Director of Public Prosecutions v Valsamakis
[2020] VCC 1146
•31 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00513
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER VALSAMAKIS |
---
JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 July 2020 | |
DATE OF SENTENCE: | 31 July 2020 | |
CASE MAY BE CITED AS: | DPP v VALSAMAKIS | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1146 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Rape by Compelling Sexual Penetration
Legislation Cited: Sex Offender Registration Act2004 (Vic) – s.5(2G) Sentencing Act 1991 (Vic) – s. 38(3), s. 38A, s. 39 Crimes Act 1958 (Vic) – Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) – s.33(5) Confiscation Act1997 (Vic)
Cases Cited: DPP v Bourke [2020] VSC 130 – R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence of five years and two months imprisonment with a three years and four months non-parole period.
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A. Sprague | Office of Public Prosecutions |
| For the Accused | Mr D. Swan | Victoria Legal Aid |
HER HONOUR:
Summary
1. Peter Valsamakis, you have pleaded guilty to one charge of rape by compelling sexual penetration and a summary charge of possession of a Schedule 4 poison, namely Viagra. You also admit that this offending breaches a community correction order.
2. In short your offending is as follows. In December 2019 you made contact with the victim on line and represented yourself to him as a woman. Under that mistaken belief, he arranged to meet with you for the purpose of sexual activity. You fellated him when he was blindfolded, sucking his penis twice. Those are the acts of sexual penetration. They occurred without his consent given the deception you had perpetrated on him, and without any reasonable belief in his consent on your part.
3. This is not your first appearance before me. Your previous appearances were for similar offences, committed in almost exactly the same circumstances. Terms of imprisonment and a community based disposition aimed at your rehabilitation have not deterred you from this bizarre behaviour. After release from prison each time, you have rapidly descended to a dark mental state and to drug use as a means of escaping.
4. Your offending is a serious violation of your victim and his freedom of choice and bodily integrity. It must be met with a term of imprisonment.
Previous Offending
5. The following is an outline of that history. You first appeared before me in June and July 2018. At that time you pleaded guilty to one charge of indecent assault, three charges of procuring sexual penetration by fraud, two charges of attempting to procure sexual penetration by fraud, two charges of sexual assault, one charge of living on the earnings of a sex worker, one charge of knowingly or recklessly carrying on business as a sex work service provider without a licence and two charges of possessing drug(s) of dependency.
6. Those charges related to a number of offences committed between September 2012 and April 2017 and perpetrated against 5 male victims. Each time you represented yourself as a woman through online discussion forums. You arranged meetings with the unsuspecting men, inveigling them in your “fantasy” of having them blindfolded while you fellated them.
7. In my reasons for sentence in September 2018 I outlined your history in detail. I take that history into account in its entirety[1], however I will not repeat it in detail here.
[1] Other than references to past long term relationships which Mr Valsamakis now denies.
8. I accepted then and do accept now that you are a person with a mental health history stemming largely from the struggles with your sexual orientation. That has been particularly difficult in circumstances where it and you were actively rejected by your father and your Greek community. You were bullied as a teenager as a result of your sexual orientation, your physical appearance, and your culture.
9. There are difficulties in the relationships within your family; your father was violent towards your mother and you and your two younger brothers. You still bear physical scars from his beatings. You did not reconcile with him before he died in 2003. Your youngest brother has serious physical and intellectual disability. He requires high levels of care with basic activities of daily living and spends his days at a supported facility. Your elderly mother cares for him apart from that respite. She has had her own physical and mental health struggles and is frail. Your middle brother Paul developed a drug addiction and became aggressive and violent both to your parents and to you resulting at times in family violence orders against him and in his incarceration.
10. These difficulties led you to leave home at a young age. You experienced periods of homeless, working as an unlicensed sex worker. The use of methylamphetamine became a pervasive part of your sexual experiences. Your customers would frequently exchange drugs for sex and your sexual behaviour became particularly obsessive. You also abused steroids as part of body building in the male sex scene. You engaged in sex work to fund your addiction as well as exchanging sexual services for drugs. You experienced violence in your sex work and you carry profound shame and distress as a result.
11. According to the numerous psychological and psychiatric reports that I have received, you became more entrenched in the toxic lifestyle you were leading. The cumulative effects of negative experiences and the residual effects of past abuse combined to motivate further drug use in an effort to numb the mounting emotional distress you felt. Thus a severely compulsive ‘vicious cycle’ was established
12. When I dealt with you in September 2018 you had one prior conviction – relevantly that was in 1999 for loitering for the purposes of prostitution where you were fined without conviction. You had not been incarcerated until your arrest in 2017.
13. I sentenced you on 11 September 2018 to a total effective sentence of 18 months' imprisonment and a two year community corrections order. I note the offences for which I sentenced you, in particular procuring sexual penetration by fraud has a maximum of five years' imprisonment. Sexual assault has a maximum of 10 years' imprisonment. At the time of that sentence, the risk assessments before me suggested you were a low risk of sexual reoffending, dependent in large part on whether you could resist a return to drug use.
14. You had already served 503 days pre-sentence detention.
15. That sentence saw you released in October 2018 to commence the community correction order.
16. On your release from custody you returned to live with your mother. Your brother Paul soon returned to live there. Despite a family violence order, your mother would not evict him. Evidence provided demonstrated that there were serious issues of violence perpetrated by him towards your mother and yourself. At one point he was remanded, but when release returned to your family home. You feared for your safety and did not feel that you could remain living with your mother.
17. Unfortunately, due to some issues in the handover process between prisons and Community Corrections, and delays caused in some part due to the time of the year, no other supports were in place for you upon your release. You became homeless and relapsed into drug usage. I accepted that those events were significant contributory factors to your reoffending.
18. That further offending was committed on 10 February 2019. The circumstances of that offending were almost identical to your previous matters. Once again, you masqueraded as a woman online to arrange sexual activity with an unsuspecting male victim. While he was blindfolded you grabbed and kissed his bottom, licked his anus and grabbed his testicles and penis. You made false denials to police when interviewed, seeking to blame a loss of phone, or claiming the victim asked you to arrange a female hence photographs you sent of a woman.
19.
I heard your plea of guilty to those matters and to breaching the 2018 CCO on
16 August and 18 September 2019. You pleaded guilty to one charge of procuring a sexual act by fraud with a maximum of five years' imprisonment, and to possession of Viagra and steroids. The expert evidence before me on that occasion suggested you were a high risk of sexual reoffending and that treatment was necessary.
20. I sentenced you on 20 September 2019, imposing a total effective sentence of eight months’ imprisonment. You had served 220 days. For the contravention of your community correction order I confirmed and varied that order to extend its duration. I imposed reporting obligations under Sex Offender Registration Act 2004, requiring you to report for life. I note at that time you were sentenced as a serious offender.
21. Subsequent to your release on 12 October 2019 you returned back before me for judicial monitoring of your community corrections order on 16 December 2019.
22. After discussions during the course of your plea, Corrections Victoria undertook an interview with you prior to your release from custody to ensure a smooth transition. You reported to Community Corrections within the required two days and to the time of your judicial monitoring you had apparently complied well with your community corrections order. You were residing with your mother. You were receiving drug counselling through Drug Health Services in Footscray, returning clean drug screens, and you had arranged a mental health plan through your GP, with psychological counselling at Drug Health Services arranged for 20 December 2019.
23. Shortly after your release from custody your aunt died. There were disputes within your extended family about her estate. Your mother was intimately involved. It was a stressful time. Your attendance at your aunt’s funeral only confirmed for you your ostracization from your family. Your mental health state began to decline and you reported being tempted to use drugs, though able to resist.
24. Your only contacts in the community were your mother, your profoundly disabled brother and Corrections staff. Negative attention you had received through media reporting of your offending meant you were reluctant to engage much in the wider community.
25. Unfortunately as at December you had only one episode of psychological counselling, such is the demand on those services.
26. You are a person who is vulnerable to mental health decline. You are a person with entrenched trauma, overwhelmingly related to your sexual identity and those issues from your formative years.
27. You were reluctant to take antidepressant medication. The history behind that attitude relates to the fact your mother was medicated on and off throughout your life for what were described as ‘her moods’. You observed firsthand the negative effect medication had on her. You became intensely distrustful as a result.
28. You relapsed to drug use in the lead up to Christmas 2019.
29. I will turn now to the offending before me and for which you are to be sentenced.
Current Offending
30. The current offending occurred nine days after your judicial monitoring. The circumstances are as follows:
31. The victim was a 21 year old male. You met him via a dating application named “Skout”. You were using a profile posing as a female, with a profile picture depicting a female with brown hair. For ease of reference I will refer to the exchanges between you and the victim as being with you, although at all times you posed as the female.
32. On Saturday 21 December 2019, the victim accepted a request for contact by you. Over the ensuing days you and he exchanged text messages including intimate sexual messages.
33. Between 22 and 24 December 2019, you sent photographs of a female purporting to be you. Those included multiple photographs showing the same female in a topless and nude state. You also asked the victim for nude photographs of himself, which he sent.
34. On 22 December 2019 the victim called you and a female-sounding voice answered. Using that voice you told the victim about ‘her’ fantasy, and you made arrangements to meet the next day.
35. On 23 December 2019 you called the victim, and again spoke about your fantasy. You said you wanted the victim to “come into her house blindfolded, and then walk to the lounge room.” The victim withdrew from that meeting and you sent him a terse text message saying you “didn’t appreciate being stuffed around.”
36. On 24 December 2019, you sent the victim four topless photos of the female, and you spoke again over the phone, posing as a woman.
37.
On Wednesday 25 December 2019, Christmas Day, you messaged the victim at
8:02 pm, inviting him to come tonight. In answer to a direct question, “Are you a female?” you reassured him that you were.
38. At 8:04, posing as the female you called the victim and told him that you wanted to change up the fantasy. You directed him that instead of coming into the house, you wanted him to come to the front door, put his t-shirt over his eyes and then ‘go on all fours’ and face away from the house. You also told him not to wear underwear.
39. You exchanged a number of messages, including the victim asking for a photo of your genitals.
40. At 10:43 pm, the victim called you and you provided the exact address. He parked a few houses down then walked up to the driveway of the residence and knocked on the front door. He covered his face with a t-shirt. The victim heard a female say, “Okay when you’re ready, go on all fours.” He then went on his hands and knees and said, “I’m ready.”
41. At that stage, you emerged from the house and pulled down the victim’s shorts. You touched his leg and grabbed his penis. You then licked the tip of his penis, proceeding to lick all the way to his anus and to lick his anus as well. These are all uncharged acts.
42. You then told the victim to stand up, which he did. You then sucked his penis twice. That is the act of rape by compelling sexual penetration of your mouth by his penis.
43. The victim then asked, “Can I touch your boobs?” You said “wait”, at which point the victim felt “something was weird”, and removed his blindfold. He immediately realised that a male had been performing the sexual acts on him.
44. Understandably, he started yelling at you saying, “Are you fucking serious?” You told the victim to shut up as there were other people in the house. You tried to grab his arm saying “Keep it down, let me talk to you”.
45. The victim then punched you in the ribs a couple of times and told you, “Fuck off, I’m calling the police.” Undeterred, you picked up a flower pot and threatened him. You then persisted in chasing after him as he ran down the street. He called 000 immediately.
46. Police attended and located the victim. He was visibly shaken and upset. He was required to undergo a forensic medical examination the following day, which was no doubt an embarrassing experience.
Victim impact
47. Perhaps unsurprisingly in the circumstances there is no victim impact statement. I have no difficulty however accepting that he was shaken and distressed by these events. You had garnered his trust over several days in your interactions both online and over phone calls. He was a young man, deceived by you to engage in intimate sexual behaviour on a false basis. He no doubt has been impacted in terms of his capacity to trust others. I am sure he has suffered embarrassment and felt violated by your behaviour.
Arrest
48. At 10:40 am on Boxing Day investigators executed a search warrant at your residence. You were not present. Two blister packs of Viagra with a total of eight tablets were found in your wardrobe. That is the summary charge.
49. At 12:22 am on 27 December the informant was advised by police communications that a male person was observed lying at the end of Sydney Street, near the railway line. Police attended and located you lying face down among the long grass. You were arrested and cautioned.
50. When you were asked where your phone was, you stated you had lost it the previous night. However, the phone was located at the base of the nearby tree. You refused to provide the access code for it.
51. You were subsequently interviewed. You admitted the contact with the victim however asserted that the victim knew you were a male and that you wanted to play a game. You could not explain why you did not reveal yourself to the victim straight away. You were charged and remanded.
Sentencing Principles
52. This is serious offending, committed in circumstances which highlight the need for community protection, general and specific deterrence, denunciation and just punishment.
53. Online contact for the purpose of relationship or sexual activity is now a regular occurrence for many people. People engaging in such contact online must be able to trust that the person represented is in fact the person with whom they are dealing. Creating a false profile in another gender and carrying on contact under that false identity was designed to deceive the victim. It was clearly in breach of any agreement given by him to that contact. You persisted in that falsehood for several days, using photographs and a false voice. You encouraged him to send intimate photographs of himself and to engage in sexting, both highly personal interactions.
54.
I reject the submission that this victim was not in a vulnerable category. He was a
21 year old.
55. Importantly, when the victim enquired specifically whether you were a female, that was an opportunity for you to stop. Your prior offending and imprisonment would have left you in no doubt about the path you were on should you choose to continue. You did not desist however, enticing that young man to continue his engagement with you, well aware of the fraud you were perpetuating.
56. You have by your conduct deceived him. Your actions in posing as a woman vitiated his consent to any sexual act with you.
Rape by Compelling Sexual Penetration
57. The offence of rape by compelling sexual penetration was introduced to the criminal calendar in 2015. It is a Category 1 offence. That is, section 5(2G) of the Sentencing Act requires that a custodial order not combined with a CCO be imposed for this offending. Sensibly no submission was made to counter that position.
58. The prosecution submit that this offence is akin to a charge of rape. The defence contend that I should reject that submission and say there are inherent distinctions.
59. Previously, penetration of this kind – that is by the victim of the offender – did fall into the definition of rape in s.38.[2] In 2015 the definition of rape was amended in reforms which were aimed at clarifying a number of sexual offences.
[2] Crimes Act 1958 s. 38(3). On 1 July 2015 as a result of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 that section was amended and s.39 replaced what were the existing offences of compelling sexual penetration in sections 38(3) and 38A of the Crimes Act 1958.
60. Rape itself can be committed in a number of physical ways. This is one of them – by compelling a victim to penetrate an offender without the victim’s consent, and without a reasonable belief in their consent.
61. Higher courts have made comments as to the seriousness of various acts of penetration vis-a-vis each other. There is no reason to believe that this offence should not be considered as a parallel to a charge of rape, with penetration of a different kind.
62. The maximum penalty of 25 years for the offence of rape by compelling sexual penetration is the same as for rape. Standard sentencing however does not apply to s.39 and nor do serious offender provisions. The reasons for those differences are not immediately apparent. However, I accept the prosecution submissions that this charge has obvious comparisons to a charge of rape. How far they go is not a matter I need to fully determine.
63. Your actions fall squarely within the terms of s.39. Your act of compelling the victim to penetrate your mouth with his penis is a physical act orchestrated by you. His agreement to that activity was based on an entirely false premise – that you were a female. His erroneous belief, as a result of your deception, completely vitiated his consent.
Objective Gravity of the Offending
64. It is difficult to place this offending on a continuum with other offences against s.39 because of a limited number of decisions dealing with this offence. In my view it must be at least moderately serious.
65. By your physical actions you infringed upon the sanctity of his body and sexual autonomy – that is, his right to choose with whom and how he engaged in sexual activity. You performed those acts for your own satisfaction and without any basis for a reasonable belief in his consent.
66. Though brief acts, it was planned and premeditated with a lead up of some days. Opportunities to desist were not taken. It was immediately preceded by uncharged acts of a sexual nature committed similarly without his consent. The victim was young.
67. In assessing your moral culpability it is high.
68. General deterrence as well as specific deterrence are considerations which loom large, alongside community protection.
69. For clarity I should indicate that you are not to be sentenced on the basis of your past offending. Those offences are in no way aggravating of the current offence. Their relevance goes only to assessing your moral culpability and to issues of the need for specific deterrence and community protection, as well as your prospects of rehabilitation. Those prospects must be extremely guarded at this point.
70. I should also be clear to you, drug use may provide some context to this behaviour. However, it does not in any way excuse it. In particular, I note that although the charge relates to discrete acts committed on a single day, there was a lead up to that meeting occurring over a number of days and which involved very deliberate behaviour on your part.
71. In light of your history and the recent opportunities to engage in treatment without success, a term of imprisonment is the only appropriate sentence. You will be mandated to engage in sexual offender programs during such a term, which is essential if you are to be rehabilitated. In my view, treatment should start as soon as possible given what the experts have described they anticipate will be a difficult and lengthy process.
Plea of Guilty
72. I take into account your plea of guilty at the earliest opportunity. That is valuable for several reasons.
73. First, there is a utilitarian value in a plea which saves the courts and the community the time and expense of a trial.
74. Second, and particularly in a matter such as this, it saves the victim the embarrassment of having to come to court and give evidence not just about the actual offence but of his exchanges with you in the lead up to your meeting.
75. I take those matters into account.
76.
I also take into account the comments of Her Honour Justice Dixon in the
DPP v Bourke [2020] VSC 130 with regard to the particular value of a plea of guilty in the current COVID-19 pandemic given the delays to all trials.
77. I also accept that your plea of guilty is an expression of your remorse and shame over this offending.
Time in Custody
78. I also take into account in sentencing you, the fact that your time in custody is onerous. It is onerous for the reasons I have touched on through the course of this sentence. It is onerous because you have been assaulted in custody when the nature of your offending became known. You are anxious about that possibility recurring. It is also onerous because of your mental health state which in my view enlivens Limbs 5 and 6 of R v Verdins (2007) 16 VR 269.
Mental Health State
79. To be more specific, your mental health condition is described in thorough and detailed report provided by consultant forensic psychologist, Mr Patrick Newton. He assessed you in May 2020, having previously assessed you in 2019.
80. In May 2019 he assessed that your anxiety was sufficiently intense to meet diagnostic criteria for an adjustment disorder. In May 2020 he observed that your mental state had deteriorated significantly. Specifically, you reported a range of emotional, physical and behavioural symptoms of depression. You described your mood as being intensely sad, noting feeling overwhelmed with shame for your past conduct and pessimistic about your future. You described your life as being bleak and pointless and you are lacking motivation to participate in any more than basic activities. Your sleep is severely disturbed. These symptoms persist despite the prescription of the antidepressant medication.
81. Some of your symptoms are reactive, however Mr Newton opines that your legal situation alone is not sufficient to account for their intensity. Rather, he observes that a range of factors from your earlier life have combined to contribute to long term emotional instability. These factors commenced in your unstable and abusive childhood, were magnified by the upheavals of your adolescence, and intensified still further by the corrosive effects of involvement with sex work and drug use as an adult. Most recently the disruption occasioned by your incarceration and the violence which you have experienced in that context have added further your emotional problems.
82. It is his opinion that your mental state has deteriorated to the extent you now meet diagnostic criteria for major depressive disorder of mild to moderate severity.
83. In his opinion your offending reflects the outworking of deep-seated sexual problems which have been magnified by your personality dysfunction. Compounding these problems has been your tendency to resort to drug use at times of emotional upheaval. That has not only intensified the dysfunction but also disinhibited your sexual behaviour.
84. In his view, your offending conduct can be understood as an expression of your internal conflicts between viewing the world as starkly competitive and unsympathetic on the one hand, and on the other being convinced of your own lack of worth.
85.
He says your sexual offending points to severe psychosexual pathology. The degree of impairment and the persistence of your conduct are sufficiently severe to meet
DSM-5 diagnostic criteria for an unspecified paraphilic disorder.
86. Further, Mr Newton opines that the personality dysfunction evident in your psychological makeup is sufficiently intense to meet DSM-5 criteria for a borderline personality disorder with antisocial features.
87. Although I raised with your counsel whether the opinion of Mr Newton raised Limb 1 of Verdins, I accept that your counsel was correct in recognising the difficulty of disentangling your mental health state from what is now chronic drug use. That is particularly so given the repetitive nature of your descent to drug use and offending.
88.
Of course, that does not mean I should not take into account the issues surrounding your mental state as described in the expert material. In particular Mr Newton states that 'mental health care is particularly pertinent given the role played by issues associated with long term trauma and personality dysfunction in underpinning
Mr Valsamakis' sexual problems in general and his offending conduct in particular.'
89. You express shame and regret for your conduct. Your self-loathing which accompanies that expression is a prominent part of your depressive symptomatology. You are still to develop appropriate empathy and insight into the effect on your victim.
Assessment of Risk of Sexual Reoffending
90. When Mr Newton assessed you in May 2019, he assessed you as ‘high risk’ of recidivism to sexual offending. Unsurprisingly that assessment remains the same. He particularly states that any drug use – even sporadic – is perhaps your highest risk factor.
91. Given your risk and entrenched issues, the importance of providing you with effective treatment is hard to overstate. That treatment will occur in the custodial setting for the immediate future and I commend the reports of Mr Newton, in particular his 2020 report to those who will administer that treatment. I note he recommends trauma-specific treatment and notes that no programs to that effect are offered in custody. That is a factor which feeds in to my consideration of the non-parole period. Your reassimilation to the community is going to be difficult and you must receive as much support as possible.
Covid-19
92. I also take into account that your time in custody has become even more onerous since March of this year due to the impact of COVID-19. You have been unable to have any visitors where previously your mother had been attending.
93. Psychological support is being conducted by phone or otherwise remotely. Courses are suspended and work is limited. Lockdowns are increasing. It is a more anxious time for the community generally and for those in custody who cannot exercise their own choices, no less so.
94. In your case your pre-existing mental health conditions exacerbate that situation.
Breach Community Correction Order
95. Finally, in sentencing you I also take into account extent to which you complied with your community correction order as outlined in the contravention report which I have read and which I have outlined.
96. I must also take into account the principle of totality. You have spent only 74 days in the community since April 2017. That is to a large part your own doing, but still forms a consideration in sentence.
Sentence
97. Mr Valsamakis, I propose to sentence you as follows.
98. On the charge of rape by compelling sexual penetration, you are convicted and sentenced to five years and two months' imprisonment.
99. On the charge of unauthorised possession of a Schedule 4 poison, which has a maximum penalty of 10 penalty units, you are convicted and fined $250.
100. On the breach of community correction order, I find that charge proven. I cancel that order.
101. On the charge of breach, you are convicted and sentenced to 30 days' imprisonment.
102. In re-sentencing you on the original offences, I note the maximum penalties. I propose to impose an aggregate sentence of four months' imprisonment on those charges. I note that you had already been remanded on those charges as well as the more serious offences for 503 days, none of which can be reckoned on this sentence.
103. The total effective sentence is five years and two months' imprisonment.
104. I direct that you are to serve three years and four months' imprisonment before becoming eligible for parole.
105. I declare that you have served pre-sentence detention of 218 days which should be reckoned as having been served under this sentence.
106. Pursuant to s.6AAA, but for your plea of guilty, the sentence I would have imposed would have been one of seven years with a non-parole period of five years.
Sex Offender Registration
107.
The prosecution made application for registration pursuant to the Sex OffenderRegistration Act 2004. That application was opposed. You are already subject to sex offender registration for life. The impact of a second registration cannot affect your life reporting. In a practical sense, it would mean you are required to wait an extra
12 months before being able to apply for any suspension of your reporting requirements.
108. The circumstances of this offending, the nature of the offence and the chronology of your earlier offending and release, as well as the assessment of risk are such that I am satisfied that you pose a risk to the sexual safety of persons in the community.
109. In my view, and in the exercise of my discretion, it is appropriate to impose sex offender registration on this charge. That registration will also be for life. Paperwork outlining sex offender registration will be provided to Mr Valsamakis in custody today. He will be required to sign that paperwork to indicate that he has received it and that paperwork or that document with his signature will be returned to the court.
Disposal and Forfeiture
110. Application was made by the prosecution for disposal and forfeiture. Those applications were not opposed and I propose to grant those in the terms sought.
111. Are there any issues, counsel?
112. MR SWAN: Just with respect to the forfeiture order, Your Honour. On the last occasion, the forfeiture of the mobile phone was not before the court. That has only occurred recently. I do have instructions to oppose that forfeiture being made and in terms of the relevant considerations, I will just direct Your Honour to s.33 of the Confiscation Act and sub-s.5. So with respect to the mobile phone, I am instructed it is Mr Valsamakis' iPhone 10.
113. HER HONOUR: Just hang on one second. Yes.
114. MR SWAN: Sub-section 5 of s.33.
115. HER HONOUR: Yes.
116. MR SWAN: With respect to the property, it is an iPhone 10. Mr Valsamakis has advised me this morning approximately value of $1,500. This was his mobile phone that he would use obviously for any and all calls or emails. He does not have any other mobile phone. Mr Valsamakis' personal situation with respect to any hardship under sub-paragraph B is that he has been obviously unemployed for a significant period of time. He does not have any assets or any other funds. He instructs that it would cause significant financial hardship if his phone was forfeited and he was required to obtain a further phone upon his release into the community.
117. In terms of additional information about his financial hardship, he has advised me that whilst in custody for these matters, he has had a number of bills which have been effectively adding up, which he will have to address when he returns in the community, which will compound his financial hardship.
118. In addition to that, it is very clear that access to a mobile phone when he is eventually released into the community will be necessary for him to engage meaningfully with Corrections as terms of his parole. It is something that he is going to require.
119. Those are the relevant matters I would seek to raise. There is no argument or relevance to sub-paragraph C.
120. HER HONOUR: Thank you. Just give me one second. Mr Sprague, what submission would you like to make if any in response?
121.
MR SPRAGUE: Your Honour, the application is made on the basis of the phone being used in the offending and the use of that phone set out in the opening in terms of the communications with the victim. That is the basis of the application. I do not have any submissions to make in relation to the matters specifically raised under
sub-s.5.
122. HER HONOUR: Yes. Thanks very much. I will correct that.
123. The application for disposal was not opposed and I propose to grant that application in the terms sought.
124. Application was also made for forfeiture of Mr Valsamakis' mobile phone in line with Charge 1. That application is opposed and reliance is made on the provisions of s.33(5) of the Confiscation Act1997, in particular, that the mobile phone which is an iPhone 10 and worth approximately $1,500, the loss of that phone will cause hardship to Mr Valsamakis in that upon his release, he will be required to obtain another phone which will cause him financial hardship. In addition, he has received a number of bills since he has been in custody and I interpolate that perhaps by selling that phone, he may be able to meet those bills.
125. In my view, his use of the phone is so intimately tied up with the behaviour in the lead up to the offending by way of the rape by compelling sexual penetration charge that it is appropriate in my view to order forfeiture of that mobile phone, and that is what I propose to do in the terms sought.
126. MR SWAN: Please the court.
127. MR SPRAGUE: The court pleases.
128. HER HONOUR: Thank you. As I say, counsel, there will be some amendments that may be necessary. As I said, they are not amendments that will change in any way the content of the sentence that I have just outlined, which was almost the final sentence in any event, almost the final version of reasons in any event. That will be provided with you as soon as it is done.
129. Mr Valsamakis, you will receive the documentation today relating to sex offender registration and it is a matter for you, but I invite you to sign to indicate that you have been provided with that documentation.
130. Thanks very much, counsel. We will now stand down.
- - -
0
3
0