Director of Public Prosecutions v Rosa (a pseudonym)

[2016] VCC 1397

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELIJAH ROSA (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 September 2016
CASE MAY BE CITED AS:	DPP v Rosa (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1397

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Stougiannos
For the Accused	Mr G. Casement

Pages 1 - 12

 

 

HER HONOUR:

1Elijah Rosa[1], you have pleaded guilty before me to four charges of committing an indecent act with a child under 16.  You can have a seat,

[1] Elijah Rosa is a pseudonym.

Mr Rosa, until I tell you to stand, thank you.

2The facts underlying your offending as follows.  You were charged with sexual offending committed on four complainant's, all of them related to you.  Three of them are half-siblings, the fourth is your daughter. 

3In relation to Charge 1, the offending occurred when, in 1999, when you were still a teenager.  You were living with your family in Morwell and, one evening, when Alex[2] was ten and you were 14, your brother was lying his bottom bunk, reading a book with the light on.  You told him you were checking his pants for, "for poop."  You pulled Alex's pants down and put your penis between his buttocks and ejaculated.  Alex elbowed you in the stomach.  These actions underlie Charge 1 on the indictment, indecent act with a child under 16. 

[2] Alex is a pseudonym.

4You told Alex that, "this is what brother's do", and threatened to tell your mother that Alex had stolen something or tell police or Human Services that he had been naughty.  Alex reported to his mother that you had sexually assaulted him whilst sharing a bedroom and made this report on
27 September 1999.  You were interviewed by police on 1 October 1999 but were not charged. 

5Charge 2 is a representative count involving three charges of sexual offending against your half-sister, Chloe Nibbi[3].  In 1997, when you and your family were living at another house in Morwell, you called Chloe into your bedroom, told her not to tell anyone or you would steal something and blame it on her, then pulled down her pants and placed your penis between the cheeks of her buttocks.  She said it made her feel, "yucky", and like she wanted to throw up. 

[3] Chloe Nibbi is a pseudonym.

6There are, apparently, three occasions in which you offended in this way against Chloe between March 1997 and September 1999.  During that period of time, Chloe was aged six to eight and you were aged between 12 and 14.  Chloe reported this offending to her mother on 27 September 1999 and again, on 1 October 1999, you were interviewed by police in relation to these allegations but were not charged.  These actions underlie Charge 2 on the indictment. 

7Charge 3 relates to offending against your younger step-brother,

[4] Marcus Rosa is a pseudonym.

Marcus Rosa[4].  In 2000, Marcus was in grade four at primary school and lived with his parents and you.  At the time of this offending, Marcus was ten and you were 15. 

8On an occasion between 21 January and 29 July 2000, Marcus went into your room to play on the Nintendo where he sat on the bed and played the game with you.  You then lay on the bed next to Marcus and put a blanket over him, pulled down Marcus's pants and rubbed your own penis against his.  These actions underlie Charge 3 on the indictment, indecent act with a child under 16.

9After Marcus disclosed the offending to police in 2002, you moved out and went to live with an uncle in Echuca and during conversations between you and your father, you admitted, "doing things to Marcus", but did not provide details, stated that you mucked around with him, apologised for what you did, said you did not realise at the time and that it would never happen again and that you had done the wrong thing.  You were interviewed by police on
25 November 2002 in relation to Marcus's allegations but denied the offending.

10The final charge, Charge 4, relates to your daughter, Jasmine Rosa.[5]  You married Lilly Oxenham[6], who you met in 2002 and had two children with her.  You daughter, Jasmine, was born 6 May 2006.  In 2013, Jasmine was in

[5] Jasmine Rosa is a pseudonym.

[6] Lilly Oxenham is a pseudonym.

Grade 1 and was aged between six and seven; you were aged 27 to 28. 

11On one occasion between 1 January and 18 November 2013, Jasmine's mother was away from the house and you were minding your daughters.  You place Jasmine on the bed in your room, removed her pants and your own pans and laid on top of her, placing your penis against her vagina.  These actions underlie Charge 4 on the indictment, indecent act with a child under 16. 

12Jasmine detailed her allegations to police in a video recorded statement on
7 January 2014.  You were interviewed by police on 14 June 2014 in relation to Jasmine’s allegations and denied the offending. 

13Can I just break from the sentencing remarks here and ask you,
Mr Stouggianos, this matter was to have proceeded by way of trial, could you please let me know the date on which - I know I was there but I do not actually have the date.

14MR STOGGIANOS:  It was listed in the Latrobe Valley circuit, Your Honour, to commence, I think, 4 July and it was meant to be a special hearing on that day.  It was stood down for discussions to take place and eventually, the prisoner pleaded guilty on 6 July, that is the Wednesday.

15HER HONOUR:  Was the plea of not guilty in relation to the other complainant's as well?  It was not, no.

16MR STOGGIANOS:  No, it was guilty pleas to the four charges Your Honour's dealing with but the original trial indictment, I have not seen it, but it had other charges, I understand.

17HER HONOUR:  No, I understand that, but when were the pleas of guilty entered in relation to - apart from Mr Rosa's daughter.

18MR STOGGIANOS:  The rule on that day, 6 July.

19HER HONOUR:  Yes, but did the matter originally proceed by way of not guilty to all charges.

20MR STOGGIANOS:  Yes, there was a straight hand-up brief at committal and he pleaded not guilty and the next listing was the trial date of 4 July in respect of all the complainant's.

21HER HONOUR:  Right, thank you.

22MR STOGGIANOS:  If Your Honour pleases.

23HER HONOUR:  Yes, Mr Casement.

24MR CASEMENT:  That is in substance, correct?

25HER HONOUR:  Yes.

26MR CASEMENT:  I did the whole lot and I was brief for Mr Rosa's trial, which was Jasmine only.  The matter was stood down and we resolved that by way of a plea.

27HER HONOUR:  What was happening in relation to the other three?

28MR CASEMENT:  Pending in relation to the other two, there was some prospect of that being brought on in Your Honour's circuit.  I was there dealing with
Mr Rosa's matters anyway.

29HER HONOUR:  That is right, it was to be a separate trial.

30MR CASEMENT:  I stood it down for a day.  Before I entered any pleas, anyway, we resolved the matter and pleas of guilty were entered.  Whatever may have occurred before Mr Rosa saw me, we only saw pleas of guilty in relation to the earlier complainant's and also the substantial plea of guilty to Jasmine.

31HER HONOUR:  Thank you.  The matter proceeded by way of hand-up brief at committal when you entered pleas of not guilty in relation to all charges and ultimately, the matter was settled and a plea entered to the indictment before me on 6 July 2015.  Also, could I ask, what are the maximum penalties ‑ ‑ ‑

32MR STOGGIANOS:  Did Your Honour say 15 or 16?

33HER HONOUR:  Two thousand and fifteen, thank you.

34MR STOGGIANOS:  That was 2016, that is when the police rendered
July 2016 ‑ ‑ ‑

35HER HONOUR:  I am sorry, yes, and pleas of guilty were entered at Morwell on 6 July 2016.  Can I ask, what are the maximum penalties in relation to each of those?

36MR STOGGIANOS:  Ten years for each charge.

37HER HONOUR:  Including the ones in the ‑ ‑ ‑ 

38MR STOGGIANOS:  Yes, they are all indecent acts with a child under 16.

39HER HONOUR:  Yes.  The maximum penalty in relation to each charge is ten years' imprisonment.  I now turn to your personal circumstances.  You are 31 years of age.  Your parents separated when you were two and you did not, again, see your father until you were 15.  You have two older half-siblings born to your mother and two younger half-siblings also born to her and they are the siblings whom you offended against.  You also have a third half-sibling, who is born to your father in a subsequent marriage. 

40According to the report of psychologist, Dr Aaron Cunningham, dated
19 September 2016, which was tendered on the plea, you grew up feeling unwanted and abandoned.  Your mother, apparently, was alcoholic and physically assaulted the children.  You were raised with your younger half-brother and sister.  There were a series of step-fathers who came into and left your life.  One of the sexually abused you between the ages of seven to nine but you were too frightened to tell anyone.

41You left home aged 13 after a physical assault by your mother when she tried to strangle you.  You then lived with an older sister for a while until you were placed in foster care and over the next three years, were placed in between ten to 12 different residential units, primarily at the Berry Street institution in Morwell. 

42A worker there eventually got in touch with your father, who had subsequently remarried, and you were placed there.  It was in that time that you were living with your father that you assaulted your younger half-brother, Marcus.  You then lived with an uncle, Oscar Rosa[7], with whom you had a positive relationship and it was in that environment that you made the partial admissions that I have referred to in the summary of the prosecution case. 

[7] Oscar Rosa is a pseudonym.

43You met your wife Lilly when you were 15 and she was 19 and began a relationship when you were 17 and she was 21.  Two daughters were born of that relationship. 

44You attended many primary schools as a child and left secondary school after Year 9, working on dairy farm for two to three years until there was a change in management.  You then worked of the Pyramid Salt factory for a period of about six months and also, at some stage, worked for a pet food factory.  You have not worked for the past five to six years.

45The relationship with your wife ended three or four years ago and you have since re-partnered with Jade Barrett[8] with whom you live together with her father.  She has cystic fibrosis and a diabetic condition.  You act as a carer for her and her father, who is 82 and has a history of significant cancer and osteoporosis.  They are reliant upon you in matters such as transport and supply of medication.

[8] Jade Barrett is a pseudonym.

46It was Dr Cunningham's view that you were open and honest with him.  You expressed remorse for your offending and denied any sexual fantasy towards underage children.  It was Dr Cunningham's opinion that you have suffered from a major depression since you young, essentially arising as a result of your traumatic childhood and your detachment from those in your family who were meant to care for you. 

47You have a history of suicide attempts; the last, some six weeks before your interview with Dr Cunningham.  You used cannabis on a daily basis from the age of 13 and also described yourself as alcoholic.  You have managed to give up both cannabis and alcohol in the last three years with the assistance of your partner. 

48In describing the development of your major depressive disorder,
Dr Cunningham referred to your absent father, your alcoholic and abusive mother, the sexual abuse you suffered at the hands of one of her partners and said that at the present time, you present with feelings of worthlessness and thoughts of death.  He stated, "In my opinion, Mr Rosa's abuse contributed to his offending behaviour.  His behaviour is consistent with acting out his own experiences of sexual abuse."  It was his view that you had a number of protective factors in your life.  Essentially, they have been your supportive partner and being open to engaging in therapy and examination of your offending behaviour. 

49I had you assessed for a community corrections order, for which you were found suitable.  The assessing officer said you presented as quiet, cooperative and remorseful.  He conducted a suicide and self-harm screening tool, the positive results of which indicated that you continue to suffer from high levels of distress. 

50You counsel submitted that I should deal with you by way of non-custodial disposition, such as a community corrections order or a suspended sentence, which is available to me as a result of the time at which this offending too place.  He submitted that you had pleaded guilty, that you had expressed remorse, that your guilty plea had saved the complainant's the trauma of undergoing cross-examination in a trial and that you had also saved the community the expense and time of trial proceedings. 

51He submitted that your prospects of rehabilitation had been very much enhanced in the past three years because of the positive effects of your relationship.  He also submitted that any treatment you required was best dealt with in the community.  He said that you presented as open to treatment and that your psychological condition, primarily your depression meant that you would be likely to fare worse in prison than other prisoners in the same situation as yourself, who did not suffer the psychiatric difficulties that you did.  In addition, he submitted that your position in gaol would be worsened by your concern over how your partner and her father would fare in your absence. 

52The prosecution accepted that a community corrections order would be a suitable response to the offending that occurred when you were a teenager.  However, it was their submission that this was not the case in relation to the offending against your daughter.

53I do accept that the earlier offending on the indictment occurred when you were a young teenager and in relation to Marcus when you were in your later teens.  So that, in the circumstances, had the matter been dealt with at the time in the Children's Court, you may have been delivered treatment, which prevented the later offending against your daughter. 

54However, in my view, the offending against your daughter falls into a different category.  You were then an adult and this offending represents a particular breach of trust; that of a parent towards a young child. 

55The victim impact statements from both your daughter and her mother indicate the significant distress you have cause to both, which is only to be expected in the circumstances.  You half-sister Chloe also completed a victim impact statement indicating ongoing difficulties in her life arising from your offending towards her when she was child.

56In my view, the circumstances surrounding your offending against your daughter meant that aspects of general deterrence, specific deterrence, that is, sentencing, sending out a message to the community that such offending will be dealt with sternly, specific deterrence meaning that you, yourself, need to be informed of the seriousness of this offending and the results, should you engage in it, protection of the community and just punishment are the most significant aspects of the sentencing exercise before me. 

57In my view, only a sentence of imprisonment to be immediately served is appropriate insofar as the offending against your daughter is concerned.  However, in sentencing you, I do take into account your plea of guilty, notwithstanding that it was made at a late stage, your remorse, which I accept as genuine, the supportive environment in which you live, the rehabilitative steps that you have taken in the past three years and the fact that a sentence of imprisonment will, I am persuaded, weigh more heavily upon you than the normal prisoner, both because of the major depressive disorder you suffer and, as a result, of concern for the welfare of your partner and her father in your absence. 

58I therefore sentence you as follows.  Could you stand up please, sir?  I will need some assistance here because I am going to sentence Mr Rosa to gaol in relation to the fourth charge although I think I will begin with that sentence.

59In relation to Charge 4, you are sentenced to four months' imprisonment and then you are to be released on a community corrections order for period of two years.  In relation to each of the first three charges, you will be placed on a community corrections order which will begin on your release from prison in four months' time. 

60Now, I can only place you on a community corrections order with your consent, sir, and I need to explain to you the conditions that attach to such an order.  They are that you must report to the community corrections office within two working days of being placed on the order, which will be two working days from your release from prison.  Whilst on the order, you must not commit another offence punishable by imprisonment.  You may not leave Victoria without the permission of the community corrections office. 

61You must report to and receive visits from the community corrections office.  You must not attend upon the community corrections office under the influence of drugs or alcohol.  You must inform he community corrections office of any change of address or employment within 48 hours of that change and you must obey all lawful directions of the community corrections office. 

62I am going to order special conditions that you undertake 200 hours of unpaid community work, that you are assessed and undergo a sex offender's program.  Are you prepared to enter into that order?

63OFFENDER:  Yes, Your Worship. 

64HER HONOUR:  Thank you, have a seat and we will prepare the paperwork.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and order that you serve a minimum term of two years.

65MR STOGGIANOS:  If Your Honour pleases, there is the application for the forensic sample, Your Honour, I have got draft order to hand up.  I do not believe they have been opposed.

66HER HONOUR:  Yes, all right, thank you.

67MS CASEY:  Since it is a matter for Your Honour, I do not speak to it.

68HER HONOUR:  I think the seriousness of the offending does warrant it, particularly because of the 2013 offending, Mr Casement.

69MR CASEMENT:  It is a matter that I will explain to Your Honour.  Could I do so now?

70HER HONOUR:  Yes, of course you can.

71MR CASEMENT:  I actually have not touched upon that.

72HER HONOUR:  Yes, thank you.  Sorry?

73MR STOGGIANOS:  There is also the Sex Offender Registration order that see seek, for life, Your Honour so.

74HER HONOUR:  That is mandatory, is it not?

75MR STOGGIANOS:  Yes.

76HER HONOUR:  Yes, thank you, I will explain that in a moment.  As a result, you will also be placed on the Sex Offender's Register for life.  That is mandatory and Mr Casement will explain your obligations under that, thank you.  Sorry, what is the date today - 19th is it not.

77MS CROWE:  Yes.

78MS CASEY:  Twentieth.

79HER HONOUR:  Thank you.  Pardon?  Twentieth.  I need to tell you that I have ordered the police may take a forensic sample, it will just be a swab in your mouth.  If you resist the taking of that sample, police may use reasonable force in order to obtain it.  Thank you.  Yes, thank you, I will just put these - give these to the prosecution, they can go back as well.

80This has got here you undergo a mental health assessment and treatment - I did not order - I am just wondering if that would be helpful to your client to have some mental health treatment as well.  It is usually all part of the sex offender's program but ‑ ‑ ‑ 

81MS CASEMENT:  There exists a need, in my respectful submission.

82HER HONOUR:  Yes, it is often taken up by the sex offender's program in the community but I think I will also include the condition if you undergo mental health assessment and treatment as well.  You happy to do that too?

83OFFENDER:  Yes, Your Honour.

84HER HONOUR:  Yes, thank you.  Yes, thank you, that is fine.

85MR CASEMENT:  Your Honour, I wonder if it might be the case that you could send a copy of Mr Cunningham's report with Mr Rosa as he goes today on the basis of some concern.

86HER HONOUR:  Yes, absolutely, I will have another - we will get another copy and you could mention the situation when you go downstairs as well.

87MR CASEMENT:  Yes, I will.

88HER HONOUR:  Thank you, we will just take a copy of the report to give to your client when he goes downstairs. 

89MR CASEMENT:  Your Honour, can I attend upon the accused man, the prisoner, while the document is being ‑ ‑ ‑

90HER HONOUR:  Sorry, I could not hear that, Mr Casement.

91MS CASEY:  Can I go back to the accused man while the documents are being prepared.

92HER HONOUR:  Of Course.

93MR CASEMENT:  I will just tell him the order they are coming in and what we can expect.

94HER HONOUR:  Yes, thank you, thank you.  Yes, thank you, we will stand down.  Sorry, I have just got to sign the community corrections, I apologise.  Thank you, I thank counsel for their assistance in this matter.  Yes, thank you, we will stand down.

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