Director of Public Prosecutions v Matheas
[2016] VCC 1521
•7 October 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| SEXUAL OFFENCE LIST |
Case No. CR-15-01735
Indictment No. F10991020
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOS MATHEAS |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 September 2016 |
| DATE OF SENTENCE: | 7 October 2016 |
| CASE MAY BE CITED AS: | DPP v Matheas |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1521 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – prisoner undergoing a sentence of imprisonment for rape at the time of trial – finding of guilt after a trial – serious sex offender – competing sentencing principles of protection of the community and sentencing longer than is proportionate under s6D of the Sentencing Act 1991 as against totality – fixing of cumulation against sentence presently being served – fixing of a new minimum term
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Sentence:Convicted and sentenced to eight years’ imprisonment, six years to be served cumulatively with the sentence currently being served, giving a total effective sentence of 16 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Livitsanos | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr N Goodfellow | Balmer & Associates |
HIS HONOUR:
Introduction
1Christos Matheas, you were charged that at Hampton Park on 7 April 2014, you raped “SP”, contrary to s38(1) of the Crimes Act 1958.
2The gravity of the crime of rape is demonstrated by the fact that it carries a maximum sentence of 25 years’ imprisonment.
The trial
3You pleaded not guilty. A jury was empanelled on 13 July 2016. It returned a verdict of guilty on 20 July 2016.
4You met SP on Thursday, 27 March 2014 outside the Safeway supermarket at the Fountain Gate Shopping Centre. You purchased an item of clothing for her and her female friend and you took them to lunch. You showed SP your wallet, which contained a quantity of money. You gave SP to believe that you were a motorcyclist of some fame going by the name of “Ghost Rider”. You invited her to call you “Ghostie”.
5You exchanged mobile telephone numbers with SP. She informed persons with whom she was living that she had met you. She gave them to believe that you were a motorcyclist of some fame and that you were wealthy.
6It is unnecessary for sentencing purposes to set up much more of the contact which you initially had with SP and up to 7 April 2016 when you met up with her again. However, what is clear is that you wanted to maintain contact with SP and you wanted to maintain the façade that you were a motorcyclist of some fame and that you were wealthy.
7On 7 April 2016, SP was in your company on two occasions. The first was at least by 3.19pm, caught on CCTV footage, which was shown to the jury and which was tendered in evidence. You parted company but met up later at around 5.30 to 5.45pm. You took SP to a factory where you introduced her to three men from whom she believed she could obtain some marijuana. That exercise was unsuccessful. She then left in your company.
8You took her to your home at Hampton Park. You told her that some other people were to meet you at your home. She believed you. What you told her was untrue. She entered your home and sat on a chair at a table near some glass sliding doors. She gave evidence that this is what then happened:
·She saw your reflection in glass doors opposite to where she was sitting. You were totally naked. Your penis was erect and you were wearing a condom.
·You grabbed her hair and pulled her backwards.
·You pulled her pants and underwear off and ripped off her jumper and bra.
·She tried to kick you. She tried to run off. You again grabbed her by the hair and dragged her into the bedroom.
·You threw her onto the bed, and she said, “You don't have to do this”. She was kicking and screaming. You said that if she did not stop “I will fucking kill you”, or words to that effect.
·You grabbed her by the throat. She demonstrated that you placed your hands in a V-shape around her neck. You strangled her for about five to ten seconds. You stopped when she said she could not breathe.
·She told you she wanted a drink. You grabbed her by the arm and took her into the kitchen. You then dragged her back into the bedroom and pushed her onto the bed.
·You returned to the bedroom with a tube of lubricant. She knocked it out of your hands.
·You attempted to pull her legs apart. It was at that point that she said she lay there and basically stopped struggling.
·You tried to kiss her on the mouth but she resisted.
·You had difficulty penetrating her vagina with your penis. You used saliva as a lubricant.
·You thrusted twice before ejaculating.
·You told her to have a shower. She refused. She gathered up her clothes and dressed.
·You drove her to a shopping centre. You stopped the car at the shopping centre, got out and, after walking a short distance, stopped and got back in the car.
·You dropped SP off at a corner close to the house where she was staying.
9You made a “no comment” Record of Interview and you did not give evidence. Your counsel cross-examined SP and made statements in open court to the jury that the issues in the trial were that SP consented to the sexual penetration and that she was motivated to lie that she was raped because she expected that you would give her a sum of money and it was because you reneged on the promise that she represented that she had been raped.
10In the course of my charge I gave the jury a summary of the evidence and the issues. What I have summarised and what occurred at your house is consistent with that summary.
11I have set all of this out because it is necessary for me to determine what evidence the jury accepted. I think it is plain that the jury rejected your defence of consent and motive to lie. I think it is plain that the jury accepted that you physically subdued SP in the manner she described and sexually penetrated her vagina with your penis. The DNA evidence demonstrated that you ejaculated into SP’s vagina, because two vaginal swabs undertaken by a medical practitioner demonstrated the presence of your sperm.
Your current sentence
12On 10 June 2016, a judge of this Court sentenced you after a jury found you guilty of three counts of rape. You were sentenced to an effective sentence of ten years’ imprisonment with a minimum term of eight years before you would become eligible for parole. At the time you were sentenced, you had been in pre-sentence detention for 485 days.
13The three counts of rape of that complainant, who I will refer to as “XY”, occurred subsequent to your rape of SP. They occurred on 10 June 2014.
14I am familiar with the circumstances which led you to being charged with three counts of rape of XY. My familiarity has two sources. Firstly, I ruled on whether the evidence of XY was admissible as coincidence evidence. You were present in Court when her statement was referred to in some detail and exchanges occurred between myself, the prosecutor and your counsel. Secondly, I delivered a ruling in writing in which I referred to the circumstances which led to your rape of XY when I refused to allow that evidence to be admitted.
15Additionally, I have obtained the sentencing remarks of the judge of this Court who sentenced you for the rapes of XY. Those sentencing remarks contain the summary of events which took place on 10 June 2014 consistent with the statement of XY.
Your sentence
16At the time you raped SP she was 17 years of age. She appeared to me to be a naïve and impressionable girl. She was of small stature. She weighed just 42 kilograms. She fell for the trap that you had set for her. She fell for the representations you made that you were a motorcyclist of some fame going by the name of Ghost Rider. She also fell for the representations you made that you were wealthy.
17Her naïvety and impressionability led her to accept the invitation you made to be in your company on 7 April 2016. You represented to her that others were to meet you at your home when you picked her up sometime around 5.30 to 5.45pm that day. That representation was made by you, no doubt, to put her at ease that the two of you were to be in the company of others and to encourage her to go with you to your home.
18You set a trap for SP and when she entered your home, the trap snapped shut. This was no opportunistic episode. You set about impressing SP, who you must have known to be a naïve and impressionable girl. You got her where you wanted her to be, alone with you in your home.
19What then occurred was a terrifying episode of violence. SP saw your reflection in the glass sliding doors. You were totally naked with a condom on your penis. Her attempts to flee were subdued by you. You forcibly removed all of her clothing. You strangled her until she stopped struggling. You threatened that you would kill her. It was because of that level of violence and your threats that she ceased struggling. You then penetrated her vagina with your penis and ejaculated.
Serious Sex Offender
20You are a Serious Sexual Offender as defined in s6B of the Sentencing Act 1991. So that you are in no doubt about what that means, I will read the definition to you.
“Serious sexual offender means … —
(a) an offender who has been convicted of 2 or more sexual offences for each of which he or she has been sentenced to a term of imprisonment.”
21You fall into that definition because you were convicted of arson and the three counts of rape of XY.
22The definition does not relieve you of being characterised as a Serious Sexual Offender because the rapes of XY occurred after the rape of SP. All I must be satisfied of is that you have been “convicted” of the rapes of XY before the time I sentence you.
23The provisions relating to a serious sexual offender are draconian. If I am satisfied that a sentence of imprisonment is justified for your rape of SP, and I certainly am, then in determining the length of the sentence, s6D provides as follows:
“…The court, in determining the length of that sentence—
(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and
(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.”
24Additionally, s6E provides that the sentence that I must impose on you, unless otherwise directed by me, must be served cumulatively on any uncompleted sentence imposed on you. The prosecution did not apply to have you sentenced in accordance with s6E. In any event, I would not have done so, because I consider that the section is reserved for offending of a graver kind than yours.
Your prior criminal history
25You are no stranger to the criminal law. Your criminal history reveals that between 1999 and early 2014, you were charged with a large number of offences, many of which are very troubling. Additionally, in 2001, you were charged with arson. So serious was the arson that you were sentenced to five years’ imprisonment with a minimum term of four years and two months.
26The reason why I say your criminal history is troubling is not just because of the arson, but because you have been convicted for assault, recklessly cause injury, assault with a weapon, criminal damage, stalking, intentionally causing injury and making threats to kill. Your criminal history points to you being a violent man.
27You appealed to the Court of Appeal from the conviction for arson, submitting that the sentence imposed, and for the other offences with which were you charged, were manifestly excessive. Your appeal was dismissed. I was provided with a copy of the Reasons of the Court of Appeal, which demonstrates that you threw a flare into a house, where people were sleeping ‑ ‑ ‑
28OFFENDER: I didn’t own a boat, Your Honour. I did not do it. I did not own a boat. I did not know what a boat flare was, and I was married with two children and I was 26 years old.
29HIS HONOUR: I will continue.
30OFFENDER: Sorry, Your Honour.
31HIS HONOUR: I will just continue. I would ask you, Mr Matheas, to remain silent.
32The decision of the Court of Appeal demonstrates that you threw a flare into a house, where people were sleeping, which set the house on fire. What you did was extremely dangerous and aimed at harming the occupants of that house.
Your plea
33You were born on 19 October 1974. You are now 41 years of age.
34You have little or no contact with your elderly parents because you are serving a sentence of imprisonment. You have no contact with your brothers. You have no contact with any of your three children.
35You are serving your present sentence of imprisonment in a setting of isolation. You do not receive any visits from family or friends. I have no doubt that your time in prison is very burdensome.
36Your counsel submitted that you own a house, but unfortunately it is not occupied and has suffered the consequences of vandalism. He submitted that on your release you will be able to obtain social security benefits. He submitted that your position with respect to your housing and the receipt of those benefits will mean that you will have a stable domestic setting to which you can return upon your release from prison.
37That submission was made for the purpose of your counsel submitting to me that you have reasonable prospects of rehabilitation. I will return to the subject later.
38Your counsel submitted that the sentencing that I must impose on you should be moderated because of the delay between your offending and the trial. I do not propose to do that. You were in custody for 485 days before your trial for raping XY and subsequently, you were sentenced for those offences. It is not as if the delay has created circumstances for you which are now going to be altered by the imposition of an additional term of imprisonment.
Sentencing considerations
39I consider that your conduct and what you did when you raped SP on 7 April 2014 should be characterised as being in the moderate to high range of seriousness. There are a number of reasons why I think that is the case.
40Firstly, this was no opportunistic rape. You set the trap that you created and you snapped it shut. Secondly, your victim was an easy target. She fell for all of your representations about who you said you were, demonstrating her naïvety and impressionability. Thirdly, you employed violence to subdue her by putting her at serious risk, by strangling her, and you threatened to kill her if she did not stop struggling. Fourthly, you introduced sperm into her which carried a risk of her becoming pregnant and suffering the possible transmission of a sexually communicable disease.
41You are to be sentenced as a Serious Sexual Offender. I must elevate protection of the community as the principal sentencing objective. Ordinarily, specific deterrence and general deterrence would be the dominant sentencing objectives.
42The legislature has recognised that the sentence must reflect protection of the community, and in your case, it is so very obvious why that must be the principal objective. I need say little more than referring back to your criminal history and the rape of XY to demonstrate just how much of a risk you pose to the community.
43The prospects of rehabilitation become an important factor in the sentencing of any individual. I consider that your prospects of rehabilitation are negligible. I say that because of your criminal history, but more importantly, you raped SP and within three months you raped XY. You have learnt nothing from your previous court appearances and, indeed, you appear to be oblivious to prosecution, the imposition of penalty for offending and the likelihood that persistent offending will be met by more significant sentencing. That is where you were heading and that is where you have landed. I note that you have not shown an ounce of remorse.
44I have paid due regard to the plea made on your behalf by your counsel. It has been a very difficult task for him to be able to assemble any material which demonstrates that the sentence I must impose on you should be moderated in any significant way.
45I now need to determine the sentence I must impose on you and then whether I should impose a sentence longer than is proportionate to the gravity of your offending considered in light of its objective circumstances.
46The principle of totality requires me to sentence you by having regard to the sentence you are presently undergoing to make sure that the totality of consecutive sentences is not excessive and is an appropriate sentence for all of your offending, but I think that the principle of totality is to be given different emphasis because of the factors that I have already referred to in s6D.
47I will impose a stern sentence on you, which I think is called for, because of the need to protect the community from you. I will impose a sentence longer than that which is proportionate to the gravity of the sentence in the light of the objective circumstances of its occurrence.
48I would now ask you to stand, please.
49On the count of rape, you are sentenced to eight (8) years’ imprisonment. I order that six (6) years of that sentence be served cumulatively with the sentence you are presently undergoing, giving you an effective total sentence of sixteen (16) years’ imprisonment.
50Pursuant to s14 of the Sentencing Act 1991, I fix a new single non-parole period with respect to all of the sentences of twelve (12) years.
51You may now be seated.
52When you were sentenced for the rape of XY, the sentencing judge declared that your pre-sentence detention was 727 days. I am informed that an application was made before the sentencing judge that that was incorrect. The correct number of days is 485. I will not reckon any of that pre-sentence detention as time served, because I am informed that it was referable only to the sentence imposed by the other judge for your rape of XY.
53I direct that you be registered as a Sex Offender under the Sex Offenders Registration Act 2004 with a reporting period for life. The fact that you are to be so registered as a Sex Offender will be noted in the records of the Court.
54Now, Mr Livitsanos, I understand from the provisions of the Act that a document is to be provided to Mr Matheas demonstrating that, is that so?
55MR LIVITSANOS: That’s correct, that he needs, I think, the acknowledgement form.
56HIS HONOUR: Yes.
57MR LIVITSANOS: And even though, your Honour, there has been a previous order, as a result of your Honour’s sentence, this is a new Order that runs for life, your Honour, that’s correct.
58HIS HONOUR: Have you seen this, Mr Goodfellow?
59MR GOODFELLOW: I haven’t seen this particular – I’ve seen it in the past, though, your Honour, yes.
60HIS HONOUR: Do you want to have a look at it before I sign it?
61MR GOODFELLOW: Perhaps if I do just very briefly, your Honour. Thank you, your Honour.
62HIS HONOUR: You can approach Mr Matheas, if you wish, with my associate, Mr Goodfellow.
63Gentlemen, is there anything else?
64COUNSEL: No, your Honour.
65HIS HONOUR: You can remove Mr Matheas, thank you.
66OFFENDER: Your Honour, I’ve got half the sentence what Carl Williams done. He murdered five people, shot, killed, stabbed. I haven’t even killed anybody, shot or sold drugs like Carl Williams.
67HIS HONOUR: Anything else?
68COUNSEL: No, Your Honour.
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