Director of Public Prosecutions v Tsalkos
[2023] VCC 367
•7 March 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00085
Indictment No. L10709433.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THEODOROS TSALKOS |
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JUDGE: | HER HONOUR JUDGE CARLIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Trial dates: 23 August 2022- 31 August 2022 Plea date: 17 January 2023 |
DATE OF SENTENCE: | 7 March 2023 |
CASE MAY BE CITED AS: | DPP v Tsalkos |
MEDIUM NEUTRAL CITATION: | [2023] VCC 367 |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: Sentence following trial; kidnapping; rape with aggravating circumstances; gross indecency with a person under 16; delay; extremely high moral culpability; reasonable to good prospects of rehabilitation; class 1 offences; SORA
Sentence: Total effective sentence of 13 years and six months imprisonment, with a non-parole period of eight years and two months imprisonment
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Migration Act 1958 (Cth)
Cases Cited: DPP v Moses [2009] VSCA 274; Mush v The Queen [2019] VSCA 307; Stalio v the Queen (2012) 46 VR 426; Bromley v the Queen [2018] VSCA 329; DPP v Bales [2015] VSCA 261
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Trial: Mr A. McKenry Plea: Mr A. Grant | Office of Public Prosecutions |
For the Accused | Trial: Mr M. Kozlowski Plea: Mr S. Ranjit | Papa Hughes Lawyers |
HER HONOUR:
Introduction
1Theodoros Tsalkos, on 31 August 2022, a jury of 12 people found you guilty of two charges of kidnapping, two charges of rape with aggravating circumstances and four charges of gross indecency with a person under 16.[1]
[1]On 26 August 2022 I discharged the jury in respect of 4 charges comprising aggravated rape and rape (in the alternative) and directed the entry of a NG verdict on those charges as there was no evidence of oral penetration.
2The events giving rise to these charges occurred almost 36 years ago when you were a 25-year-old man. Your victims were two girls, aged 15 and 16, who had, only a matter of days before they met you, ventured into sex work on the streets of St Kilda.
3You were parked in Grey Street when the two girls approached and spoke to you through your open car window in the early hours of 7 May 1987. After ascertaining your interest, they got into your car even though one of them, correctly, as it turns out, had a bad feeling about you. You quickly established your authority by telling them you were a policeman and you were going to ‘bust them for prostitution’. Over the next several hours you held them against their will whilst you subjected them to your depraved sexual desires, first in Elwood and then in Balaclava.
4The girls’ ordeal came to an end just before 6 am when you dropped them back at Grey Street. They rushed to a friend’s place nearby and told him they had been raped. Although they were reluctant to involve the police, the police were called and arrived promptly. The girls were then taken to hospital and medically examined. Various swabs, including vaginal swabs, were taken and although they were found to contain spermatozoa and apparent semen, since the girls, and hence the police, did not know who you were, the matter became what is known as a cold case.
5Whilst the investigation stalled, scientific development, did not. Over the years advances in technology enabled forensic samples to be analysed for DNA, not just for the presence of semen, spermatozoa or blood. In 2012 the samples taken in this case were removed from the freezer and re-tested for DNA as part of a larger cold case project. A male DNA profile was obtained leading to the case being
re-opened in 2016. However, again the investigation stalled when the DNA profile did not match any profiles on the police DNA database.6It was not until August 2019 that you were identified by the present informant DSC Philip Drews as being a person of interest. Amongst other intelligence he ascertained that your DNA was not on the police database and that at the relevant time you drove a car matching the detailed description of the car, including its interior, given by the girls. He also ascertained that your appearance in 1984 resembled a photofit image compiled with the assistance of the girls on 8 May 1987.
7On 5 February 2020 DSC Drews attended your address. Under caution you provided certain information, which was supportive of your identification, but you declined to provide a voluntary DNA sample without legal advice. Two days later you were arrested for rape. Following a no comment interview and the taking of a mouth swab you were released on bail without charge.
8On 6 March 2020, DSC Drews was notified that the DNA profile obtained from your mouth swab matched the DNA profile obtained from the vaginal swabs of both girls. He then compiled a photoboard containing a 1984 photograph of you and 11 other similar photographs. Remarkably, on 11 March 2020, you were identified from that photoboard by your only surviving victim, Caroline Evans,[2] your other victim, Rebecca Green,[3] having died of natural causes in 2013.
[2] A Pseudonym. To ensure there is no identification of a victim, these published reasons for sentence have been anonymised by the adoption of pseudonyms in place of the names of the victim and the removal of all identifying information. A schedule of substitutions will be retained by the Court for future reference.
[3] A Pseudonym.
9On 20 March 2020 you were again arrested and again made a no comment interview, but this time you were charged and taken before a Magistrate who released you on bail later that day.
10Following a contested committal at which Ms Evans and other witnesses gave evidence, you were committed to this court on 19 Jan 2021 and pleaded not guilty.
11A foreshadowed challenge to the DNA evidence was abandoned shortly before the trial and your defence, which was obviously rejected by the jury, was one of consent to penile vaginal intercourse and denial of other offending.
12After the jury verdict I remanded you in custody and adjourned the matter to
3 November 2022 for the hearing of a plea in mitigation. That plea date was adjourned following your decision to retain new counsel.
13The plea proceeded on 17 January 2023 with Mr Ranjit appearing on your behalf and Mr Grant, who, incidentally, was also not trial counsel, appearing for the prosecution. It now falls to me to sentence you for your conduct.
14In arriving at an appropriate sentence, which in your case really means the length of the term of imprisonment, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[4] Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence. But first, I need to set out the circumstances of your offending in more detail.
[4]Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).
Circumstances of the offending
15The facts I am about to outline are derived entirely from the trial evidence of
Ms Evans, there being no attempt to lead the statement of Ms Green. To the extent they involve matters that aggravate your conduct, such as you pretending to be a police officer, I indicate that I am satisfied of those matters beyond reasonable doubt.[5][5]Mr Ranjit argued during the plea hearing that I should not find that you posed as a police officer, an argument which I rejected.
16Consonant with their youth at the time, being 16 in the case of Ms Evans and 15 in the case of Ms Green, I shall refer to your victims by their first names in this account.
17After telling the girls the false policeman story you drove them to a dark laneway by a canal in Elwood. No-one was around. You continued the pretence of being a policeman by asking their names and talking about whether or not you would charge them. You then asked Caroline, who was in the front passenger seat, to take her clothes off. She was crying and upset and said ‘no’ whereupon you became angry and told her aggressively that you would take her clothes off for her. Confused, scared and believing you to be a policeman, she complied.
18You lent over and reclined Caroline’s seat before climbing on top of her. You told her to put your penis inside her and when she again said ‘no’ you penetrated her vagina anyway. You did this without a condom. While this was happening, Rebecca, who was in the back seat and also upset, was trying to look out the window. You weren’t happy with that and demanded she watch what you were doing to her friend. To make sure she did as you said you threatened to stab or shoot her and got off Caroline briefly, making as if to grab something from the driver’s door. Both girls were afraid you had a weapon of some sort and Rebecca immediately turned around and started watching. This conduct comprises charge 3 rape of Caroline Evans with aggravating circumstances, the aggravating circumstance being your insistence that Rebecca watch, that being an act likely to seriously and substantially degrade or humiliate Caroline.
19Satisfied that Rebecca was watching, you continued raping Caroline and then told Rebecca to kiss her. Rebecca leant over and gave Caroline a quick kiss on the cheek, but again you weren’t happy with that and told Rebecca to suck Caroline’s nipple, which she did. That conduct constitutes charge 5, procuring an act of gross indecency by a person under 16, the person being Rebecca.
20You continued raping Caroline until you ejaculated and then returned to the driver’s seat and pulled your pants up. You coldly remarked to Rebecca that she had let Caroline do all the work.
21The girls pleaded with you to take them home to their friend’s place in St Kilda, but instead you drove them to the back of a shop in Balaclava. You kept up the policeman story by saying that you had to teach prostitutes a lesson; that you could not drop them back at Fitzroy Street because then you would have to arrest them; and that the messages you were receiving on your pager were in relation to an upcoming drug bust. At one stage you said that like all policemen you owned something on the side, in your case, a brothel, clearly conveying the impression that you, and police generally, were corrupt.
22You parked near a small toilet block or outhouse at the back of the shop. It was completely dark, and no-one was around. You told the girls to go into the toilet block with you. They obeyed because they were scared. Once inside you told them to take off their clothes whereupon Rebecca said ‘no’. You then threatened to take her clothes off for her, so she obeyed, as did Caroline. Thereafter, you dictated a series of sexual acts. You told them both to get on the floor and lick the sides of your penis which they did. This conduct comprises charge 10 procuring an act of gross indecency by a person under 16, the person being Rebecca. You told Caroline to lick Rebecca’s vagina whilst Rebecca was sitting on the toilet seat, which Caroline did. This conduct constitutes charge 11 procuring an act of gross indecency with a person under 16, being Rebecca. You told Caroline to sit on the toilet seat and spread her legs and Rebecca to lick Caroline’s vagina whilst you penetrated Rebecca’s vagina from behind with your penis. You also told Caroline to lick Rebecca’s back as this was occurring. The girls obeyed and you continued thrusting until you ejaculated. Again, you were not wearing a condom. This conduct constitutes charge 12 rape of Rebecca Green with aggravating circumstances, the aggravating circumstances being your instruction to Rebecca to lick Caroline’s vagina whilst you were penetrating her, that being an act likely to seriously and substantially degrade or humiliate Rebecca and also charge 14 procuring an act of gross indecency, namely the licking of Caroline’s vagina, by a person under 16, being Rebecca.
23The three of you then returned to your car. Rebecca was very upset and crying and you attempted to comfort her by kissing her. You told both girls that they were very sweet and you wanted to meet them for coffee in Acland Street. You reiterated that you could not drop them at Fitzroy Street because you would have to charge them, but you did take them back to Grey Street just before 6am as I have already mentioned. I have already outlined what happened from there.
24Charges 1 and 2 of kidnapping comprise your detention of the two girls from the moment you told them you were a police officer until you dropped them back to St Kilda.
Your personal circumstances
25Turning to your personal circumstances. These were outlined in Defence submissions dated 12 January 2023, and a psychological report authored by Consulting Psychologist Warren Simmons dated 30 September 2022.
Mr Simmons interviewed you via videoconference on 29 September 2022 while you were in the Metropolitan Remand Centre.26You are 61 years old. You were born in Greece and moved to Australia with your family in 1970 when you were 9, settling in Northcote. You have a younger brother and sister.
27You told Mr Simmons that your childhood was hard, as your parents struggled in a new country with a language they did not speak and a different culture. They worked long hours in a factory, and you assumed responsibilities for your younger siblings, as well as interpreting for your parents. Your father was a strict disciplinarian, sometimes even physically, but you do not believe excessively so. You respected and were close to your parents.
28You also struggled with English and found school in Australia difficult, academically and socially. You believe your teachers provided little support, and some even called you names. You were harassed by other students, called a ‘wog’ and had no friends. You transferred from Northcote High to Preston East Technical School but things did not improve significantly. You lost interest, occasionally truanted and left school part way through year 12.
29You started drinking alcohol as a teenager, increasing your consumption when you started working, sometimes drinking excessively. You became active in the nightclub scene in your 20s and started using cannabis and amphetamines. You told Mr Simmons they were the only drugs you used and that you only used occasionally. He noted ‘there appears little in [your] childhood other than being a migrant child who was harassed that would have left you vulnerable to substance use’. You ceased use of illicit drugs in your late 20s and whilst you still drink, you have reduced the amount.
30You have had one long term relationship of approximately 20 years. You met your former partner in a nightclub. The relationship ended 18 years ago, but you remain on good terms and are still in regular contact. Together you had three children, though your first son was born with significant health issues and died in infancy. Your daughter is 27, and your other son is 26. He, unfortunately, had similar health issues to his older brother and required a lot of medical intervention, at least in his early years.
31You have a good work history with periods of unemployment tending to be when you were younger. Defence submissions indicate that you have always worked as a labourer and forklift driver and did that continuously in the 13 years prior to your remand. Mr Simmons, on the other hand, noted that you worked in a shop on a casual basis for the last few years. Either way you worked hard enough to buy a house in Mill Park where you lived with your daughter prior to your remand. The responsibility for the mortgage payments now falls on her.
32You have a significant, although relatively confined, criminal history spanning 1984 to 1989. Your first appearance was in November 1984 for trafficking a drug of dependence for which you received a six-month sentence. Surprisingly, this sentence appears to have been increased to 9 months on appeal. In 1986 you received a fine for possessing Indian hemp and in April 1987 you received another fine for being in a common gaming house.
33In 1987, subsequent to this offending, you were convicted of an assault and fined. In 1989, you received a total effective sentence of 12 months, nine months suspended for offences of kidnapping and assault with intent to commit an indictable offence. The precise circumstances of this offending are not known as the sentencing remarks are no longer available and you were found guilty by a jury, which also acquitted you of indecent assault and intentionally cause injury. However, what can safely be gleaned from a police summary is that on
29 June 1986 you picked up a woman while driving a taxi, made repeated unwelcome sexual advances towards her, assaulted her in some way and were bitten on your tongue. You were charged on 30 December 1986. The similarities with the present offending are obvious and disconcerting.34Your parents were still together when your mother died at the age of 81 five years ago. Your father is now 86. Although close to your siblings in your youth, you became more distant as adults, something you attribute to being very different people.
35You have permanent residency in Australia but remain a Greek citizen. I will come back to the significance of this later.
36You have no significant medical history and no psychiatric history. You have been sad and angry since your incarceration and have had trouble sleeping.
Mr Simmons opined that you appear to be suffering from an adjustment disorder reactive to being in custody. I am told that your eyesight is not great.Objective gravity of your offending and moral culpability
37Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. If there was any doubt about the inherent seriousness of the offences of kidnapping (charges 1 and 2) and aggravated rape (charges 3 and 12) the maximum terms of imprisonment of 20 years for those offences make it perfectly clear. Moreover, your offences were serious examples of those offences.
38The maximum term of imprisonment of 2 years for the offence of gross indecency with a person under 16 (charges 5, 10, 11 and 14) makes it inherently much less serious, however again, your offences were serious examples of that offence.
39Your victims were not only young, they were, in fact, children. They mistakenly thought offering sexual services to strangers on the streets of St Kilda would be an easy way to make money for such mundane pursuits as getting their hair permed.[6] This was in the days before mobile phones and the girls did not have minders. They were totally at the mercy of their would-be customers and failed to appreciate the danger. In particular, they were ill-equipped to deal with the likes of you and way out of their depth.
[6]T 34.
40Within moments of meeting them you recognised that they were young and naive and took advantage of the situation by pretending to be a policeman and threatening to charge them. You then subjected them to a protracted, frightening, and degrading ordeal involving threats of violence and multiple unprotected sex acts all the while ignoring their distress and maintaining the lie that you were a policeman. So little regard did you have for their welfare that you not only did not wear a condom you ejaculated inside them.
41What you did was pure evil and, lest there be any doubt about it, it is no less evil because the girls were, at that time, engaging in sex work.
42Your ploy of portraying yourself as a policeman, including the threats to charge the girls and intimation of police corruption, was considered and elaborate. Further, it was clearly calculated to secure not only the girls’ obedience but also their silence.
43Your repeated offending in the face of the girls’ distress increases your culpability.[7] You had time to reflect after your rape of Caroline in Elwood, but you did not. You knew how upset both girls were, but instead of dropping them off as they begged you to do, you made a conscious decision to take them to a wholly separate location, a toilet block no less, and rape the other girl in even more degrading circumstances.
[7] See DPP v Moses [2009] VSCA 274 at [47] and [59] and Mush v The Queen [2019] VSCA 307 at [72].
44There is no explanation for what you did on that night except perhaps that you were involved in drugs at that time. To the extent that your then lifestyle might be an explanation it is hardly a mitigating factor.
45There is also nothing in your background or personal circumstances which reduces your moral culpability. To the contrary, your moral culpability is increased by the fact that only 10 months prior to this night you kidnapped, made sexual advances towards and assaulted another female in or about your car. It matters not that you were not convicted of that other offending until February 1989, you knew what you had done and you also knew you had been charged for it.
46Your counsel pointed to a number of what he asserted to be aggravating features that were absent from your offending, such as you not concealing your identity, not producing any weapons and not offending in the context of a home invasion. Whilst the absence of those features may be accepted, it is also true that you did not reveal your identity and that you pretended to have a weapon. Further, it is debatable whether offending in a home is worse than the ordeal you put your victims through.
47In the end what matters is what you did, not what you did not do, and what you did was objectively very serious. Moreover, your moral culpability was extremely high.
48I also wish to make it clear at this point that I do not treat as aggravating charges 3 and 12, those features which make them the aggravated form of rape in the first place.
Current sentencing practices and equality of justice
49In arriving at an appropriate sentence, I must consider current sentencing practices.[8] In the case of historical offences, such as yours, this means sentencing practices today, not at the date of offending.[9] In turn, this means I am entitled to have regard to current community attitudes and the evolution in knowledge of the impact of sexual offending. That said, equality of justice requires that I also consider sentencing practices at the date of your offending, if known, to avoid you receiving a substantially higher sentence simply because of the effluxion of time.[10]
[8]S5(2)(b) of the Sentencing act. The rationale is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles.
[9]Stalio v the Queen (2012) 46 VR 426 at [9]. Sentencing practices extend beyond mere sentencing range, to practices concerned with sentencing, [18] and [37].
[10]Stalio v the Queen (2012) 46 VR 426 at [9], [53] and [54] and Bromley v the Queen [2018] VSCA 329 at [50] ff.
50Mr Ranjit submitted that sentences imposed in 1987 for offending such as yours were ‘significantly less’ than sentences imposed today for like offending. In support of that argument, he referred me to six 1987 Court of Criminal Appeal decisions involving a variety of sexual and other offending. In response, Mr Grant submitted that the cases did little more than establish that sentences for sexual offences back then were ‘generally somewhat lower than present’[11] and were of little assistance.
[11]Using the phraseology of Stalio at [62].
51None of the six cases are comparable to yours. Only two of them involved offences of rape with aggravating circumstances and one of those was a Director’s appeal to which the constraints of double jeopardy then applied. Two of them involved offences of rape with a then maximum penalty of only 10 years, as compared to the 20 years for the offence of rape with aggravating circumstances, and the other two involved offences in the nature of incest.
52Upon analysis I agree with Mr Grant. I am not satisfied that the six cases demonstrate that there was a sentencing practice in 1987 which would have resulted in you receiving a materially lesser sentence, all things being equal, had you been sentenced back then.
53Mr Grant referred me to a number of other cases including rapes of strangers in the context of kidnapping or false imprisonment and rape of sex workers, not as historical or comparable cases, but rather as guidance for relevant principles.
54I have read all the cases to which I have been referred and thank counsel for their assistance in that regard. Their differences serve to highlight that ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Impact of your offending
55I am also required to take into account the impact of your offending on your victims and their personal circumstances.[12] I received two victim impact statements, one from Caroline Evans herself and the other from Rebecca Green’s daughter, Christine Campbell,[13] who sat in court throughout the trial.
[12]Sentencing Act (n 1) s 5(2)(daa), (da) and (db).
[13] A Pseudonym.
56Both statements are moving testaments to the far-reaching impact of your crimes.
57Ms Evans described both the immediate consequences of your actions, namely that she and Ms Green ‘were devastated, shocked, scared and traumatised’ but also the more insidious effects in the form of enduring feelings of guilt, shame and self-loathing. She explained how her mental health had suffered because of her feelings which in turn affected her relationships with her children, partners and biological family. She said that the last few years were the hardest because of the resurfacing of all the memories, feelings and emotions. Insightfully, she said most people get to move on from the mistakes they made in their teenage years, but because of what you did, she has never been able to.
58Ms Campbell described her stress and anxiety in the lead up to the trial and then being haunted by the events that she heard in court, things that you did to her mother and Ms Evans. She experienced a wave of grief from the trial and also, surprisingly, guilt in relation to your children and their suffering even though she recognised that neither she, nor her mother, had anything to feel guilty for. Her VIS was compassionate and honest.
Your character and prospects of rehabilitation
59If I had been sentencing you much closer to the time of your offending, I would have regarded your prospects for rehabilitation as poor. This is not because of your prior drug offending, nor because of your offending against a female on
29 June 1986, but it is because of those matters in combination with the fact that on 30 September 1985 you were acquitted by a jury of aggravated rape, rape, robbery and assault occasioning actually bodily harm.60To be clear you get the full benefit of your acquittal in that matter and it in no way aggravates your offending, nor your moral culpability, however the fact you were not deterred by that experience, that is a trial before jury, from the instant offending is alarming.
61That said, I am sentencing you almost 36 years after your offending and the delay has clearly worked in your favour. You have committed no further offences in all that time. You have maintained employment, raised a family, and led a pro-social life. You have a loving relationship with your children who supported you in court at various times and have provided references for you. Your son has lived with you occasionally and your daughter was living with you before you were remanded.
62In her reference your daughter, Rachael, said that you are a loving and supportive father who always tried his best and was there for whatever she needed. She described these offences as being at complete odds with the person she knows. She said you are a loved member of your community.
63In his reference your son, Daniel, also described you as a caring father who always put your children first. He said you supported him through his many medical issues and did your best to make him feel comfortable and loved. He considered you to be a good role model, hardworking, caring and well liked.
64Your sister, Angie, provided a reference in which she spoke of the responsibility you assumed for her in your youth while your parents worked. She confirmed that you are a family man and a caring father, who works hard to support his children.
65Lastly, your friend and one time employer Ibrahim Elmoustafa, described you as honest and hardworking, and saw you as a responsible, supportive, and caring father.
66Each of your referees said they were shocked at the jury verdict as the offending was out of character for the person they knew.
67It is indeed hard to reconcile the man that your family and friends know with the person who committed such vile crimes against two innocent girls, but the fact is you are one and the same.
68You told Mr Simmons that shortly after this offending, which of course you denied, you ‘got it together’ and moderated your alcohol consumption. He considered there was little evidence to suggest you were at high risk of further offending.
69Whatever the explanation for your behaviour in your 20s, and whatever your prospects might have been back then, the fact you have not been in trouble for almost 36 years is significant. It in no way erases what you did in May 1987, nor does it compensate for it, but it does count in your favour. Whilst it is concerning that you were prepared to give false evidence during the trial, all things considered I am persuaded that your prospects of rehabilitation are reasonable to good.
Prospect of deportation
70I take into account the fact that the sentence I impose, being more than 12 months, will trigger the mandatory cancellation provisions of the Migration Act 1958, and therefore give rise to the prospect of your deportation. Whether you will actually be deported is far from certain given your strong ties to Australia and your right of appeal to the minister to revoke the cancellation and then to review any refusal to do so.[14] Nevertheless, if you were to be deported the consequences for you and your family would be catastrophic. If it happens it would constitute a significant additional punishment to any sentence I impose. You have made your life in Australia and would be deported back to a country you have not lived in since you were nine years old. You have no ties to Greece, nor any family support there.
[14]See S 501C(4) and s500(1)(ba) of the Migration Act 1958.
Burden of imprisonment
71In determining the appropriate sentence I must consider how incarceration has impacted you already and how it would be likely to impact you in the future. I accept there are several factors which have made and/or will make a term of imprisonment more onerous for you and I take them into account in your favour.
72First, you are now 61 years old and although of reasonable health prison will likely be harder for you than for a younger man. Further, any term you receive will represent a greater proportion of the rest of your life than it would for a younger man.
73Secondly, you have to bear the uncertainty and worry over whether you will be deported upon your release.
74Thirdly, you have spent your time so far in protective custody and although you have not been the target of any violence, it has been a concern for you.
75Finally, although this is not particular to you, you were remanded in custody and are being sentenced during the COVID – 19 pandemic. You have had to isolate for seven days on two occasions and whilst the effects of the pandemic may be waning, prison is still generally harder now than at other times.
Other possible mitigating factors
76Mr Ranjit contended for two additional factors in mitigation. The first is the media attention this case has received, which he submitted amounted to extra curial punishment. The second is what he asserted to be delay caused by this matter not being investigated properly in the first place. As to the first, I do not consider the publicity has reached the level as to warrant some discount in sentence. As to the second, it seems to me the thoroughness of the original investigation is entirely speculative. Further, this is not a case where you have had the matter hanging over your head for many years. You were first spoken to by the police in February 2020 and thereafter the matter proceeded with the usual pace, COVID allowing. The delay has certainly meant that you face prison as an older person, but it has also been to your advantage in allowing you to demonstrate rehabilitation. It must also not be forgotten that, while you were able to get on with your life believing you had got away with your crimes, your victims were left to suffer.
Purposes of Sentencing
77I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community.[15] Further, when there are multiple charges, as here, the total effective sentence must not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality.
[15]Sentencing Act (n 1) s 5(1), (3).
78In your case these general sentencing principles are qualified by the serious offender provisions in the Sentencing Act. Specifically, after I have sentenced you to a term of imprisonment on charges 3 and 5 you become a serious sexual offender. That means in respect of the remaining charges I am required to consider protection of the community as the principle sentencing purpose and am entitled to impose a disproportionate sentence to achieve that purpose. Your status as a serious sexual offender also gives rise to a statutory presumption of cumulation of individual sentences. The more serious the overall offending the more that presumption will operate to moderate the principle of totality. [16]
[16]DPP v Bales [2015] VSCA 261 at [38] ff and Mush v The Queen [2019] VSCA 307 [89] to [91].
79The prosecution has not submitted that a disproportionate sentence is necessary and I am satisfied having regard to my assessment of your risk of reoffending, that I have enough sentencing discretion to achieve the purpose of community protection in your case without doing so. Similarly, although your charges represent offending against two different victims and two discrete episodes, I consider that the balancing of the presumption of cumulation and the principle of totality require that I not order full cumulation of each sentence. Indeed, I consider I need to order substantial concurrency of sentences in order to avoid a crushing and wholly disproportionate sentence. Therefore, pursuant to s.6E of the Sentencing Act, I ‘otherwise direct’ to give effect to my orders for cumulation and concurrency.
80Even without the serious offender provisions, your offending clearly warrants a substantial term of imprisonment. Your crimes were sadistic and vile and the ramifications for your victims were long lasting. The principles of denunciation, general deterrence and just punishment are paramount in your case. Not only does your conduct need to be denounced, you need to be adequately punished for it and anyone likeminded needs to be deterred from behaving in that way. Dictates of the serious offender provisions aside, I would not have regarded specific deterrence and community protection, as highly relevant in your case given my assessment of your future prospects.
81Of course, the concept of just punishment not only means that my sentence must adequately punish you, but also that it must reflect the various mitigating factors that apply in your case. It is also important to promote and facilitate your rehabilitation which I will do by setting a non-parole period as low as can be without undermining the gravity of your crimes and the principles of just punishment and general deterrence.
82Weighing up the competing considerations as best I can you are convicted on each charge and sentenced to terms of imprisonment as follows.
Sentence
Charge
Offence
Maximum
Sentence
Cumulation
1
Kidnapping
20 years
7 years
3 months
2
Kidnapping
20 years
7 years
3 months
3
Rape with aggravating circumstances contrary to common law
Penetrated Caroline Evans’ vagina with his penis whilst demanding that Rebecca Green watch at the canal
20 years
9 years
2 years
5
Gross indecency with a person under 16
Procured Rebecca Green to suck Caroline Evans’ breast at the canal
2 years
9 months
3 months
10
Gross indecency with a person under 16
Procured Rebecca Green to lick his penis in the toilet block
2 years
12 months
4 months
11
Gross indecency with a person under 16
Procured Caroline Evans to lick Rebecca Green’s vagina in the toilet block
2 years
12 months
4 months
12
Rape with aggravating circumstances contrary to common law
Penetrated Rebecca Green’s vagina whilst instructing her to lick Caroline Evans’ vagina in the toilet block
20 years
10 years
base
14
Gross indecency with a person under 16
Procured Rebecca Green to lick Caroline Evans’ vagina in the toilet block.
2 years
12 months
1 month
Total Effective Sentence:
13 years and 6 months
Non-Parole Period:
8 years and 2 months
Pre-sentence Detention:
190 days
Section 6AAA declaration:
N/A
Other orders:
83This makes a total effective sentence of 13 years and six months (162 months).
84In respect of that sentence, I set a non-parole period of eight years and two months (98 months).
85That is the earliest time at which you can be released but it is up to the Adult Parole Board as to whether you are released after serving that minimum period.
Presentence Detention
86I declare that you have served 190 days by way of pre-sentence detention, not including today, in respect of this sentence and order that this declaration be entered in the records of the court and be deducted administratively.
Serious Offender declaration
87Pursuant to s 6F of the Sentencing Act, I declare that in respect of charge 10 onwards you have been sentenced as a serious sexual offender and direct that fact be entered in the records of the court.
SORA
88You have been found guilty of two class 1 offences within the meaning of the
Sex Offenders Registration Act 2004 (Vic), they being charges 3 and 12, rape with aggravating circumstances. This means that you will be required to comply with the reporting obligations under that Act for the rest of your life.89The Sex Offenders Registration Act provides that you must be given a notice setting out your reporting obligations under the Act and what will happen if you do not comply with those obligations. In short, if you fail to comply with your reporting obligations, you will have committed a criminal offence, and you will be charged for that offence, and will have to appear in court again. In terms of the notice, this court or your lawyer in consultation with this court will arrange for that notice to be sent to you in prison.
90So, Mr Tsalkos, do you understand the total effective sentence, it's 13 years and six months with a non-parole period of eight years and two months.
91OFFENDER: Yes, Your Honour.
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