Director of Public Prosecutions v Salerno

[2022] VCC 386

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 19-02339

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL SALERNO

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	23 March 2022
CASE MAY BE CITED AS:	DPP v Salerno
MEDIUM NEUTRAL CITATION:	[2022] VCC 386

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	Office of Public Prosecutions
For the Accused	Ms A. Mason	Forty Four Degrees

HIS HONOUR:

1Michael Salerno, on 7 March of this year you were convicted by a jury of one charge of indecent assault, and one charge of sexual penetration of a child under the age of 16 years.  You are now 55 years of age.  At the time of the offending, you were around 19 or 20.

2The situation is because you ran a trial, you do not get a benefit of a plea of guilty.  No utilitarian benefit is available to you.  You do not get the benefit expressed by Worboyes, a recent Court of Appeal decision.  So far as remorse is concerned, I accept that you have spent a lot of time thinking about this over a long period of time, having listened to the pretext call.  But you cannot get the benefit of remorse either. 

3In a matter such as this, those matters would have been very mitigatory had they been in existence and may have achieved a different outcome for you.

4Because of the matters in which you have been convicted, you will be placed on the Sex Offenders Register, and I advise you that the reporting conditions will be for 15 years.  There are two charges, so the serious sexual offender provisions do not apply.  As will become clear, your crimes call for the application of general and specific deterrence, denunciation, and appropriate punishment.

5I am very conscious throughout this sentencing process that you are now a man who has achieved much in life, and who has raised a family, and has a dependent spouse as well as children and a very, very good work record.

6What cannot be lost in all this is the offending that took place, and the dreadful consequences that it has brought upon your victim.  We have just had read to us the significant part of the victim impact statement that was provided, and it displays the ongoing shame, self-blame, and sense of self worthlessness and the like that is so common in these types of matters and are the principal reasons why general and specific deterrence must play a very significant part.  I accept that as a 19 or 20-year-old, you probably were not aware of the full extent of what would be caused by what you did.  But the fact of the matter is that that is what has happened, and it has been very eloquently and intelligently, if I may say so, described to us by your victim this morning.

7The crimes at the time carried maximum penalties of five years and ten years respectively.  In this particular trial, you were originally charged with rape with the sexual penetration as an alternative. 

8The circumstances, as they arose throughout the trial, which I must admit I had taken the view was going to happen in any event on the basis of the decision of Dibbs, was that the rapes which had been put in the alternative, neither of them could be proved beyond reasonable doubt.  Accordingly, at the end of the Crown case, I was forced to withdraw them from the jury's consideration.  In those circumstances, you were the convicted of the crime of sexual penetration.

9It is important to note, and it has caused me some real difficulty, because I must confess I had forgotten this, that at the time this offending took place sexual penetration carried 10 years and rape carried 10 years.  The fact that the Crown have placed rape on the indictment, with the sexual penetration as the alternative, would indicate that they have taken the view, that rape is a more serious crime, in this given situation at least, than is sexual penetration.

10I make it very clear from the outset, that I am conscious of the fact of not sentencing you for rape.  My memory is sufficiently long enough to know what the sentencing practices were back then.  However, as I indicated during the course of discussion, it is certainly a forceful sexual penetration, and there are virtually no mitigating features to it.

11As I say, being careful in that regard, I do not want to be said that I am sentencing you for rape, as I make that very, very clear; I am not.  I say from the outset that had you been convicted of rape, the sentence that I impose would have been higher than the one which I do intend to impose.

12The circumstances of the offending can be dealt with relatively briefly.  It was a trial but I will simply be taking the facts in a general form of the Crown opening that was used in the trial.  You were aged about 19 or 20 and your victim was 12.  She was known to you as a friend of her older sister, and her older sister's then boyfriend, Frank Sacco.

13One evening during 1987, it was that lack of specificity that caused the problem with the rapes, you attended her premises in Morwell.  She was at home with her father and her sister and Mr Sacco were present.  During the evening, a number of you were consuming alcohol and listening to music, in the kitchen and lounge room areas of the home.  The complainant was also present, but due to her young age was not consuming alcohol with the rest of you.

14As the night progressed, she retired to her bedroom to go to sleep, leaving the four of you drinking in the kitchen.  After a period of time, she was woken to find you entering her bedroom and closing the door behind you.  You walked over to her bed, climbed under the covers with her, and began kissing her on her mouth, or running your hands over her body, and groping her breasts.  You then removed her clothing and yours before spreading apart her legs and inserting your fingers inside her vagina, which is Charge 1, indecent assault.

15You, after a period of time placed yourself on top of her and inserted your penis into her vagina causing her significant pain.  She was constantly stating,
'No, no, no' to you or pushing her arms up against you in an effort to get you to stop.  However, you ignored her pleas and continued to penetrate her for a further few minutes.  After finishing, and I do not know whether you ejaculated or not, certainly there was no condom worn. I safely assume, that you got up off the bed, dressed yourself and left the room.  There was some argument about that during the course of the trial, I do not need to take it any further.  I accept beyond reasonable doubt that the bed was covered in blood and ultimately, she changed the sheets.

16You, I accept, told other people in the house that you had in fact penetrated her.  When she got up in the morning, she was spoken to by her father, who was clearly aware that there had been some form of sexual activity.  She told him that nothing had happened, hoping that it would all go away.  She was scared of being taken away from the family, and the impact on her, which was so eloquently described before, commenced at that moment.  She was 12, innocent, and placed in an intolerable situation. 

17It became clear during the course of the trial, that other people had become aware of this and had abused her and confirms in that sense the impact that this has all had upon her.

18In March of 2019 when she ultimately went to police, there was a pre-text telephone conversation conducted with you, and it is absolutely clear during the course of that pretext conversation that you knew exactly what she was talking about.  You knew exactly what you had done.  It seemed to me, and undoubtedly the jury, that that interview amounted effectively to, probably not lawfully described, as a matter of law a confession, but in effect one.  When interviewed as was your right, you said no comment.

19The trial commenced and there was discussion between myself, the learned prosecutor, and your counsel as to how the trial would proceed, particularly with the rapes and it was indicated at the outset that those charges would almost certainly not survive.  Accordingly, you would have had another opportunity at that stage to acknowledge your guilt; you could have easily pleaded guilty to the assault, and the sexual penetration, and then just fought off the rapes.

20However, despite the pretext call, which was in my view, and also the jury's compelling, you elected to put the complainant through the ordeal of a trial.  That in itself, does not aggravate the situation but I think I have made it very clear, it certainly removes any sense of mitigation.

21Because of what you had already achieved, sentences are a situation where quite often a judge might be tempted to exercise a degree of mercy, but it seems to me that having put the complainant through this ordeal at a trial, that that concept has no application.

22In simple terms, she was 12 years of age, was in her own home, her father drunk, I suspect, was out in the kitchen or in bed.  She was extremely vulnerable, you ignored her protests, you kept going despite her physically trying to resist, and I accept beyond reasonable doubt that either you told the others when you left that room or the next morning, or that you became aware by reason of your presence, what had occurred, and from that moment on, this girl suffered and continues to suffer.

23In my view, a custodial sentence even going back that far is inevitable, and the discussion effectively to resolve was to be with a minimum term, or was it to be wholly suspended, or partially suspended.  Your counsel gave me very helpful submissions in that regard.

24I still struggle with the concept of rape and sexual penetration both carrying a maximum penalty of 10 years' imprisonment at that time, and I am just going to simply say no more about that.

25As I said, your counsel presented a very, very good plea on your behalf, and that the submissions which had been tendered outline clearly the circumstances.  Since shortly after at least that particular night, which I accept for these purposes was opportunistic, though brutal, and you showed little remorse or concern for your victim afterwards but as I said, I accept it was opportunistic.

26You were born in 1967.  You have two sisters, and you went to school in Sunshine and Traralgon.  You left high school in Year 9 when your mother kicked you out of the house.  You have suffered a disadvantaged childhood, you were exposed to family violence, instability, and I accept exposed to sexual abuse.  Your parents separated when you were eight and joined with your mother and siblings to live with your grandmother.  Your father passed away when you were 10.

27Your mother had serious mental health issues and was resistant to medication.  She apparently had been diagnosed with schizophrenia or bipolar disorder, and she would go into fits of rage.  You were frightened of her.  At one stage, her mental health because so acute that she was made an involuntary patient, at which stage you and at least one sister were placed in an orphanage.  You were later cared for by an auntie.  Her mental health issues remained severe.  You were kicked out of home at 14, causing you to go and fend for yourself.

28Your mother has now passed away some years ago.  Despite that difficult start as your counsel pointed out, you have lived and worked in the La Trobe Valley for the bulk of your life, and you have a very, very good employment history.  You have been heavily involved in horse training and horse racing.  You at one stage worked with Mr Hore-Lacey, who was known to me, and then with other trainers.

29You returned to Traralgon full time in 1987 and obtained work at the Australian Paper Mill, at the APM in Maryvale in June of 1987.  You are still technically employed there; I have read this morning a letter from your employer.  You have clearly been a valued employee over some 35 years.  You instructed your counsel, and no reason to doubt it, in 34 years you have never used up a sick day.

30You met your wife in 1988 and you married later in the 1980's.  You both grew up in the region, but became prominent in your lives, and I am told become involved devoted to with light of a hearing to the Catholic faith.  You have four children together aged 29, 26, 18, and 16, and one of those is a student still living at home.

31Over the years, you have involved yourself in numerous community activities.  You played football for Gormandale and Glengarry.  You have played tennis, you have coached tennis in Traralgon and other areas.  You have been in local church groups, looking after young people.  You have been a member of the local cycling club and such matters.

32So, there are all matters which go very much in your favour; had you not run a trial, might have assisted you greatly.  The fact of the matter is you did.  You were 19 or 20 at the time of the offending, which would have fitted within the Youth Justice regime at the time.  However, my recollection is a strong one, that Youth Justice at that time would not take arson or rape accused, especially of your age.  So, that is a bit theoretical as to whether you might have attracted a YTC scenario. 

33Subsequent to being apprehended for all this, I accept that you have suffered major depression, that your mental health has deteriorated, and will be likely to deteriorate as a result of serving a custodial sentence.  You have in recent times been engaged with a mental health social worker.

34I also take into account, not as exceptional circumstances but certainly in terms of its effect on you, the situation with your wife.  She is ill and requires substantial help with activities, including daily living.  She is greatly assisted by you, and I accept that her condition is likely to worsen without your help.  Her current state of health is poor and is unlikely to improve.  As I said, that is not exceptional circumstances, but you will have to undergo a significant sentence bearing in mind that that is the set of circumstances that exist.

35I have read the letter that she sent, setting out the assistance that you have provided her, and it confirm that certainly since your younger days, you have led a very community-minded existence.  I accept that there will be anguish in your part at least, for not being able to look after your wife over the next period of time.

36You have now been in custody for some 16 days. 
I think the prospects of your rehabilitation are probably complete, the prospects of your reoffending in this way I think would be virtually zero. 

37However, what I am faced with is a 19-year-old young male who has gone into a 12 year old girl's - 12 year old virgin for that matter, whether you knew that, I do not know, and basically violently sexually penetrated her, and then effectively - well, not laughed about it, but put her in a situation of being mocked afterwards.

38You have done well for 35 years, she has done the best she can but in very, very difficult circumstances, and in what will continue to be very, very difficult circumstances.

39As I already indicated, I am clearly aware of the sentencing practices that were in place at that time.  I am aware of current sentencing practices and take all those matters into account.  Whilst something in the situation I am very reluctant to do, it seems to me that even questions of delay and the like which have all come into place, and the benefits of that delay has given you in terms of rehabilitation are such that a significant custodial sentence must still be imposed.

40Accordingly, on the charge of sexual assault you are sentenced to be imprisoned for a period of 18 months.  On the charge of sexual penetration, three years.  I direct that the two sentences be served concurrently, making a total effective sentence of three years. 

41I direct that 18 months of that three years be suspended for a period of three years, leaving a period of 18 months to be served.  I indicate to you that upon your release, were you to offend again in a nature such as this, or any serious way, that partially suspended sentence will be breached, and you will be brought back where you were almost certainly be ordered to undergo the rest of that sentence.

42I direct that 16 days be reckoned as having been served under this sentence. 

43Are there any other orders I need to make?

44MR HUTTON:  Not that I am aware of, Your Honour.

45HIS HONOUR:  No, all right.  Thank you for that.  All right, thank you.

---