Director of Public Prosecutions v Vella
[2015] VCC 275
•11 March 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00762
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID ROBERT VELLA |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2015 | |
DATE OF SENTENCE: | 11 March 2015 | |
CASE MAY BE CITED AS: | DPP v Vella | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 275 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence - rape of girl under the age of 16 years with aggravating circumstances – historical offending – DNA profiling
Legislation Cited: Sex Offenders Registration Act 2004
Cases Cited: DPP v Toomey [2006] VSCA 90; HMcL v R (2000) 174 ALR 1;
Sentence: Total effective sentence of 6 years and 6 months with a minimum of 4 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Gibson | OPP |
| For the Accused (Plea) (Sentence) | Ms N. Karapanagiotidis Ms J. Kennedy | Leanne Warren & Associates |
HER HONOUR:
1 David Vella; you have pleaded guilty to a charge of aggravated rape, which was the applicable offence for your offending at the time it occurred in 1988. It carried a maximum sentence of 20 years’ imprisonment.
2 I will sentence you on the basis of the opening, which was read out by the prosecutor.[1]
[1] Exhibit A
3 Briefly, your offending involved the following. You were walking your dog along a Frankston street at about 9 pm on 1 June 1988. You began following a complete stranger; a young woman who had been swimming at a sports centre with friends. Anna Smedley[2] was that young woman, then aged 15 years, less than five feet in height and weighing less than 40 kilograms. She had been expecting her parents to pick her up from the sports centre and began walking home when they did not arrive, hoping to meet them along the way.
[2] A pseuodonym
4 You approached Ms Smedley from behind and grabbed her, threatening her with a knife. You walked her off to a vacant block, which had long grass, and as it was night time in an industrial area, you were hidden from sight. In this place you found out that she was aged 15 years and that she was menstruating, but neither of those facts stopped you. You continued to threaten her by actions, showing her the knife, and by words, threatening to use it, and after touching her sexually on her breasts and genitals and undressing her, you raped her by inserting your penis into her vagina. You did not use a condom and you ejaculated inside her. You made a number of disgusting remarks to her, including the chilling one that you might look her up in a couple of years to see if she "had a kid" from your rape of her.
5 These are all features of your offending which make the offence more serious viz:
· taking an unknown female from a street to a secluded industrial area at night;
· continuing your attack on her after becoming aware of her young age;
· continuing your attack on her after becoming aware that she was menstruating;
· threatening to use the knife, as compared to merely having it with you to facilitate the rape;
· the fact that the person you raped was a child;
· threatening to look her up in a couple of years;
· and the fact that no condom was used, leaving Ms Smedley open to, first, the possibility of pregnancy, a possibility about which you were well aware, as can be seen from your comments to her, and second, the possibility of an infection.
6 On this last point, it was raised by Ms Smedley in her victim impact statement[3] she received treatment within 48 hours after your attack on her for a sexually transmitted infection. The prosecution submitted that this was caused by you raping her without the use of a condom. The only evidence before me as to the cause of the infection is that of Ms Smedley. This has not been challenged. There is no doubt in my mind that the infection was transmitted by you. I therefore take this actual transmission of infection, compared to the possibility of transmission, into account as a further aggravating feature. On the other hand, the fact that you instructed your legal representative not to make submissions against this is taken as a sign of your acceptance of responsibility for the offence, and its consequences, and is also a sign of some remorse.
[3] Exhibit C
7 A car was driven onto the block where you were committing this dreadful crime, and began driving around in a figure of eight pattern. It seems that you were not seen. You got off Ms Smedley and the distraction of the car enabled her to gather her clothes and leave. She immediately approached some adults she found not far away, but across a road, told them she had been raped and was taken to the Frankston Police Station by car. There, the police were told by the adult who had taken her there that she told them she had been raped. Ms Smedley was medically examined and a number of forensic samples were collected and stored for future analysis. Ms Smedley took police to the location of the rape that night, she made a written statement the following day, she attempted to compile a sketch of you with a police sketch artist a short time later, she attempted to compile a computer generated photofit later still at police request, and she looked at volumes of police photo books. No-one was then identified as the perpetrator.
8 The impact of your horrendous crime on Ms Smedley was immediate and long lasting. She left school within a week due to the nasty rumours circulating amongst the students in light of no offender having been located. Ms Smedley read aloud in court her powerful statement of the impact on her[4]. Nothing I say can match her eloquent description of how her life changed from that point in time, and how her life might have been but for your crime. She has suffered from difficulties in intimate relationships and still shies away from contact with men with facial hair, including her own father and husband, and from men smelling of alcohol, which you were. Her worst feeling has been your parting comment about "looking her up in a couple of years", coupled with the questions swirling through her mind of what might have happened if the car had not turned up.
[4] Exhibit C
9 As I said to her on the day she read her statement she was then, and still is, a brave and strong woman. She is emphatic that she has not allowed your crime to make her a victim. I also want Ms Smedley to know that almost 27 years on things have changed. People who make complaints of sexual offences, and especially children, are treated with respect by those investigating the allegations, without unhelpful and unnecessary expressions of opinion. Female doctors are available for medical examinations and all participants in a criminal case are accorded respect by those dealing with the allegations in the criminal justice system. Today’s sentence will produce some finality for Ms Smedley after a long wait for justice. I wish her well in the future.
10 Returning to your situation, Mr Vella. At the time of this offence you were aged 24 years and had already collected 24 convictions in the adult criminal justice system for offences ranging from minor assaults and drug use, to more serious crimes such as robbery and causing injury[5]. Three months before you raped Ms Smedley you committed the last in a series of four armed robberies and injury offences, for which you received a total effective sentence in February 1989 of six years’ imprisonment with a minimum of four years[6].
[5] Further antecedents are seen from a full criminal record – Exhibit D
[6] Exhibit 4 – Sentencing remarks of His Honour Judge Nixon, 28 February 1989
11 It was made clear to the sentencing judge then that all of your offending occurred when you were affected by alcohol, and that you had been a heavy drinker by the age of 17 years. This history matches Ms Smedley’s description of her rapist smelling of alcohol. For the sentence in February 1989 you were assessed by Dr Walton, psychiatrist, and were not considered to be suffering from any psychiatric disorder which is at a time close to the offending for which I am sentencing you. The sentencing judge then did not consider that you had made any effort at that age to rehabilitate yourself, and in particular to stop drinking, when you apparently well knew that drinking alcohol to excess was a main cause of your offending.
12 You did not take heed of the remarks of that sentencing judge. You did not rehabilitate. Following your release from that sentence of imprisonment you were convicted in 1993 for causing injury, and in 1994 for minor assaults. You breached the suspended sentence and community based orders imposed for these offences. It is not clear from the record, but it seems likely that this was for further offending. In any event, what is relevant is that you did re-offend. In 1996 you were sentenced by another judge of this court for rape and received a term of five and a half years’ imprisonment with a minimum term of four years. I have not been given any details about this offending. Unknown to anyone but you, this was the second time you had committed this serious crime.
13 The same year you were convicted of further dishonesty offences. Some of this sentence was ordered to be served concurrently with the sentence of rape you were then undergoing.
14 This time in custody also did not serve as a deterrent to you. On your release in 2001 you committed further violent crimes and were sentenced for these. Of most significance is the sentence you received in 2007 for rape and causing injury, having been found guilty by a jury. This was your second conviction for rape, and as I said before, known by you to be the third rape you had committed. The offences were committed in 2003 against your then partner, who was attempting to leave the relationship. You received a term of nine years’ imprisonment with a minimum of six years to serve before parole. The sentencing judge on that occasion found that despite the serious nature of your offending, and despite your violent past, you were not without hope of rehabilitation, and he found further that there were signs of you having insight into your negative behaviours, and that you had expressed a desire to address them[7]. He, of course, did not know about the rape you committed in 1988.
[7] Exhibit 2 – Sentencing remarks of His Honour Judge Strong 23 February 2007.
15 You are now aged 50 years and have spent the last eight years in custody completing the sentence imposed in 2007. This is on top of the many years you have spent in and out of custody since you were a teenager. You were not granted parole when eligible in November 2012, partly because this matter was coming to court. You are due for release in December of this year, 2015, having had a period of pre-sentence detention before the trial.
16 Your counsel submitted that I should take into account the delay in this matter coming to sentence.[8] It is necessary to consider the timeframe. The offence occurred in 1988. The DNA profile obtained from the forensic samples taken from Ms Smedley was matched against your DNA profile on the database in routine testing done in February 2012 as part of ongoing analyses of ‘cold cases’. You were charged in April 2013, but the charges laid were withdrawn in June. The charges were re-filed in October 2013 and discussion took place between those representing you, and the prosecution, but produced no resolution of the matter. Ms Smedley was cross examined along with other witnesses at a committal on 1 May 2014, after which you were committed for trial on a number of charges dealing with a range of sexual acts, as well as the main offence of aggravated rape. An offer to plead guilty to that main offence was made and accepted in December 2014. You were arraigned and pleaded guilty in January 2015, with the plea being heard on 4 March.
[8] Exhibit 1 – Outline of Plea Submissions
17 As I said to your counsel, while no-one expects an offender to walk into a police station and confess to a serious crime, there were numerous opportunities for you to bring this matter to the attention of the authorities so that you could attempt to receive the benefit of concurrency in your sentences. You had previously received orders for concurrency for offences on which you were sentenced at different times, including one of the rape sentences, so I conclude that you were aware that this was possible. Further, you were questioned by police and then proceeded against and sentenced for two further charges of rape, which provided opportunities for you to show true remorse on this first offence of rape, and seek concurrency. You were interviewed by forensic psychologist Mr Cummins for the plea heard in 2007 after the trial relating to your former partner, but you did not tell him about this relevant offence in 1988[9].
[9] Exhibit 3 – Two reports of Jeffrey Cummins, the first undated but following an assessment of the prisoner on 29/1/07; the second dated 24 February 2015.
18 It is clear that you retained a memory of the offence in 1988. In recorded telephone conversations between you and your mother, and you and your wife, in February 2013, after police had visited your parents’ home, but before you were interviewed in March, you did not ask your mother what it was all about. You told your wife you did not tell her about it because you thought nothing would come of it, and you referred to not keeping your hands to yourself and not hitting the person you offended against.[10] It is clear you thought you would stay quiet and get away with it.
[10] Exhibit A – Prosecution Opening paragraph 38.
19 In considering whether delay should be taken into account in your favour, I have also had regard to the remarks of the Court of Appeal[11], where it was said, amongst other things, that:
"…it is incumbent on the courts, however long ago the offences were committed, to express the denunciation of the community of such serious criminal behaviour through the sentences imposed on perpetrators, and to provide social rehabilitation by recognition of the court of the real significance of what has occurred in the life of the person affected by the crime as a consequence of that crime, to facilitate their process of recovery."
[11]DPP v Toomey [2006] VSCA 90 at [17]-[24]
20 Your counsel submitted that in this last period in custody you have done everything that you can do to rehabilitate yourself. This is another aspect to consider in deciding whether to take the delay into account. First; it is likely that you have had plenty of time to deal with your alcoholism, including the completion of drug and alcohol programs during your sentence, and I note that you have returned clean urine samples over 30 times during your sentence, except for the early stages. Drug and alcohol use has been a contributing factor to your offending in 1988, and since.
21 Next, you have completed the sex offender program and expressed to Mr Cummins your level of insight into the rape you committed in 1988. You gave him an explanation for your offending, saying that you would have been under the influence of alcohol and speed, that you had just been released from a sentence of three months in prison for possession of cannabis, that during your sentence you had learned that your partner had apparently "been with someone else" and you had then split up, and you put sexual frustration and anger as the motivation for your offence.
22 You seem now to recognise factors leading to the offending, and appear to show an understanding of the need for empathy with respect to the victim of your offence. You have said that you will undertake the sex offender program again, or whatever else is required of you during this sentence. I am told that in custody you have dealt with other aspects of your life, including your anger, and also learned to read and write to some degree.
23 I accept that you have undertaken some important work towards your rehabilitation, and there is a further important factor which I find is likely to reduce your risk of re-offending. You married shortly before receiving your sentence in 2007, to a woman with whom you had been in a relationship since late 2003. Your wife remains supportive of you, speaks to you daily, and visits you weekly. On your eventual release you expect to have a healthy continuing relationship with her. You continue to have the support of your family, who also visit you, including two adult sons from earlier relationships. Mr Cummins was of the opinion, on the information now before him, that your risk of re-offending was low to moderate.
24 Therefore, although your rehabilitation has not yet been tested in the community, I find that there are some prospects of you rehabilitating in future, despite your appalling criminal record. However, I consider those prospects are guarded and you remain a risk to the community.
25 Taking all these matters into account, I have decided to allow in your favour some consideration of the time that has passed since the offence occurred, and time since detection of you as the perpetrator to today’s sentence.
26 There are some other matters in your favour that I must take into account. Your plea of guilty, although not at an early stage, has still avoided the need for Ms Smedley to give evidence again, and has saved the cost and time involved to the community in a trial being held. I find that the plea of guilty represents a degree of remorse, although there are few expressions of remorse in the material placed before me. I referred earlier to one of them, and you did apparently ask police at the interview how "the victim was doing."
27 I have taken into account your background and personal circumstances as outlined in Mr Cummins’ second report from February 2015, and in the sentencing remarks in 2007, which were supplied to me, and in particular I take into account that you have been medicated for many years for depression while in custody. I have also considered a letter from your wife[12], who, as I have said, provides support which is vital for you to have any real chance of rehabilitation.
[12] Exhibit 5
28 Because you are to be sentenced to a term of imprisonment for this offence you are to be regarded as a serious sexual offender, having been convicted of two other sexual offences in the past, for which you were imprisoned, even though those offences occurred after this one. As a result, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed today. In order to achieve this purpose I have the power to impose a sentence greater than is proportionate to your offence. I do not intend to do that, because the prosecution have not asked for it, and because this offence took place nearly 27 years ago and occurred before the other sexual offences.
29 It is also necessary for the sentence I impose today to be cumulative on the sentence you are undergoing, unless I order otherwise, because of your status as a serious sexual offender. I have decided to order concurrency so that the sentence you begin today will run at the same time as the sentence you are about nine months away from completing. I make that order because of the factor of delay that I have taken into account, and also because of the need for the sentence I impose to be considered in combination with the sentence you are completing, so that the sentences combined reflect the totality of your offending.
30 I have kept in mind that the scope for applying the principle of totality is limited by the law relating to sentences imposed on serious sex offenders[13], but I have still considered the need for today’s sentence to reflect, to an extent, the totality of your offending. That is, an aggravated rape committed on a child in 1988 to which you have pleaded guilty, and a rape and an offence of causing injury committed in 2003, for which you were convicted after a trial. I have also had regard to the cases provided to me by counsel, and to current sentencing practices, including present sentencing practices, while bearing in mind that there was a lower maximum sentence in 1988.
[13]HMcL v R (2000) 174 ALR 1 at [76]
31 I have also taken into account the importance of deterrence in this case. That means that by my sentence of you I must try to deter other men from committing serious sex offences; especially against children. Further, my sentence must seek to deter you from re-offending, which as I have said, is a risk that still exists, despite your time in prison and the courses you have undertaken.
32 Before I proceed to sentence there is one further matter I need to deal with. Because of the sentence I am imposing today you will become a registrable sex offender. The charge of aggravated rape is a Class 1 offence, and this means that you will be required within seven days of your eventual release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act, and be subject to that Act for the rest of your life[14].
[14] Pursuant to section 34(1)(c)(i)
33 I will now have my associate give you a form telling you of your obligations and ask you to sign where indicated to show you have received this form. Ms Kennedy, would you accompany my associate to Mr Vella?
34 MS KENNEDY: Yes, Your Honour.
35 HER HONOUR: Thank you. If you could remain standing, Mr Vella. The court must impose a sentence that is just in all the circumstances, and that reflects the community’s abhorrence of sexual violence; particularly committed against children. Because of the objective gravity of your offence, and my view that the features which make your offence more serious outweigh the factors to be taken into account in your favour, a sterner sentence is called for than might at first seem just for a first offence of this kind.
36 You are convicted and sentenced on the charge of aggravated rape to six years and six months’ imprisonment. I direct that you serve a minimum of four years and six months’ imprisonment before becoming eligible for parole.
37 I further direct that the sentence imposed today be served concurrently with the sentence you are undergoing. I direct that it be entered onto the record that you have been sentenced as a serious sex offender.
38 If you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed on this charge alone is nine years’ imprisonment with a minimum of seven years’ imprisonment. Are there any further orders?
39 MS KENNEDY: No, Your Honour.
40 MR GIBSON: I'll just check, Your Honour. No, Your Honour.
41 HER HONOUR: Thank you.
42 MR GIBSON: As Your Honour pleases.
43 OFFENDER: Your Honour, can I - - -
44 HER HONOUR: Mr Vella may be removed.
45 OFFENDER: Can I say one word, please?
46 HER HONOUR: Yes, Mr Vella?
47 OFFENDER: I sincerely apologise to the victim.
48 HER HONOUR: Yes, thank you. That is, I am sure, no doubt received gratefully. Yes, thank you. Adjourned til 9 am tomorrow.
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