Director of Public Prosecutions v Monteloyola (a pseudonym)
[2018] VCC 1332
•22 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARRISON CARLO MONTELOYOLA (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 August 2018 |
| DATE OF SENTENCE: | 22 August 2018 |
| CASE MAY BE CITED AS: | DPP v Monteloyola (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1332 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – three charges of indecent act with a child under the age of 16 – single complainant – granddaughter of the accused – no prior convictions – serious sexual offender
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2005
Cases Cited:
Sentence:Total effective sentence of two years and nine months’ imprisonment, 21 months suspended for 21 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Batten | Office of Public Prosecutions |
| For the Accused | Ms M. O'Brien (Plea) Ms S. Condon (Sentence) | Stary Norton Halphen |
HIS HONOUR:
1Harrison Carlo Monteloyola,[1] you have pleaded guilty to three charges of indecent act with a child under the age of 16 years. The maximum penalty for this offence is a term of imprisonment of ten years.
[1] ‘Harrison Carlo Monteloyola’ is a pseudonym.
2The circumstances of your offending are as follows.
3You are the maternal grandfather of your victim who was born in mid 1998. Your offending against her took place between August 2006 and August 2008. During the offending, your victim lived with her parents (your daughter Liza[2] and her husband) and two siblings at their family home in Melbourne’s western suburbs. You at that time were living nearby with another daughter and her family in the same suburb. You were in frequent, if not daily, contact with Liza and her children. The offending occurred either at your victim’s home or at your home when you were looking after the victim and other grandchildren.
[2] ‘Liza’ is a pseudonym.
4The three charged incidents occurred when your victim was aged between the age of eight and nine years. Charge 1 occurred when your victim was at your home. Your victim recalls being asleep in bed, having an afternoon nap, when you entered the bedroom and took off the blanket under which she was sleeping. Your victim pretended to be asleep. She was able to observe that you moved her to the edge of the bed, lowered her underwear and then you lowered yours. You rubbed your penis against her vagina and then pulled your victims underwear back up, placing her back in the position where you had found her. You then left the room.
5Charge 2 was another occasion when you were looking after your victim in her own home. She was again having an afternoon sleep. You entered the room, took the blankets off your victim, removed her underwear and then yours. On this occasion, the victim pulled her underwear back up but you moved her underwear to the side, thereby exposing her vagina. You rubbed your penis against her vagina. She tried to push you away and pull her underwear back while still pretending to be asleep. This prompted you to stop, place her clothes and blanket back in position and leave the room.
6Charge 3 occurred when your victim was about the same age and again at home with you looking after her. The victim and her brother were watching television in the living room when you asked her to go with you into the bedroom where you sometimes stayed overnight. Once in the bedroom, you pulled your victims underwear down to her mid-thigh area, lowered your own pants and then lifted the victim off the ground, holding and rubbing your penis against her vagina. The victim told you to stop but you did not. She struggled to get out of your grasp, got on the floor, pulled her pants back up and ran into the living room where her brother was sitting. She then sat near her brother on one of the couches. You followed your victim into the lounge room, sat next to her on the couch and under the cover of a strategically placed pillow, pulled your pants down sufficiently to exposure your penis. You then tried to touch your victim's vagina with your penis. This last attempt is not the subject of any charge but merely explains the full context in which Charge 3 occurred.
7It seems that eight or nine years later in January 2017, the victim told a friend about being abused by a family member. She then disclosed the same matter to her parents and in due course the police were informed. On 10 January 2017, you voluntarily attended at Melton police station in the company of your daughter Connie[3], having heard through the family that a report to the police had been made in respect of your conduct towards your granddaughter. You told police that you did not remember what had happened but that you believed what your victim had said as she was not a liar.
[3] ‘Connie’ is a pseudonym.
8On 3 March 2017, the victim contacted you by telephone. In that recorded telephone conversation, you asked for her forgiveness. You were later formally interviewed by police with the assistance of an interpreter. In that interview you were perhaps equivocal. As your counsel, Ms O'Brien made clear on the plea, you at no time have sought to derogate from the plea that you had entered.
9I turn now to deal with your personal circumstances.
10Your counsel, Ms O'Brien described you as a relatively simple man and her task being a relatively simple plea. You have no prior or subsequent convictions. You were born in 1947 and are now 71 years of age, and were 61 or so at the time of this offending. You were raised in a lumber yard on the island of Luzon in the Philippines; your family was poor and you were educated only to primary school level.
11In 1964 you married your wife, she being a year older than you. You had seven children, one son and six daughters, one of whom tragically died in an accident in 1978. Given the state of the economy in the Philippines, you supported your family by working overseas in Saudi Arabia as a crane operator. You lived that hard life, enduring a status as a second, if not third class citizen in that country until 1994 when you returned to the Philippines upon the graduation of your final child. I am told your son remains in the Philippines but you, your wife and your five remaining daughters have over time emigrated to Australia and settled in Melbourne’s western suburbs. Since your arrival in Australia your family has grown. You now have 20 grandchildren aged between the ages of 12 and 20 and I was told that your first great-grandchild has recently arrived.
12You have had countless health problems over the years, including suffering a work-related head injury, cancer of the colon, which was successfully treated and in respect of which you are in remission, significant surgery, chronic ischaemic heart disease, disease of your coronary arteries (you had a heart attack at the end of 2017) and you also suffer from panic attacks. You also twice attempted suicide since these allegations emerged. On both of the occasions, you took overdoses of your prescribed medication. I am told that your wife is also in bad health.
13Tendered on the plea was a report from Dr Aaron Cunningham, forensic psychologist dated 8 August 2018 (Exhibit 3AC). I have had regard to the content of that report. I also note that it did not assess your future risk of offending, nor did it explore the reasons for the index offending.
14Mr Batten, on behalf of the prosecution, correctly identified that whilst it was not possible to identify over what precise period your offending had occurred, nonetheless it comprised three separate occasions of offending. This was not one isolated incident. He further submitted that Charge 3 should be viewed as the most serious incident of your offending. I agree.
15In assessing the objective gravity of the offending, Mr Batten submitted that I should have regard to the age disparity between you and your victim, which was around 51 years, and to the gross breach of trust that your offending represented.
16He submitted that general deterrence and denunciation of your conduct were the primary sentencing purposes in the case of your offending.
17I agree with all of those submissions.
18Mr Batten submitted that upon the Director's instructions, a partially suspended sentence was within the range of my sentencing discretion.
19Ms O'Brien, your counsel, conceded in her straightforward and helpful submissions that this was serious offending and that you accepted that a term of imprisonment must be imposed.
20Ms O'Brien, on your behalf, made clear that from the earliest days of this investigation you indicated to the police that you were pleading guilty. I was told there was a family meeting that was called as soon as the family became aware that allegations had been made. All of your children, save for Liza, the mother of your victim, attended that family meeting. The meeting took place before you attended at the local police station.
21Ms O'Brien submits, correctly, that your plea, which the prosecution accept was entered at the earliest opportunity, should be viewed not only as a willingness on your part to assist the due administration of justice, saving the community the time and expense and trauma of a trial but also as a sure indication of the remorse that you feel for your offending. I accept that submission.
22Ms O'Brien made clear that you are not now attempting in any way to minimise your offending. I make clear that despite your equivocal admissions in that record of interview, I cannot find any deliberate attempt on your part to minimise your offending but rather characterise you as someone who is struggling to come to terms with that which they have done.
23Ms O'Brien also submitted that the pre-text conversation revealed a close relationship with your granddaughter. That is true and sadly can be seen as an indication of how gross a breach of trust your offending in fact was.
24As no risk assessment have been placed in front of the court, I am given no further assistance as to what precisely drove your offending, apart from some form of deviant sexual desire. Almost certainly your offending was driven by some such desire but I am given no assistance as to what may behind it. However, as your counsel, Ms O'Brien pointed out, your offending is now known to all of your family. Four out of your five daughters were in court during the plea and upon your eventual release from custody, you will be returned to your family and I am sure not again permitted to look after your grandchildren unaccompanied. In light of those protective factors and your ill health, I assess the prospects of your reoffending as low. You are unlikely to appear before the courts again.
25Mr Monteloyola, you were believed to be a loving and caring head of the family. You were “Lolo” (“Granddad”) to all of your grandchildren and as such your daughters regularly placed their children in the care of Lolo. Your victim was your own grandchild who was at all times in your care. She had a right to expect that you discharged that duty of care. Instead you defiled her and grossly breached the trust that had been placed in you by your own family, the trust that had been placed in you by your granddaughter and the trust that had been placed in you by the precepts of common humanity. Given the age of your granddaughter at the time of this offending, I am not able to make any firm assessment as to the period over which the offending took place. You have pleaded guilty, however, to three discrete offences, separate in time from each other.
26Mr Monteloyola, any offending against children is regarded by the court with the utmost gravity. As a society, we are beginning to understand the impact of sexual offending against children, and the story of survivors of sexual offending that we hear consists in a lifelong sense of not belonging, a lifelong sense of low self-esteem, and a life-long inability to construct meaningful relationships, a life-long inability to accept that they are loved and can be loved. We hear stories of lives marked by substance abuse issues, of thoughts of suicide. In short, we hear of lives that have not been lived to the potential that was there in them before the offending. So these are the personal narratives of many survivors of child sexual abuse of which the court and indeed of which society at large are becoming more and more aware. The impact of such offending can be lifelong. It is because courts understand the impact of such offending, that those who are found guilty can expect to be dealt with severely.
27Your granddaughter was given the opportunity to provide a victim impact statement but did not do so. However, there is always a presumption of harm in relation to sexual offending against children.
28The purposes of general deterrence must be addressed. You must be deterred from any repeat of such behaviour and the courts must express the community's denunciation of such conduct. It is the view of this court that such crimes against children are in effect crimes against our future and are as such crimes against our common humanity. They besmirch and tarnish the humanity of all of us and a society that will not protect its children is quite simply a society that has failed. Those are the precepts and principles that underpin the necessity of courts to deal severely with those who come before them convicted of such offending.
29Mr Monteloyola, the basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, that is to say, the degree to which you are responsible for your actions and the consequences, your personal circumstances and those of the victim if they are ascertained.
30I am required to balance the interest of the community in denouncing such criminal conduct with the interest of the community in seeking to ensure, as far as possible, that an offender such as you is rehabilitated, reintegrated into society. I must express my denunciation of the behaviour.
31In my view, the principle of general deterrence, that is sending a message to the world at large, that those who offend against children will be severely punished, and denunciation of your conduct, are the primary sentencing purposes in the case of your offending. I do not believe that you will trouble the criminal courts again and so I regard the need for specific deterrence to be greatly reduced, if not entirely eliminated.
32In sentencing you, I have regard to all of the matters urged upon me by your learned counsel, Ms O'Brien. For the avoidance of doubt, I have taken into consideration –
(i)Your early plea;
(ii)The genuine remorse that I find that you express;
(iii)Your age;
(iv)Your prior good character;
(v)My assessments of your prospects for rehabilitation;
(vi)The fact that this will be the first time that you will be in prison; and
(vii)Your various physical ailments.
33Nonetheless, Mr Monteloyola, this offending is so serious that it can only be met by a term of imprisonment.
34On Charge 1, indecent act with a child under the age of 16, I sentence you to a term of imprisonment of 21 months.
35On Charge 2, indecent act with a child under the age of 16, I sentence you to a term of imprisonment of 21 months.
36On Charge 3, indecent act with a child under the age of 16, I sentence you to a term of imprisonment of 27 months.
37On Charge 3, you are sentenced as a serious sexual offender pursuant to s.6 of the Sentencing Act 1991 and pursuant to s.6F of that Act, I direct that this be entered into the records of the court.
38I note that the prosecution did not seek any longer than commensurate sentence.
39I order that three months of the term of imprisonment on Charge 1 and three months of the term of imprisonment on Charge 2 should run cumulative to each other and cumulative to the sentence on Charge 3. This makes a total effective sentence of two years and nine months.
40I order that 21 months of the total effective sentence should be suspended for a period of 21 months.
41Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty, you would have been sentenced to a total effective sentence of three years and nine months with a non-parole period of two years.
42Pursuant to s.34 of the Sex Offenders Registration Act, you are now a registrable offender for the remainder of your life. You must comply with the reporting obligations under Part 3 of the Sex Offenders Registration Act for the rest of your life and there is no discretion there.
43I order that a forensic sample be taken pursuant to s.464ZF(2) of the Crimes Act 1958. I am obliged to tell you that I have made an order allowing the police to take a forensic sample from you, usually done by means of a buccal swab, a scraping of the mouth. I have to tell you that if you refuse to cooperate then they are entitled to use such force as is reasonably necessary so that the sample can be taken.
44I note, in terms of the custody management issues, Mr Monteloyola’s current ailments, his necessity for regular medication and two significant medical appointments on 27 August 2018 and 17 September 2018. I also note his limited understanding of English and that he will require an interpreter for any discussions relating to his physical health.
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