Director of Public Prosecutions v Papandoniou
[2015] VCC 1556
•29 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01465
Indictment E11286914.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HERCULES PAPANDONIOU |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 29 October 2015 | |
CASE MAY BE CITED AS: | DPP v Papandoniou | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1556 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Margaronis | |
| For the Accused | Ms C. Hollingworth |
HER HONOUR:
1 Hercules Papandoniou, you have been found guilty by way of jury verdict on three charges of indecent act with a child under the age of 16 (Charges 1, 2 and 4) and three charges of sexual penetration with a child under the age of 16 (Charges 3, 5 and 6). In respect of the sexual penetration charges the jury found an aggravating circumstance proved in that the complainant was under the age of 12 at the time of your offending.
2 You were found not guilty by the jury on two further charges of sexual penetration.
3 The maximum penalty in respect of Charges 1, 2 and 4 is ten years’ imprisonment. The maximum penalty in respect of Charges 3, 5 and 6 in view of the aggravating circumstance is 25 years’ imprisonment.
4 The prosecution sought an order for the disposal of a phone seized. The making of that order was consented to.
5 If a sentence of imprisonment is imposed in relation to Charges 1 and 2 you fall to be sentenced as a serious sexual offender in respect of Charges 3, 4, 5 and 6. In determining the length of the sentence of imprisonment to be imposed in respect of a serious sexual offender the court must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed pursuant to s.6D of the Sentencing Act 1991. The court may impose a disproportionate sentence for that purpose. In this case the prosecution did not seek a disproportionate sentence for that purpose.
6 In addition, pursuant to s.6E of the Sentencing Act 1991, every term of imprisonment imposed by a court on a serious sexual offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on other sentences of imprisonment imposed on that offender.
7 Your offending occurred between 5 May 2013 and 11 April 2014. At that time you were between 64 and 65 years old. The victim in this matter, whom I will call Lucy, was between six and seven years old at the time. Lucy, her younger sister and her parents were living with you for a period of time renting some rooms from you. This arrangement occurred because Lucy’s family had recently immigrated from Greece and Lucy’s father met you through relations in Australia.
8 While they were living in your house, Lucy’s parents had a regular cleaning job on Sunday afternoons. On many occasions when they went to that job they took their younger daughter with them but left Lucy in your care. On one such occasion you showed Lucy pornography on your phone. This pornography included moving images of naked men and women and women having oral sex with men (Charge 1).
9 On another occasion when you were looking after Lucy you were in your bedroom. You removed your pants, exposed your penis and put Lucy’s hand on your penis. Lucy asked what you were doing and you said you wanted her hand to be on your penis. Lucy said she wanted to go and watch television but you said that she could after you had finished (Charge 2).
10 Charge 3 of sexual penetration of a child under 16 and Charge 4 of indecent act with a child under 16 arise from another occasion where you and Lucy were in your bed. You penetrated Lucy’s anus with your finger. She did not like it and told you to stop. After you had penetrated her anus with your finger, you put your penis on her vagina. After this incident Lucy put cream on her bottom because it hurt.
11 Charges 5 and 6 arise from another occasion. You put your penis in Lucy’s mouth. You showed her images of what she described as a “Girl eating penis” and told her to “Eat it”. She said she did a little bit. You asked her to do it more but she said she could not. On that same occasion you penetrated her anus with your finger. Lucy said she could not tell you to stop because she was “eating” your penis.
12 Your offending was disclosed by Lucy when she was told that the family would be moving to another house.
13 You were arrested on 12 April 2014. Various items were seized and your phone was found to contain adult pornography including images of oral penetration between adult men and women. The evidence was that you had been having a sexual relationship with Lucy’s mother and Lucy’s mother had downloaded pornography onto your phone. It was Lucy’s evidence that at some stage you had told her that her father would smack her if she told her father what was happening.
14 In her Victim Impact Statement Lucy says that she did not sleep well and would sometimes think about what would have happened. She said it feels bad when she thinks about it. She said that talking to the police and to the counsellor was hard. She says that she feels safe now and will be okay in the future. Lucy’s mother in her Victim Impact Statement describes the shock she felt on hearing what had happened with Lucy. She says she is extremely anxious and worried about Lucy. Lucy's father in his Victim Impact Statement describes his grief about what has happened and his determination to support his daughter.
15 In sentencing you I have taken into account your personal circumstances. You are now 67 years old. You were born and raised in Greece. Your family was very poor. Your father was a farmer. You have brothers and a sister still living in Greece. You finished primary school in Greece and then worked in farm work, labouring and factory work. You did military service when you were 19-years-old.
16 You came to Australia when you were 22 with a woman you knew in Greece who had relatives in Australia. You married that year and since then you have been very hardworking. You have worked in various factories and on the railways. On occasions you have worked multiple jobs. You continued to work hard and were able to buy two houses. Your first marriage broke up in 1985, by which time you had two daughters. You lost contact with your daughters but continued to financially support them.
17 You met another lady on holiday in Greece whom you married in about 1991. You came back to Australia with her and your son. That relationship broke down and your second wife returned to live in Greece in around 2001. You sold the second house you had bought and bought the house in Werribee where the complainant’s family came to live with you.
18 You have no prior criminal history and no subsequent criminal history.
19 In sentencing submissions your counsel accepted that your offending was very serious and constituted a breach of trust in respect of a very young victim. Your counsel submitted that it should be taken into account that you had no prior criminal history, which was particularly significant given your age, and that your first time in custody would be particularly difficult for you at 67 years of age. Your counsel said that you have pain in your back and your leg, consistent with your age, for which you take Panadol. You have made appointments apparently in custody to have those matters attended to. Your counsel submitted that imprisonment would be more burdensome for you because of those matters than for the average person.
20 Your counsel accepted that if you were sentenced to a term of imprisonment on Charges 1 and 2 you would be sentenced as a serious sexual offender in respect of the remaining charges. Your counsel submitted that totality should have a role to play in sentencing you on the charges on which you were sentenced as a serious sexual offender and that there should be substantial concurrency. Your counsel submitted it should be taken into account in respect of Charges 3 and 4 that they were part of one incident and in respect of Charges 5 and 6 that they were part of one incident.
21 In respect of your prospects of rehabilitation, your counsel said that this was a complicated issue given that you had pleaded not guilty and there was no explanation for your offending or basis for understanding your offending. Your counsel submitted that the offending had occurred in a “dynamic” situation which might never occur again and that the court could not say that your prospects of rehabilitation were extinguished. Your counsel said that on the basis of your previous hard work you still had the capacity to be a decent contributing member of the community.
22 Your counsel submitted that a shorter than otherwise non-parole period might be appropriate because of your age, the burdensome nature of prison and your previous good character.
23 The prosecutor in sentencing submissions submitted that the seriousness of your offending, including the age disparity and gross breach of trust, should be taken into account.
24 The prosecutor made reference to aspects of grooming in this matter. Based on the evidence given during the trial, it was clear that this offending occurred over a period of time but that you had a generally affectionate relationship with the complainant and her younger sister which involved a number of play or social activities with both of them or with the complainant alone. On the basis of the evidence I could not conclude that you engaged in these activities or interactions with the complainant in order to groom her for sexually offending against her. The showing of pornographic material to her did have an aspect of grooming to it in that I am satisfied beyond reasonable doubt that you showed her images of what you were encouraging her to do with you in respect to oral sex. I do accept that your offending was not just opportunistic.
25 Hercules Papandoniou, your offending is a serious example of a very serious type of offending. Your offending was part of a course of conduct and occurred on a number of different occasions over a period of about seven months. Your offending constituted a gross breach of trust in respect of Lucy and her parents. You were living in the same house and had an affectionate relationship with the family. You took advantage of Lucy’s parents’ trust in you to look after their very young daughter. You were a very much older man who took terrible advantage of Lucy’s youth, innocence and trust in you. You showed her pornographic material and tried to get her to do the same thing. You sexually abused her for your own sexual gratification and told her she would be punished if she told anyone. Your moral culpability is very high. This sort of offending causes immediate and ongoing harm to the victims and great alarm within the community generally. At this stage, Lucy and her family appear to have been deeply affected but have shown considerable resilience. It is to be hoped this will continue into the future.
26 Your offending must be strongly denounced. You deserve significant punishment for what you did. It is to be hoped that the prospect of such punishment will help to deter others from giving way to any thoughts of sexual activity with children.
27 You continue to deny your crimes and have shown no remorse. Given your lack of prior criminal history, I consider that you are unlikely to seek out children to offend against but that you remain a risk of reoffending if you have the opportunity to have regular close contact with a female child. In the absence of any psychological information I consider that specific deterrence must also be given substantial weight in sentencing you. It is to be hoped that a significant sentence will deter you from further offending.
28 Imprisonment is clearly warranted for the purposes of denunciation, just punishment, general deterrence and specific deterrence. You will sentenced to a term of imprisonment in respect to Charges 1 and 2. Community protection is a principal sentencing consideration. I do not consider that a disproportionate sentence is required in order to achieve community protection.
29 The sentences on Charges 3, 4, 5 and 6 must be served cumulatively unless otherwise ordered. I consider that total cumulation would result in a sentence which would offend against the principles of totality and proportionality.
30 I have taken into account in setting the amount of cumulation or concurrency that Charges 3 and 4 arise from one incident and Charges 5 and 6 arise from one incident.
31 I have taken into account in mitigation of sentence that you have no prior criminal history and have been hardworking throughout your life. I have also taken into account that you are facing your first term of imprisonment at a relatively advanced age. Your age may make that experience somewhat more burdensome for you. I do not consider that your health issues are such that imprisonment would be more burdensome for you. In view of your age, I have sought to impose a sentence which is not crushing and which might allow for you to spend some part of your older age out of gaol.
32 Please stand, Mr Papandoniou.
33 On Charge 1 you are convicted and sentenced to 10 months' imprisonment.
34 On Charge 2 you are convicted and sentenced to 16 months' imprisonment
35 On Charge 3 you are convicted and sentenced to 48 months' imprisonment.
36 On Charge 4 you are convicted and sentenced to 22 months' imprisonment.
37 On Charge 5 you are convicted and sentenced to 54 months' imprisonment.
38 On Charge 6 you are convicted and sentenced to 48 months' imprisonment.
39 You are sentenced on Charges 3, 4, 5 and 6 as a serious sexual offender.
40 The sentence on Charge 5 is the base sentence. Five months of the sentence on Charge 1, and eight months of the sentence on Charge 2 ,are to be served cumulatively on each other and on the sentence on Charge 5. Twenty-eight months of the sentence on Charge 3, 13 months of the sentence on Charge 4 and 36 months of the sentence on Charge 6, are to be served concurrently with each other and the sentence on Charge 5. The total effective sentence is 108 months, or nine years', imprisonment.
41 I fix seven years as the period you are required to serve before being eligible for release on parole.
42 I declare that you have served 127 days of this sentence by way of pre-sentence detention.
43 You are regarded as having committed two Class 1 offences and two Class 2 offences for the purposes of the Sex Offender Registration Act 2004. You will be required to report as a registered sex offender for the remainder of your life. Shortly you will be given documentation which sets out your obligations under that Act. You will be asked to sign a piece of paper to say that you have received that material.
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