Director of Public Prosecutions v Rinaldi (a pseudonym)

[2019] VCC 1495

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEMETRIUS RINALDI (a pseudonym)

---

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF SENTENCE:	13 September 2019
CASE MAY BE CITED AS:	DPP v Rinaldi (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1495

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. McVean	Office of Public Prosecutions Victoria
For the Accused	Ms E. Byrt	Furstenberg Law Pty Ltd

HIS HONOUR: 

1Demetrius Rinaldi[1], you were found guilty by jury verdict of two charges of wilfully committing an indecent act with a child under the age of 16.  These two occasions occurred in the year 1997 when the victim was around 11 years of age.  At the time you were aged about 61 years.  The victim is now 33 years old.  You were acquitted of a third similar charge which I will describe later. 

[1] A pseudonym

2On the two separate occasions, the victim Ebony Minton[2] gave evidence that when she was in grade four and five, that is when she was 10 or 11, she would attend a primary school for deaf children as she was and remains profoundly deaf.  You were the contracted taxi driver who would pick her up in the morning, together with other young children and drop them off at the end of school.  She would usually be the first to be picked up and last to be dropped off at her grandmother's house.  She gave evidence of two specific incidents when on one occasion towards the end of the year, in the mid-afternoon, you pulled over, having dropped off other children. 

[2] A pseudonym

3You told Ebony Minton that you were a doctor and you would have a look at her breasts.  You indicated with your hands the motion of using a stethoscope and she read your lips when you uttered the words, 'Lift up your top, your T-shirt'.  She did so.  She had nothing on except a school T-shirt.  You reached out to her and touched both her breasts with your hand, first one, then the other, then the other again and you said, 'This one is bigger than the other one', pointing to the left breast, which she says that it was.

4She was developing breasts and had had her first period just before this event.  She felt scared.  She wanted to get out but she knew she was miles away from where her grandmother lived.  The second occasion you drove into the driveway of a home of a boy that you dropped off and when he and his parents went inside and out of sight, Ebony Minton asked if she could sit in the front seat.  You said to her, 'Show me your breasts', and motioned to her to lift her shirt.  This she did.  And as she moved over the centre console to take up the front passenger seat, you tapped your lips with your fingers to indicate that you wanted a kiss and as she came across with her head near you, she described you putting your lips completely over her mouth and started sucking her lips.

5She froze and as she sat down, she wiped her mouth with her shirt to get the wet saliva off her.  You were acquitted of a further charge which alleged that on another occasion you had grabbed her hand and placed it on your penis over your trousers, at the end of which you punched her shoulder.  She gave evidence, which I consider relevant to be taken into account as part of the context of the offending.  This was that you would often punch or backhand her on her upper arm and that this always accompanied occasions in which you would touch her breasts over her clothes or her 'private parts over her clothes, the area around her vagina'.

6This touching happened, she said, two or three times a week at a minimum.  Touching which happened when she was 10 or 11 over a span almost of two years.  I refer to these uncharged acts as to place the offending for which you have been charged and found guilty in a realistic context.  So, as to have regard to the full circumstances of the offences.  Neither to punish you for separate acts which have not been charged nor to aggravate the already serious nature of your offending.  To do so would or may offend against principles enunciated in the High Court in De Simoni [1981] 147, Commonwealth Law Reports, 383, Newman and Turnbull [1997] 1 Victorian Report, 146 and more recently Elsayed [2019] VSCA 113.

7I do take these matters and full circumstances that flow directly from your criminal conduct into account in that your conduct has caused much trauma and suffering to Ebony Minton, which I am required to take into account by law.  I consider that the full picture as to the context of the offending compounds your moral culpability.  It was argued on your behalf that the acquittal on the third charge should mean that doubt must exist as to the uncharged acts.  I repeat again that I am not treating these as aggravating factors but nevertheless an argument that somehow the victim's credibility is indivisible was raised. 

8That argument has been rejected in authority and I reject it here.  See, Ware [1997] 1 Victoria Reports, 647 and Scott [2009] VSCA 20. And I am persuaded beyond reasonable doubt by the evidence of Ebony Minton that these contextual events described by her took place. In this sense, although the two incidents were brief, their impact must be seen in the context of the cumulative effect of your conduct. The offending may have been opportunistic in the sense that they occurred brazenly when opportunity during the trip back to Ebony Minton's destination presented itself to you. But they were not spontaneous or situational. It was a contumacious repetition of taking advantage of a vulnerable child in flagrant and significant breach of trust in a context where Ebony Minton rightly expected to be safe.

9It was an abhorrent, vile behaviour which should be denounced for its repulsive and audacious nature and punished accordingly for the serious harm that it has done to Ebony Minton.  It must of course be acknowledged that each discrete act charged and found proven is of itself an act that falls at the lower end of the spectrum of offences of this kind.  It is not penetrative touching, it was brief and the seriousness should not be overstated.  But the context is important because the victim's trauma is properly viewed through the prism of ongoing conduct.  This is conduct which the law presumes to be harmful to children.  It carries a maximum of 10 years' imprisonment.

10This penalty is a good starting point for an examination of an appropriate sentence.  The legislation creating it seeks to protect children from being exposed to or from being the subject of sexual misconduct by an adult, particularly when the offender is in a position of trust in relation to the young victim.  Ebony Minton provided a victim impact statement which powerfully and clearly set out the impact which your behaviour has had on her.  She remembers the abuse vividly.  As a teenager, she was angry and inwardly terrified trying to hide the sickening black hole in the pit of her stomach.  Even after she bore children, she was affected by the trauma impacting on her happiness.  In a very physical sense, that related to breast feeding.  Her personal and physical integrity has suffered because of your vile touching.

11These are traumatic impacts which the court sees and hears everyday in victims of sexual abuse.  Intimacy with her husband has been affected and when one of her children was born deaf, this vulnerability and that child's schooling was affected by your conduct.  Depression, anxiety, lack of trust, all resurfaced upon her.  Her post-traumatic stress disorder and insomnia are powerful, destructive forces which she has to battle with every day.  The way in which her complaint was handled by institutions and agencies compounded this trauma.

12She had to leave work, be on anti-depressants, have significant psychological assistance for a long time.  The financial costs, the physical burdens and the psychological struggles consequent on these events have been profound.  She wrote that your actions stole her childhood and she endured a violation which remains a painful obstacle in her future.  I found her to be an honest, forthright, credible, remarkable witness for her courage, even in the face of what she understood and understands the outcome of this particular process is likely to be.  I take her statement into account.

13You cannot call in aid, in amelioration of sentence, any plea of guilty enabling a sentence to be reduced.  Equally you cannot rely on remorse as a mitigating matter.  Were it not for your advanced age and poor health, your inability to acknowledge your wrongdoing would increase your risk of reoffending, the weight to be given to specific deterrence and may have rightly led to incarceration.  As I will explain, that particular principle, that is of specific deterrence, and community protection, due to the factors I have just mentioned, do not have a role to play in this sentence.  However, general deterrence certainly does, as does just punishment and denunciation.  These offences occurred over 20 years ago.  You come before the court without a criminal history and apart from the period with which you offended, that is in 1997, and the period of the uncharged acts for which you could not rely on good character, you have led an otherwise unremarkable and law-abiding life. 

14I take your personal circumstances into account.  You were born in Athens in 1936.  In 1960, age 24, you arrived in Australia.  The following year you married.  In 1969, you started driving taxis full time.  You had a daughter and a son from the marriage.  In relation to the victim's complaint, this was made in 2003 and you were in fact interviewed the first time that year.  You were again questioned only in 2016 in February.  You were charged in November of that year.  A trial proceeded in July of this year, 2019, having first been listed in September 2018.

15As regards your background, you were young during the war, endured the poverty and lack of educational opportunity during that period.  When you were older you worked on ships, you did your national service post-war in the navy and you remained in the merchant navy for several years.  In 1960 due to an illness whilst on board your ship you were hospitalised in Australia.  You remained, with the help of the Salvation Army and the small Greek community then in Melbourne.  You obtained factory work, started driving taxis at night as well as working during the day.  You continued to drive for some 35 years until you retired in 2004.  You received the age pension.  You have lived in the family home for some 53 years.  You are 82 years of age. 

16Your physical health is poor and reflects your advanced age.  The combination of these physical ailments are such as to clearly make prison more difficult than it would be for a prisoner in a healthy condition.  I will summarise the reports in outline that I have received in relation to this matter.  But as a preliminary point it should be understood that the reason why general deterrence may be moderated in the case of an elderly, ill offender, is that such an offender should not be used as an example for others.  The retributive effect on the offender is felt in the authorities to be inappropriate to his situation and to the needs of the community.  And in those circumstances, general deterrence may be required to surrender some ground to the need to exercise mercy.  In your case, to take into account even the possibility that you may not live to be released or experience custody more burdensome as a result of your physical ailments.

17Ill health must be a factor tending to mitigate punishment, when imprisonment will be a greater burden by reason of health or when there is a serious risk that imprisonment will have a grave adverse effect on the offender's health.  However, just punishment, denunciation and general deterrence continue to apply in the case of an elderly offender or one in ill health.  I note the approach taken by the Court of Appeal in The Queen v RLP [2009] VSCA 271 at paragraph 39 in relation to the conjunction of advanced years and ill health.

18I have carefully read the reports of Mr Stayos, dated April and August 2019, as well as the report of Ms Krisustomu, dated July 2019 and Dr Proymos, dated July 2019, augmented by reports from Dr Visceredes, dated July 2019 and
Mr Andrew Atkins, ophthalmologist, dated August 2019.  I have also read the letter from your wife, dated 5 August 2019 and the letters from your son, your daughter and your son-in-law.  In summary, you have macular degeneration and cataracts, ischaemic heart disease, unstable angina, severe cardiac myopathy, chronic kidney disease, renovascular disease, uncontrolled type II diabetes, incontinence and general arthritis.  You are frail, you walk with a walking stick and are at high risk of falls.  You suffer from significant cognitive decline and vascular dementia and meet the criteria currently for a major depressive disorder. 

19Those who have written reports unanimously agree that a term of imprisonment would likely lead, very likely lead to a significant decline in both mental state, overall health, exacerbation of existing conditions.  The test is whether this sentence will weigh more heavily on you, not whether imprisonment will render these conditions worse.  And the risk that imprisonment will adversely affect your health and mental function is a separate risk which links the limbs of Verdins five and six.

20The delay in this matter has been substantial and not caused or related to your conduct, nor of course the conduct of Ebony Minton.  Post offence delay in that sense is not attributable to you.  You have continued thereafter to work and contribute to the community to which you belong.  These matters go to reinforce my view that your prospects of rehabilitation are probably good, your risk of reoffending, given all the circumstances is probably low. 

21Section 5A of the Sentencing Act, which specifically excludes good character and lack of priors as a sentencing factor in such cases must nevertheless result in the face of the circumstances personal to you during this period of delay and before, to the conclusion that a sentence of confinement and reclusion to be immediately served is not an option.  I should state clearly that in my view, a sentence of imprisonment would be appropriate if unsuspended in the circumstances.  It must be understood by the community and in particular those who stand in a position of trust and responsibility towards young children, that if they wish to enjoy the benefits that are derived from relationship and contact with young children, they will pay a heavy price if they abuse such trust, resorting to conduct for their own sexual gratification at the expense of those they have in their charge.

22The prosecution in this case fairly agreed with submissions as to the impact of a sentence on your age and your health and the applicability of Verdins limb five and six.  It conceded that a custodial sentence, not to be immediately served is within range.  I intend to impose such a sentence.  In relation to count one, you are convicted and sentenced to 18 months' imprisonment.  In relation to count two, you are convicted and sentenced to nine months' imprisonment.  I order six months on count to be cumulative on count one, making a total effective sentence of two years.  I order that that period be wholly suspended for two years.

23I have signed an order so that you should undergo a forensic procedure for the obtaining of a sample of sufficient standard to be placed on the DNA database.  I do so because of the seriousness of the offending and because it is in the public interest.  For the purpose of undergoing this procedure you will report to the officer in charge of the St Albans police station.  During the period of four weeks, commencing 28 days after today.  If at the time that a request is made for a sample from a mouth scraping, you do not consent to that procedure, then the authorised member of police can use reasonable force to take a blood sample from you for that purpose.  I am grateful, Ms Byrt if you could explain that situation to your client.

24MS BYRT:  Yes, thank you, Your Honour.

25HIS HONOUR:  I have signed that order.  Are there any other ancillary orders, Madam Prosecutor, in relation to this matter?  Are there other ancillary orders?

26MS McVEAN:  Sorry, Your Honour, there are no other ancillary orders.

27HIS HONOUR:  Yes.

28MS McVEAN:  I have just been notified that there is no police station at
St Albans anymore.

29HIS HONOUR:  I see.  Well ‑ ‑ ‑

30MS BYRT:  I believe Sunshine is the closest police station.

31HIS HONOUR:  Sunshine.  Yes, I will replace the reference to St Albans to Sunshine in relation to that order.  Yes.  Sine die.

‑ ‑ ‑