Director of Public Prosecutions v Vangeli
[2013] VCC 920
•5 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00427
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER VANGELI |
---
JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 June 2013 | |
DATE OF SENTENCE: | 5 June 2013 | |
CASE MAY BE CITED AS: | DPP v. Vangeli | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 920 | |
REASONS FOR SENTENCE
---
Subject: Criminal law – plea – sentence
Catchwords: Procure a person under the age of sixteen for sexual activity – indecent act with a child under the age of 16 – representative charge – communication effected via Facebook – no prior criminal convictions – opportunistic and situational offending – principles of general and specific deterrence discussed
Legislation Cited: s.474.26(1) of the Criminal Code Act 1995 (Cth) – s.47(1) of the Crimes Act 1958 (Vic)
Cases Cited:
Sentence: On Charge 1 convicted and fined $5,000 – On Charges 2 & 3 convicted and ordered to serve a Community Correction Order for a period of 5 years
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms L. Dipietrantonio | Ms M. Rezsnelli Office of Public Prosecutions |
| For the Accused | Mr G. Barns | Patrick Dwyer & Associates |
HIS HONOUR:
1 Mr Vangeli, you can remain seated. There are a number of things I have to go through in regard to your sentence, which is important, firstly, for yourself, to understand fully the reason for the sentence, and secondly, so that all the matters that have been put to me are recorded, should there be any reason in the future a need to look at what was determined, or what was not determined.
2 Mr Barns, the Community Correction Order assessment outcome report, will be marked as Exhibit D, and I thank, in particular, the assessing officer, Mr Bain, for the manner in which he has been able to get this report done and to the Court so quickly. There has been a consent signed by your client. Is there anything you wanted to say about that apart from the fact that it was positive?
3 MR BARNS: No, Your Honour, thank you.
4 HIS HONOUR: In this matter, Mr Vangeli pleaded guilty to three charges on Indictment No. C13125444. Ms Dipietrantonio appeared on behalf of the prosecution and Mr Barns appeared for Mr Vangeli.
5 The first thing that I am required to do is to deliver - not really I am required - but Parliament requires a document in regard to the sexual reporting requirements to be provided to Mr Vangeli. I will do that, and I will ask you, Mr Barns, to arrange for your client to sign the acknowledgment form.
6 MR BARNS: Yes, Your Honour.
7 HIS HONOUR: Pursuant to statute, that document, the acknowledgment which has now been signed, records that Mr Vangeli is subject to the reporting legislation and requirements imposed by Parliament for a period of fifteen years.
8 Ms Rezsnelli, I apologise, I should have noted that you appear today.
9 MS REZSNELLI: Thank you, Your Honour.
10 HIS HONOUR: All of the criminal conduct involved in these charges occurred over the period 1 August 2010 to 30 November 2010. At the time the prisoner was aged thirty. He is now thirty-three.
11 The first of the charges on the Indictment to which Mr Vangeli has pleaded guilty, pursuant to s.474.26(1) of the Criminal Code Act 1995 (Cth), involves the offence of procuring a person under the age of sixteen for sexual activity. I should point out that the child at the time was aged fourteen. As an indication of the seriousness with which Parliament views this crime, the maximum penalty prescribed is fifteen years.
12 Insofar as the communication and the terms or means of procurement, such was affected by way of Facebook interface between Mr Vangeli and the victim.
13 The prosecution summary, agreed to by both counsel as to the facts, was tendered as Exhibit A, and insofar as the circumstances of this communication of Facebook, such is detailed, or a sample of same is detailed at para.6 of that exhibit.
14 The second and third charges involve offences against s.47(1) of the Crimes Act 1958 (Vic), the offence of indecent act with a child under the age of sixteen. The difference between the two is that Charge 2 is a representative charge, it is representative of four separate occasions; they are each detailed at paras.8, 9 and 11 of the prosecution summary. This charge and each of the representative matters referred to involved a touching of the victim by way of Mr Vangeli touching, or massaging, I suppose, her breast, but on the outside of her brassiere. Again, as an indication of the seriousness of these charges, is the fact that the Victorian Parliament has prescribed a maximum penalty of ten years.
15
In regard to Charge 3, this was a one occasion only. The particular indecent act in this circumstance involved or was subsequent to particular discussion in regard, or between the parties over Facebook, and reference to the issue of fellatio. Subsequent to those discussions, at this particular meeting, Mr Vangeli had undone his pants so that his penis was out, as one can perceive it, in the hope that such activity would be carried out, however, the victim refused to do that. Fortunately, that matter was not pursued.
Mr Vangeli removed himself from that position of disport and the offence involved the victim rubbing his penis, but over his clothing.
16 The relationship lasted from August through to November 2010. It ended as a result of actions of the victim's friends. It apparently became obvious at school that this relationship was known, and it would appear that the matter then ended. It would also appear from the materials that Mr Vangeli did not persist or pursue the victim thereafter.
17 There was no victim impact statement filed. In the VARE made by the victim, she spoke of being manipulated by Mr Vangeli. She said, albeit that she knew what she was doing was wrong, but she was scared to say no. I must say upon the facts I find that somewhat difficult. That may well be true from her point of view and her perspective.
18 However, it seems fortunate for Mr Vangeli indeed, as I remarked yesterday, that on each occasion when he had, for example, touched the victim’s leg or touched her brassiere, or indeed involved himself in the circumstances that make up Charge 3, on each occasion when the victim declined to proceed, he at no stage pushed the matter and did not go any further. Whether he decided to exercise some self-restraint or whether the simple fact was that he was only going to be involved in voluntary actions with the victim, I am not sure, but all I can say is that, for his future, it was very fortunate indeed that he did stop, and that we are dealing with circumstances which do not involve penetration.
19 Each of the charges is aggravated by the age difference, and indeed, albeit not for a long time, there seemed to be a persistence by way of the conduct throughout that period. The chat, if I call it that, on the Facebook, has a touch of unreality about it. Both seemed to be in a situation where they were involved in something that they were not quite certain about, whether it was titillation or excitement for both of them in those circumstances, I am not sure, but to read the Facebook transcript tends to smack of the slightly unreal. I point out that Charge 2 is representative.
20 One of the important things to remember in regard to each of these charges is that such legislation is brought in for the purposes of protecting children, to save children from themselves, or being manipulated into circumstances such as this. Of course, as a result of it being protective, the question of actual consent, which clearly occurred in this case, simply does not present as an issue, and is not an element of the offences.
21 It was the submission, a very professional submission of the prosecution in the circumstances, that a sentence involving only immediate imprisonment was not the only option in this case. Indeed, the prosecutor submitted that a Community Correction Order was, subject to the Court's view, an option possible given the circumstances of this case.
22 The Crown also sought an order from the Court as to a forensic sample under s.464ZF of the Crimes Act 1958. In support of that, it remarked or submitted that this should be granted because of the seriousness of the crimes, because of the role that such samples play in ultimate protection of the community, and from the fact that the sample sought is really a non-invasive process.
23 I take all that into account. However, as has been determined in the Supreme Court on a number of occasions, the granting of such an order, which after all is an invasion of the rights of a person in our community, must depend essentially on a Court's determination on the risk of recidivism, and there is no submission, or the reality is, and I conclude that there is not a grave chance of recidivism. Indeed I go so far to say that when Mr Vangeli serves this sentence, we can be sure he will not be back before the Court.
24
Insofar as the submission of Mr Barns, he tendered the report of
Mr Cummins, and that is a report of 31 May 2013, Exhibit 1. He remarked, and I was able to observe the strong family support relevant in this matter. He submitted that Mr Vangeli strongly regrets the actions that he carried out insofar as this chain of events. They have obviously had a grave strain upon himself and his own relationship.
25 Mr Barns submitted that I should accept that the remorse, as evidenced by the pleas of guilty, not only is utilitarian by those pleas but is genuine, that Mr Vangeli was in the circumstances prepared to speak to his family and detail to his family these crimes, and indeed, to his employer.
26 The matters discussed in Mr Cummins' report relate to the circumstances of the child of the marriage being sick during the second half of 2010. Apparently, and I say this without any suggestion or view of the Crown, that I agree with the comments that such, or his wife's attitude, can be seen as any excuse for your behaviour. However, there is a positive that comes out of these things, apparently it is the view of your wife that as a result of these matters certainly the relationship between yourself and her is one that is more positive and responsive than it was previously.
27 It is difficult to determine precisely the impact of illness to a child. It does affect parents in many ways, and certainly Mr Cummins is of the view that such did have an impact by way of the depression which occurred at the time. I am not quite sure whether I fully accept that, however, that is the evidence before the Court.
28 What I do agree with, with Mr Barns' comments, is that your actions were clearly opportunistic and situational; that at the age of thirty you found yourself, through an association of a young girl next door, subjected to flattery from a friend of hers, and a young friend of hers, and your male ego succumbed to that flattery and you lost perception of, as I say, reality, and suddenly found yourself in these very dangerous circumstances insofar as your liberty is concerned, your marriage is concerned, and your future.
29 Insofar as the protective nature of these offences, Mr Barns did not gainsay those considerations, however, stressed that at all times, whatever was the stated intent of the victim, it was acceded to by Mr Vangeli, in particular that no force had been used, and that he had accepted her decisions as to what activity could take place and what activity did not take place. As I say, it is also clear that you did not pursue the matter.
30 Mr Barns relied on your previous good character, the support that you have from your family, the early plea, the cooperation that you have given, and submitted that I should conclude in the circumstances that there was a very low risk that you would offend again.
31 Mr Barns also again remarked on the short course of this criminality in the sense of it being related to the totality of your life and your contribution to the community and family over that period, and again stressed the restraint shown by you. He noted the shame that comes with being in this Court, and clearly in the circumstances, with all your family present yesterday, such is not to be underestimated in the circumstances of this type of case.
32 Mr Barns also noted that, as was affected this morning through the determination of Parliament, you are now placed on the Reporting Sexual Register for a period of some fifteen years.
33 Given the submission of Mr Barns and the concession that a Community Correction Order was in the range from the prosecution, a report was called for, and as I indicate, that report has been positive and is tendered today as Exhibit B.
34 Insofar as determining the appropriate sentence for you, I have since this plea ended yesterday, I suppose, struggled a little bit with the balancing of the understanding and the need for protective legislation to be supported for a sentence to reflect, given that legislation, both general deterrence and specific deterrence, in regard to you.
35 I have taken into account all of the submissions, and I finally concluded, however, that a Community Correction Order on its own would not be sufficient to mark the seriousness of these offences. These are grave offences. The age difference between you and this child was marked, and the maximum penalty obviously indicates the serious with which Parliament views such.
36 The alternatives, of course, are the totality of what is set out in both of the Acts, and I should say that in regard to the first charge under the Commonwealth Act, I have taken into account the matters set out in s.16 of the Crimes Act 1914 (Cth).
37 I have determined that there must be some imposition of a sentence which effects immediate punishment, Mr Barns, I have determined that a combination of Community Correction Order and a fine is appropriate.
38 MR BARNS: Yes, Your Honour.
39 HIS HONOUR: I would intend, unless you want to make any submissions to the alternative, the maximum fine in regard to Charge 1 is one of, as I do the maths under the Crimes Act 1914 (Cth), s.4B and s.4AA, amounts to a figure of $99,000. That is the maximum that can be imposed. In the circumstances of this case, given the level of criminality and your client's actions, I intend to impose, in regard to Charge 1, a conviction and fine in the sum of $5,000.
40 MR BARNS: Yes, Your Honour.
41 HIS HONOUR: Insofar as the State offences, I intend to impose a Community Correction Order for a period of five years, and that would, pursuant to s.40 of the Sentencing Act 1991 (Vic), be imposed for both Charges 2 and 3.
42 I think your client has already signed the consent, but perhaps it does not hurt to check insofar as he consents to the Community Correction Order in the terms as set out.
43 MR BARNS: Yes, Your Honour.
44 HIS HONOUR: It would be my indication that there be an intensive period of two years and that all of the conditions, including a work condition of two hundred hours, be performed during that time, and the only condition, apart from the normal conditions of behaving himself, that would continue for the five years would be one of supervision.
45 MR BARNS: Yes, Your Honour.
46 HIS HONOUR: I might have you explain that matter, and then I will formally pronounce sentence.
47 MR BARNS: Yes, Your Honour.
48 HIS HONOUR: Yes, if you would stand, Mr Vangeli.
Sentence
49 Formally, in regard to these charges, therefore, you are convicted on each charge.
50 On Charge 1 you are fined the sum of $5,000, and I will grant a stay of six months.
51 On Charges 2 and 3, I order that you serve a Community Correction Order, and that the period of that order be five years. Pursuant to s.39(2) of the Sentencing Act 1991, I impose an intensive compliance period of two years and the conditions recommended, being apart from the usual terms involving your good behaviour, the treatment and rehabilitation condition under s.48(d), the work component under s.48(c), and that each of those be performed during the intensive period of two years. The supervision condition under s.48(e) is applicable for the whole of the period of five years.
52 In the circumstances it may well be seen as an extensive period, but it is meant to be. As I say, these are serious offences, and you are being put on your trust. I do not need to stress to you there would not need to be any further criminal offences during that period, and I trust there will not be.
53 Again, I think in the circumstances, it was a very professional attitude taken by the prosecution in this matter, if I might say.
54 All right, Mr Vangeli, all the best.
55 MR BARNS: Thank you, Your Honour.
56 HIS HONOUR: Yes. I thank both counsel.
- - -
0
1
0