Director of Public Prosecutions v Micelotta

[2014] VCC 770

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01750

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAEFFELE MICELOTTA

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF SENTENCE:	23 May 2014
CASE MAY BE CITED AS:	DPP v Micelotta
MEDIUM NEUTRAL CITATION:	[2014] VCC 770

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Brown
For the Accused	Mr Fitzgerald

HIS HONOUR:

1Raeffele Micelotta, you have pleaded guilty to one charge of accessing child pornography and one charge of possessing child pornography.  The first charge carries a maximum penalty of 15 years the second, five.  The first being a Commonwealth matter and the second a State matter.

2You are 50 years of age and you have no prior convictions and I assume nothing pending.  You pleaded guilty at the earliest reasonable opportunity and were ultimately cooperative with police and made a confessional record of interview.  I accept that you have now displayed appropriate remorse and you must get the benefit for that.  You must also get the utilitarian benefit of that plea of guilty.

3The offending I will summarise in fairly short compass.  In essence on 23 May 2013 members of the Federal Police attended at your address and executed a search warrant.  You initially denied having seen any of the child pornography images that were located.  However, as I have indicated, once arrested and interviewed you were confessional. 

4The Crown opening lists the levels of child pornography in terms of severity or seriousness or whatever the appropriate term may be.  What was found in your possession were four computers, four hard drives, three USB drives and 12 DVDs.  A preliminary search had revealed child pornography and, I do not know whether they went through the lot but certainly the balance were then classified. 

5In the end a total of 104,327 files were found.  That was 103,549 images and 778 videos.  In terms of classification, level 1 accounted for some 97,000, level 2 4000, level 3 approximately 1500, level 4 approximately 1500, level 5 90 and level 6, eight.  Therefore if one looks at it on a percentage basis by far the greater proportion of the images is at the lower level but it still remains a serious criminal offence but numerically there is still something in the order of 3000 which are level 3 and level 4.

6The description of those, and everyone knows what I am talking about, level 3 are images and videos depicting non-penetrative sexual activity between adults and children and level 4, images and videos depicting penetrative sexual activity between adults and children or between children.  I was shown a sample of the pornography that had been discovered and how representative, I do not know, but the one I was shown had a small child of approximately the age of around two, I would have thought.  So I am unable in this situation, and I dare say the Crown are as well, to state with accuracy the ages of the children throughout these in excess of 100,000 images.  You, at one stage, I understand, expressed your preference for females under the age of 16.  That, in essence, is a lot of pornography. 

7When you spoke to police you said that you knew that the material was illegal, you said it was for own personal use and personal gratification.  You told the police that "I do know the right between right and wrong.  I used to find it disgusting at the beginning but curiosity got the better of me.  So I know it's immoral, I know it's illegal". 

8Clearly you had an understanding of the illegality and moral wrongness of what you were doing.  I will be referring to matters personal to you in a moment.  The first thing that will need to be done is you will be placed on the Sex Offender's Register.  I tell you that your reporting on that will now be for a period of 15 years. 

9Obviously there are no victim impact statements but there are probably thousands of victims.  So far as this offending is concerned they have been the children.  Trying to judge the level of seriousness of all this, as I have said, were in the New South Wales case of Gent. 

10The fact of the matter here is that certainly what I saw there were very young infants indeed, children, involved.  There is an extremely large amount of pornography.  On the other hand I can only sentence you for having accessed it over a 12 month period and there's no evidence before me of you transmitting it or giving it to other people. 

11This sort of offending has to be regarded as serious.  It is clear from the decisions of the Court of Appeal that general deterrence is the predominant sentencing purpose but I obviously have to take into account the matters particular to yourself.  In my view a custodial sentence in this situation is inevitable.  It was put to me by your counsel that that sentence, if imposed, could be in effect wholly suspended by way of a recognisance release order.  The offending is to be dealt with as between 2012 and 2013.  Now the possess charges, obviously as at the date of the raid by police. 

12Very helpful submissions were filed on your behalf along with a couple of reports.  You are now 50 years of age.  You lived in Melbourne all your life.  Your mother died when you were in your late teens and you continued to reside with your father.  He died in 2012 which would have been the period of time to which this offending relates.  You are in the family home and never lived anywhere else and continue to reside there.  Your father had always looked after you when you were younger and it would appear that you did your best when he became very ill to look after him.  He died on 20 July 2012 at 92 years of age.

13After leaving school you had a relatively good work history.  There were periods of time where you did not work and it is clear that from your early 20's you had begun to suffer from depressive episodes which have now been diagnosed as a bipolar disorder.

14The report of Mr McMullen, psychologist, describes how you said that depression sneaks up on you and over the years you had suffered five major episodes and the last one at the time of your father's final illness.  You said that that was your worst.  After your father taken to hospital you clearly went into a very bad set of circumstances and neighbours became concerned.  You were apparently not eating and sleeping and dishevelled. 

15In the end a doctor visited and a crisis assessment team was called in.  You then spent a period of time in hospital and were finally diagnosed with bipolar disorder and you were prescribed lithium which you continue to be on.  You were originally prescribed Diltahexal, which is an anti-depressant.  You were also regarded by Mr McMullen as being extremely depressed at the time that he assessed you.  I understand that the Diltahexal has been discontinued upon review after your discharge as it was deemed unnecessary.  You were in the Psychiatric Ward at the Northern Hospital for three weeks.  At the time that you were released your father was in palliative care. 

16You suffering from bipolar have had, obviously, periods of depression and periods of manic behaviour.  You had periods where you spent a lot of money, you are a inveterate collector and I do take that into account in terms of the sheer volume of pornographic images that were in your possession.  The periods of mania were followed by periods of severe depression.

17After you were charged you have, to your credit, continued to see a psychiatrist every two weeks and during the latter part of 2013 you had ten treatment sessions with the psychologist.  I will be going to that in a moment.  It is clear that, without going to the express detail of all this, that you have led an isolated and lonely existence.  You have had periods of time of unemployment, though essentially you work and you have been involved in IT.  You had reached the point where you hardly ever left the house.  You have, on what is provided before me, never really had a girlfriend and Mr McMullen says that pornography became a substitute for a real relationship. 

18You told him that initially the interest was heterosexual but over time needed more and more intense stimulus.  You described it to Mr McMullen as being like a drug addict.  You have indicated through him that you would download large amounts and then sort out the poorly produced or mislabelled material.  You said that you enjoyed the material and found it satisfying.  All this took place in a position of isolation and there was no suggestion here that you have ever been, or would be, actively involved in actual physical offending against children. 

19It is put in that report that a major mental illness, which you have, is defined as condition that seriously impaired cognition and effect, includes bipolar disorder and I accept that such a disorder can distort thinking.  However, even on what I am sentencing for, which is a period of 12 months there was a drawn out chance to stop doing all this.  You acknowledged freely to the police, and that is encouraging because it was to the police and not afterwards to some psychiatrists that you knew it was wrong and you basically, from what I can read from it, steeled yourself against the moral and legal wrongness of it and continued. 

20The risk of you re-offending has been described by Mr McMullen as moderate.  There was also a report from psychologist, Luke Karanjas.  He effectively says similar matters, other than that he has been treating you and talking about traumatic childhood events involving you developing a bipolar disorder.  He says that in you developing bipolar disorder in your early 20's as part of the illness:

"He further withdrew himself from society which exacerbated his already strong feeling of defectiveness, shame, failure and helplessness.  During this time he resigned himself to a life without a wife and without a normal sex life.  He began using more and more extreme internet pornography in order to feel aroused due to the process of habituation, that is, to pornographic stimuli.  He knew that child pornography was morally wrong but used mental rationalisation and minimisation to enable himself to carry out the behaviour".

21There is no real material before me as to when you started to access child pornography and I have discussed this with counsel, that I certainly do not sentence you for any offending outside the 12 month period.  The sheer volume would tend to suggest that it had been going longer than that passage.  The psychologists would suggest the same.  In reality I have no idea how entrenched this conduct is.  It certainly would not involve me imposing a heavier sentence because I would not do that but I am going to, with the recognisance release, order that it be for a period of four years because I am concerned as to the relative likelihood of you re-offending in this way and think that an extra period of time is appropriate.

22A number of cases were put before me and I will talk about those in a moment.  Insofar as Verdins is concerned I cannot see how a bipolar disorder is directly related to this sort of offending in your particular situation.  I accept that you do have such a disorder.  I accept that you would find prison "overwhelming' as described and I accept that you will be in protection.  You would not be in a situation where you would be vulnerable to mainstream prisoners and I take all those matters into account. 

23I think general deterrence is moderated only to a very small degree.  In your situation I think that any gaol plus the recognisance over an extended period of time would be sufficient for specific deterrence.  So far as moral culpability is concerned on what you told the police it is a bit hard to see how your mental condition affects that but I will give you the benefit of the doubt in that your judgment would have been affected.  You were also clearly affected by the traumatic circumstances under which your father was, in reality, dying.  Of which you were aware and that your conduct had become somewhat bizarre.  I take all those matters into account.

24Insofar as rehabilitation is concerned you have undergone therapy since and that is very much to your credit and the risk of you re-offending is described as moderate but I remain guarded in these circumstances. 

25The decisions that were handed up to me of Smith, Iison and Guest confirm what I suppose already thought.  This sort of offending is frequently engaged in by people with no criminal history, people who are living isolated, very lonely existences and who pose no threat to actual children in their vicinity. 

26In each of the decisions that were given to me where the release was forthwith, they were circumstances where a person had been on a community corrections order and had been complying for a significant amount.  They are Director's appeals and I think in the circumstances the Court of Appeal has taken a view that they might have been pretty lucky people.

27In the decision of Guest, refers to each of those decisions and shows what was different about them.  Smith I think they said "might have been very fortunate" I think was the actual expression and I do not see that they assist you to a great level.

28It is clear that it is possible for a person in your circumstances not to receive an immediate custodial sentence but that is generally what occurs and it would need to be, put by Justice Coghlan, verging on exceptional before it did not occur.

29I do not think it would unduly harsh to send you to gaol, as described there.  What I do think though is that in a situation such as yours, where general deterrence is the major player, it is simply a matter of people who engage in this conduct knowing if they are caught, they will be locked up.  It is probably throwing stones against an incoming tide but there is not much else the courts can do other than to endeavour to give effect to general deterrence.  Accordingly I think that a custodial sentence, an active one, is inevitable but need not be of major proportions.

30Firstly, the documents relating to the Sex Offender's Register. If they can just be signed.  I have already said that's for 15 years we will get that signed first. 

31All right I indicate that I have received last night a collection of sentences for the same crime.  That did not cause me to change my views on these matters.  It is clear that Justice Coghlan said that it is unusual indeed not to receive an active custodial sentence but as I have indicated, in your particular situation, I do not think it has to be a particularly onerous one but nevertheless needs to be one.

32Accordingly, on the Commonwealth charge, you are sentenced to be imprisoned for a period of 21 months.  I direct that that sentence commence today.  On the State charge, three months concurrent.  If you agree to the recognisance of $500 to be of good behaviour with no other conditions, you will be released at the expiration of three months from today's date.  The recognisance will be, as I have indicated, $500 and for a period of four years.

33I say that pursuant to s.6AAA but for your plea of guilty in this matter, so that you appreciate the benefit that you got from it, you would have been sentencing to be imprisoned for a period of two years and six months and you would have served 12 of it at least.

34All right, have you got the recognisance there?

35VOICE (from body of court):  Yes, Your Honour.

36HIS HONOUR:  There's no PSD is there?

37MS BROWN:  No, Your Honour. 

38MR FITZGERALD:  No, Your Honour.

39MS BROWN:  Your Honour, I have a copy of the recognisance release form which I can fill out if ‑ ‑ ‑ 

40HIS HONOUR:  No, I've already done it.

41MS BROWN:  You've already done it.

42HIS HONOUR:  Yes.

43MS BROWN:  Thank you, Your Honour.

44HIS HONOUR:  All right.  That recognisance, Mr Micelotta, is for four years.  If you commit any offence punishable by imprisonment effectively, it breaches the recognisance and you come back before me to be re-sentenced.  You clearly understand, I have to do this as a matter of law, that if you were brought back before me for any sort of breach involving this sort of offending you will do every second of it.  All right?  You do the 21 months plus whatever you get for the next offending.  That is the effect of it.  There are other aspects of it that your counsel can explain to you if need be but that is the reality.  Do this again and you are in for a long time. All right, that is done.  Are there any other orders I need to make?

45MS BROWN:  No, Your Honour.

46MR FITZGERALD:  No, Your Honour.

47HIS HONOUR:  Yes thanks for that.

48MS BROWN:  If Your Honour pleases.

49HIS HONOUR:  Yes, you can go.

‑ ‑ ‑