Director of Public Prosecutions v Michaelides

[2015] VCC 908

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00301

DIRECTOR OF PUBLIC PROSECUTIONS

v

PANOS MICHAELIDES

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 June 2015
CASE MAY BE CITED AS:	DPP v Michaelides
MEDIUM NEUTRAL CITATION:	[2015] VCC 908

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Regan
For the Accused	Mr L. Barker

HER HONOUR: 

1Panos Michaelides, you have pleaded guilty to one charge of rape.  The maximum penalty for that offence is 25 years' imprisonment.  The prosecution have made application for the disposal of certain items.  The making of that order is not opposed.

2The circumstances of your offending are set out in the Summary of the Prosecution Opening for Plea, which was tendered as Exhibit A.

3In brief, the circumstances were as follows.  The complainant finished work at a club in the Melbourne central business district at about 2.30 am on Sunday 1 September 2013.  She went with a friend to another bar but she was not admitted.  She remained outside near that bar for some time.  You were in Melbourne on holiday.  You had been in Melbourne for six days.  You came from Cyprus and were travelling on a United Kingdom passport.  You gave police an address in Northern London as your residential address.

4You had been out that night with a friend, drinking at a club in the Melbourne central business district.  While the complainant was standing outside the bar, you approached her and persistently attempted to speak to her.  She thought you were trying to, "chat her up”.  The complainant told you to go away in forthright terms and said she did not want to talk to you.  She ultimately walked off to go back to the club where she worked, which was a relatively short walk away.

5During that walk, she walked passed a shop where you had bought some food and drink.  You followed her.  As she entered her workplace door, the complainant became aware that there was a male behind her.  She pushed you back saying, "We're closed."  You pushed through the entrance, pushing and grabbing at the complainant and saying something about her talking to people. 

6You pushed the complainant into a cloak room alcove and against a brick wall.   She fell to the ground.  You were on top of her with your left forearm across her face and neck.  With your other arm, you were trying to pull her shorts down and undo your belt and pants.  The complainant was screaming as loudly as she could and was wiggling and kicking at you.  She struggled to try and stop her shorts being pulled down.  You were aggressively kissing her and placing your tongue into her mouth.  She managed to get to her feet.  There was a struggle again with you trying to pull her shorts down.  You aggressively inserted two or three fingers into her vagina two or three times.  You then stopped and ran off, leaving through the front door.  CCTV footage indicates that the incident took three minutes and 45 seconds.

7Witnesses heard the complainant's screams and heard the sound of falling furniture and banging.  It is clear from the photographs tendered of the injuries to the complainant and the state of the cloak room alcove that a significant struggle had taken place.  The complainant suffered a large number of abrasions and bruises.  You were found later that night in a garden bed not far from a city hotel that you had run in to.

8A contested committal took place on 19 February 2014.  Discussions after that indicated that you would plead guilty and a date for that plea was set as 28 February 2014.  You did not go ahead with that because of the way in which the prosecution proposed to put the case and the matter was listed for trial.   Subsequently, your plea of guilty was entered on 11 March 2014 to one charge of rape.  The matter was listed for a plea hearing in April 2015.  The plea did not proceed on that date due to defence counsel's unavailability.

9A Victim Impact Statement from the complainant was tendered as Exhibit B.  Parts of her Victim Impact Statement were read by the complainant.  It is clear that this incident has had a significant emotional and psychological effect on her.  She eloquently described her sense of isolation and fear.  It is apparent that the complainant has had difficulties in being able to work, leading to financial problems for her.   It is also clear from this incident and from the way in which the complainant read her victim impact statement that the complainant is a person of considerable courage and resolve and it is to be hoped that with time and support, she will be able to largely recover from this incident.  Sadly, she will be unlikely ever to forget it.

10In sentencing you, I have taken into account your personal circumstances.  These were set out in the defence outline of plea submissions, which was tendered as Exhibit 1.  You are now 41 years old.  You were born in England, although your family comes from Cyprus.  You spent most of your childhood in Cyprus.  You completed secondary schooling there and then went into the army.  Your parents had divorced by that stage.  You became a plasterer and when you were about 26 years old, you set up your own plastering business.

11In 2001, you went back to the United Kingdom as your mother was there in a new relationship.  You worked there very successfully.  You married and have two children.  You separated from your wife in 2006 and the children remained living with their mother.  You returned to Cyprus where you again successfully operated your own business.  You travelled frequently between Cyprus and London.  You have apparently held a long held dream to travel in Australia and you came to Australia with the intention of spending three months on holiday here.  You have no prior criminal history.

12In sentencing submissions, your counsel submitted that I should accept that this offending was out of character for you and had occurred in the context that you were drunk.  He submitted that the offending was a spur of the moment decision and that you were, "Reacting situationally."  Your counsel referred to the lack of aggravating features, such as the use of a weapon, pre-planning or offending over a lengthy period of time.  Your counsel submitted that I should take into account that you had stopped the offending yourself.  You counsel also suggested that you had excellent prospects of rehabilitation and that you had commenced your rehabilitation in custody.  Certificates of courses you had completed in custody were tendered as Exhibit 2.  Your counsel submitted that you were entitled to a discount for your plea of guilty, both for its utilitarian value and as an expression of your remorse. 

13There has been some delay in this matter and your counsel submitted that it should be taken into account that your rehabilitation had commenced and that you had had this matter hanging over your head for some time.

14There was some discussion in sentencing submissions about the prospect of your deportation on your release from custody.  I accept that you have no visa for Australia and that absent a visa, you would be deported on your release.  Your counsel submitted that I should provide for a shorter than otherwise non-parole period to allow for your repatriation.  Your counsel submitted that I should take into account that you have been suffering some hardship in custody.  You have been in protection as a result of the nature of your offending.  You have been assaulted while in custody.  You have limited English and are separated from your family and friends.  You have had only two visitors in the lengthy period during which you have been in custody on remand.

15Panos Michaelides, rape is a very serious offence.  The maximum penalty of 25 years demonstrates the seriousness with which parliament, on behalf of the community, takes this type of offending.  Rape interferes with an individual's bodily integrity and threatens their physical security.  You were drunk.  You followed the victim after she had rebuffed you.  You followed her into her workplace and suddenly and violently sexually attacked her.  You persisted despite her clear physical resistance and desperate screaming.  You forcibly penetrated her.  You then ran away.

16Any woman should be able to walk through the city without fear of being followed and sexually attacked by a drunken male.  This offence must have been terrifying for the complainant.  The time over which the offending occurred was a few a minutes, but it must have seemed very much longer to her.  It clearly caused her physical harm, but the longstanding effect on her has been on her ability to feel secure.   Hearing of offences of this type also makes others, particularly women, feel fearful of something happening to them or their loved ones.

17I accept that this offending was not pre-planned.  It appears that you did decide on a spur of the moment to follow the complainant.  I am not able to say that you intended to sexually attack her prior to actually commencing that attack.  Your level of drunkenness may explain why you acted on your base impulses on this night, despite your previous good character.  You appear to have been motivated by a mixture of sexual urges and desire to exert some control of the complainant.  Whatever your precise motives were, this offending is an example of drunken sexual violence against a woman.  The courts must strongly denounce such behaviour and appropriately punish it.  A sentence must be imposed which is severe enough to deter others.  Clearly, a sentence of imprisonment is warranted for these sentencing purposes.

18I consider that specific deterrence need only be given slight weight in sentencing.  Your rehabilitation has commenced and your prospects for rehabilitation are good.  You have been in custody for a long period.  You have no prior criminal history.  You have generally been hardworking and successful.  You have experienced hardship in custody, especially because you are away from your home country.  I expect that you have already learnt your lesson.

19I have taken a number of matters into account in mitigation.  I should say that the fact that you voluntarily stopped your offending, which was of a relatively short duration, is not a matter of mitigation in these circumstances, but does render your offending less serious than it otherwise might have been.

20I have not taken the prospect of your deportation into account as a matter of mitigation, given that on your release, what appears will happen is you will be returned to your home country.  That seems to be a matter which seems to be positive rather than negative for you.

21I have taken into account in mitigation that you have pleaded guilty.  That plea has saved the trauma and expense of a trial.  I accept that that plea is also an expression of your remorse.  The value of your plea of guilty has been somewhat diminished by the fact that a contested committal took place.  I have taken into account in mitigation that you are suffering hardship in custody because you are in protection and because you have limited English and are away from your family and friends.  I have also taken into account in some mitigation the delay in this matter, although that mitigation is moderated.

22Your good prospects for rehabilitation and the hardships you face being in custody have been taken into account in setting the non-parole period.

23In sentencing you, I am required to take into account current sentencing practices for the offence of rape.  That requirement has meant that I have imposed a shorter sentence than I would otherwise have imposed for this serious example of rape.

24On Charge 1 of rape, you a convicted and sentenced to a term of imprisonment of four years and six months.  I fix three years as the period you are required to serve before being eligible for parole.  I declare that you have served 666 days of this sentence by way of pre-sentence detention to be deducted administratively.

25But for your plea of guilty, I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years.  I have made the orders for disposal that was sought.

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