Director of Public Prosecutions v Theodoropoulos
[2015] VCC 602
•17 April 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00143
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| GEORGE THEDOROPOULOS |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 12, 13, 17, 18, 19, 20, 23, 24, 25 March 2015 | |
DATE OF SENTENCE: | 17 April 2015 | |
CASE MAY BE CITED AS: | DPP v. Theodoropoulos | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 602 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Burnside | OPP |
| For the Accused | Ms N. Karapanagiotidis | Leanne Warren & Associates |
HER HONOUR:
1 George Theodoropoulos, you have been convicted by a jury of five charges of raping a young woman, who I shall call Laura,[1] on 12 August 2012.
[1] Pseudonym used.
2 At the time, Laura was 19 years of age, and you were 43. You had met Laura a number of times over the previous few months, as she was the partner of a business associate of yours, Matthew.
3 On 11 August 2012, the day before the offending, you had invited Laura and Matthew to attend your son’s 18th birthday party. The party was held at the home of his mother Stella, who was your former wife. Accompanying you to the party were your younger son, his mother who was at that time your partner, and your mother. You, Laura and Matthew were seen disappearing into the bathroom during the night, and it became clear the three of you were smoking ice. You also all took some ecstasy tablets, and all had at least some alcohol.
4 Your behaviour, in disappearing into the bathroom eventually resulted in you having a fight with your partner, and Matthew and Laura being asked to leave the party.
5 The three of you eventually left the party together, and around 5:00AM on Sunday 12 August you paid for a room in a hotel in a nearby suburb, and the three of you continued to drink and smoke ice. At one stage Matthew went to bed and slept for some time, and you left to pick up Stella and brought her to the hotel room. You and Laura, and possibly Stella took more Ecstasy.
6 Later, you left to drive Stella home. When you returned, Laura was asleep in the bed, and Matthew was awake and up. He went out to try to get some more ice, and to buy some food. Laura was still in the bed. Although you could not have known this at the time Matthew left, Laura had taken her clothes off, and was naked, under the covers on the bed.
7 On Laura’s account, which, by the verdict on charge 1 the jury must have accepted, she woke up, to discover she was lying on her side and you were holding her hip and performing oral sex on her. She said she was in shock, and was going in and out of consciousness. This offending is the subject of the jury verdict of guilty on charge 1 of rape.
8 On Laura's account, which again by the verdicts the jury must have accepted, you then moved Laura on to her stomach, and penetrated her vagina with your penis (charge 2). She was by then awake enough to tell you to stop, but you did not. She said she was afraid to resist, because she did not know what you would do. She did not know at that stage where Matthew was, and whether he was aware of what you were doing, and a party to allowing it to happen. This act of penetration came to an end when a phone rang in the room, and you withdrew, and moved over to the other side of the bed to answer it. It was Matthew on the phone, asking you about what takeaway food you wanted. Although Laura could hear Matthew’s voce, she said she did not call out or try to communicate with him because she was afraid of what you would do, did not know where Matthew had gone or how far away he was, how long it would take him to return, and whether in any event he was complicit in what was happening to her.
9 After the phone call, you went back to Laura on the bed, and immediately digitally penetrated her (charge 3). You then penetrated Laura’s vagina again with your penis before ejaculating onto her back, and wiping her back with a handtowel (charge 4) You then inserted your fingers into Laura’s vagina for a second time (charge 5). This caused her pain, and she rolled over to stop you from doing this.
10 After you stopped, you straightened up the bed sheets and moved away from the bed. Laura remained in the bed and drifted in and out of sleep. According to her evidence and which on the jury's verdicts it must have accepted, during these last four acts of rape, Laura kept telling you to stop, and saying no, but you continued. There was evidence that you made a number of phone calls to Matthew’s phone, asking him how far away he was. Matthew eventually returned, with some food. You and Matthew ate and talked, and eventually Laura got dressed under the blankets.
11 About an hour later, at midnight, the three of you left the hotel room together. Laura and Matthew got into a taxi and went home. They were living with Matthew’s mother at the time. And you got into your car and drove off. Once home, Laura rang her ex-boyfriend and told him that she had been raped, and that she had said no. According to what she told her ex-boyfriend she was still unsure about Matthew’s role, but shortly after, told him, too, that she had been raped and that you had done it.
12 At about 5:00AM on 13 August, she was driven to the police station by Matthew and his mother where she made a formal report of rape and was later medically examined at a hospital.
13 On 1 September, Laura again attended a police station and completed her statement. Having made her statement, she was asked if she was prepared to telephone you and speak to you about what she said had occurred and have that call recorded and she agreed to do so. That is what police and investigators call a pre-text call. As is the practice, that conversation was recorded. Two pre-text calls were made, during which you admitted having sex with Laura, but claimed that it was consensual.
14 You were arrested and interviewed some days later. When interviewed, you admitted having sexual intercourse with Laura. You maintained it was consensual. You said Laura had been flirting with you at the party, and that you had taken condoms with you from your car to the hotel room in anticipation of having sex with her. You said as soon as Matthew left the room in search of drugs and food she had sat up in the bed, wide awake, invited you over, helped you pull your clothes off, and that you had begun kissing and performing oral sex on each other before Matthew would have had time to get into your car in the hotel carpark. You told the police that in addition to the oral sex you had had penile vaginal sex twice with Laura, using the condoms you had brought to the room in anticipation.
15 I should note at this stage that the jury verdicts were unanimous in respect of the charge 1, the charge of oral sex, and charges 2 and 4, the charges of penile vaginal penetration. The jury verdicts were by majority in respect of the two charges of digital penetration. That, in my view, is consistent with one member of the jury seeking confirmation of Laura's account of the particular sexual activity by reference to the sexual activity to which you had admitted in your interview. As you had not referred to engaging in digital penetration and they are the two charges where the verdict was a majority of 11 rather than a unanimous verdict of the 12 jurors. In my view that is an entirely consistent and rational way of understanding the differences in those verdicts.
16 Laura was cross-examined at length at your trial. Her truthfulness and reliability in respect of her account of the acts of sexual penetration the subject of the charges, her allegedly flirtatious behaviour with you at the party, her drug use over the day of the party and the following day in the hotel room, and more generally, and her history and circumstances more generally were subject to searching scrutiny. You did not give evidence at trial. The jury by its verdicts has accepted Laura as a witness of truth, and rejected your account. When I say rejected, I mean that it must have excluded the reasonable possibility that the sexual activity occurred in the circumstances you described in your interview with the police.
17 Your case at trial was put in the alternative: first, that the activity was consensual (that is, that the jury could not exclude the reasonable possibility it was consensual), alternatively, that even if the jury were satisfied that Laura was, so far as charge 1 was concerned, incapable, because unconscious or asleep, or, in respect of all charges, that she did not in fact consent, that nonetheless you believed she was consenting. Again, to put it strictly in onus terms, the alternative basis was that the prosecution could not prove that you were aware she was not, or might not be consenting, or had not given any thought to whether she was not or might not be consenting. The verdicts mean, of course, that the jury rejected that alternative position as well.
18 This then, is a bad, indeed a nasty case of its kind. It was at one level, opportunistic, in that you took advantage of a sleeping, drug impaired girl when left alone in a room with her. However, it was also predatory. Laura was, in addition to being asleep and drug impaired, a condition you were well aware of, a stranger to you in the sense she was there, in the room with you only because she had accompanied her boyfriend, who was your real contact and associate, to a party you were hosting, and then to a hotel room you paid for.
19 There was a significant power imbalance between the two of you. You were more than twice her age, and she was only a year older than the son whose 18th birthday party you had invited her to. Her maturity and life experience was more akin to that of your son’s than yours. We know the brain does not fully mature until age 25. The difference between someone under 20 and someone over 40, in terms of life experience and maturity is likely to be far greater than, say, the difference between a 25 year old whose brain has fully matured, and a 50 year old. You were a customer of her boyfriend’s business. She was consuming drugs that you, or he, or both of you were sharing with her and appear to have supplied to her. Her boyfriend had left her asleep, and clearly substance impaired, in the room when he left to go and get drugs and food. There is no suggestion that he had any reason to believe she would not be safe.
20 In her victim impact statement Laura spoke of the impact on her of the offending. She says:
I feel like I cannot go out and enjoy myself with family and friends as I don't trust anyone or anything around me. I've lost friendships and family due to this and have become quite isolated. I have found this event unstabilising and family are urging me to seek medical help to undergo tests for mental stress and anxiety disorders. I struggle to cope with daily stresses of life and quite frequently panic attacks spring out of nowhere and have major mood swings, depression. All of this has affected my family relationships and relationships with my ex partner. I have vivid nightmares about the event and various related things almost every night. My trust for men has been shattered.
21 It is not surprising that somebody in her circumstances would speak of such impacts on her directly and they are within the normal range of impacts one would expect from somebody who had been raped in the circumstances in which she was.
22 It is clear therefore that subject to considerations personal to you, denunciation, just punishment and general deterrence are significant sentencing factors.
23 Whilst you cannot be penalised for exercising your right to plead not guilty and to put the prosecution to proof, your account was rejected as an untruthful one, and your conduct, in pleading not guilty, and subjecting the complainant to the cross-examination she was, shows an absence of remorse, and an absence of insight into your own values and conduct which bears on my assessment of your moral culpability, your prospects for rehabilitation, and supports the need to give weight to specific deterrence as well as to general deterrence.
24 You come before the court as a 45 year old man. You are the son of hardworking Greek immigrant parents, and you worked with them in their businesses from an early age, succeeding to some of them. Testimonials from your sister, your new partner and your friends speak well of your love for, and pride in your sons, and of your devotion to your parents. Your father is suffering from an advanced stage of dementia and is now in care, whilst for many years in the early stages of dementia he lived at home with your mother and she cared for him. And it has been a great strain on her and the rest of the family since his needs became so great that he had to be moved into care. Since your father has been in care you have been assiduous in looking after your mother and visiting your father and I accept that there is a strong bond between you and them.
25 You are a loved son and brother, and it would appear, a loved and loving father to your sons. You have three sons, one with your former wife, the boy whose 18th birthday party you invited Laura and Matthew to, and two boys of the family you formed with your second partner, your biological son with her, and the son she already had and brought to the relationship. I accept on the material before me that you loved him and treated him as your own as well. Not surprisingly, given the events which began at your oldest son’s 18th birthday party, relations with him, and his mother are now strained, and your relationship with your long term second partner, the mother of your younger son, came to an end following the events of those fateful two days. You should think very carefully about the poor role modelling in respect of drug abuse, and the treatment of women, of your partner, as well as the victim, that you showed to your sons over those two days.
26 You have three minor, and old prior convictions, which have little relevance for these purposes save to say you do not come before the court as a person without any convictions at all. But you have, and this does bear more on your prospects for rehabilitation, two significant subsequent matters. One was a significant fraud in the hundreds of thousands of dollars, for which you received a suspended sentence in this court, the other a conviction for soliciting. Both are old, occurring in 2001 and 2000 respectively. Neither charge was dealt with until after these charges were laid, it would appear that was because whist they were pending, you left Australia and relocated to the United Kingdom in 2001, and remained there for about 10 years.
27 Although recently dealt with therefore they are both offences that are over 10 yeas old. I am told that there are no pending charges, so no offending of any type is alleged against you between the time you left for the UK in 2001, or perhaps more significantly, since your return to Australia in 2011 or 2012. However, a significant dishonesty offending and a sex related offence of soliciting are relevant in terms of assessing the need for general deterrence, specific deterrence and assessing your prospects for rehabilitation.
28 Weighed against that and weighing in your favour is what I am told is a significant history of hard work initially in assisting in your family's businesses, taking over some of them yourself and then setting up and running your own. Most of those businesses have been either in importing and selling cars, prestige cars, or in establishing and operating hairdressing salons. You and your former partner Joyce are both qualified hairdressers and run a successful chain of hairdressing salons in the UK and again back in Australia on your return. You were working for a prestige car dealership at the time of this offending and although that job came to an end as a result of being charged, you have since then continued when work has been available to work in motor vehicle sales. You clearly have inherited your parents' hardworking and business like ethic and applied yourself to employment. That counts significantly in your favour in terms of assessing your prospects of rehabilitation. It shows your preparedness to work hard and a commitment to things and to sticking with work and carrying things through.
29 In addition to those matters, Ms Karapanagiotidis relied on your ongoing family support and the difficulties that will be caused to your mother in particular by reason of what she acknowledged would be the inevitable gaol term that follows from these convictions. You have been assiduous in taking your mother to visit your father and although his recognition of people is limited, it is hard to know how much he does know and whether he in fact is able to respond to you when you are there. And I accept that the inability to support your mother and to visit your father will be an added burden of imprisonment for you.
30 There are no convictions for like matters and you therefore although the behaviour displayed on this night clearly requires condemnation and punishment, and you have one other sex related conviction for soliciting, the weight to be given to those is obviously less than if you had convictions for like offences or more recent convictions.
31 I accept also that the time between the offending and the trial is an anxious time for anybody and you have had the charges unresolved hanging over your head and that in those circumstances you have felt understandably that your life has been on hold waiting resolution of that.
32 I am not able to make a realistic assessment about your risk of recidivism having regard to the pleas of not guilty entered at the trial, therefore your denial of the offending. Apart from taking into account the fact that you are 45 and have no like convictions, that clearly counts significantly in your favour, and having regard to what I said about that combination between the opportunistic but predatory nature of the offending, there clearly is some risk but I cannot rate it and do not rate it as a high one. But I am not affirmatively satisfied that there is a low risk of recidivism. I consider your prospects for rehabilitation are good.
33 It was acknowledged and correctly by Ms Karapanagiotidis that no sentence other than one of imprisonment is appropriate having regard to the nature of the convictions.
34 By reason of the number of charges you come to be sentenced as a serious sexual offender in respect of charges 3, 4 and 5. It is not necessary to impose a disproportionate sentence in order to protect the community and nor is it appropriate to impose totally cumulative sentences that would make a disproportionate sentence which is simply not justified. Considerations of totality must apply.
35 I accept because this is a continuing episode, five separate acts within a continuing episode, that there should be significant concurrency between the sentences for the charges and the principles of totality must apply so as to reflect the overall offending as that single episode. It is as I have said a bad example of its type for the reasons that I have identified.
36 I consider there should be some cumulation for each individual act, and the structure of the sentence also needs to reflect the different gravity of the offending between charge 1 which started with a sleeping or unconscious girl, and charges 2 – 5, where on the evidence the complainant was awake and verbally indicating that she was not consenting. On the jury verdicts, you could have been under no illusion that she was asleep or consenting in respect of charges 2 - 5. And the sentence I have structured therefore takes that into account.
37 George Theodoropoulos on the five charges of which the jury has found you guilty you are convicted.
38 On Charge 1 you are sentenced to be imprisoned for a period of 4 years and 6 months, 12 months of that sentence is cumulative upon the sentence on Charge 2 which is the base sentence and the other partial cumulation orders I will declare.
39 On Charge 2 which is the base sentence you are sentenced to be imprisoned for a period of 5 years.
40 On Charge 3 you are sentenced to be imprisoned for a period of 5 years and I direct that 4 months of that be served cumulatively upon the base sentence and the other partial cumulation orders.
41 On Charge 4 you are sentenced to be imprisoned for a period of 5 years, and I direct that 4 months of that be served cumulatively upon the base sentence and the other partial cumulation orders.
42 Charge 5 you are sentenced to be imprisoned for a period of 5 years and again I direct that, 4 months of that be served cumulatively upon the base sentence and the other partial cumulation orders.
43 That makes a total effective sentence of 7 years and I fix a period of 5 years as the time that you must serve before being eligible for parole.
44 I declare that you have spent 23 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
45 I direct that the declaration that you are sentenced as a serious sexual offender in respect of charges 3 - 5 be placed on the record.
46 There are no orders to be made under the Sex Offender Registration Act 2004 and I make the disposal order sought.
47 HER HONOUR: Do the orders that I pronounce reflect what I said I intended to do and are there any further orders that are required to be made.
48 MS BURNSIDE: They do reflect what you intended to do Your Honour, and there are no other orders.
49 HER HONOUR: Do you agree with that Ms Sharpley?
50 MS SHARPLEY: I do Your Honour.
51 HER HONOUR: Arithmetic is correct?
52 MS SHARPLEY: Yes Your Honour.
53 HER HONOUR: Thank you. Thank you, can you remove Mr Theodoropoulos please. I've signed the disposal orders. Adjourn
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