Director of Public Prosecutions v Miftode
[2015] VCC 686
•25 May 2015
| Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-12-01664
CR-12-01665
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL MIFTODE ROSS JURJ |
---
| JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 25 May 2015 |
| CASE MAY BE CITED AS: | DPP v Miftode |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 686 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Verkade | |
| For Accused Miftode | Mr A. Dickenson | |
| For Accused Jurj | Mr J. Valos |
HIS HONOUR:
1Ross Stefan Jurj and Daniel Miftode, you were convicted by jury verdict, on 24 March 2015, of serious sexual offences for which you now come to be sentenced.
2Ross Jurj, you are found guilty of five charges of rape. In relation to three of them, Counts two, four and five, as a principal offender and as for two of them, Counts one and three, as an aider and abettor.
3Daniel Miftode, you are found guilty of ten counts of rape. Three as an aider and abettor that is Counts two, four and five and seven as a principal offender, that is Counts one, three, six, seven, eight, nine and ten.
4Ross Jurj, you are also found guilty of the sexual penetration of a child under 16, which was Charge 12, on the indictment.
5I note that this matter has a particular chronology, which I should mention, because I take it into account from the point of view that you both have been involved in legal proceedings concerning these matters for a long time.
While it is true that your decision to contest the charges has had a long sequela of proceedings, which have required to be undertaken, due to your plea of not guilty, it is also valid to state and note that I do not, in any way, aggravate the sentence because of this choice. I do note that in your case the legal process has been more convoluted and longer than usual, which no doubt has impacted on you over the years. In the end, the sentence is not substantially or only slightly ameliorated by this factor. In my view it does call for the application of proportionality to the sentence passed upon you. Just as validly, it is to be noted that the passage of time would have been naturally impacting upon your victim.
7The offending was conducted on the 5 April 2009, with the initial complaint in July 2009. You were arrested and charged in December 2011 and the committal proceeded in May 2012 and then in August and September of that year.
8After final directions hearings in November 2012, the first trial, 16 days in duration, resulted in a hung jury after six days of deliberations.
9In July 2013, a second trial of fifteen days' duration resulted in a jury discharged. Not because the jury was unable to reach a verdict, but for other reasons.
10A third trial was listed in September 2013 with two juries discharged on the first day and a third jury discharged on the second day again. Not because of an inability to reach a verdict but other technical issues.
11The fourth trial before me proceeded to verdict from 10 March 2015 to 24 March.
12The circumstances of the offending may be briefly stated and they are contained in the trial opening which will be retained in the court file.
13Ross Jurj, you were 23 and with Daniel Miftode, who was 20, you offered the victim, to whom I shall refer to as J for purposes of anonymity, a lift from Dandenong station. The victim was intoxicated to some extent, was worried about going home to face her parents and had been at a party at which she felt excluded and out of place, prompting her to leave. She was 14 at the time.
14You first drove her to a coffee shop nearby and bought her a soft drink. You then left with her and eventually Jurj, you drove to the factory in Hallam, where Miftode worked, and where he lived.
15You and Miftode had keys to the factory. You went upstairs where there was a couch and a mattress. On the couch you, Jurj, orally penetrated J. This was Charge 12.This act was found by the jury to not be a rape and I must consider it more likely than not to be consensual in the circumstances.
16Miftode, then you asked her to come sit with you on the mattress and she fell asleep. She woke to her being undressed and held down by both of you. You each reassured her again, as you had done before, that she would be safe. You added that she could scream all she wanted because no one would hear anyway.
17You, Miftode, asked Jurj whether he “ wanted to go first." You then raped her. It was clear from the expressions of the victim and the descriptions given, that both of you clearly understood what was to take place and you assisted each other in that purpose.
18After Miftode, you Jurj, proceeded to rape J. The victim told both of you to get off her repeatedly. She did not want this to take place and did not want to be touched by you and to be left alone. You commented that she had been so friendly, that she should not be arguing.
19Jurj, you then slapped her face with your penis before raping her orally. While this was happening, you, Miftode, raped J anally. Jurj, you then ejaculated into her mouth and digitally penetrated her vagina. Another count of rape.
20J was, by this stage, crying uncontrollably. You Jurj, then left, leaving you, Miftode, with the complainant, who asked to be let go and driven back to Dandenong.
21You again took off her clothes and raped her again on the mattress. You then raped her orally. When you were finished, you slept next to J, who cried herself to sleep.
22She then woke, to find you again raping her on the mattress. You then orally penetrated her until you ejaculated. She continued to ask you to leave her alone. You took her forcefully to the shower where you again raped her. She was crying and vomited. You gave her a towel and took her back upstairs to the mattress. She cried herself to sleep and the following morning you agreed to drop her off at Dandenong Plaza, which you did.
23In my view, this is serious offending. The rapes were perpetrated effectively in company, as to five of them; one, two, three, four and five. The victim was a child for all intents and purposes. She was confused, affected by alcohol and in my view, vulnerable in the circumstances in which she found herself.
24The events lasted the entire night with multiple instances of protracted penetrations persistent in the face of her pleading with you to stop. Both of you played an active role, not just at the instances in which you were the principal offender, but as an aider and abettor of the other.
25You cooperated and assisted and leant support, agreement and encouragement in this vile course of conduct which included, oral, anal and vaginal sex, as well as an instant of multiple penetration of the victim.
26In my view, this behaviour disregarded the most fundamental rights of this child complainant and rendered her an object for sexual gratification in a way which was in effect, a subjugation which debased the victim in fundamental ways.
27The traumatic impact of this offending upon her was able to be gleaned with clarity and without hesitation from her powerful victim impact statement which was tendered and which I take into account. I have read it carefully and it reflects in some detail the trauma suffered by her at your hands and the repercussions, which so often remain and persist in the lives of those who are abused and mistreated in this way.
28She has outlined the trauma of the legal process, the effect on her education, the impact on her social life, her confidence and outlook, the negative effect on family life and relationships, the physical and psychological impact which affects nutrition, sleep, nightmares, motivation, self-worth and self-respect. She has experienced ongoing issues with depression, loss of family and friendships, health, trust and is left with significant and psychologically traumatic scars from this experience.
29I take into account also the victim impact statement of the parents of J, who wrote of the effect which your crime has had on them and their lives. You should understand that the impact of what was for you, an act of self-gratification, has come at the expense of a family, which has been left traumatised and scarred. It has changed their lives as much as it will change yours.
30Rape carries a maximum prison term of 25 years and sexual penetration of a child under 16, ten years. By these maxima the law indicates and recognises the serious nature of this type of offending. In my view, this offending is a serious instance of the crime of rape and sexual penetration of a child under 16.
31I wish to make it clear that I do not intend for there to be any measure of double punishment in the sentence. In the sense that I will sentence on each charge discreetly and not punish doubly by using the circumstances of aiding and abetting the other as an aggravating feature.
32Clearly, general deterrence must be a primary consideration in the sentence. In the circumstances, the victim and the community looks to the court to denounce and punish appropriately such appalling behaviour.
33Those who are minded to deal in this fashion, with other vulnerable people, for their own base interests, must know that the law will seek to redress this criminal conduct, exact stern punishment and retribution and seek to discourage such conduct in no uncertain terms. I take into account your personal circumstances as related to each of you in turn.
34Ross Jurj, you grew up in Croydon. Your father was a fitter and your mother did part time work. Your family moved back to Berwick when you were 18. You had a normal childhood and there were no problems in your family related to violence, alcohol, or abuse. You married at age 18 but after two years you separated.
35You had left school at age 13 or 14 to pursue a career in football. You went to play for various clubs and academies. You had part time work on various jobs. You re-partnered and had a two year de-facto relationship which gave you a son, who is aged five, to whom you have regular access.
36In 2007 your brother passed away by suicide after suffering from depression. Before that your life was reasonably settled in your family and in the relationship with your son’s mother. This relationship broke down after your brother's death.
37You dated a woman, then you were involved in some violence in relation to another woman you were seeing. You were convicted and gaoled for a year. That offence post-dates the 2009 offences against J by some three years, in 2012, and I was properly informed about them. You ceased playing soccer after your brother's death. You began to use drugs, steroids and ice. You probably suffered a post-traumatic stress disorder in relation to your grief reaction.
38Although your sentence on the domestic violence charges was decreased on appeal to 12 months with a minimum of six months, you were not paroled because of the present charges. You were released in November 2013 and have lived at home with your parents, since that time. You have ceased using drugs. You obtained full time employment until the March trial this year and have undertaken anger management and counselling through the Salvation Army.
39These later matters, together with ongoing family support and the presence of your son in your life, are positive indicators that your prospects of rehabilitation are probably good. I will take these matters, as well as the time you did not have access to parole after the non-parole period was served, into account.
40It was submitted, as to the circumstances of the offending, that clearly your involvement was shorter in time than Miftode. I accept this although the impact of the sentence of this factor is slight.
41It was put that there was no evidence of threats or violence. In my view, rape is a violent crime. The circumstances carry their own inherent threat. It is true, there were no objects or weapons. But this is merely a lack of an aggravating feature.
42There was no evidence of premeditation and in the circumstances I would agree the offending appears spontaneous.
43I accept that the fifth and sixth limbs of Verdins apply in your case because of your disorder, which relates to your grief and which may mean that incarceration may weigh more heavily on you than on a person of normal health and may affect your mental progress adversely. Both of these factors, I take into account in mitigation.
44I agree that there should be a large degree of concurrency between the charges because they form a course of conduct, but each charge does reflect the separate and distinct act which ought, in my view, carry some measure of cumulation.
45I take into account the material which was tendered on your behalf. A report dated 7 March, from Professor Darrenstein was tendered. The professor is a specialist psychiatrist with an impressive list of qualifications. Apart from your background she outlined your drug history, particularly after your brother's death.
46She was given an outline of the matters leading up to this traumatic event and your involvement with these events and their sequela. She had described your self-medication and eventual decision to seek counselling.
47You have developed a persistent complex bereavement response complicated by post-traumatic stress disorder. You did develop dependency and experienced paranoid psychosis and these are in remission. These findings support the submission made regarding the application of the relevant Verdins principles.
48I take also into account references tendered from your mother which outlines the difficulties you have experienced as a result of the trauma you have endured. I also take into account the reference from Daniella Guida, a friend of your parents who has known you for ten years. She speaks of the positive charges and steps you have taken recently.
49I have noted the anger management course certificate from the Positive Lifestyle counselling service and noted the reference from the HR administrator for The Lucas Group, which refers to your employment between June 2014 and March 2015.
50I have noted also your prior history from 2007, which has involved primarily the use of motor vehicles and the violence offence outlined above. Together with a summary of that last matter, which involved a significant violence to a woman.
51Finally, I received a very full report from Mr Michael Crewdson, an experienced clinical and forensic psychologist.
52Although there were no indicators of major psychological illness, it is clear you suffer anxiety and fear for your future, which compounds your post-traumatic stress disorder.
53Mr Crewdson’s comprehensive report covers all aspects of your presentation, which he found disturbing in his clinical examination and noted your acute stress disorder and significant depression. Of concern is the little insight developed into your behaviour. He opines that lack of access to your son may be an additional area of difficulty for you and I take that potential into account. I note, Mr Crewdson's recommendations as to future assistance.
54Daniel Miftode, you were 20 at the time of the commission of the offences. You are now 26. You have subsequent offences which have been properly brought to the attention of the Court.
55In 2009 you had a prior for trafficking cannabis and dealing with proceeds of crime, for which you were fined. In 2012 you trafficked ecstasy, for which you received, on appeal, a six months sentence suspended for 12 months. In 2014 you were fined for resisting and assaulting police.
56There is no history of sexual crimes but your subsequent matters show some disregard for lawful behaviour and go to the assessment of your prospects for rehabilitation.
57You were born in Western Australia to a large family which was supportive and close-knit. Your childhood was free of abuse or conflict. You were 15 when the family moved to Pakenham in Victoria. You completed Year 11 but you felt the move was disruptive of your lifestyle, friendship and studies.
58You obtained factory work and you gained some skills in steel fabrication and boiler making. You qualified for rigging and crane work, but have not worked since being charged over these matter.
59You have used drugs and alcohol over the last six years. You have been addicted to ice, without any form of rehabilitation and treatment. You have been on remand since 24 March and there you have received visits from your partner and child.
60A report was tendered, from Ian Mackinnon, a psychologist. In his opinion, you demonstrated symptoms consisting with depressed mood disorder and poly-substance dependence disorder.
61Your functional intelligence is normal. Your depression and substance abuse are related, in his opinion, to the last six years, which he opines you will be able to put behind you. In my view, in agreement with Mr Mackinnon, your prospects for rehabilitation appear to be good.
62I take into account in determining an appropriate sentence the fact that you were a youthful offender at the time of the offences. This, in my view, must go some extent to mitigate the sentence. I am also cognisant of the need for a measure of relative parity in order not to engender any real sense of grievances between the two of you.
63I take into account the other three references tendered, particularly that of your partner, who has been with you for nearly three years and is the mother of your 22 month old son. She is expecting your second child in October 2015.
64It was submitted that there has been a realisation in you of the impact of these proceedings on your life and on your past behaviour. It was submitted that sentencing needs could be met, in your case, by a term of imprisonment and a community corrections order.
65In my view, having considered such an order which includes other options beyond prison, this disposition is not appropriate because of the seriousness of the offending and the principles of general deterrence and denunciation and punishment which must be applied.
66In relation to you, Ross Jurj I note, in the records of the court, that you have served days of pre-sentence detention. Is that number agreed?
67MS VERKADE: 62 days, Your Honour.
68HIS HONOUR: I note 62 days served by way of pre-sentence detention. What is the number for Mr Miftode?
69MS VERKADE: The same, Your Honour.
70HIS HONOUR: Yes. The same number will be recorded in relation to Daniel Miftode as days of pre-sentence detention.
71Because of the number of counts, the serious sexual offender provisions come into operation. As for you Mr. Jurj, as of Counts three, four, five and 12, given the sentences on one and two and for you, Mr.Miftode, on Charges three to ten, inclusive with imprisonment being imposed on one and two, the protection of the community is the principal purpose and cumulation becomes operative unless otherwise directed by me.
72The finding of guilt also brings into operation the registration of both of you as sex offenders, for 15 years, as a mandatory registration. That registration is not part of my sentence but will carry with it significant obligations for those years.
73Further, in relation to Jurj, there will need to be an order, which I will sign, in relation to the obtaining of a biological sample from you, for placement on a DNA database.
74I should inform you that, if at the time of the forensic procedure for the taking of a scraping from the mouth you do not consent to that process, then a member of the police force can take a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand?
75Ross Jurj, in relation to Charges two, four and five, in which you are the principal offender of rape, you are convicted and sentenced to four years' on each charge. On Charges one and three, where you are said to have aided and abetted, you are convicted and charged to two years' imprisonment. On the Charge 12 of sexual penetration, you are convicted and sentenced to three years' imprisonment.
76I order that Charge two be the base sentence and that four months' on Charges four and five and three months' on Charges one, three and 12, be cumulative, making a total effective sentence of five years and five months'.
77I order a non-parole period of three years and seven months'. Take a seat.
78Daniel Miftode, on the charges of rape, one, three, six, seven, eight, nine and ten, you are convicted and sentenced to four years' imprisonment on each. I order that six months' of the three, six, seven, eight, nine and ten be cumulative upon that four years' on Charge one, making a total of six years'.
79
You are sentenced to two years' each on the aiding and abetting,
Charges two, four and five. I order that three months' on each of those charges be cumulative on that sentence, making a total effective sentence of six years and nine months'.
80I order a non-parole period of four years and three months'. Take a seat.
81I repeat that the registration, which is mandatory under the circumstances, will be for fifteen years'.
82I have to sign the 464 order in relation to Mr Jurj, are there any other ancillary orders?
83MS VERKADE: No, Your Honour.
84HIS HONOUR: Yes, well you may remove Mr Miftode and Mr Jurj, thanks.
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