 23) – 1 month imprisonment;
47I direct that 6 months of the sentence imposed on charge 2 be served cumulatively on the sentence imposed on charge 1. That makes an effective sentence on this indictment of 4 years’ imprisonment.
48On Indictment No. F11113135:
49Charge 1 – Assault – 12 months’ imprisonment;
50Charge 2 – Intentionally causing injury – 18 months’ imprisonment;
51Charge 3 – Rape – 5 years 6 months’ imprisonment;
52Charge 4 – Assault – 20 months’ imprisonment;
53Charge 5 - Intentionally causing injury – 24 months’ imprisonment;
54Charge 6 – Making a threat to kill – 16 months’ imprisonment;
55On the related summary offence of contravening a Family Violence Intervention Order (charge 1) – 10 months’ imprisonment;
56On the related summary offence of contravening a Family Violence Intervention Order (charge 3) – 2 months’ imprisonment; and
57On the related summary offence of committing an indictable offence whilst on bail (charge 11) – 14 days’ imprisonment.
58The sentence on charge 3 is the base sentence. I direct that 3 months of the sentences imposed on charges 1, 4 and 5, and 6 months of the sentence imposed on charge 2 be served cumulatively on the sentence imposed on charge 3 and on each other. All other sentences are concurrent. That makes an effective sentence on this indictment of 6 years 9 months’ imprisonment.
59I direct that 18 months of the effective sentence imposed on Indictment No. F11092055 be served cumulatively on the sentence imposed on Indictment No. F11113135. I have expressed it that way rather than as required by the Sentencing Act in order to make it easier to understand. That makes a total effective sentence of 8 years 3 months’ imprisonment.
60I further direct that you serve a minimum of 6 years before becoming eligible for parole. I have set this period bearing in mind the matters in your favour, and your reasonable prospects of rehabilitation.
61I declare that the period you have spent in custody is 239 days not including today and these are to be deducted administratively from your sentence.
62I also direct that it be entered in the records of the court that I have sentenced you in respect of Charge 3 on Indictment no.F11113135 as a serious sexual offender.
63If you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed on Indictment No. F11092055 for 5 charges of sexual penetration of a child under 16 years is 8 years’ imprisonment with a minimum of 6 years. On Indictment No. F11113135, the sentence I would have imposed on all charges is 9 years’ imprisonment with a minimum of 7 years.
64Yes just take a seat, Mr Matavura. Does counsel wish me to go through the sentence again?
65MR FITZGERALD: No I think I have that down. No thank you.
66MS MARTIN: No, Your Honour.
67HER HONOUR: All right. Well I anticipate that the arithmetic is accurate. Are there any further orders?
68MS MARTIN: No, Your Honour.
69HER HONOUR: Yes thank you very much. Well I thank counsel very much for their assistance and for their attendance on this non-sitting day. Yes,
Mr Matavura may be taken out.70Before I finally adjourn the court sine die I want it to be noted that this is the final day of my Tipstaff's service in this court. He is to be commended for his outstanding service. Adjourn the court please.
‑ ‑ ‑
0