Director of Public Prosecutions v Rapinett
[2014] VCC 692
•13 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 14-00503
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH RAPINETT |
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| JUDGE: | HIS HONOUR JUDGE MAIDMENT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 May 2014 |
| DATE OF SENTENCE: | 13 May 2014 |
| CASE MAY BE CITED AS: | DPP v Rapinett |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 692 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Livitsanos | |
| For the Accused | Mr J. McLoughlin |
HIS HONOUR:
1Joseph Rapinett, you have pleaded guilty to an indictment charging you with nine counts, or nine charges, all alleging indecent assault, which occurred between January 1967 and the end of December 1977.
2The victims of your crimes were then aged between the ages of five and 13 years. You were 16 years of age at the beginning of 1967 and turned 17 in April 1967, so the first of your offences was committed at a time when you were under the age of 18 years.
3The prosecution has tendered and relied upon the Summary of Prosecution Opening, which is Exhibit A. I am not going to read it again, it was read this morning. Suffice to say that it sets out a pattern of conduct which began in 1967, but increased from the beginning of the 1970s, and involved you in numerous acts, including those that are charged in the indictment, of exploitation of young girls with whom you came in contact and with whom you were able to engage in this kind of conduct by manipulating them to positions and places where you could carry out your offending conduct undetected and uninterrupted.
4Not surprisingly from the age of the girls and the manner of your conduct they did not report your conduct at that time. The prosecution has also relied upon victim impact statements from your victims and from members of the family of one of those victims. Those victim impact statements set out, in detail, the kind of effects that one might expect conduct of that kind to have, not just upon the children at the time the offences were committed but for the rest of their lives. You have blighted the lives of your victims in one way or another and I am bound to take that into account in imposing sentence.
5Your offending did not just involve touching the girls in indecent ways outside their clothing, but also involved you in acts of penetration with those children, and acts whereby you persuaded them to masturbate you. Those are particularly serious examples of the offence of indecent assault.
6Clearly the maximum penalty for the activities in which you were engaged which constituted indecent assault in those days have increased significantly for that kind of conduct. The maximum term of imprisonment for indecent assault during the period with which we are concerned is five years' imprisonment.
7Your counsel has provided me with a number of documents which have been very helpful. Firstly Exhibit 1, which is an outline of defence submissions together with a chronology of relevant events, a report from Mr Ball, psychologist, dated 6 May 2014, which is Exhibit 2, together with a document setting out amendments to his report, dated 8 May 2014.
8He also provided me with sentencing statistics for sexual offences, including indecent assault, covering the period 1976 to 1980, which is Exhibit 3, together with a health summary sheet relating to the health of your wife, Mrs Doris Rapinett, and three letters written by persons who have known you for some time, although they apparently were written without them knowing the detail of this offending conduct.
9I have also been provided with a letter from Dr Douglas which sets out details of your physical issues, that is Exhibit 7.
10The chronology provided by Mr McLoughlin shows that you were born in Malta in 1950 and emigrated with your family to Australia in 1954 where you settled in the Doveton/Dandenong area. Your parents had a cleaning business and it seems that it was in connection with that cleaning business that you first became involved with this offending conduct.
11You did not do very well at school and left school largely illiterate and innumerate, and that, as Mr McLoughlin points out, is consistent with the findings of Mr Ball, who administered various tests to determine your intelligence quotient, that you have a full scale intelligence quotient of 62 which puts you in the intellectually disabled category.
12I noted that the full scale IQ of 62 was to be seen in light of an index of 45 for verbal comprehension and an index of 78 for perceptual reasoning, a very significant difference between those two, giving an average of 62. It seemed to me, and I am inclined to that view still, that the perceptual reasoning index of 78 is a better indicia of your moral culpability for this offending conduct.
13I regard your conduct as displaying a degree of cunning. You were able to manipulate these children in a way which enabled you to get away with what you did, and also to persuade them not to report you to their parents or to the authorities.
14However, there is no doubt that you do have a low IQ, and Mr Ball expresses the opinion that your low intellectual functioning, which he describes as intellectual impairment, would have contributed to poor judgment being exercised at the time when these offences were being committed. I accept that is so and I accept, as the prosecution do, that the principles which derive from a line of cases, including that of the well-known case of Verdins, should be applied to reduce your sentence by reference to a lower degree of moral culpability, and an appropriate moderation of the need to use you as a vehicle for general deterrence.
15Also, it seems to me that your intellectual impairment coupled with your physical health problems will make doing your time harder than that for a person without those impairments and health issues, and I do propose to make an appropriate adjustment to the sentence to accommodate those matters.
16As was pointed out by the prosecution it is a case where appropriate moderation is required. None of those factors, either alone or in combination, extinguish your moral culpability, nor do they extinguish the need for me to impose a sentence that has some capacity to deter others from committing offences of this kind.
17You have been married I think for 44 years, you have one child born in 1971. By and large you have engaged in work of a manual nature. More recently of course you have been suffering from a number of health issues which are set out in Exhibit 7. You suffer from hypertension, insomnia, chronic airway disease, osteoporosis, osteoarthritis of the spine and anxiety.
18No doubt to some extent your anxiety has been exacerbated by these court proceedings. As your counsel points out you have been aware of the prospect that you would be appearing in this court for sentence for about four years now, and that that will no doubt have been praying on your mind as it has been hanging over your head for that period.
19It is to your credit that you have pleaded guilty and pleaded guilty at an early stage. There are of course periods during which it is necessary to examine issues relevant to sentencing and negotiate matters with the prosecution, and I treat you as having pleaded guilty at an early stage. You should get full credit for that, and in particular in a case such as this, enabling the prosecution to proceed without calling any of the victims of your crimes to relive the events that have caused them so much anguish since your offending conduct.
20I accept that you have shown remorse for your conduct finally and it is to be taken into account in your favour. You showed little consideration for these children at the time the offences were being committed, but once these matters came to light it seems that you have demonstrated that you are sorry for what you have done and for the effect your conduct has had upon them.
21You are now 64 years of age and that is a factor, along with your health and your intellectual impairment, to be taken into account.
22The offences occurred a long time ago, it is not through any fault of the victims. It is not surprising that victims in these matters do not report these events, and it is frequently the case that there is a very substantial delay before, for one reason or another, a victim or victims feels physically and mentally strong enough to come forward and initiate prosecution proceedings.
23One of those factors of course is the prospect of having to relive these matters, and no doubt that too has contributed to the emotional effects that are demonstrated in the victim impact statements, but you always had it within your power to make things right in the years that passed between 1976 and 2010. Therefore the period of delay does you no credit, but it is a factor which I am bound to and do take into account in the instinctive synthesis in which I must engage in determining appropriate sentence.
24You were of course a child when the first offence occurred. You may have been only 20 when some of the conduct subject of Charges 3 and 4, which seem to me to be perhaps the most serious of your offences occurred, but there was no doubt that you were well and truly an adult during part of the offending conduct which is encompassed in those two charges. Nevertheless you were a young man, and I have to bear in mind that you were a young man who was then suffering from the intellectual impairment identified by Mr Ball.
25You have, it seems now, lost very much of the feeling of companionship that you would have received from family and friends. This of course has disrupted your relationship with your wife who, as the documents show, is not in good health, and you are socially isolated.
26As your counsel rightly accepts that is really a product of your own behaviour, but it is necessarily a fact and it will impact on your capacity to cope with the prison environment. I bear in mind that you do not have any prior convictions, and you have no convictions for offences subsequent to this offending conduct, and therefore have otherwise led a blameless life, albeit that this was offending conduct that took place over a significant period of time.
27It was, as the prosecution pointed out, sustained over a number of years, did involve a great and gross breach of trust in relation to each of your victims, and of course the knock on effect of your conduct, in terms of not just the lives of those victims but the lives of those family members of those victims, is something that I do need to take into account.
28As I have indicated I regard the offence the subject of Charge 3 as particularly serious, involving as it did sexual penetration.
29I was urged to consider the current sentencing practice which was relevant to the period 1976 to 1980, and it was pointed out to me that generally sentencing regime in relation to sexual offences was lower than it is now.
30I have noted the content of Exhibit 3 and I have endeavoured to arrive at an understanding of sentencing practice during that period, which informs me to some extent on what is current sentencing practice in relation to offences of that antiquity.
31I note that there are a number of uncharged acts which are described in Exhibit A, the Prosecution Opening, and some of the charges involve more than one criminal act, they are effectively rolled up charges. I had some discussion with counsel during the course of the plea, which I think resulted in us coming to the conclusion that the appropriate way of treating that was that you would be sentenced for the charges, and the charges alone, and that the other offending conduct was to be used only to prevent you or your counsel relying on the proposition that these were isolated incidents by way of mitigation. I proceed to sentence on that basis.
32So I sentence you only on the offences to which you have pleaded guilty. I still need to express the denunciation of this court through the sentencing process and to punish you adequately for your offences. I think that it is unlikely that you still represent a danger to young girls or that individual deterrence has a significant part to play in sentencing.
33As I have indicated I think general deterrence needs to be modified and I need to balance all of the relevant sentencing considerations to which I have referred against the need to facilitate your rehabilitation, and to take into account the impacts of these matters upon your capacity to cope with a term of imprisonment.
34Doing the best I can to balance all of those factors together, and taking into account the effect that your conduct has had upon the victims I am now ready to impose sentence upon you.
35MR LIVITSANOS: Your Honour there's only one ‑ ‑ ‑
36HIS HONOUR: Yes?
37MR LIVITSANOS: ‑ ‑ ‑ matter Your Honour before Your Honour does, in my submission it's not going to make one bit of difference. It's in relation to Charge 1, as Your Honour ‑ ‑ ‑
38HIS HONOUR: Yes.
39MR LIVITSANOS: ‑ ‑ ‑ was giving Your Honour's remarks I just checked some notes of mine.
40HIS HONOUR: Yes.
41MR LIVITSANOS: There was a change in, not legislation but maximum penalty through that year.
42HIS HONOUR: Was there? Thank you.
43MR LIVITSANOS: Yes. So just before Your Honour passes sentence it's a matter that I just want to correct. It's my fault Your Honour, I didn't bring this to Your Honour's attention. The ‑ ‑ ‑
44HIS HONOUR: Look don't worry I'm glad you've done it now.
45MR LIVITSANOS: Correct. The 1 April 1959 to 7 November 1967, same offence.
46HIS HONOUR: Yes.
47MR LIVITSANOS: Was three years.
48HIS HONOUR: Three years, okay.
49MR LIVITSANOS: So if ‑ ‑ ‑
50MR MCLOUGHLIN: I'm sorry Your Honour I picked that up too and I completely forgot (indistinct).
51HIS HONOUR: All right.
52MR LIVITSANOS: If Your Honour sees the ‑ ‑ ‑
53HIS HONOUR: It is actually not going to make the slightest ‑ ‑ ‑
54MR LIVITSANOS: No.
55HIS HONOUR: ‑ ‑ ‑ difference I have to say ‑ ‑ ‑
56MR LIVITSANOS: No, no.
57HIS HONOUR: ‑ ‑ ‑ because when you hear what the sentence I have in mind is you will note that it ‑ ‑ ‑
58MR LIVITSANOS: Correct.
59HIS HONOUR: ‑ ‑ ‑ won't have any effect.
60MR LIVITSANOS: I just thought for absolute completeness sake Your Honour that's all but ‑ ‑ ‑
61HIS HONOUR: Well thank you for that that's very helpful.
62MR LIVITSANOS: ‑ ‑ ‑ there was that change in November.
63HIS HONOUR: Yes.
64MR LIVITSANOS: And I - just for the record Your Honour again I don't think it's going to change anything one but we can't prove beyond reasonable doubt the offence might not have occurred earlier in the year prior to 8 November 1967 and therefore the benefit of the doubt ought go to the accused man, and the maximum penalty to Charge 3 only is three years on that point of ‑ ‑ ‑
65HIS HONOUR: Charge 1 only.
66MR LIVITSANOS: Charge 1 I'm sorry Your Honour, was three years only not five.
67HIS HONOUR: Yes.
68MR LIVITSANOS: Five years for all the others.
69HIS HONOUR: Yes.
70MR LIVITSANOS: Your Honour of course will note s.55 for a second offence is ten years, again the authorities speak to a subsequent conviction ‑ ‑ ‑
71HIS HONOUR: After a conviction has been - yes.
72MR LIVITSANOS: Correct. So we submit to Your Honour that the correct approach is five years on or not - you don't take, for example, Charge 3, being the subsequent or second offence of Charge 2, as a second offence.
73HIS HONOUR: Yes.
74MR LIVITSANOS: It's ‑ ‑ ‑
75HIS HONOUR: But it does I think complete the picture and I do need to say something also about the fact that I have to sentence him as a serious ‑ ‑ ‑
76MR LIVITSANOS: Yes.
77HIS HONOUR: ‑ ‑ ‑ sex offender ‑ ‑ ‑
78MR LIVITSANOS: Yes Your Honour.
79HIS HONOUR: ‑ ‑ ‑ in relation to Charges 3 to 9 inclusive.
80MR LIVITSANOS: That's right, correct. Thank you Your Honour.
81HIS HONOUR: Right thank you.
82MR MCLOUGHLIN: Your Honour just while we're interrupting ‑ ‑ ‑
83HIS HONOUR: Yes?
84MR MCLOUGHLIN: ‑ ‑ ‑ before these pass into record, Your Honour used the term 'rolled up' in relation to Charges 3 and 4.
85HIS HONOUR: Yes.
86MR MCLOUGHLIN: But it's actually expressed in the prosecution opening as representative.
87HIS HONOUR: Yes.
88MR MCLOUGHLIN: And I understand as a term of art they meant to designate slightly different things.
89HIS HONOUR: Yes.
90MR MCLOUGHLIN: So that ‑ ‑ ‑
91HIS HONOUR: Well should we say representative counts?
92MR MCLOUGHLIN: Yes.
93HIS HONOUR: So where I have said 'rolled up' representative is a better and more correct way of describing the ‑ ‑ ‑
94MR MCLOUGHLIN: Yes. I didn't apprehend that Your Honour was thinking of them other than they had been put but ‑ ‑ ‑
95HIS HONOUR: Yes. Yes thank you very much. All right well one thing I do need to mention and that is that you are, under current legislation, to be sentenced as a serious sex offender in relation to Charges 3 to 9 inclusive.
96That means that the court has to look to the principle of public protection as being the principal sentencing consideration, and in some circumstances that would require me to impose a sentence that was disproportionate to the normal sentencing process in terms of fulfilling the imperative of public protection.
97However, the prosecution has indicated that they do not submit that I should impose a disproportionate sentence and I do not propose to do so.
98Ordinarily to achieve the degree of public protection required sentences for offences where a person is sentenced as a serious sex offender would be served cumulatively. Again I do not propose to order complete cumulation of sentences, rather I adhere to what I perceive to be the orthodox application of the totality principle, which is to look at the overall sentence and ensure that the overall sentence for the totality of your conduct is a just one.
99So having said that I am now ready to impose sentence upon you. On Charge 1 of indecent assault I convict you and discharge you;
100On Charge 2 of indecent assault I sentence you to imprisonment for a period of four months;
101On Charge 3 of indecent assault I sentence you to imprisonment for a period of two years and three months;
102On Charge 4 of indecent assault I sentence you to imprisonment for a period of 20 months;
103On Charge 5 of indecent assault I convict you and sentence you to imprisonment for a period of 18 months;
104On Charge 6 of indecent assault I convict you and sentence you to imprisonment for a period of nine months;
105On Charge 7 of indecent assault I convict you and sentence you to imprisonment for 18 months;
106On Charge 8 of indecent assault I convict you and sentence to you imprisonment for a period of 20 months;
107On Charge 9 of indecent assault I convict you and sentence you to imprisonment for a period of 18 months.
108I treat the sentence on Charge 3 as the base sentence, and I order that three months of the sentence on Charge 5; three months of the sentence on Charge 6; three months of the sentence on Charge 7; six months of the sentence on Charge 8 and three months of the sentence on Charge 9 be served cumulatively on one another and cumulatively upon the sentence of two years and three months that I have imposed for Charge 3.
109Now by my calculations that makes a total effective sentence of three years and nine months, and I order that you serve a period of two years and four months before you become eligible for parole.
110But for your pleas of guilty I would have sentenced you to imprisonment for a period of five years and three months with a non-parole period of three years.
111I note that in respect of Charges 3 to 9 inclusive I have sentenced you as a serious sex offender.
112MR MCLOUGHLIN: Excuse me Your Honour. It would have to be Charge 4 because a sentence of imprisonment wasn't imposed on Charge 1.
113HIS HONOUR: You're correct, yes absolutely correct. Thank you for pointing that out.
114Charges 4 to 9, I declare that I have sentenced you as a serious sex offender in relation to each of those offences, and I note that you will be the subject of the reporting requirements under the Sex Offenders Registration Act for life, and I will be supplying you with some notification of your obligations under that Act.
115I have also been asked to order that you undergo the provision of a forensic sample by the scraping of material from the inside of your mouth or a blood sample. If when you are requested to do so by an authorised officer you provide the scraping from the inside of your mouth that will be the end of the matter.
116If however you fail or refuse to do that then the authorised officer will be authorised to take a blood sample, and may use reasonable force to obtain that blood sample. I am sure you will not put the authorised officer to that trouble. Are there any other orders gentlemen?
117MR LIVITSANOS: No there's not Your Honour.
118MR MCLOUGHLIN: No Your Honour.
119HIS HONOUR: No. You can take a seat whilst I just write up the orders. Three copies of the forensic sample order enough?
120MR LIVITSANOS: Yes Your Honour, more than. Thank you Your Honour.
121HIS HONOUR: All right. Now Mr McLoughlin I'm inclined to return to you the ‑ ‑ ‑
122MR MCLOUGHLIN: Receipt.
123HIS HONOUR: ‑ ‑ ‑ receipt which was I think Exhibit 5 if I'm correct.
124MR MCLOUGHLIN: Yes.
125HIS HONOUR: Rather than have it ‑ ‑ ‑
126MR MCLOUGHLIN: Thank you Your Honour, yes.
127HIS HONOUR: ‑ ‑ ‑ attached to the County Court file, just in case it's needed by the family.
128MR MCLOUGHLIN: Could I ask Your Honour if Dr Douglas' report could go with the record of orders ‑ ‑ ‑
129HIS HONOUR: Yes.
130MR MCLOUGHLIN: ‑ ‑ ‑ to the prison so that they have a record of Mr Rapinett's medication?
131HIS HONOUR: Yes I will make that order and I wonder whether there should be a note generally in relation to management issues. Is it worth attaching Mr Ball's report as well?
132MR MCLOUGHLIN: Yes. I sense he'd probably ‑ ‑ ‑
133HIS HONOUR: I think so because the intellectual impairment may not be ‑ ‑ ‑
134MR MCLOUGHLIN: Immediately apparent.
135HIS HONOUR: ‑ ‑ ‑ immediately apparent.
136MR MCLOUGHLIN: Yes.
137HIS HONOUR: And I think that perhaps both of those reports should go.
138MR MCLOUGHLIN: Thank you Your Honour.
139HIS HONOUR: So I don't think I need to provide the amendment to the doctor's report do I?
140MR MCLOUGHLIN: No. No I wouldn't have thought so.
141HIS HONOUR: I don't think they were any - really relevant to the issue at hand. Yes.
142MR MCLOUGHLIN: The only other matter Your Honour is ‑ ‑ ‑
143HIS HONOUR: Yes.
144MR MCLOUGHLIN: ‑ ‑ ‑ I think I need to ask for a certificate in respect of yesterday.
145HIS HONOUR: Well I think you're entitled to that.
146MR MCLOUGHLIN: Thank you Your Honour.
147HIS HONOUR: Now Marissa?
148TIPSTAFF: Yes Your Honour?
149HIS HONOUR: Do you mind copying those two documents and both of those will go with the order? Mr Travers could you make a notation about those documents going with the - yes, on the order itself, yes management issues and yes. So there'll be copies there to do with the order. All right, yes thank you. Well those documents will go with the order, thank you. No I think we've got something else on tomorrow morning at ten o'clock.
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