Director of Public Prosecutions v Schembri
[2019] VCC 1774
•29 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-19-00084; CR-19-00346
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN SCHEMBRI |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 October 2019 | |
DATE OF SENTENCE: | 29 October 2019 | |
CASE MAY BE CITED AS: | DPP v Schembri | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1774 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – sexual penetration of a child under 16 – composite charges – trafficking in a drug of dependence – delay – good prospects for rehabilitation – no previous convictions – serious entry into the adult criminal justice system – term of imprisonment only available sentencing disposition
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Sprague | Office of Public Prosecutions |
| For the Accused | Mr D. Swan | Victoria Legal Aid |
HER HONOUR:
1 Nathan Schembri, in 2015, after you had successfully completed your VCAL, you moved from your home town of Wangaratta to Melbourne.
2 There, you embarked on a business of drug trafficking. You were dealing in MDMA, GHB, methylamphetamine, ketamine, cocaine and amphetamine.
3 In December of 2015, you went back to Wangaratta for a period, before returning again to Melbourne.
4
Whilst you were back in Wangaratta, you were staying with your mother and stepfather. Your younger sister lived with her father at another address in Wangaratta. She had arranged for a girl she had just met to stay with her for a few days, after school holidays had started. That girl's name was
Nicole Elmer[1] and you met her through your sister. Nicole told you that she was 15. In fact, she was only 13. You were 18.
[1] Nicole Elmer is a pseudonym
5 A couple of days after you met Nicole, your sister apparently told Nicole that it was not convenient for her to stay at her place that night and you and your sister arranged for Nicole to stay overnight at your place, that is, your mother’s house instead.
6 Over the course of that night, 20 December 2015, into the morning of 21 December 2015, you engaged in three separate episodes of penetrative sexual activity with Nicole. During the first episode, and after various acts of touching and penetration (putting your fingers into her vagina, your tongue into her vagina and your penis into her vagina on two separate occasions), she asked whether you were wearing a condom. You said, 'no' and got out of bed and put one on. You then asked her if it was her first time and she said, 'yes'. After having put the condom on, you penetrated her vagina again with your penis and, on that occasion, ejaculated. After you had finished, you asked again whether it was her first time and she confirmed it was. You said, 'Oh I feel bad'. You got out of bed, put on your underwear and, on the agreed summary of facts, threw her clothing to her. It is that activity that gives rise to Charge 1, a composite charge of sexual penetration of a child under 16 to which you pleaded guilty.
7 You left Nicole in the bed and she went to sleep. She woke up sometime later and found you were sitting on the bed beside her watching television. There was then more sexual activity between the two of you. This time it involved penetration of her mouth with your penis and penetration of her vagina with your tongue, your fingers and your penis. She was unaware as to whether on this occasion, when your penis penetrated her vagina, you were wearing a condom.
8 After you had finished, you again put on your underwear and returned her clothes to her. She then told you that it would be her fourteenth birthday in two days’ time. You said, ‘You are 13? Why didn't you tell me you were 13? I thought you were 15'. It is this conduct, the acts of penetration that I have described, that gives rise to Charge 2, another composite charge of sexual penetration of a child under 16 to which you have pleaded guilty.
9 After Nicole had told you that she was 13, you asked her to have sex again. She said, 'Isn't it bad now that you know that I am 13?'. You said, 'No, who cares? It's already been done so might as well'. Then followed another act of penetration of her mouth with your penis, followed by penetration of her vagina with your penis. On this occasion, before ejaculating, you withdrew and ejaculated. You were not, on this occasion, wearing a condom. You asked her to get a towel and she then noticed that she was bleeding. She asked you if it was normal to bleed after sex and you said, 'yes”. She went and had a shower and then went to sleep in the bed beside you. It is this third episode, the acts of oral followed by penile penetration, that give rise to Charge 3, a third composite charge of sexual penetration of a child under 16.
10 The following morning, you drove Nicole back to your father’s house. You said to her, 'Don't tell anyone what happened because it's illegal' and you reinforced that later with a message over Facebook saying, 'Seriously, do not tell anyone, you cannot say a word'.
11 You had no further contact with Nicole during your stay in Wangaratta and eventually you went back to Melbourne and continued your drug dealing.
12 In early 2016, Nicole, although initially deciding not to tell anyone, ultimately told her parents and made a report to the police. In May 2016, she rang you and had a conversation that was recorded by police. In that conversation, you acknowledged having had sex with her and there was discussion between you about the fact that your sister knew that that had happened.
13 Some months later, on 16 July 2016, you were arrested by police outside the Centrefold Lounge in King Street in Melbourne. Exercising powers under the Drugs Poisons and Controlled Substances Act, the police searched you. They found 29 ecstasy tablets in bags and two vials containing GHB in your pockets, together with $300 in cash. You were arrested and interviewed. You made a predominantly ‘no comment’ interview, but said the ecstasy and the GHB were yours, and were for personal use. You said that the cash had been given to you after you had finished work.
14 As a result, you were charged with offences relating to possession of the drugs and money found on you and bailed. It is of course a condition of bail that you do not commit any further offences whilst on bail.
15 Three days later, on 19 July 2016, police went to your home in Windsor and you were there arrested and taken back to the police station for questioning in relation to the sexual offending involving Nicole. In the course of the arrest, and by virtue of a warrant the police had, they seized your mobile telephone.
16 When you were interviewed, you denied engaging in any sexual activity with Nicole or knowing that she was 13 or 15 years of age. You told the police that you could not remember the whole night because you were intoxicated. You said that, when you first met Nicole, she had told you she was 16 and she told you that it was her birthday in two days and she was turning 17. You also said that you had looked at her Facebook page that night when you added her as a friend and it said she was 16. You said that you had only had sex once and that you had used a condom. You denied any conversation with her about being 13 and denied saying, 'Don't tell anyone because it's illegal'.
17 You were released without charge and told police would continue their inquiries. Having seized your phone on 19 July 2016, a decision was made to look at what was on it. However, the police investigation in respect of that moved at what could only be described as a glacial pace.
18 Examination of your mobile telephone revealed that you were engaged in the business of trafficking various drugs between October 2015 up until the day of the seizure of your phone on 19 July 2016 when you were questioned in respect of the sexual offences. There was includes evidence of trafficking activity between your arrest and bail on 16 July and your subsequent arrest in respect of the sexual offences on 19 July.
19 You were not interviewed in relation to the drug trafficking allegations based on the evidence found on your mobile telephone until 8 December 2017. That is, seventeen months after your phone was seized and you had been questioned in relation to the sexual penetration charges.
20 Although the messages on your phone showed widespread trafficking activity in MDMA, GHB, methamphetamine, ketamine, cocaine and amphetamine over that period, it is not possible to quantify, from those messages, the total amount of any of the drugs trafficked by you. The most that can be said is that it was a regular continuing business in which you were actively involved and that the bulk of your business seemed to be in trafficking MDMA, followed by, in descending scale, methamphetamine and amphetamine, with lesser quantities of GHB, ketamine and then cocaine.
21 The telephone analysis reveals, as has been acknowledged by you on the plea, regular organised offending that is clearly a business of trafficking, not simply small-scale trading to offset your own use. The messages that were found on your telephone revealed regular communication with twenty-three other mobiles over the nine month period covered by the charges that you have now pleaded guilty to. Some of those messages are clearly dealings with customers, others with suppliers or fellow dealers. Various slang terms were used in the messages for different substances including flippers, MD, biccies, Superman and Batman for MDMA, bots for GHB, whip for methylamphetamine, ket and special K for ketamine, coke for cocaine and speed or goey for amphetamine.
22 A flavour, and it is only that, of the extent or scale of the trafficking comes from messages like this: 'I will have sold 1000 x 12.30. Looking to source 50 more, and speed and MDMA'. In addition to the messages that you had kept on your phone, you also had stored various photographs and videos showing drugs in various forms, including bags of pills, rock, caplets and powder.
23 When interviewed, you denied trafficking in any drug. When asked about the references to various slang terms in the messages, you said, amongst other things, that the reference to flippers did not mean drugs, but thongs. You otherwise made no comment responses.
24
Even then, after that interview in December 2017, you were not charged. It was not until 5 February 2018, that you were charged on summons, both with sexual offences and trafficking. And it was not until nearly twelve months later, on
17 January 2019, that you were committed to this court and entered pleas of guilty to six charges of trafficking over that nine-month period.
25 The charges of trafficking are a result of a combination of the observations of you outside the Centrefold Lounge on 16 July 2016, the drugs and money found on you that night and the analysis of the hundreds of text messages on your phone over that nine-month period up to 19 July 2016. As noted, there are six separate charges of trafficking. One for each of the six substances that I have detailed. The nine-month period covered by the charges for each of the six trafficking charges covers the period from the day you turned 18 to when your mobile telephone was seized on 19 July 2016.
26 At the time that you were committed to this court, although the drug charges had resolved by acceptance of pleas to those six trafficking charges, you had indicated you intended to plead not guilty to the sexual offence charges. It was one month later, on 21 February 2019, that those matters were resolved ultimately by the acceptance of guilty pleas to the three composite charges that I have already detailed.
27 And so it is that you come to be sentenced today to three composite charges of sexual penetration of a child under 16 and six ‘between dates’ charges, over a nine-month period, of conducting a business of trafficking in MDMA, GHB, methamphetamine, ketamine, cocaine and amphetamine respectively.
28 For somebody who comes before the court as you do, as a young person without any previous convictions, it is an entry into the adult criminal justice system with very serious offending in two quite separate and discrete areas of serious criminal activity.
29 Each cluster of offending on its own would be disturbing enough. For the two to occur in combination over the same period, in one so young, is deeply disturbing.
30 By your pleas of guilty to the sexual offending charges, you acknowledged that you knew, in respect of the first two composite charges, that Nicole was only 15. That in itself was bad enough as you knew that she was underage. That you continued with the third series of acts, the subject of a third composite charge, when you knew she was only 13, clearly makes it worse. Other factors marking the seriousness of the sexual offences are these. You knew, in the course of the first series of acts making up the first of the composite charges, that this was her first time. It was clear from the evidence of the surrounding circumstances that this for you was nothing other than an opportunity to satisfy of your own sexual gratification with someone in whom you otherwise had no interest. You were not prepared to desist, either when you knew it was her first time or when you knew that she was only 13. It was selfish and disrespectful behaviour towards a girl so young. She was, as you knew, vulnerable. The offending occurred in your home, in a town that she was unfamiliar with. She was new to Wangaratta and had been in effect parked at your place for the night, to give your sister, whose guest she was, free access, it would appear, to her father's home for a night.
31 In addition to that, the age disparity is significant. Nicole was not quite 14 and you were just 18. However, a measure of the age gap is not one of a mere simple arithmetical calculation of just over four years. The significance is the experience and maturity gap between a 13 year old schoolgirl and the 18 year old that you were at the time: somebody back home in Wangaratta, after having lived an independent life in Melbourne and being involved in running a drug dealing enterprise in the nightclub scene there. Your conduct, revealed by the drug dealing activity, shows that you were engaging in wholesale, serious criminal, adult activity.
32 Also the absence, for at least some of the sexual activity, of a condom and the fact that each charge is a composite, involving a number of separate acts of penetration, add to the assessment of seriousness. And finally the impact on Nicole herself.
33 The impact on her has not surprisingly been significant. That this was her first sexual encounter and it was one not accompanied by any affection, romance or even a fleeting sense of love or engagement, made it much worse. It made her appreciate, as she did, so soon after that she had been used or, as she described it, 'treated like a piece of meat'. This was obviously something that added significantly to the distress she felt as a result.
34 The delay in the matters coming to hearing and plea hearing has made the impact on Nicole in some ways worse. She is now 17. She had the courage and the self-possession to read her victim impact statement at the hearing of the plea. In it she detailed the rollercoaster of emotions that she has been through over the last four years. She was quite remarkable in her insight, and in her progress from being a victim to being able to take control, to accept what had happened and to move on. I am not going to quote the victim impact statement again, you heard it as she read it and that was only a week ago.
35 So far as the trafficking charges are concerned, the factors that mark its seriousness are the duration (a period of nine months), the widespread nature of it (six different types of drug), the volumes in which you dealt as evidenced by the text messages, the fact that this clearly was a business enterprise and an ongoing business enterprise, not a one off, that it went well beyond offsetting the cost of your own use, and that your arrest on 16 July 2016 did not stop you from dealing. Although arrested, charged and bailed, the messages on your phone show you continued undeterred.
36 Both episodes of offending considered alone, are serious examples of each type of serious offence. Both illustrate that you were simply doing what you wanted, when you wanted, without conscience or compunction, and the fact that the sexual offending occurred during the period of trafficking, makes that even clearer.
37 It is very clear therefore that, subject to considerations personal to you, denunciation and deterrence, both general and specific, are important sentencing considerations when determining what is the just punishment in all of the circumstances.
38 Mr Swan relied in mitigation predominantly on your youth, the delay, the absence of previous convictions and subsequent offending and the positive changes in your lifestyle since this offending period ended with the seizure of your mobile telephone.
39 I was told that, after finishing school in Wangaratta, and after what had been a somewhat interrupted primary and early secondary schooling, you steadied and completed your schooling. You then left Wangaratta and went to Melbourne to live. You were living away from home and clearly lacked parental guidance in your immediate living circumstances. You became involved in the nightclub scene. Your drug use increased and you began dealing. It was acknowledged, as I have said, that your dealing was of a much greater scale than simply dealing to support your own use.
40 Although your arrest on 16 July 2016 did not stop you dealing or using, I was told that your use did abate somewhat after that. But it was twelve months later, in August 2017, when a close friend of yours was killed in a car accident, that you reassessed, or started to reassess, your lifestyle and your choices. I was told that, as a result, following the death of your friend, you left Melbourne, returned to Wangaratta, got a real job and significantly reduced your drug use. That means that you had returned to Wangaratta before you were questioned by police in relation to the drug trafficking activities, as evidenced by the messages retrieved from your phone.
41 You may have started on the journey of assessing your drug use and your lifestyle, but when you were questioned in December 2017, consistently with the attitude you took when you were questioned in relation to the sexual offences in July 2016, you denied any criminal activity. So, in December 2017, you denied any involvement in drug trafficking and you gave some patently false explanations of your activities as evidenced by the messages.
42 You have remained in Wangaratta and you have continued on your progress in employment and changing your lifestyle. You are now in the second year of what your employer, in the testimonial that was provided after the plea hearing, describes as a mature age apprenticeship as a mechanical fitter. His testimonial speaks highly of your commitment and work ethic. So too does the testimonial of a work colleague of your former employer in Wangaratta, after your returned there.
43 I was told that your progress in terms of changing into a positive lifestyle was also marked by a significant change following the suicide of another friend of yours in early 2019. That, I am told, led you to stop all drug use. I am told you have been abstinent since then.
44 You have not engaged in any drug counselling or treatment or testing, preferring, as you told Mr Cummins, the psychologist who assessed you in July of this year for the purposes of the plea, to do it alone.
45 In June of this year, your plea hearing was listed. In the lead up to the plea, you overdosed on Valium and Endone. That led, amongst other things, to an adjournment of the plea but, more significantly, you were hospitalised for two days and assessed by a CATT Team. On release and you were referred to the care of your GP and to a psychologist. You told Mr Cummins that you took the overdose because you were feeling overwhelmed and it was a cry for help.
46 According to Mr Cummins' report, you had been attending the psychologist regularly and you found the sessions beneficial. On the plea, Mr Swan told me that you had stopped seeing the psychological after two sessions, because you had not found it helpful, that you did not think you really needed it and it interfered with your work commitments.
47 Although you have not attended any drug counselling, nor engaged with a sexual offender treatment program, I am told that, if directed to do so, you would participate. But you have not, in the time since being questioned or since being charged, initiated any such engagement yourself.
48 Your return to Wangaratta in 2017, obtaining and maintaining proper vocational employment, the absence of any further offending and the report of decreased drug use and then abstinence, are all positive matters counting in your favour. All of those show positive changes during that period of what is unacceptable and inexcusable delay between the offending and the hearing.
49 You have written a letter of apology which was provided on the plea. I accept that the letter and the way you express yourself in it, together with your guilty pleas and those positive changes in your life since the time of offending are not only evidence of significant change, but also evidence of remorse. I take into account your pleas of guilty in the stages at which they were entered as matters in themselves that operate to mitigate the sentence by reason of their utilitarian value, the advancing of the interest of justice and, so far as the sexual offences are concerned, the sparing of Nicole the ordeal of having to give evidence, of having to relive the event and her facing the indignity of being cross-examined and told she was a liar in respect of matters that are now admitted by you. All of that operates to significantly reduce the sentence that otherwise would have been appropriate. In the circumstances and by reason of those other matters, I also take your pleas of guilty as further evidence of remorse and take that into account as well.
50 You were not suffering from any mental illness or psychological condition at the time of the offending which might explain either or both lots of activity, so as to operate to reduce moral culpability, or moderate the weight to be given to general deterrence.
51 Since the overdose, Mr Cummins has diagnosed you as suffering an adjustment disorder with mixed anxiety and depressed mood, reactive to being charged and awaiting sentencing. There is, however, no mental illness or psychological condition arising since the offending, which would in any way impair your prospects for rehabilitation, or pose a risk of future offending. Nor is the adjustment disorder anything that enlivens any of the limbs in Verdins. I take into account, in a general sense, the fact that, in addition to the delay and the burden that has imposed on you, you have developed that adjustment disorder which has made the wait more onerous for you.
52 All of those factors I have identified point to your prospects for rehabilitation properly being characterised as good.
53 That there has been such a delay from the time Nicole made her first report to the police, only months after the sexual activity, and from the time four months after that when the police seized the mobile telephone containing the bulk of the evidence in respect of the trafficking, is of great concern.
54 No reason has been advanced other than operational or resourcing issues within Victoria Police to explain the delay. I might add that, perfectly properly, Mr Sprague made no attempt to justify the delay. Clearly it is not justifiable.
55 So I take into account the fact that the delay is not of your making and that you have had the matters hanging unresolved over your head for a considerable time and that is simply not fair or right. It has had the impact on you that I have already identified. So although, in one sense, you have used the delay positively, it clearly has had an oppressive and punitive effect on you and I take that into account.
56 It is clear that with young offenders, as at the age of 22 you still are, the importance of recognising the role youth and immaturity play in offending by young people must be given proper weight and that the weight to be given to encouraging rehabilitation, particularly if it is already underway by the time of sentencing, operates to reduce the weight otherwise to be given to general deterrence.
57 On your plea, it was submitted that your youth, the change in your lifestyle, attitudes and behaviour since the commission of these offences, the evidence of remorse and rehabilitation, all justify a non-custodial sentence. Specifically, it was put that sentencing could be deferred for a considerable period to allow you to engage in offence-specific rehabilitation programs, with a view to demonstrating that the imposition of a community correction order was warranted. Alternatively, it was put that you could be released immediately on a community correction order.
58 In my view, having regard to the seriousness of each of the sexual offending charges and trafficking charges, and the fact, although unrelated, they occurred in the same time period, a deferral, a community correction order alone or as part of a combination sentence involving, as it must, a term of imprisonment of twelve months or less, is wildly outside the range of sentence that is properly open to me. I come to that view notwithstanding your youth at the time, the positive changes in your life during the lengthy delay and the punitive effect of the delay and leaving the charges unresolved for so long.
59 The needs of denunciation and general deterrence, in respect of both lots of behaviour, require, in my view, a sentence of imprisonment and one significantly greater than the type of sentence that could be achieved even by a combination sentence. I do that having regard to general principles and particularly to what the Court of Appeal said in Boulton.[2]
[2]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen
(2013) 46 VR 308
60 The sentence to be imposed is, however, tempered by your youth. Both the head sentence and the non-parole period have been reduced by reason of a reflection that a young person does not have the maturity to think through the long term consequences of their behaviour and that you have, over the intervening years, made such positive changes in your life and lifestyle. But nonetheless, the offending is too serious to be marked other one by a term of imprisonment.
61 I have also, having regard to your youth and the importance of encouraging the prospects for rehabilitation, allowed a considerable gap between the head sentence and the non-parole period to reflect that and to further encourage your prospects for rehabilitation. It is my very strong view that your prospects of rehabilitation will be much more improved, and the risk of you reoffending will be much reduced, if you are given every opportunity to be released on parole into the community and to be supervised upon your release. Your vulnerability to relapse into substance use and a possible consequent return to trafficking in drugs, if initially only to fund your own habit but also because it is a lifestyle you had previously adopted, and your vulnerability to engage in disrespectful or inappropriate relationships with women, will be greater at the time of your release from gaol and, therefore, the importance of having supervised release and support on parole is paramount.
62 The prospect of participation in a sex offender program in custody and on release, as well as drug relapse prevention programs, to me, are very important. I urge therefore the Corrections authorities to make sure such courses as are appropriate, are made available to you in custody, so as to best prepare you for release at the earliest possible stage and that you are then released at the earliest possible stage for further supports by way of participation in such courses in the community.
63 Nathan Schembri can you now please stand.
64 On indictment J10486481B, containing the three charges of sexual penetration of a child under 16, you are convicted on all three charges. On Charge 1 on that indictment, you are sentenced to be imprisoned for a period of three years. On Charge 2 on that indictment, you are sentenced to be imprisoned for a period of three years and three months. On Charge 3 on that indictment, you are sentenced to be imprisoned for a period of three years and six months.
65 On that indictment, Charge 3 is the base sentence and I direct that three months of the sentences on each of Charges 1 and 2, be served cumulatively upon each other and on the base sentence. That makes, in respect of the sexual penetration indictment, a total effective sentence of four years.
66 On indictment J10486481A, containing the six charges of trafficking in a drug of dependence, you are convicted. On those charges, you are sentenced to an aggregate term of imprisonment of eighteen months and I direct that twelve months of that, be served cumulatively upon the sentence on the other indictment. That makes a total effective sentence on the two indictments of five years imprisonment. I fix the period of two years and six months as the time that you must serve before being eligible for parole. I declare that you have spent seven days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
67 I declare pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty, I would have sentenced you to a total effective sentence on both indictments of eight years imprisonment with a non-parole period of six years. I have already noted that, by reason of the three charges of sexual penetration constituting a single class 1 offence, you are required to be registered under the Sex Offender Registration Act for a period of fifteen years. I make the disposal and forfeiture orders sought. Are there any further orders that are required to be made?
68 MR SPRAGUE: Only your Honour that, as a result of imprisonment being imposed on the sexual offences, the declaration - - -
69 HER HONOUR: I declare pursuant to Charge 3, on the first indictment in respect of the sexual offences, that you are sentenced as a serious sexual offender and that be noted on your record. Is the form in which the sentences have been pronounced correct and is the arithmetic correct?
70 MR SPRAGUE: Yes I believe so.
71 MR SWAN: Yes, your Honour.
72
HER HONOUR: Thank you. Mr Schembri I must remain on the Bench whilst you are in the dock and I see that your mother is here. I will stay here so that you can speak to her briefly before you are taken downstairs.
Mrs Schembri, I am sorry you are not allowed to touch him, but I will certainly allow you to speak to him. You can approach now.
73 OFFENDER: Can I give her a note?
74 HER HONOUR: Perhaps if you give it to the custody officer and that can be handed over. Thank you. He is not going to read it, he just has to open the envelope.
75 OFFENDER: Have a good day, your Honour.
76
HER HONOUR: Thank you, now can you please remove
Mr Schembri.
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