Director of Public Prosecutions v Salvaggio

[2018] VCC 1313

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01031

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARY SALVAGGIO

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 August 2018
CASE MAY BE CITED AS:	DPP v Salvaggio
MEDIUM NEUTRAL CITATION:	[2018] VCC 1313

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	Ms G. Daniel
For the Accused	Mr T. Sullivan

HER HONOUR:

1At about 10 pm on 13 October 2016, 31-year-old Chelsea Moreton[1] was asleep in her bed in her home in Epsom, a northern suburb of Bendigo.  You,

[1] Pseudonym used for anonymisation

Gary Salvaggio, were a stranger to her.  You entered her house with the intention of committing a sexual assault, in circumstances where you were aware a person was present.

2You entered Ms Moreton's bedroom, lay on her, held her down, threatened her and digitally raped her, and sexually assaulted her.  She eventually managed to fight you off, and you fled.  You had made a series of phone calls to Ms Moreton's phone in the half hour before these events.  It was these phone calls which led police to you.

3You disposed of evidence and told a series of lies to your wife and to the police, including making and swearing a false statement.  You were eventually interviewed, charged and remanded.

4When police seized your home computer, they found a video montage of recordings you had taken of your 47-year-old female neighbour over the preceding 10 months.  The images show her naked or getting undressed.  They were taken at close range, through windows of her house.  You pleaded guilty to stalking in relation to that material.

5In relation to the offending committed against Chelsea Moreton, you ran a contested committal and a trial.  Both times she was cross-examined.  You were found guilty by a jury of the offences alleged by Ms Moreton.

6The offending in more detail is as follows:

7Chelsea Moreton resided at 40 Stamford Street, Epsom.[2]  That is a house at the end of a street with open land leading to a railway line on one side.  Ms Moreton was a single mother residing with her eight year old son and her 24 year old housemate, Elizabeth Chamberlain[3].  It is unclear why you chose that house, or that victim, however CCTV from nearby buildings shows you walking along Stamford Street towards Ms Moreton's house at 9.05 pm.  You then walked back away from her house at 9.20 pm, before returning to the vicinity of her house at 9.35 pm.

[2] Address changed for anonymisation

[3] Pseudonym used for anonymisation

8Three phone calls were made from your mobile phone to Ms Moreton's phone, at 9.37 pm, 9.39 pm, and 9.45 pm.  It is unclear whether you were outside or inside the house at those times.  None of these calls was answered, Ms Moreton was most likely asleep.

9You entered the house through an unlocked door leading into the back open-plan lounge and kitchen area.  You entered with the intention of committing a sexual assault in circumstances where you were aware a person was present.  That is the charge of aggravated burglary.

10Ms Moreton's car was parked in the driveway of the house, the kitchen light was on, and the TV in the back lounge was on displaying the screen saver.  You looked through Ms Moreton's handbag, which was on the kitchen bench.  You took her wallet out and apparently examined it.  In the wallet was a photo of Ms Moreton's son.  Nothing was stolen.

11Ms Moreton was asleep.  Her eight year old son was in the next room, and her housemate Elizabeth was asleep in another bedroom at the front of the house.  You entered Ms Moreton's bedroom.  She described starting to wake when she felt someone crawling across her bed.  You climbed on top of her from behind.  She felt something cold going down the back of her pants.  Observations of her afterwards revealed black Texta marks on her buttocks, thigh and neck.  The felt pen found in her bedroom had your DNA on it. It seems what she felt was you drawing on her.  Again, the reason you did this is unclear.  She felt a light pressing on her shoulders, she rolled onto her stomach.  She could feel that someone was on the bed.  She started to respond, reaching to her shoulder where she felt a closed fist on the back of her neck.  She was being pinned to the bed by your forearm.  She struggled, but could not get up.

12You partially pulled down her pants and underpants.  Ms Moreton then felt you put your hand between her legs and touch her vagina.  You were, it seemed, trying to put your fingers into her vagina.  That event is Charge 4, the sexual assault.

13Ms Moreton started to resist more, saying "What the fuck is happening, what's going on?".  She tried to look over her shoulders at you.  You prevented her from doing so, but she saw the reflection of light in your eyeglasses. 

14You continued to touch Ms Moreton's vaginal area.  You made a threat towards her son to try to secure her compliance.  You said something like "Stop, or the little boy gets it".  She took that threat seriously and stopped struggling.

15You were ripping at her pants and underwear.  She said "Hang on, you have to wait, I'm on my period and I've got a tampon on".  You pushed her legs further apart and felt around her vaginal area for the tampon string, penetrating her vagina with your finger or fingers as you did so.  She described feeling you pulling on the tampon string.  Those events constitute Charge 3 of rape.

16At this point, Ms Moreton decided to fight back.  She screamed "No, get the fuck off me", and struggled hard, managing to throw you off her and throw herself onto the floor.  By the time she got up, you had already run from the room. 

17Ms Moreton ran down the hallway, screaming for Elizabeth.  Ms Chamberlain woke up, and Ms Moreton told her there had been a man in the house trying to rape her.  Ms Chamberlain rang 000.  The distress in the voice of Ms Moreton during that phone call is obvious.

18Ms Moreton was medically examined.  She had a sore neck and upper back.  Black Texta marks were observed on her buttocks and neck. 

19As a result of the three phone calls made from your mobile phone to hers, you were contacted by police.  You lied in a sworn statement, inventing a story about finding a $10 note which had the words "For a good time call", and Ms Moreton's number.  You told police you were ringing to try to alert the person to the fact that their phone number was circulating in this way. 

20At the time of these events, you and your wife and baby daughter lived in Harcourt, just outside Castlemaine, and 40 minutes from Epsom.  Your wife is a police officer.  She and your daughter had been away for a week in Queensland.  They were due home within days.

21When they returned home, you told your wife about your interaction with police.  She said police would likely find the offender due to forensic evidence, and she described fingerprints, DNA and shoeprints.  Shortly after, you disposed of the boots you had been wearing.

22Over the following days, your wife was starting to get suspicious.  You then admitted to her that you had been in the house, but for the purpose of committing a theft.  You denied confronting anyone.

23When she told you police would likely find DNA on the victim, you changed your story.  You claimed while going through the wallet, a person had run at you, and that you had stumbled and fallen, grabbing the person on the back of their pants.  You said your hand may have gone down the back of their pants. 

24Forensic evidence demonstrated your presence inside the house.  You handed yourself into the police and were formally interviewed.  You admitted entering the premises, but said it was only to steal.  You told police you had travelled to Bendigo to go to Bunnings, as you thought it may be open later in Bendigo, and you were desperate to finish building a retaining wall at your house.  You said you had consumed four beers.  You claimed to be upset at the absence of your wife and young daughter, and feeling pressured to finish the retaining wall in time for your daughter's first birthday party.  You discovered Bunnings was closed, you said you were hungry and wanted to go to McDonald's, but realised you did not have your wallet.  You said this made you more upset, so you parked your car and went for a walk to clear your head.  You said you saw the car door in Ms Moreton's driveway was open, and rifled through the car looking for change.  You claim that you found a vet bill with the victim's phone number on it.  You rang it three times.  You said it was at this time you formed the intention to enter the house, intending to steal because you were hungry.

25You denied entering Ms Moreton's bedroom, or raping or sexually assaulting her.  The jury rejected your explanation for entering the house, and your denials in relation to the events in the bedroom.

26I am satisfied that you formed your intention to commit the aggravated burglary during the period where you are seen parking near the victim's house and walking to and from the house.  Your counsel at your plea conceded that this was a correct assessment.  In other words, there was premeditation of approximately an hour prior to you committing these offences.

27Further, it seems there was a moment of indecision or change of mind reflected in your coming back to the car before you then return to the house and enter it.  That moment was an opportunity for you to desist, and yet you did not. 

28When police executed a search warrant at your premises in relation to those offences, they seized your computer.  They found a video file of your neighbour, Abigail Wellish.[4]  Ms Wellish is 47 years old and lives in Harcourt with her partner and two children.  You and she live about 300 metres away from each other, but you are not known to each other.

[4] Pseudonym used for anonymisation.

29The file consisted of video recordings of Ms Wellish in various states of nudity, including undressing completely as well as images of her breasts, buttocks and pubic area.  On one portion, her partner can be seen lying in bed while she is undressing.  The file was in fact a compilation of recordings which had been taken on five separate occasions between January and October 2015.

30Most of the videos were taken from a position immediately outside the master bedroom window.  Some are taken through the window of a spare bedroom.  Ms Wellish's property is a four-bedroom weatherboard house on a large block.  The master bedroom is at the front of the house, set well back from the street and partially obscured by trees and an out building.  The spare room faces the backyard and is not visible from the street.  The bedrooms have no curtains because of renovations which were taking place. 

31You were interviewed by police in relation to the stalking of Ms Wellish on 1 February 2017.  You admitted to taking the videos.  You said you had first noticed Ms Wellish through her bedroom window on an occasion where you had been walking your dog.  You claim to have walked past by chance on a number of subsequent occasions and seen her undressing, which you then filmed on your phone.

32You stated that the stalking was a "silly decision", but that it "became somewhat encouraging when the person makes it very easy".  You believed if the victim was a true exhibitionist, she would not mind your behaviour.

33Regardless of how you originally saw Ms Wellish, at some point you made a conscious decision to take your phone and make video recording of her.  You repeated that decision four times, and then created the montage.

34The charge of stalking reflects your engagement in a course of conduct by way of entering and loitering on Ms Wellish's property, and keeping her under surveillance.  Ms Wellish could recall a number of occasions during 2016 when she heard what she thought were footsteps outside her window.  On occasions, she or her partner went to investigate.  Ms Wellish says she felt anxious and somewhat fearful.  When she found out about your conduct, she felt “scared”, “untrusting” and “sick in her stomach”.  She felt fearful of being alone in her own home.

35The aggravated burglary and sexual offences are extremely serious examples of such offences.  Taken with the stalking, they paint a very disturbing picture.  Deterrence, denunciation and just punishment must be at the forefront of my sentencing considerations. 

36In determining the appropriate sentences, I must also give consideration to community protection and specific deterrence, and therefore I must consider what risk you pose to the community.

37These two sets of offending appear to be grossly out of kilter with your life to that time.  You are a 34 year old man with no prior convictions.  To the outside world you appeared to be happily married with no real financial pressures, involved in renovating your house, and with a young baby. 

38A psychiatric assessment of you was undertaken subsequent to the jury verdict.  I have received a report dated 15 June 2018 from Dr Anthony Cidoni, consultant psychiatrist.  He outlines your history, and this was elaborated on at your plea.  Your father is of Italian background, born in Australia.  You have one full younger brother and half-siblings on your father's side.  Your parents separated approximately eight years ago.  Your father owned a real estate business and was often at work.  You denied any history of violence or abuse in the family home.

39You said you were singled out and bullied during your schooling.  Your mother, who gave evidence on your plea, described you as someone who always struggled.  She said you did not like to talk and saw a speech pathologist.  You wore glasses, had braces and orthotics, and suffered from psoriasis.  She said you never had many friends, you were the outsider.  Where you came last in sports, your brother was age group champion.  Although you denied any problems in terms of your learning or behaviour, your mother described you as having low grades and just passing at school.  You described having generalised anxiety through that time.

40You left school at the end of Year 10.  Thereafter you worked in real estate in your father's business for 12 years, including from age 24 periodically running the sales department when he was travelling.  You completed some modules of a real estate agent's course.

41You are a social drinker of alcohol.  At the time of the aggravated burglary, rape and sexual assault, you had had four beers.  You said that you do not tolerate alcohol well, and that that is enough to get you intoxicated.  Having said that of course, you managed to navigate the route from Harcourt to Bendigo.  You have not had any alcohol at all since November 2016. 

42You had a number of short relationships and a two-year relationship from age 18.  You met your future wife online in approximately 2012.  You moved to live with her in Castlemaine.  You and she moved to Melbourne so that she could pursue a career in the police force.

43You described difficulties when you moved to Melbourne.  You had trouble fitting in, you had given up your career, and you say your self-esteem was low.

44Your work history after leaving real estate was sporadic.  You worked for four months in a baking factory in Melbourne.  When you and your wife moved back to the Castlemaine area in 2014 you worked for eight months at a smallgoods factory, where you were retrenched after a misunderstanding about workplace equipment. You worked for one and a half months as a handyman and four and a half months with Australia Post, and after five months of unemployment, you started working in warehousing, which you did for over a year.

45You say, and I accept, the loss of regular employment, combined with an apparent focus on your partner's career, put a strain on your relationship.  You were increasing concerned about your lack of financial contribution.  You also spent considerable time with a clay target shooting club, which became another point of contention. 

46Your daughter was born in October 2015.  In the last two years of your relationship, you stated your wife was getting distant, particularly when she was pregnant.  You described your own low mood and some insomnia.  In your record of interview, you paint a picture of decreasing self-esteem, coupled with growing family pressures.  You are now separated from your wife.

47In your assessment with Dr Cidoni, you made a number of concerning comments regarding your offending.  First, you rationalised your stalking of Ms Wellish, and engaged in victim-blaming.  You reported that over a period of two years you had watched this woman four or five times.  You said you were sexually aroused by watching her. You said that watching this woman was opportunistic, and you believed that in not drawing her curtains, she was wanting someone to notice.

48Secondly, you continued to deny the sexual offending against Ms Moreton, and told Dr Cidoni that you believed your victim had denied being sexually assaulted on several occasions to police, and also when she was cross-examined.  That is incorrect, and reflects your refusal or inability to accept your offending behaviour.

49You maintained the story you told police in your record of interview, though you did admit that you had gone to the property and then walked back to your car, having changed your mind, and then changed your mind again and entered the property.

50Dr Cidoni assessed your risk of sexual reoffending.  In terms of your psychosexual history, you described sexual relationships from age 17.  You described having had sexual relations with approximately 50 women.  You described having a normal sex drive, but stated that this has reduced in the last three to four years. You described being attracted to women without a particular age preference, but not underage.  You denied any particular history of exhibitionism, frotteurism, or voyeurism, although the stalking charge is related to the latter.

51You told Dr Cidoni you were a frequent watcher of pornography, both heterosexual and lesbian pornography.  You described that you are dominant sexually, and that one or two sexual partners had asked you to be more forceful, including putting your hands around their necks, but you denied any violent or rape fantasies

52Based on the Static 99 tool, your total score was three or four, placing you at average or above average risk.  Dr Cidoni notes that the Static 99 does not measure all relevant risk factors.  He states in fact that on the basis of the information he had, your recidivism risk is lower than that indicated by the Static 99, based on factors not included in the risk tool, including importantly the absence of substance use disorder, major mental illness, and psychopathy.

53Dr. Cidoni concluded that your overall risk of sexual reoffending is average.  Given your denials, that assessment has its limitations.  In my view, you pose a serious risk to the community.  Your behaviour reflected in both sets of offences before me is extremely serious.

54In particular, in relation to the offences against Ms Moreton, you entered a stranger's house at night intending a sexual assault.  You then carried out that assault, using physical violence by way of your forceful restraint of her.  You added to that violence a serious threat against her child, who was in the next room.  That threat is not a charged act, but adds to your moral culpability.

55The sexual assaults only ended because she summoned the courage to fight you off.  She was a single woman, living with her child and young female housemate, and in that sense was vulnerable.  In my view, it matters little that entry was via an unlocked door.  I do note however there was no damage caused to enter the house, you were alone, not disguised, and you were unarmed.

56Fortunately Ms Moreton did not sustain any lasting physical injury.  She declined to make a victim impact statement, indicating that she wished “to put the matter behind me”.  She struck me, giving evidence, as an honest, dignified and courageous woman dealing with an incredibly difficult experience.  The psychological impact of such a breach on a person's home at night, accompanied by physical violence and the violation of her body by way of penetration of her vagina, must be significant.

57It matters not that the penetration was digital.  Courts have long recognised that digital rape should result in immediate custodial sentences, even when the offender has been of previous good character. [5]  In 2017 the Court of Appeal in the matter of Shrestha[6] reviewed sentences for digital rape and determined that an upward adjustment in sentences for offences of digital rape committed in circumstances of violence was warranted.

[5] R v Sheriff Unreported, 19 March 1998 per Tadgell, J.A. at [12] with whom Callaway and Buchanan, JJ.A. agreed.; R v Schubert [1999] VSCA 25; R v Brown (2002) 5 VR 463

[6]Shrestha v The Queen [2017] VSCA 364

58Ms Moreton's housemate Ms Chamberlain made a victim impact statement.  She describes her feelings of hypervigilance, her loss of trust in people and her anxiety.  She wishes she could go back to being the carefree girl who thought the best of people.

59These are serious examples of serious offences.  This is also a serious example of stalking.  You attended on the victim's residential property repeatedly over a lengthy period of time.  Although it may have started because of an opportunity, the recurring behaviour cannot be described as opportunistic.  You recorded her at close range, and at some point created the montage.

60In relation to both women, they were in their homes, places they are entitled to feel safe.  Your behaviour strikes directly at the heart of a person's domestic security and capacity to feel safe.[7]  Your violation of that environment is serious. 

[7]DPP v Barnes [2015] VSCA 293; see also Tuan Anh Cao v The Queen [2018] VSCA 98

61The prosecution submitted that the aggravated burglary is at the top end of seriousness.  I am mindful of the Court of Appeal's comments in the case of Barnes[8] in relation to sentencing for aggravated burglary and the subsequent offence committed.  I am therefore mindful of principles of proportionality and totality.

[8]ibid

62The maximum penalty for aggravated burglary, 25 years, indicates that Parliament views it as one of the most serious offences on the criminal calendar.  Here it is accompanied by rape, which as the same maximum penalty.

63You do not receive the benefit of any plea in relation to the aggravated burglary, rape and sexual assault.  You lied and denied the offending, disposing of your boots to avoid detection and inventing a story to try and meet forensic evidence. 

64You conducted a committal and trial, both of which involved the victim being cross-examined, along with her housemate.  At trial, the victim's ten-year-old son was cross-examined, as well as your ex-wife.  You continued to deny the offences and have expressed no remorse.

65You are of course given the credit of your plea of guilty in relation to the stalking matter, and the fact that the victim in that matter did not have to give evidence.  There is of course the utilitarian benefit also in that plea.  However, even with the stalking you have not taken full responsibility. 

66Protection of the community goes hand-in-hand with specific deterrence and your prospects of rehabilitation.  In considering those principles, I note your apparent lack of insight into your behaviour.   It is very difficult to properly assess the underlying causes of your offending behaviour, given your lack of acceptance of your offending.  Your prospects of rehabilitation in those circumstances must be described as extremely guarded.  You require offence-specific and therapeutic intervention.

67I do note that you were on bail for some 19 months.  In that time, you moved to your mother's home in New South Wales.  You started a successful gardening business, purchasing a vehicle and equipment.  You were able to present a number of glowing testimonials in relation to your work.  I note also that your mother is present again in court and supportive of you.  These are real positives, however the gravity of your offending substantially outweighs those factors. 

68It was conceded that a substantial term of imprisonment was warranted.  Your counsel argued that a longer than normal parole period should be set.  Given the objective gravity of your offending and your high moral culpability, and taking into account the circumstances of both sets of the offences and the sentencing principles, I do not accept that you are a candidate for a longer than normal parole period.

69Given I will impose terms of imprisonment in relation to Charges 1 and 3 on the aggravated burglary indictment, you will then become a serious sexual offender for the purposes of sentence on Charge 4.  Protection of the community thereafter must be the principle purpose for which sentence is imposed. The prosecution did not urge on me that I should impose a disproportionate sentence.  I believe all sentencing principles are met by the sentence I now impose. 

70If you could stand please, Mr Salvaggio.

71In relation to the charge of stalking, you are convicted and sentenced to three years' imprisonment.  One year of that sentence will be cumulative on the base sentence.

72In relation to the charge of aggravated burglary with intent to commit a sexual assault, you are convicted and sentenced to eight years' imprisonment.

73In relation to Charge 3 of rape, you are convicted and sentenced to eight years' imprisonment with four years' cumulative.

74In relation to Charge 4, of sexual assault, you are convicted and sentenced to four years' imprisonment with one year cumulative.

75The total effective sentence therefore is 14 years' imprisonment.  I propose to set a non-parole period of 11 years' imprisonment.  I declare 117 days as already served.

76On Charge 4, I declare that you are a serious sexual offender, and that that declaration should be noted in the record. 

77The prosecution also submitted that I should order that you comply with reporting obligations under the Sexual Offenders Registration Act.  Pursuant to s.11(3), I may make such order if satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more members of the community.  Due to the reasons outlined in this sentence, I am so satisfied.  The mandatory reporting period is 15 years. 

78I propose to make the disposal order in the terms sought.

79COUNSEL:  As Your Honour pleases.

80HER HONOUR:  Thank you, if you could remove Mr Salvaggio please?  Excuse me, sorry, wait.  The registration, right.  Mr Salvaggio has to sign the Sex Offenders Registration Act form apparently, so just have a seat there, Mr Salvaggio.

81MR SULLIVAN:  Your Honour, just a clarification.

82HER HONOUR:  Yes?

83MR SULLIVAN:  I think it was - you have recorded that I have urged for a longer than normal non-parole period.  That was the phrase that was used ‑ ‑ ‑

84HER HONOUR:  I should have said parole period.

85MR SULLIVAN:  That is right.

86HER HONOUR:  Yes.

87MR SULLIVAN:  On two occasions, so that was just moments ago, and five minutes ago.

88HER HONOUR:  Yes.

89MR SULLIVAN:  Yes Your Honour, that has been clarified.

90HER HONOUR:  Yes, I will make that correction when I revise the sentence, that is what I intended Mr Sullivan, yes.

91MR SULLIVAN:  As it please Your Honour.

92MS DANIEL:  Did Your Honour need a copy of the disposal order for signing?

93HER HONOUR:  I will take one, has that had the amendments made to it?

94MS DANIEL:  Yes Your Honour.

95HER HONOUR:  All right, thanks very much.

96MS DANIEL:  I have three copies.

97HER HONOUR:  Thanks. 

98MR SULLIVAN:  May I be excused to attend, Your Honour?  Perhaps I should attend?

99HER HONOUR:  Sure, yes.  Yes, of course, yes.  Thanks very much, you can now remove Mr Salvaggio. 

100MR SULLIVAN:  As it please Your Honour.

101HER HONOUR:  Thanks very much Mr Sullivan and Ms Daniel.

102MR SULLIVAN:  As the court pleases.

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