Director of Public Prosecutions v Raimondi
[2011] VCC 76
•21 January 2011
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM RAIMONDI |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 – 25 October 2010 (Trial) | |
DATE OF SENTENCE: | 21 January 2011 | |
CASE MAY BE CITED AS: | DPP v. Raimondi | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 76 | |
REASONS FOR SENTENCE
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Catchwords: Jury verdict of guilty – False imprisonment (1 count) – Common assault (3 counts) – Threat to kill (2 counts)– Indecent act in presence of child under 16 (9 counts) – Sexual penetration of child under 16 (1 count) – Rape (4 counts) – Offences occurred one day between 1993 and 1995 – Accused aged between 18 – 19 and Complainant aged between 7 – 8 at time of offending – Mitigating factors: Accused’s youth at time of offending, No priors, Served 2 years 6 months for subsequent offences, No outstanding charges – Lack of remorse – Serious sexual offender – Total effective sentence 11 years 6 months – Non-parole period 8 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Hennessy | Office of Public Prosecutions |
| For the Accused | Mr P. Bourke | Doogue & O’Brien |
HER HONOUR:
Jury verdict
1 Adam Raimondi, a jury has found you guilty of one charge of false imprisonment for which the sentence at the time of your offending was at large and is now ten years; three counts of common assault for which the maximum term of imprisonment is five years; two counts of threat to kill for which the maximum term of imprisonment is five years; eight counts of indecent acts in the presence of a child under 16 for which the maximum term of imprisonment is three years; one count of taking part in an act of sexual penetration with a child under 16 for which the maximum penalty is a term of imprisonment of 20 years; and four counts of rape for which the maximum term of imprisonment is 25 years.
Circumstances of offending
2 These offences all took place on one day between 12 July 1993 and 11 July 1995. At the time of the offending you were aged between 18 and 19 and you lived with your parents and sister in Attwood. The Complainant was seven or eight years old and he lived nearby with his parents and older brother, Christopher. You knew the two brothers who had been to your house to watch videos.
3 Between the dates alleged, the complainant and his brother would often meet after school and weekends with a group of the complainant's brother’s friends to play in the local park. As is often the lot with younger brothers, the Complainant was sometimes teased by his brother and his brother’s friends.
Count 1 Abduction
4 On one such day between 12 July 1993 and 11 July 1995, as a result of being teased, the Complainant left the group of boys and wandered up towards the park. He gave evidence that you approached him there and asked him a number of times to come back to your house. When he refused, he alleged that you grabbed him by the head and dragged him to your house which was nearby. When doing so, you held your hand over his mouth to prevent him from screaming
5 This alleged action of yours was the subject matter of Count 1 on the Presentment which was the charge of abduction. While the jury was unable to reach a verdict on this charge, they found you guilty of all the other charges on the Presentment except for Count 18, a count of indecent act. In doing so, they must have been satisfied beyond reasonable doubt that the Complainant was at your house on the day in question and that you held him there against his will and committed the offences on the Presentment.
Count 2 False imprisonment
6 The circumstances surrounding Count 2 of false imprisonment, are that after opening the front door of your house, you threw the Complainant on the floor and locked the door. When he made an unsuccessful attempt to get to his feet and run out through the back door at the other end of the house, you grabbed him and prevented him from leaving the house, holding him there against his will.
Count 3 Assault
7 Count 3 on the Presentment is a charge of assault and relates to your actions when you caught up with the Complainant when he was running to the back door. You pushed him to the floor and then hit him across the head two or three times with the back of your hand.
Count 4 Threat to kill
8 The circumstances surrounding Count 4, which is a charge of threat to kill, is that you then forcibly marched the Complainant upstairs to your bedroom and threw him onto the bedroom floor. When he attempted to get to his feet, you grabbed him by the throat and threatened him saying "If you scream or try to get away, I will kill you". You then threw him onto your bed and proceeded to tie his hands together in front of him with grey duct tape which he believed you retrieved from a chest of drawers in the room.
Count 5 Indecent act with child under 16
9 Count 5 is a charge of indecent acts and relate to your actions in then undressing the Complainant before placing your hands on his penis and testicles.
Count 6 Indecent act with child under 16
10 Count 6 is another charge of indecent act and relates to your actions in then getting undressed yourself and kissing the Complainant.
Count 7 Rape
11 Count 7 is a charge of rape. the Complainant gave evidence that he was on the bed and you pulled his legs apart with your hands and inserted one of your fingers into his anus. You pushed your finger in and out of his anus for a little while and while this was going on he was screaming and crying.
Count 8 Rape
12 Count 8, another charge of rape, relates to your actions in then walking over to a chest of drawers in the bedroom and returning with a bottle of lubricant which you applied to your erect penis. You then walked back to the bed and put your penis into the Complainant's anus. When giving evidence about this, the Complainant said "He kept pushing it in and out of my anus, it felt like it was ripping. I was crying and screaming and he kept saying to me 'How did I like that' and he kept telling me to shut up."
13 The Complainant gave evidence that you then proceeded to tape his legs together at the ankles using grey duct tape. You then left the bedroom, leaving him lying on the bed with his hands and legs tied. You were gone for an hour or so and came back up again when he started to scream out.
Count 9 Assault
14 Count 9, a charge of assault relates to your actions on your return to the bedroom when you struck the Complainant across the face with the back of your hand.
Count 10 and 11 Indecent act with child under 16
15 Count 10, a charge of indecent act, relates to your action in then placing your hands around the Complainant's penis and genitals. Afterwards you untied his legs and then masturbated, which action of yours relates to Charge 11.
Count 12 Rape
16 Count 12, another charge of rape, relates to your actions in then taking your pants off and, after placing lubricant on your penis, inserting it into the Complainant's anus.
Counts 13, 14, 15, 16 Indecent act with child under 16
17 Counts 13, 14, 15 and 16 are all counts of indecent acts. Count 13 relates to your action of withdrawing your penis and masturbating yourself and ejaculating over the Complainant's chest and stomach. Count 14 relates to you then kissing him, while Count 15 concerns your actions at pushing his mouth against your penis. The Complainant gave evidence that you then put your pants on and then re-taped his legs before leaving the room.
18 Some time later, the Complainant heard a telephone ringing from downstairs and started to scream out for someone to help him. After a short period of time, you returned to the bedroom and placed grey duct tape over his mouth. You then took your pants off and undid the tape on his legs and touched his genitals and these actions of yours relate to Count 16.
Count 17 Sexual penetration of a child under 16
19 Count 17 is a charge of sexual penetration of a child under 16 and relates to your action in kneeling on the end of the bed and licking and sucking the Complainant's penis.
Count 18 Indecent act with child under 16 – Directed verdict of Not Guilty
20 Count 18 was a charge of indecent act, however, as there was no evidence given in support of this charge, directed verdict of not guilty was returned by the jury.
Count 19 Rape
21 Count 19, a charge of rape, relates to your actions in then grabbing the Complainant's knees, pointing them towards his chest and inserting your penis into his anus.
Count 20 Assault
22 Count 20 relates to your actions when you removed the duct tape from the complainant’s mouth and hands and told him to get dressed. You grabbed him by the arm and walked him downstairs to the front entrance of the house. When you got to the front door, you grabbed him by the throat and lifted him off the floor.
Count 21 Threat to kill
23 Count 21 is a charge of threat to kill and relates to you then telling the Complainant, while you were holding him by the neck, that you knew where he lived and you would get him and his family if he told anyone. You then unlocked the front door and allowed him to leave.
Effect of offending on Complainant
24 At the time you committed these offences, the Complainant was just a child and he took your threat to get him and his family, if he told anyone, seriously. He kept what happened to him on that day to himself for many years and it is apparent from the Victim Impact Statements provided to this court that your offending has had a drastic effect on his emotional development.
25 From his statements, a picture emerges of the Complainant, prior to your offending, as being just a normal, happy, active and healthy boy. After your offending, this picture changes. The Complainant became a withdrawn, frightened and isolated young boy.
26 He suffered from nightmares and was frightened of male adults, he turned to food as a way of dealing with the trauma of your offences and gained a large amount of weight.
27 He became depressed, developed an eating disorder, and had difficulties concentrating at school. On two occasions he tried to take his own life. On the first occasion, after seeing you in a pub, he took an overdose of Panadol, after which he was hospitalised and commenced seeing a psychiatrist.
28 At the time of his second attempt to take his own life in March 2008, the Complainant was very depressed. After taking sleeping tablets, he deliberately drove his car into a power pole at 180 kilometres per hour. He was airlifted to the Royal Melbourne Hospital and suffered a broken neck and back. It was only after this event that he made a statement to the police concerning your involvement in these offences.
29 As a result of his statement to the police, you were interviewed on 23 October 2008. During the interview, you were asked if you could provide investigators with any information which may assist the investigation, to which you responded, "I'm not saying it's happened, I'm not saying it hasn't happened, but I'm not going to go and dig my own grave."
Personal circumstances
30 Your personal circumstances were contained in a Victorian Forensicare report from Pamela Matthews, dated 14 December 2010, and further details were provided to the court by your counsel.
31 You were born on 9 November 1975 and you are 35 years old. Prior to going into custody, you lived with your parents in the house in Attwood and you have done so throughout all your life.
32 Your mother works as a receptionist and your father is a self employed sewing machine mechanic. You have a sister, aged 30, who works in retail furniture sales.
33 You informed Ms Matthews that you had a happy childhood. You had no history of mental or acute physical illness in your family and no developmental exposure to substance abuse or domestic violence. However, you were sexually abused by a friend of your father's over a 12 month period in about 1984. This abuse apparently involved masturbation and fondling and you were threatened by this person and had not previously spoken about it.
34 You attended Westmeadows Primary School and St Carlo Primary School in Greenvale and then Therry College for your secondary years. While you had no behavioural or academic problems at school, you were subjected to bullying and you told Ms Matthews that you had few friends and you were pretty much a loner. You were an average student and left school at the end of Year 10.
35 You have no problems with substance abuse, being a social drinker, and although you tried marijuana in your early teens, you have not used any illicit drugs since then.
36 After leaving school you were on unemployment benefits for two years before obtaining work as a car dealer. You worked in this capacity for about three and a half years until you were convicted in 1998 of three counts of committing an indecent act with a child under the age of 16. These offences were committed in 1997, subsequent to the offences in this Presentment.
37 When you committed these offences you were 22 years old and the victims of these offences were boys who lived in your neighbourhood aged five, seven and eight. You received a sentence of two and a half years for these offences and went back to work as a car dealer after you had served your sentence. Prior to this trial, you lost your job after informing your employer of your need to attend court.
Psychiatric Report
38 According to Ms Matthews' report, when you were last in custody, you were exited from the sex offenders' treatment program, your interest in participation being questioned by treatment staff. However, she also reported that you had informed her that after your period of incarceration for the 1997 matters, you had chosen to get on with life and take the right path. You denied being sexually attracted to children. You told her you had been on the outside for 11 yeas and not done anything to children. You had seen children, with and without company, and you had not wanted to do anything.
39 With respect to your mental state, Ms Matthews reported that you do not present with formal thought disorder or any other indications of psychosis. You do, however, have a past history of depression and you have been on anti-depressants. However, you are not taking them presently. Apparently, you do not feel sorry for yourself, but you do feel sorry for your family.
40 While Ms Matthews found that you met the DSM diagnostic criteria for paedophilia and that your risk of reoffending on this factor was high, taking into the account the other factors in her formal assessment and the fact that you had not re-offended since your conviction in 1998, in her opinion, the risk of you re-offending was low.
41 In Ms Matthews' opinion, your offending appeared to have occurred in late adolescence at a time when you were confused with regard to your sexuality and other issues of identity such as employment and peer relationships, and you were suffering some depression in respect to those issues. This process was intensified due to your own history of sexual abuse coupled with socialisation and bullying during your school years.
42 Ms Matthews said that you appeared to have made a concerted personal effort not to re-offend but noted that there seemed to have been no treatment sought other than for depression either now and in the past.
43 Factors which Ms Matthews considered would increase your risk of offending were social isolation and social ineptitude in conjunction with poor self esteem and lowered mood. In Ms Matthews' opinion, these factors and your past sexual offending behaviour, could be addressed through a mental health plan and sex offender treatment program delivered in the community or a sex offender treatment program delivered in custody and a mental health plan delivered in the community post release.
Sentencing submissions
44 When making his sentencing submissions, the prosecutor submitted that you had subjected the Complainant to a protracted and terrifying ordeal and that it was a significant sentencing consideration that you had shown no remorse for your crimes. With respect to an appropriate sentence for your offence, the sentencing range provided to the court by the prosecution was 13 to 15 years with an 11 to 13 year non-parole period.
45 However, your counsel submitted that this sentencing range failed to take into account the following matters:
· your youth and immaturity at the time the offences were committed;
· your lack of priors;
· that subsequent to committing these offences you had served two and a half years in custody on other matters and that you had committed no other offences since then; and
· that it did not take into account this rehabilitation or Ms Matthews' assessment that you were at a low risk of re-offending.
46 In making these submissions, your counsel referred the court to the cases of R v. Better(2003) VSCA 71 and R v. PJB (2007) VSCA 242. These authorities were relied on to support his submission that if you had been sentenced at the time you had committed these offences, you would have been sentenced as a young offender.
47 In both these cases, the appellant's had committed sexual offences in their youth, many years before they were sentenced. In both cases, their appeals against sentence were successful and their sentences were reduced. In R v. Better (2003) VSCA 71, Justice Buchanan said:
The fact that the appellant was immature when the offences were committed and was still youthful when it ended, is of some significance. Had the appellant be sentenced shortly after the commission of the offences, he would have been sentenced as a young offender. He is now before the court to be sentenced as an adult for the acts of his youth, and, in the meanwhile he has effected a substantial rehabilitation.
48 In R v. PJB, in Paragraph 16 of that judgment, Justice Nettle said:
The decisions of the court in R v. Nutter and R v. Better, 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.
49 In that case, Justice Nettle considered that it was significant that the appellant had not re-offended in more than 24 years. In addition that he had apologised to the victim and had undergone counselling.
50 Your counsel also referred the court to the case of Kevin Francis Bugmy v R (1990) 47 ACrimR 433, a decision of the High Court of Australia. This case was relied on to submit that a lengthy minimum term was appropriate in your case as it kept a hope of early release alive, which created an incentive for rehabilitation.
51 In sentencing you, I have taken into account all the matters submitted by your counsel including
· your relative youth and immaturity at the time the offences were committed;
· your lack of priors and confusion about your sexuality due to a history of being sexually abused yourself; and
· your rehabilitation after serving a two and a half year sentence for subsequent offences of a sexual nature committed in 1997.
52 Given the period of time which has passed since you last offended, I have accepted Ms Matthews' assessment that your risk of re-offending is low. However, I have some reservations given Ms Matthews' comment in her report that when last seen in custody you were exited from the sex offenders' program with your interest in participation being questioning by staff.
53 Given the circumstances of your offending, denunciation of your conduct, just punishment and general deterrence are important sentencing considerations. At the time the offences were committed, you were on the verge of young adulthood and your crime was committed against a child who was more than ten years younger than you were.
54 Specific deterrence must also remain a relevant sentencing consideration in these circumstances. The Complainant should have been able to admire and look up to you as an older boy and role model, but instead, you subjected him to a protracted and terrifying ordeal which, to use his own words, had a massive impact on him emotionally and mentally.
55 Your crime involved holding the Complainant against his will and subjecting him to various sexual acts for your sexual gratification. Four of the charges the jury have found proven against you, were of rape. The seriousness of the offence of rape is indicated by the fact that Parliament has fixed a maximum penalty of 25 years' imprisonment. In the case of DPP v. Maynard [2009] VSCA 129, the Court of Appeal said that:
The youth and deprived background of the respondent is, of course, a significant matter. However, these factors cannot overwhelm the sentencing process in circumstances of very serious offences.
56 In my opinion, this is such an offence and on the scale of such offences, your offending is at the upper end. The penetration by you of the Complainant's anus caused him to scream and cry. However, you showed him no pity during this ordeal. When he was screaming and crying, you told him to shut up. You tied his legs and hands with duct tape, you hit him on a number of occasions and threatened to kill and harm his family if he told anyone.
57 It is clear from the Victim Impact Statements from his parents, that they also have suffered greatly as a result of your offending against their son. They have watched him struggle to live a normal life and were at his bedside after he tried to take his life on two occasions.
58 In sentencing you, I note that as you have shown no remorse for your crime, you have not received the benefit you would have been entitled to if you had done so. In contrast, in both the cases referred to by your counsel, the offenders had shown remorse for their crimes and in the case of PJB, despite his plea of not guilty, the Accused had also gone on to apologise to the victim.
Serious sexual offender
59 A person is a serious sexual offender if they have been convicted of two or more sexual offences for each of which they have been sentenced to a term of imprisonment. As you have previously been convicted and sentenced to imprisonment on two or more charges of a sexual offence, you will be sentenced as a serious sexual offender on charges 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17 and 19 and this will be entered on the records of the court pursuant to s.6F of the Sentencing Act.
60 This means that in determining the length of the sentence on these charges, the court must regard the protection of the community as a principal purpose for which the sentence is to be imposed. To achieve this purpose, the court may impose a larger than proportionate sentence to the gravity of the offences.
61 Further, every term of imprisonment imposed for these offences must, unless otherwise directed, be served cumulatively on other sentences imposed. The prosecution did not submit that a longer than proportionate sentence was necessary. I do not regard the need to protect the community as requiring a longer than proportionate sentence for the gravity of the offences.
62 In sentencing you, I have also taken into account principles of totality and the need to have regard to your prospects of rehabilitation.
Sentence
63 I sentence you as follows.
· On Count 2, the charge of false imprisonment, you are sentenced to two years' imprisonment;
· On Count 3, a charge of assault, you are sentenced to three months' imprisonment;
· On Count 4, a charge of threat to kill, you are sentenced to fifteen months' imprisonment;
· On Count 5, a charge of indecent act, you are sentenced to 12 months' imprisonment;
· On Count 6, another charge of indecent act, you are sentenced to six months' imprisonment;
· On Count 7, a charge of digital rape, you are sentenced to six years' imprisonment;
· On Count 8, a charge of penile rape, you are sentenced to seven years' imprisonment;
· On Count 9, a charge of assault, you are sentenced to three months' imprisonment;
· On Count 10, a charge of indecent act, you are sentenced to 12 months' imprisonment;
· On Count 11, a charge of indecent act, you are sentenced to nine months' imprisonment;
· On Count 12, a charge of penile rape, you are sentenced to seven years' imprisonment;
· On Count 13, a charge of indecent act, you are sentenced to 12 months' imprisonment;
· On Count 14, a charge of indecent act, you are sentenced to six months' imprisonment;
· On Count 15, a charge of indecent act, you are sentenced to 12 months' imprisonment;
· On Count 16, a charge of indecent act, you are sentenced to 12 months' imprisonment;
· On Count 17, a charge of sexual penetration of a child under 16, you are sentenced to four years' imprisonment;
· On Count 19, a charge of penile rape, you are sentenced to seven years' imprisonment;
· On Count 20, a charge of assault, you are sentenced to three months' imprisonment; and
· On Count 21, a charge of threat to kill, you are sentenced to 15 months' imprisonment.
64 The base sentence is the sentence of seven years on Count 8. I make the following orders for cumulation:
· Three months of the sentence imposed on Count 2;
· two months of the sentence imposed on Count 4;
· three months of the sentence imposed on Count 5;
· nine months of the sentence imposed on Count 7;
· 12 months of the sentence imposed on Count 12;
· three months of the sentence imposed on Count 13;
· three months of the sentence imposed on Count 15;
· six months of the sentence imposed on Count 17;
· 12 months of the sentence imposed on Count 19; and
· one month of the sentence imposed on Count 20
are to be served cumulatively on each other and on the base sentence imposed on Count 8.
65 This amounts to a total effective sentence of 11 years and six months. I fix a non-parole period of eight years. I declare that 91 days be reckoned as already served under the sentence. I direct this declaration be noted on the records of the court.
66 Pursuant to the Sex Offenders' Registration Act, you are now a registrable offender. The reporting period is life. Documents will be provided to you and you should look at them carefully and discuss them with your counsel.
67 Is there any problem?
68 MR HENNESSY: We had a total of 88 days PSD, Your Honour, on the basis of going in on 25 October. We might double-check that if we could, Your Honour. It is not a matter of huge moment perhaps but that was one thing. Another was I need to tender the original Victim Impact Statements, Your Honour, copies of which have already been provided to the court, so I seek to do that.
69 HER HONOUR: Thank you.
70 MR HENNESSY: And also enter a nolle in relation to Count 1.
71 HER HONOUR: Very well, a nolle is entered in relation to Count 1. How many days is it - 88 days?
72 MR HENNESSY: That is what our records say, Your Honour.
73 HER HONOUR: Very well, I declare that 88 days be reckoned as time already served under the sentence and direct that this declaration be noted on the records of the court. Is there anything else?
74 MR HENNESSY: There is not, Your Honour.
75 HER HONOUR: In that case, we will adjourn the court.
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