Director of Public Prosecutions v Scerri (a Pseudonym)

[2017] VCC 2009

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01601

DIRECTOR OF PUBLIC PROSECUTIONS

v

JULIAN RAY SCERRI (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2017
DATE OF SENTENCE:	22 December 2017
CASE MAY BE CITED AS:	DPP v Scerri (a Pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 2009

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of guilty – two charges of sexual penetration with a child aged between 10 and 16 – one charge of indecent assault – offending occurred approximately 27-29 years ago – accused aged 14-16 years at the time – victim aged 10-12 years at the time – accused was the victim’s uncle – no prior or subsequent convictions – delay – sentencing of accused who was a child at the time of the offending

Legislation Cited:     Crimes Act 1958; Sentencing Act 1991.
Cases Cited:

Sentence:Total effective sentence of 15 months’ imprisonment wholly suspended for a period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper	Solicitor for Public Prosecutions
For the Accused	Mr R. Thyssen	Patrick W Dwyer

HIS HONOUR:

1Julian Ray Scerri,[1] you have pleaded guilty to two charges of sexual penetration with a person aged between ten and 16, and one charge of indecent assault.  The maximum penalty for sexual penetration with a child aged between ten and 16 years is ten years' imprisonment.  The maximum penalty of indecent assault is five years' imprisonment. 

[1] ‘Julian Ray Scerri’ is a pseudonym.

2I turn now to the circumstances of the offending.

3The victim of your offending was your niece, her father being your older brother, and the offending period spanned from May 1988 to May 1990.  During the period of offending you were between the ages of 14 and 16 years.  Your victim was between the ages of ten and 12.  You and your victim’s family would holiday together at a caravan park in rural Victoria. 

4Charge 1 is a representative charge of penile-vaginal penetration.  The offending which forms the basis of this representative charge occurred whilst your families were on holiday, at the victim's home and also at your own home. 

5Charge 2 is a representative charge of digital-vaginal penetration encompassing two occasions, once whilst you were on holiday and another occasion at your home when you and the victim were listening to music in your bedroom.

6Charge 3 is a charge of oral penetration when you and the victim were in the swimming pool of the holiday caravan park.

7In sentencing you on Charges 1 and 2, I have regard to all of the incidents of sexual offending of which those counts are representative. 

8The offending came to light when the victim, who was then aged 15, made disclosure whilst at school, firstly to friends and then to school authorities.  Her parents were immediately contacted and they in turn contacted your parents to advise them of the allegations.  Further, they demanded to have a family meeting.  At that meeting, you were confronted with the allegations and after initial denials, you admitted offending against the victim.  You said "I did it, it's true", stood up and ran out of the room. 

9Your parents, in consequence of your admission, agreed to take you to a psychiatrist.  It appears that you did, in fact, attend sessions with a local psychologist or psychiatrist to whom you were referred by your general practitioner.  Details were not available to me of the therapeutic intervention in which you were then engaged.  Anecdotally it appears that your offending was dismissed as merely "a form of doctors and nurses".

10I was informed on the plea that the victim and her parents attended their local police station and your offending was raised.  A decision was subsequently made by the victim’s parents not to proceed with any formal report although the circumstances whereby that came about were not clear.  Not surprisingly, the disclosure of your offending fractured the family and you no longer had any contact with the victim or her parents and there it seemed the matter rested.

11In 2015, the victim went to the police and made a statement detailing your offending.  As a result of that disclosure you were arrested and interviewed on 14 September 2016.  You admitted to engaging in sexual activity with the victim and further you admitted that you knew it was wrong.  You were then charged on 6 November 2016.  The matter resolved at a committal in August 2017 crucially before any evidence was called and thus relieving the victim from the necessity of having to give live evidence about this matter.

12I turn now to your personal circumstances. 

13You were born in 1974 and you are now aged 43 years.  As I have said, at the time of the offending you were aged between 14 and 16.  You were born in Melbourne and have an older sister, and a blended family of three more siblings from your mother's first marriage, one of whom is the victim's father.  Your mother worked as a machinist and your father worked in the printing industry. 

14You attended at a school in Melbourne’s north, and started Year 12 but did not complete it.  You have worked a number of jobs and are currently employed as a casual machine operator.  You do not have any children nor are you currently in a relationship, indeed you have had no significant intimate relationship in the course of your adult years. 

15You have not re-offended or come before the courts in the intervening 27 years.

16There was tendered on the plea a report dated 24 November 2017 by Ms Gina Cidoni, consultant psychologist.  In that report, she confirmed your antecedent history.  You reported a normal upbringing and that you were not subject to child sexual abuse, trauma or neglect.  You told her that in relation to this offending, you could not recall what was going on in your mind at the time but you admitted that the events took place.  You confirmed to Ms Cidoni your recollection of how the matter was dealt with once it came to the attention of your parents, which is in broad accord with how the matter was opened by the prosecution.

17As for your later life, you reported to Ms Cidoni that you had been drinking alcohol excessively from the ages of 18 years onwards, binge drinking up to half a bottle of Jack Daniels in one session.  You told her that you had reduced your alcohol intake so that now you only consume two or three drinks at a time.  You started smoking cannabis at aged 18 and did so regularly up until you were aged 26 when you ceased using.  You reported to Ms Cidoni no other substance abuse issues nor that you had a problem such as with gambling. 

18Ms Cidoni administered several tools of psychological testing.  Your results were a full scale IQ of 86 and working memory was your lowest score at 77, which is borderline.  This placed your cognitive function in the low-average range.  There were no reported signs of any cerebral dysfunction. 

19Ms Cidoni administered the sexual violence risk inventory and the Static-99.  Both these models are recognised actuarial predictors of the risk of sexual re-offending.  Both models scored you as having a low risk of further sexual offending and this also coincided with Ms Cidoni's clinical judgment.

20A victim impact statement was tendered on the plea.  The victim read it from the body of the court.  In measured and dignified language, she expressed her perception of how your offending had impacted upon her life.  She spoke of the depression and anxiety she has experienced throughout the years, of the medication she has taken, of the shame, embarrassment and anger she has felt over the years wishing that her life was different.  She concluded:

"As for the future, it's actually quite daunting.  I have lived with feelings of anger, frustration, helplessness, worthlessness, self-hatred, guilt, just to name a few things for almost all of my life that the thought of the future has left me feeling a bit lost.  I know that the near future is going to need a lot of hard work on my behalf to heal from this.  I know that I will need to keep seeking help with counselling, keep taking my medication and learn to deal with my emotions in a more positive manner.  I will never ever get over or accept what has happened to me but I will have to learn how to cope with it.  I will need to put a lot of energy into changing who I am as a person so I can be a positive member of society.  I will also need support in achieving this.  I want to have a much more positive and healthier future".

21I turn now to the gravity of the offending.

22There can be no doubt, Mr Scerri, that this was serious offending, nor can there be any doubt that the impact upon your victim has been lifelong.  The offending went on over a two year period and it involved repeated penetrative acts on your part.  You were four years older than the victim and you threatened the victim with the consequences of what would happen should she tell anyone. 

23The courts have stated repeatedly that considerations of general and specific deterrence and denunciation are to the fore when sentencing anyone who comes before the court for committing an offence against a child.  The courts will do everything within their power to ensure the protection of our young and thus anyone who pleads guilty to, or is found guilty of such offending can expect, in the normal course of events, to be sentenced to a substantial term of imprisonment whenever the offences have been committed.

24Your counsel Mr Thyssen submitted on your behalf that I should have regard to the following factors as substantially mitigating what would otherwise be regarded as just punishment.

25Firstly, your youth at the time of the offending.  Had the matter been reported at the time, you would have appeared in the Children's Court.  At the time of this offending, Mr Scerri, you were a child.  It seems to me it would now be a matter of pure conjecture as to how you would have been dealt with had the matter been prosecuted at the time.  I cannot exclude the possibility that had you been brought before the Children's Court in the early 1990's you would have been placed on a non-custodial order.  Your counsel relied on your age at the time of this offending and the well established sentencing principles that are engaged when the courts deal with young offenders. 

26Secondly, your counsel urged upon me your prospects for rehabilitation.  In the light of your offence-free adult life up to this date, your rehabilitation is not a matter of prospect but is a proven fact.  You have not re-offended.  Mr Thyssen relied upon your frank admissions in your record of interview which, whilst not descending into particulars of the offending, clearly acknowledged your wrongdoing against the victim of your offending.

27Mr Thyssen relied upon your early plea of guilty as indicative of remorse over and above the utilitarian benefit, in terms of the time and the money that has been saved by your guilty plea.  I accept that your plea is a genuine expression of remorse, Mr Scerri. 

28Mr Thyssen relied upon your assessment by Ms Cidoni of being a low risk of sexual re-offending. 

29All of those submissions, in my view, have a force and a cogency. 

30The prosecution in reply, ably represented by Ms Harper, conceded that in light of your age, principles of deterrence were moderated. 

31The sentencing exercise cannot give back to your victim that which has been lost.  That is not what the sentencing exercise is about.  The sentencing process has, I hope, provided your victim with a space in which she can tell her tale and know that her voice has been listened to.

32In sentencing you, I must have regard to a range of different factors.  Insofar as appropriate, I must give effect to principles of both general deterrence and specific deterrence, that is, I must deter others from behaving as you did, but also, if necessary, I must deter you from repeating any such behaviour.  I am satisfied that by virtue of your age, general deterrence and specific deterrence should play a lesser part.  I must express the community's denunciation of your conduct, but I should also promote, if possible, your rehabilitation.  I must take into account the effect that your crimes have had upon your victim.  I must have regard to current sentencing practices tempered by, insofar as can be ascertained, sentencing practices at the time of your offending.

33I give full effect to all of the mitigatory factors to which I have been referred. 
In my view, the fact that you were a child at the time of this offending, the fact that you have not re-offended and the assessment of your low risk of sexual re-offending are decisive factors.  Just punishment, in your case, can be met by the imposition of a sentence that does not require your imprisonment. 

34Mr Scerri, if you could stand up please.

35On Charges 1, 2 and 3 on this indictment, I am sentencing you to an aggregate sentence of 15 months' imprisonment, wholly suspended for a period of 18 months. 

36I direct that pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, you would have been sentenced to an immediate term of nine months' imprisonment.

37I am making an order which the prosecution have applied for.  In light of the serious nature of the circumstances of the offending, notwithstanding that they occurred when you were a child, the State are now entitled to take from you a forensic sample, a sample of your DNA.  That will be done by you attending at your local police station. They will take a forensic sample from you by putting a Q-tip in your mouth and it goes on to a database.  I am required to tell you that should you refuse to provide such a sample, then police officers are entitled to use such force as is necessary to take the sample.

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