Director of Public Prosecutions v Xerri
[2021] VCC 1226
•24 August 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-01761
CR 20-00144
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER XERRI |
---
| JUDGE: | HIS HONOUR JUDGE LYON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 August |
| DATE OF SENTENCE: | 24 August 2021 |
| CASE MAY BE CITED AS: | DPP v Xerri |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 1226 |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords:
Legislation Cited: Crimes Act 1958 s 40; Drugs, Poisons and Controlled Substances Act 1981 s 71B(1); Sex Offenders Registration Act 2004 s 46(1A); Corrections Act s78A; Sentencing Act 1991
Cases Cited: DPP v Xerri [2009] VCC 1673; Lugo v R [2020] VSCA 75
Sentence: 51 months imprisonment, non-parole period of 38 months;
6AAA: 66 months, non-parole period of 49 months
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Hammill (Plea) Mr N. Donaghy (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr A. Patton | Stary Norton Halphen |
HIS HONOUR:
1Christopher Xerri, you were found guilty at trial by judge-alone on 13 April 2021 of the following offences which carry the following maximum penalties:
Indictment J11766344.A (CR-19-01761)
Charge no. Charge Max Penalty 2 Sexual assault contrary to s 40 Crimes Act 1958 10 years imprisonment 3
Supply a drug of dependence to a child contrary to s 71B(1) Drugs, Poisons and Controlled Substances Act 1981
15 years imprisonment /
1000 penalty units
2You were found not guilty on Charge 1 of this indictment, a charge of sexual assault of a child under 16. There was a further additional charge on the indictment of Charge 4 which was traffic simpliciter, an alternative.
3The facts and basis upon which you were found guilty are set out in my judgment and verdict of 13 April 2021. There is no need to repeat those facts. I refer to and adopt my judgment as setting out the facts in this matter.
| Charge no. | Charge | Max Penalty |
| 1 | Failure to comply with Reporting Obligations Contrary to s 46(1A) Sex Offenders Registration Act 2004 | 5 years imprisonment |
| 2 | Failure to comply with Reporting Obligations Contrary to s 46(1A) Sex Offenders Registration Act 2004 | 5 years imprisonment |
| 3 | Failure to comply with Reporting Obligations Contrary to s 46(1A) Sex Offenders Registration Act 2004 | 5 years imprisonment |
| 4 | Failure to comply with Reporting Obligations Contrary to s 46(1A) Sex Offenders Registration Act 2004 | 5 years imprisonment |
Indictment J11766344.B.1 (CR-20-00144)
4You pleaded guilty on 3 May 2021 to four charges of failure to comply with reporting obligations on Indictment J11766344.B.1, each of which carries the maximum penalty of five years' imprisonment.
5You pleaded guilty to one related summary offence on 3 May 2021 and two related summary offences on 4 August 2021 of breach of parole pursuant to s78A of the Corrections Act, each which carries the maximum penalty of three months' imprisonment or 30 penalty units.
6You are a registered offender under the Sex Offenders Registration Act. Charge 2 on Indictment J11766344.A is a Class 2 offence pursuant to Schedule 2, Clause 1 of the Act and therefore, you are required to be registered for life.
7You are also to be sentenced as a serious sexual offender pursuant to Part 2 of the Sentencing Act.
8You have admitted your prior criminal history.
Circumstances of Offending
9The circumstances of your offending on Indictment J11766344.B.1 are set out in the prosecution opening which the Crown tendered as Exhibit A. A summary of your offending is as follows:
10On 4 December 2009, you pleaded guilty to the false imprisonment and rape of a 15-year-old girl, and to making and producing child pornography. You were sentenced to nine years and six months' imprisonment with a non-parole period of six years and six months. You were registered as a sexual offender for a period of 15 years and were provided with documentation outlining your reporting obligations.
Charge 1
11Between 1 September 2017 and 9 April 2018, you communicated with the complainant Olivia James[1], who was aged 17 years at the time, using Snapchat. Olivia James was connected to you through one of her friends on Snapchat, but had not met you and knew nothing of you. You called yourself 'Chris Sherry' and had the username 'csherry187'.
[1] A pseudonym.
12You communicated with Olivia James regularly throughout this period and engaged in small talk. You told Olivia James that you were 23 or 24 years old, and she told you that she was 17 years old. You continually asked her if you could meet with her, you would tell her that she was beautiful and compliment her whenever she posted a picture of herself online.
13On one occasion, you sent her a picture of yourself and asked for one of her, but she declined. While thinking that you were 'nice', she said that she also got a 'weird vibes' from you.
14In October 2017, Ms James asked one of her friends for a lift to a house in a neighbouring suburb, which you offered and she accepted. You picked up Ms James from the Boronia Railway Station and tried to kiss her while she was putting on her seatbelt. Her movement of trying to put on the seatbelt stymied the attempt and she told you not to try to kiss her. During the drive, you spoke about matters that concerned her, and made references to your gaol sentence. You dropped her off at her friend's house and offered her money, which she declined.
15Ms James got out of the car and decided never to meet you again. She 'blocked' you on various social media platforms, but from time to time, you still made contact with her.
Charge 2
16In breach of your reporting obligations between 4 December 2017 and 18 January 2018, you failed to report that you had obtained a new mobile phone number ending 374. Telstra records identify that the number was newly registered to you.
17In breach of your reporting obligations between 2 January 2018 and 26 June 2018, you failed to report that you had obtained a new mobile number ending in 501. Optus records identified that you were the registered pre-paid user of this phone.
18In breach of your reporting obligations, you failed to register that you had created a Snapchat social media account 'Csheryy187'.
19In further breach of your reporting obligations, you failed to register that you had created a Facebook account in the name of 'Chris Sueze'.
Charge 3
20Between March and June 2018, you had regular contact with the complainant Ella Rosso[2], who was aged 15 years at the time. The contact was over various social media platforms including Facebook, Snapchat and mobile phone text messages.
[2] A pseudonym.
21During these communications, you told Ella Rosso, amongst other things, that you were 19 years old, and she told you that she was 15. You and Ella Rosso occasionally spoke about cannabis and you told her that you could provide it to her. You were 'flirtatious' with the complainant and you called her 'hun' and 'beautiful'. You attempted to arrange a physical meeting on a number of occasions, but the complainant got a 'weird feeling' and you never met. Ella Rosso felt that your Facebook page was a 'fake'. You once sent her a picture of yourself on Snapchat and she noted that your username was 'CSherry187'.
Charge 4
22Between 1 and 30 April 2018, you had contact with the complainant Millie Lam[3], who was aged 16 at the time. The complainant had a Snapchat account, and at some point in April 2018, you added yourself to the complainant's account. This was unsolicited and the complainant asked if she knew you, to which you responded, 'No - but I live near you'. You told her that you were 23 when she asked, and she told you 'multiple times' that she was 16. Millie Lam had posted multiple pictures on her Snapchat account of her recent 16th birthday party, including one with the cake and the numerals '16' on the cake. You told her that it was okay, and that you and the complainant could be friends. You told her that you wanted to 'do things to her and with her'. She told you she had a boyfriend, to which you responded that her boyfriend 'didn't need to know'. You wanted to 'catch up' with her and you sent her many pictures of yourself 'in a towel' on Snapchat.
[3] A pseudonym.
23At some point, the complainant began to have an uneasy feeling about you and told you that she did not want to communicate any longer. You got angry and threatening with her. You called her a 'little slut' and telling her that she should be careful because you could easily find out where she lived and 'jump her'. You sent her a picture of your prison bracelet to reinforce your menacing tone. The complainant blocked you from her social media accounts and, sometime later, recognised you as you drove past her house in a dark-coloured Ford Focus with a red iPhone. She was fearful of you.
Record of Interview
24You were interviewed by police on 25 October 2017 and participated in the formalities. You said many things against your own interest without them necessarily amounting to outright admissions. You were otherwise cooperative with the formal police process.
Objective Gravity and Moral Culpability
25I turn now to consider the objective gravity of, and moral culpability of your offending.
26In order to understand the objective gravity and your moral culpability for your offending, it is necessary to set out the following timeline:
Date Event Notes 04/12/2009 Sentence for false imprisonment and rape 9Y6M; 6Y6M NPP 22/02/2017 Released on parole 11/08/2017 Sentenced for breaching parole & SORA Convicted & fined $500 01/09/2017 Contact with James commences Charge 1, Indictment B.1 04/12/2017 Mobile number ending 374 obtained & not reported Charge 2, Indictment B.1 02/01/2018 Mobile ending 501 obtained & not reported Charge 2, Indictment B.1 22/03/2018 Contact with Rosso commences Charge 3, Indictment B.1 01/04/2018 Contact with Lam commences Charge 4, Indictment B.1 22/06/2018 Sex assault/drug supply re: Graham[4]
Charges 2-3, Indictment A 26/06/2018 Arrested on these matters. Parole breached. [4] A pseudonym.
27On the matters to which you pleaded guilty, your first contact with a minor using social media occurred within six months of your release on parole for sexual offending against a minor. Thereafter, you continuously and frequently contacted underaged females using social media and deliberately evaded the requirements of your reporting conditions by surreptitiously obtaining mobile phones and accounts. Your offending shows a complete disregard for the terms of your release and your reporting obligations.
28Moreover, the repetitious pattern of your conduct reveals your modus operandi. It is predatory; using guile and deceit in your efforts to meet underaged females for your sexual gratification.
29Your offending in relation to Charge 4, against the complainant Lam, shows an escalation where you had no hesitation to use intimidation by showing her your prison bracelet, and driving past her house. The fact that she described your car and phone to police puts the fact that it was you beyond doubt. It is, put simply, frightening behaviour.
30His Honour Judge Taft's sentencing remarks in DPP v Xerri [2009] VCC 1673 on your convictions for false imprisonment, rape and other offences set out that your initial contact was accompanied by some violence towards your young victim (she was 15, and you pleaded guilty to common assault). In achieving your own gratification, you were oblivious to the complainant's wishes. You were persistent and intimidating when you felt you were not getting your way. I observe that the same hallmarks of oblivious, persistent and intimidating behaviour were present in your offending on this charge.
31In these circumstances, I consider the objective gravity of the whole of your offending to be very high. I consider your moral culpability is also very high. Your offending must be met by principles of general and specific deterrence and denunciation.
32As you are also to be sentenced as a serious sexual offender, the principle of protection of the community becomes dominant in the sentencing consideration. Your previous criminal convictions and your disregard for the parole and SORA conditions emphasise the need to protect the community in any event.
33Your offending on the trial matter remains serious. It must be seen against the background that I have set out above. However, it must also be kept in perspective. I appreciate that the case of Lugo v R[5] emphasises that it is the intimacy of the conduct and not the body part touched which attracts the sentencing consideration. Nevertheless, I must not impose a sentence which is disproportionate in the circumstances.
[5] [2020] VSCA 75.
34Further, although I am satisfied that you are guilty of the offence of supplying a drug of dependence to a child, I must take into account the fact that the drug that was supplied was cannabis and the amount supplied was about a gram.
Personal circumstances
35I turn now to a consideration of your personal circumstances.
36You were born on 28 August 1986 and you are currently 34 years old.
37You have one older sibling. Your parents separated when you were aged five. Your father re-partnered and has three children with his new partner. You have had little contact with your father since the separation.
38You were raised by your mother and stepfather. When you were a child, your mother and stepfather adopted your stepfather's younger brother, who was a year older than you, and he was raised as your sibling.
39Throughout your childhood, you experienced frequent upheaval due to your family relocating to various towns around Victoria. This led to instability in your education and socialising, as well as your domestic life and your parents' income and employment.
40Despite this, your mother and stepfather provided adequately for the family. You maintain a close relationship with both of them. You have not seen your family in person since February 2020.
41Your mother and stepfather were heavy cannabis users. They cultivated cannabis at the family home throughout your childhood and adolescence. You were exposed to their cannabis use from an early age – and you began smoking it in your early teenage years. Similarly, you witnessed your mother and stepfather drinking heavily on a regular basis.
42You began drinking alcohol at age around 12. You would regularly binge drink from your early teenage years until entering custody at age 22. Your release on parole included a condition that you do not consume alcohol, and you have remained abstinent since this time. You commenced cannabis use at around 13, using it heavily between the ages of 15 and 22.
43You struggled academically – in part due to feelings of boredom with the curriculum, and also due to escalating behavioural issues whilst at secondary school. You commenced in vocational education for the latter part of your secondary schooling, however, left school before completing Year 11. You have not subsequently engaged in any further educational or vocational training.
44Since leaving school, you have been employed sporadically, generally in casual roles with significant periods of unemployment. At the time of your arrest, you were employed in road construction, utilising the skills and training you had acquired during your earlier sentence of imprisonment. You have expressed an interest in undertaking adult education upon your release from custody – with a view to training in carpentry and/or construction.
45At the time of this offending, you were residing with your fiancé in Laverton. The relationship ended acrimoniously upon your arrest. You received threats from your former fiancé.
46You experienced a single episode of sexual abuse at the age of 13 when your stepfather's sister performed oral sex upon you during a night of drinking in the family home. Notwithstanding your age, you considered the experience to be consensual. You have not disclosed this incident to your family as you fear the ramifications to the family unit should you do so.
47You also have prior convictions for failing to comply with SORA obligations and parole conditions arising from the 2009 sentence.
48In all, you have spent all but about 16 months of the past 11 and a half years in custody. This represents the vast majority of your adult life.
49You have been in custody since your arrest on 26 June 2018, and held on remand for this matter since 13 January 2020. You have been held in protection due to the nature of the charges.
50Mr Patton, who appeared on your behalf, submitted that the conduct giving rise to the offending the subject to Charge 2 on Indictment J11766344.A falls at the lower end of objective seriousness for such an offence.
51Mr Patton similarly submitted that the conduct constituting Charge 3 on Indictment J11766344.A is of low objective gravity. The offending comprises a single instance of the supply of cannabis, it is a small quantity (that is 1 gram) and that was supplied to a minor who, on the evidence at trial, had ready access to cannabis and was a regular user of it.
52It was further submitted that because the offending subject to Charges 2 and 3 involved a single interaction between you and the complainant and the court ought not treat the conduct subject of Charge 3 as aggravating the conduct subject of Charge 2 (or vice-versa) – and as a result increase the penalty imposed without moderating the sentence you would otherwise receive. Failure to do so, Mr Patton submitted, would doubly punish you.
53It was accepted by Mr Patton that the offending on Indictment J11766344.B.1 and the related summary charges were not an example of low range offending.
54Mr Patton submitted that the following factors should operate to mitigate your sentence:
a. First of all, your plea of guilty on Indictment B.1 should be treated as an early plea of guilty because you never challenged these charges;
b. Your plea of guilty was made during the COVID pandemic;
c. There was significant delay in the matter proceeding to trial, notwithstanding the entry of pleas of guilty at the committal mention;
d. Your lengthy time on remand, especially during COVID;
e. Your risk of institutionalisation;
f. The risk of double punishment and the considerable, if not total overlap, in the conduct forming the basis of Indictment B.1 and the related summary offences.
55Ultimately, Mr Patton accepted that the only available sentence to be imposed is one of imprisonment.
56Your plea to the charges on Indictment J11766344.B.1 and the summary charges certainly have a utilitarian benefit. The sentences I impose upon you for that offending will be mitigated to reflect that benefit. It is not otherwise suggested that you have exhibited any remorse. Certainly, there is no remorse attaching to your offending on the two charges upon which I found you guilty on 13 April 2021.
57I accept that your time in custody on this occasion has been affected by the COVID-19 pandemic lockdowns. The immediate effect of the lockdowns has been a reduction and suspension of vocational and personal improvement courses, a restriction on your ability to move around the prison, a severe reduction in work available and a suspension of visits.
58The other effect of the pandemic and lockdowns experience generally is the stress and isolation - that is, the fear that the pandemic will penetrate into the prison system, and as a consequence, isolation has been used as a strategy to limit close contact.
59There has been a significant delay in the determination of your matters. Some of the delay is of your own making. However, I recognise that the COVID-19 pandemic led to your 2020 trial date being vacated. I recognise that the delay from the pandemic is not attributable to you.
60I will take all of these factors into account in the sentencing process.
61There are a couple of other matters upon which it is necessary to make some observations.
62The first is that your prospects of rehabilitation are currently very poor. As I have already observed, sadly, you have spent almost the whole of your adult life in prison. Then, once granted parole, you spent much of your time in the community offending in the ways described in the charges you face today. If you do not receive psychological intervention and counselling, and if you do not respond to that, you are likely to spend much of the rest of your life in prison.
63The sentences that I am about to impose on you must reflect the principles that are outlined, that is general deterrence, specific deterrence, denunciation by the community of your offending and principally, protection of the community arising from your declaration as a serious sexual offender.
64Importantly, both Mr Patton and Mr Hamill agree that there is an overlap between the breach of parole charges and the failure to report charges.
65I recognise that the sentences for the breach of parole charges must be served cumulatively unless exceptional circumstances apply.
66I also recognise, as the parties submitted, that the principle of totality must be applied. That is, in sentencing you on the individual charges, I must not lose sight of the overall total effective sentence, thereby imposing a disproportionate sentence or a sentence which is crushing in its effect. The parties recognised that there is some tension between the requirements to impose cumulative sentences under the serious sexual offender provisions and the breach of parole provisions on the one hand, and the principle of totality on the other.
67The Crown does not seek a disproportionate sentence in relation to “serious sexual offender” provisions. I do not intend to impose a disproportionate sentence on you.
Sentence & Orders
68The sentences I impose are as follows:
Indictment J11766344.A (CR-19-01761)
Charge no. Charge Sentence Cumulation 2 Sexual assault contrary to s 40 Crimes Act 1958 7 months 4 months 3 Supply a drug of dependence to a child contrary to s 71B(1) Drugs, Poisons and Controlled Substances Act 1981 9 months 3 months Indictment J11766344.B.1 (CR-20-00144)
Charge no. Charge Sentence Cumulation 1 Failure to comply with Reporting Obligations
Contrary to 46(1A) of the Sex Offenders Registration Act 2004
2 years,
3 months
3 months 2 Failure to comply with Reporting Obligations
Contrary to 46(1A) of the Sex Offenders Registration Act 20042 years 2 months 3 Failure to comply with Reporting Obligations
Contrary to 46(1A) of the Sex Offenders Registration Act 20042 years,
3 months3 months 4 Failure to comply with Reporting Obligations
Contrary to 46(1A) of the Sex Offenders Registration Act 20042 years,
9 monthsBase Summary Charges
Summ
Charge
no.
Summary Charge Sentence Cumulation
23
Breach of parole order condition
Contrary to s 78A of Corrections Act 19862 months
1 month
24 Breach of parole order condition
Contrary to s 78A of Corrections Act 19862 months 1 month 25 Breach of parole order condition
Contrary to s 78A of Corrections Act 19862 months 1 month TES 51 mths NPP 38 mths PSD 589 6AAA 66 mths / 49 mths
69I have adjusted the periods of cumulation on Charges 1, 2 and 3 on Indictment J11766344.B.1 in order to accommodate a period of cumulation in respect of the three summary charges for breach of parole. But for the existence of those summary charges, I would have increased the period of cumulation on each of Charges 1, 2 and 3 on Indictment J11766344.B.1 by one month. Whilst I appreciate there is a degree of artificiality about the task I have undertaken, I consider it an adjustment which meets the requirements of the Sentencing Act, while recognising the need to impose a sentence which still has regard to the principle of totality.
70The serious sexual offender notation will be made on the record of the court.
71Mr Donaghy, I will make a forfeiture order for one red Apple iPhone.
72Mr Xerri, you are registered as a registerable offender under the Sex Offenders Registration Act. Charge 2 is a Class 2 offence pursuant to Schedule 2, clause 1 of the Act. You are therefore required to be registered for life.
- - -
0