Director of Public Prosecutions v Pagani (a pseudonym)

[2022] VCC 2013

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

COOPER PAGANI (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	8-12 August 2022, 15-17 August 2022, 2 November 2022
DATE OF SENTENCE:	16 November 2022
CASE MAY BE CITED AS:	DPP v Pagani (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 2013

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW SENTENCE

Catchwords:  Sentencing – incest

Legislation Cited: s 44(4) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991-guilty jury verdict

Cases Cited:  R v Boland [2007] VSCA 242; 17 VR 300

Sentence:Imprisonment, total effective sentence of 2 years. Wholly suspended for a period of two years from sentence date.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Danos	Ms. V. Kambouropoulos Office of Public Prosecutions
For the Accused	Mr S. Kelly	Ms Nisha Patel Stary, Norton, Halphen

HIS HONOUR:

1Cooper Pagani,[1] you have been convicted by a jury of six charges of incest, contrary to s44(4) of the Crimes Act 1958. Four of the charges,
Charges 1, 2, 3 and 5, relate to offences committed by you against your sister, Claire[2], between October 1997 and February 1999.  Two of the charges, Charges 8 and 10, relate to offences committed against your brother, Zachary[3], between March and September 1998.  At the relevant time you were 15 and

[1] A pseudonym

[2] A pseudonym

[3] A pseudonym

[4] A pseudonym

[5] A pseudonym

16 years of age.  You lived with your mother and father and brothers and sisters, firstly, in the western suburbs of Melbourne[4], then in regional Victoria[5], in the Ballarat district.

2In 1997, when you were 15 and your sister, Claire, was just 11 years old there was an occasion when she was in a bedroom of the family home in the western suburbs.  The room contained bunks.  Claire was lying on one of those when you entered the room and pulled her pants down, you removed your pants and climbed on top of her, thrusting your penis inside her vagina.  She experienced pain, pushed you away with her hand on your chest and made a noise because of the pain.  You pulled your pants up and left the room.  She went to the toilet and observed blood on the toilet paper after she wiped herself.  That is the basis of Charge 1, incest.

3After your family moved to regional Victoria in 1998, Claire was playing hide and seek with you.  She hid in the linen closet in the hallway of the house.  You went into the closet, pulled your pants down and then pushed your erect penis into her mouth and made her suck it.  You shortly after pulled your penis out of her mouth, pulled your pants back up and left the closet.  This is the basis of Charge 2, incest.

4On another occasion in the same year, you and Claire were again playing hide and seek, and Claire hid again in the closet.  You entered the closet, pulled your pants down and again made Claire suck your penis.  This time you ejaculated inside her mouth, pulled your pants up and left the closet.  She went to the bathroom and spat out what was in her mouth and washed it out.  This is the basis of Charge 3, incest.

5Later in 1998 or early in 1999 there was another game of hide and seek when you again located Claire in the closet and forced her to suck your penis again.  You stopped quickly after about 30 seconds.  That forms the basis of Charge 5, incest.

6Claire was unable to tell any member of her family what occurred for many years.  She told her ex-partner, Julie Armstrong[6], in about 2010.  Five years later she told her sister-in-law, Lisa[7], what had occurred.  Lisa is your brother, Zachary's, wife.  In September 2019, Zachary told Claire that you, 'Did it to me too'.  That is Zachary told Claire that you did it to him as well.

[6] A pseudonym

[7] A pseudonym

7Your offending against your brother, Zachary, occurred in 1998.  Zachary is younger than Claire but older than your little sister, Jessica[8].  He was eight in 1998.  He would play football with you, utilising rolled up socks in the hallway of the house in regional Victoria.  On one such occasion you were playing with Zachary in the hallway, near the bathroom door.  You, of course, were taller and heavier than he was.  You tackled him to the floor, pulled his pants down and pushed your penis into his anus.  He felt pain and went to call out but you put your hand over his mouth.  You got off him like nothing had happened and departed.  That is the basis of Charge 8, incest.

[8] A pseudonym

8There was a subsequent occasion in the same year where you again tackled Zachary after he had noticed your erect penis protruding from your clothing.  You put your penis in his mouth and he sucked it until you ejaculated in his mouth.  He pulled his head away and the ejaculate went on his face as well.  You had been pushing his head back and forward with your hands.  He was on his knees and you were standing up.  This conduct is the basis of Charge 10, incest.  Zachary was too ashamed to tell anybody what you did to him; he told his wife and then Claire in 2019 before going to the police.

9Zachary was bathing his two boys in the bath together in 2019.  One of his boys touched the other one on the penis and this triggered strong memories for Zachary.  He became upset and tempted to drive away and take his own life.  His wife grabbed the car keys and would not let him leave.  It was this incident that prompted Zachary to tell his wife what you had done to him.

10You denied all of these offences when interviewed by police.  Zachary and Claire were extensively and vigorously cross-examined by your counsel at your trial.  Each were accused of lying about these events.  You gave evidence denying each offence.  The jury's verdict demonstrates that the evidence of Claire in respect of these six charges of incest was accepted beyond reasonable doubt and that the jury rejected your evidence beyond reasonable doubt.

11Both Claire and Zachary read victim impact statements to the court,
Exhibits A and B.  Both have been permanently and deeply scarred by your crimes.  Claire has rejected any sexual relationship with males.  She describes you as a monster who destroyed her beyond repair.  She has been suicidal and depressed.  She needs medication to help her cope.  She said that you destroyed her childhood memories.  She becomes angry easily and loses control of her emotions.  She describes herself as a very damaged person.  She has become over protective and frightened about the welfare of her daughter.  She concludes in her victim impact statement:

'I hope that one day you will accept what you have done to me and take responsibility for your actions.  I want you to understand the pain and suffering that you've caused me all these years and imagine for just one second someone you love being in my position and how that would make you feel'.

12Zachary says that your crimes turned his world upside down.  He became scared and withdrawn, feeling unsafe and on edge.  His schooling was affected and he found himself putting on a brave face to stop people asking what was wrong.  He struggled with relationships, had trust issues, he was anxious and depressed.  He takes solace in his family, his wife and three children, but is concerned about his children being assaulted as well.  He suffers nightmares, has difficulty sleeping and says, 'I can forgive him for what he has done but I will never be able to forget it'.

13Your offending and your trial has polarised your family.  The lives of your victims have been shattered.  Victims of child sexual abuse struggle forever to deal with the pain and trauma caused to them.  An acknowledgment by you of your offending would have helped your victims to deal with their trauma.  You refuse to acknowledge what you did.

14You cannot admit to your extended family what you did as a child.  You are, as Zachary said, in denial.  You cannot bring yourself to admit to those who believe in you what you did to your brother and sister.  You will go on doing so because to admit the truth would destroy the faith people have in you.  I take the victim impact material into account in sentencing you.

15Your conduct and offending was abhorrent and disgusting.  However, you were a child yourself at the time you offended.  Your offences are now 23 to
25 years old.  You have not reoffended in the subsequent years.  In fact, you have demonstrated yourself to be a decent and hardworking man, a decent husband, and a decent father.  You have no criminal history and no subsequent offending.  You are now 40 years of age.  You have two children from your first marriage and one from your second.  You have a harmonious and cooperative relationship with your first wife and, as I said, are a good father to all your children.

16Your education history is set out in the submissions of your counsel.  You have been fully employed over the years and are now employed, as I understand it, in maintenance work[9].  You have been involved in community and sporting activities throughout your life, including football and basketball.  You have played and coached and served on various committees.  In short, in this time since your offending you have demonstrated yourself to be in all but one respect a model citizen.  Legally, your rehabilitation is complete.  The one issue of concern is your refusal to acknowledge your offending and the trauma you have exacerbated for Claire and Zachary by prolonging the legal process.  Ultimately, however, I accept Mr Steward's submission that the refusal to admit your guilt is not an aggravating feature but simply denies you the opportunity of receiving the sentencing benefit that is attached to remorse and contrition.  You fall to be sentenced as a 40-year-old man of subsequent good character and a man who has demonstrated total rehabilitation.  The character references tendered on your plea, of Exhibit 2, all attest to that character and rehabilitation.

[9] A pseudonym

17The Court of Appeal in this State has provided guidance on several occasions as to how a court should approach sentencing for aged sexual offences where the perpetrator was a child at the time of offending.  Had your crimes been detected at the time, your offending would have been dealt with in the
Children's Court and you would have been sentenced as a child.  The much-quoted passage from R vBoland[10], has application to your sentence.
Nettle J said at paragraph 16 of that decision:

Decisions of this Court in R v Nutter[11] and R v Better[12] recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending.  Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity.  Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.

[10][2007] VSCA 242; 17 VR 300

[11] Unreported, 8 November 1995 (Charles and Callaway, JJA and Vincent, AJA)

[12] [2003] VSCA 71 (Charles, Buchanan and Vincent, JJA)

18This approach has been applied in many of the subsequent authorities.
Mr Steward's submission was that the court should impose a suspended term of imprisonment for your offending.  Such a sentence would demonstrate the court's denunciation of your crimes but acknowledge your youth at the time.
Mr Danos for the prosecution supported Mr Steward's submission.

19The maximum penalty for each of your crimes is seven years' imprisonment.  Had you been three or four years older when you offended a substantial custodial sentence to be served immediately would have been imposed.  You deserve to be imprisoned for your dreadful offending against your little sister end your little brother.  I shall impose a term of imprisonment for each of your crimes, but because of your age at the time and your subsequent rehabilitation and demonstrated good character, suspend the term of imprisonment that I am about to impose.  Would you stand up, please?

20On each of the charges you are convicted and sentenced to be imprisoned for 12 months.  I order that the sentences imposed on Charges 1, 2, 3 and 5, the four charges of incest relating to Claire, be served concurrently.  I order that six months of each of the sentences imposed on Charges 8 and 10, the incest charges relating to Zachary, be served cumulatively upon the sentence imposed on Charge 1, which I declare to be the base sentence.  That is an effective term of imprisonment of two years.  I order that such terms of imprisonment be totally suspended for a period of two years from today's date.

21If you commit any offence punishable by imprisonment in the next two years you will be brought back before this court and barring exceptional circumstances being demonstrated you will go to gaol for two years.

22I do not propose to make an order for your registration under the
Sex Offender Registration Act.  Where the offence is committed by someone like yourself who was a child at the time, the making of such an order is discretionary.  I am not satisfied that you represent a risk to the community as you have demonstrated your good behaviour and good character over the last 25 years.  Because of that I do not propose to exercise my discretion and make an order.  That is, I am not making any order under the SORA registration.

23Are there any other orders required, Mr Danos?

24MR DANOS:  No, Your Honour.  The only other matter was I think it is
Boland not Boulton, Your Honour, in the - - -

25HIS HONOUR:  Did I mispronounce it, did I?

26MR DANOS:  I thought Your Honour said Boulton, not Boland.

27HIS HONOUR:  All right.  If I got it - if I - the edits will pick that up, thank you.  All right, you are free to go and you need to understand that for two years you have got to watch your step.

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