Director of Public Prosecutions v Zoric (a pseudonym)

[2023] VCC 913

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL ZORIC (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2023, 1 May 2023
DATE OF SENTENCE:	30 May 2023
CASE MAY BE CITED AS:	DPP v Zoric (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 913

REASONS FOR SENTENCE

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Subject:              Criminal Law – Jury verdict – Sentence.

Catchwords:       Commit an indecent act with a child under 16 years - sexual penetration of

child under 16 years – High moral culpability – Vulnerable victim – Covid-

19 delay.

Legislation Cited: Sentencing Act 1991.

Cases Cited:       R v Bazley [1993] 65 ACrimR 154; The Queen v Cumberbatch [2004]

VSCA 37; The Queen v Saw [2004] VSC 117; The Queen v RLP [2009]

VSC 271; The Queen v Van Boxtel [2005] 11 VR 258; Stalio v

The Queen [2012] VSCA 120; Hague v The Queen [2019] VSCA 218.

Sentence:           Total effective sentence of 5 years and 6 months imprisonment with a

non-parole period or 3 years and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Caruso	Mr D. Vrech
For the Accused	Ms J. Ball	Ms H. Lyons

HIS HONOUR:

1Samuel ZORIC,[1] you were found guilty by a jury verdict of four charges, three of committing an indecent act with a child under 16 years, and one of sexual penetration of child under 16 years.  You were acquitted of two charges of committing an indecent act with a child under 16 relating to a different complainant.

[1] A pseudonym.

2The circumstances of your offending were contained in a Summary Prosecution Opening which outlined them and which were borne out by the evidence.  I will recite them in concise form.

3Given the nature of these offences I intend to refer to the victim in this matter with the name of Stephanie WINTER,[2] and to others by way of other names so as to ensure her anonymity and privacy. I will anonymise your name when this sentence is published by way of a pseudonym for the same purpose.

[2] A pseudonym.

4At the relevant time you were married to Amelia DUNN[3] and you resided with her in Ararat in country Victoria. Amelia DUNN has a son from a previous relationship.  Her son, Glenn WINTER,[4] has two daughters, one of whom is the complainant, Stephanie WINTER.  You are Glenn WINTER 's step-father and so you were these step-grandfather.

[3] A pseudonym.

[4] A pseudonym.

5When the first offence took place Stephanie WINTER was six years old.  You were around 56 years old.  At the time of the offences Stephanie WINTER also lived in Ararat, diagonally opposite your house.  At this stage her parents had separated and Glenn WINTER moved out of the house.  Stephanie WINTER 's mother remained in the house with Stephanie WINTER and her sister. 
You and Amelia DUNN would frequently babysit and care for Stephanie WINTER and her sister.

6Between 12 April 2002 and 11 April 2003 when Stephanie WINTER was six and in prep at school, she was sent home from primary school one day with head lice.  She was collected from school by Amelia DUNN.  Amelia DUNN dropped Stephanie WINTER off at her own house and left her in your care while she ran some errands.  You asked Stephanie WINTER to go into the master bedroom with you to watch a movie.  In the bedroom you got Stephanie WINTER to hop on the bed with you, which she did.  You laid her down on the bed, leant over her and stroked her face and you then removed her shorts and underwear, climbed over the top of her and rubbed your erect penis on the outside of her vagina. You then inserted your penis into Stephanie WINTER 's vagina.  Stephanie WINTER tried to focus on something else by counting slowly to 10 over and over again in her head.  She was petrified and thought she was going to die.  Her vagina stung, it felt swollen and rough.

7After you had finished you put Stephanie WINTER 's clothing back on her.  You were sweating.  You then said to her, 'Wait right here', and left the room.  You returned with a small bag of lollies and said, 'You can't tell anyone 'cause I'll go to gaol and it will make Nan really sad'.  Stephanie WINTER did not tell anyone because she didn't like to upset anyone and her Nan, Amelia DUNN, was like a second mum to her.

8On another occasion when Stephanie WINTER was the same age, she was sitting on your lap on a single seater lounge chair in the lounge room, where was wearing a white above the knee length skirt, watching the cricket or some type of sport with you.  You slid your hand up her thigh, under her skirt and rubbed the outside of her vagina over underwear.  Stephanie WINTER again counted slowly to 10 in her head.  You stopped because you were interrupted by Amelia DUNN, who entered the back door.

9On 14 January 2003 when Stephanie WINTER was still six, she was in the bungalow with you at your home.  You were sitting at your computer.  You said to her, 'Come sit next to me', and Stephanie WINTER did.  You then showed her graphic images of adults having sex with children.  Stephanie WINTER told you she needed a drink and left the bungalow and went in the house to the kitchen where Amelia DUNN was.  She then fainted and was taken to see a doctor.

10Stephanie WINTER first reported these offences to police in November 2018 and spoke to the SOCIT Unit on 13 November of that year but was distressed and declined at that time to make a statement, which she made later to police on 12 July 2019.

11On 11 September 2020 you were interviewed by police in relation to these matters.  You denied all allegations during the interview, responding, 'Bullshit', when the allegations were put directly to you.

12Stephanie WINTER completed a victim impact statement, which was exhibited.  In it she wrote of the impact your offending has had on her.  She wrote that the pain from the abuse she suffered at your hands has affected her in many ways.  She felt she did not experience and enjoy a normal childhood and was robbed of that which was her right.  Her innocence, she wrote, was gone.  She has had trouble trusting people as a result of your breach of trust and this has severely impacted on her relationships.  She has hated her body since that time, accompanied by feelings of distrust and repulsion, leading to allowing others to repeatedly abuse it and her.

13To deal with what she describes as, 'brokenness', she turned to drug use and, 'lost a lot of life'.  Her relationship with her children has suffered and despite years of therapy some parts of her life are not healed.  She wrote, 'He took away my right to a safe and secure life that any child deserves to be given'. 
I have taken her victim impact statement into account.

14This offending is inherently and unequivocally serious.  The maximum penalty for Charges 1, 3 and 5 in relation to indecent acts is 10 years' imprisonment.  On Charge 2 relating to the sexual penetration the maximum penalty is 25 years given that Stephanie WINTER was under 10 years of age at the time of the offence.

15These maxima are one aspect which are to be taken into account as a yardstick.  They reflect the views of the legislators as to the gravity of this kind of offending, which in turn reflects the community view of such abhorrent conduct.  You did not plead guilty to these charges but conducted a committal contested in November 2021 and March 2022 followed by a trial at which the complainant was cross-examined and you maintained your denial that any offending had taken place.  You are not to be punished for pursuing your defence at trial and your trial does not aggravate your offending.  However, you have foregone the benefit of a reduction in your sentence, which would follow a plea of guilty and the acknowledgment of some remorse for your offending, which would in most instances be reflected in that sentence.  Indeed, contrary to the juries' verdict based on the evidence, you have continued to deny any sexual offending, asserting that the victim was, 'trying to get back at you', an asserted motive never fully explored at trial or to the assessing psychologist who interviewed you.

16In my view, your offending is serious and carries high moral culpability. 
The objective factors which I have outlined in the circumstances support this conclusion.  The victim was a six-year-old girl, an aggravating feature, and you were the step-grandfather.  The victim was frequently cared for by you and your wife in a familial environment where she should have been protected, safeguarded and secure from abuse.  You took advantage in a vile fashion of her youth and innocence for your sexual gratification.  You took advantage of the relationship trust which was inherent in your role, and breached that trust in the most egregious, shameless, abhorrently reprehensible way. You manipulated her to your advantage, using the threat of the consequences upon you and your wife, her grandmother.  You used treats like lollies to enforce secrecy.  You committed a number of offences.  This was not just an isolated event, rather, a series of events which of themselves may not have taken much planning but which never-the-less took place in a brazen and manipulative way in your home, often with your wife present in the home.  You said to Stephanie WINTER, ‘You can't tell anyone 'cause I'll go to gaol'.  You will be going to gaol today.

17I have taken into account your personal circumstances.  You are 76 years of age.  Your advanced age is self-evidently a factor which I have considered as being a significant matter.  It is of relevance in relation to two matters.  The first is in relation to the impact of incarceration upon you.  The second is in relation to the issue of delay.  As to this second matter a chronology is useful.

18Stephanie WINTER first disclosed the offending around 2018 to a counsellor and subsequently to police, firstly in November 2018, and more fully by way of a statement in July 2019.  You were interviewed as to these allegations in September 2020.  The court was not provided with a cogent explanation as to the reason for the delay and apart from noting that in some respects the pandemic situation may have contributed to the delay, I am unable to clarify it any further except to say that this delay was not due to your actions.  The committal was listed first in July 2021, was contested in November 2021, and 2022 was taken up effectively by procedural steps and the inability of the matter to be tried due to the pandemic.  The trial commenced in February 2023 and your plea was heard on 1 May 2023.

19The delay has no doubt caused you a degree of anxiety and stress consequent upon it and the uncertainty of the court process and you have remained on remand now for 90 days since the verdict, again in difficult pandemic conditions which still exist.  The delay between these matters coming to light and this sentence is a relevant factor.  Its relevance lies in the effect which the lapse of time has had on you.  It can be a powerful mitigating factor but, in my view, your case, while remaining relevant, does not play such a powerful role.  Although
I have acknowledged the stress and anxiety of uncertainty which goes to the issue of fairness to you, the relevance of delay also lies in focussing attention to rehabilitation.  In your case no such rehabilitation has taken place.  If it had taken place and could be demonstrable then the need to punish and deter may be diminished and not prevail so as to extinguish the results of that rehabilitation.

20Here the delay in the commencement of the investigation into your conduct is linked primarily directly to the nature of your offences.  Factors such as the victim's young age, the power imbalance that existed between you and her, your position of trust within the family unit, and the effect on the victim, all contributed to the delay.  It is not uncommon for victims of this type of offending to experience feelings of shame, guilt and embarrassment.  However, I accept the fact that I am now to sentence you many years after the offending, with you now having reached advanced years with these matters having hung over your head for some time.

21The relevance of that intervening period focuses on your age, the burden of imprisonment, the assessment of your rehabilitative prospects, the risk of reoffending, all matters I will come to in a moment.  I also accept that even if the reasons for the delay are unclear and the pandemic may have played a significant role, the objectives of the criminal justice system remain to be obtained as quickly as reasonably practicable, so that even though the progress of this matter has not been conducted with leisurely progression, there is a legitimate sense in which the passage of time now finds you facing your sentence at an advanced age with significant physical health difficulties, which are also considerably mitigating.

22Counter-balancing these considerations your age cannot be allowed to justify the imposition of an unacceptably inappropriate sentence, see Bazley [1993] 65 ACrimR 154, and does not militate against the imposition of a significant period of reclusion in the appropriate case even if the sentence removes a reasonable future prospect of life beyond gaol. See The Queen v Cumberbatch [2004] VSCA 37, or [2008] VR 9. I shall return to the issue of age and your health after setting out your personal history and background matters.

23You were born in 1946, the middle child of two older brothers and two younger brothers.  You did not experience physical abuse or witness domestic violence in the home. Your childhood was unremarkable if isolated geographically. 
You told Mr Candlish, a psychologist who prepared a report for the court, dated 17 April 2023, that you were sexually abused by an older adolescent when you were 12 or 13, which was described in his report, paragraph 52.  Your account of its impact was contradictory between not coming to grips with it and feeling it was not very important or serious. You were unsure as to the connection between this and your sexual offending.  You denied attraction to men or boys or any sexual arousal to young girls.

24You recounted your psycho-sexual history to Mr Candlish at paragraphs 52
to 58, where you also denied engaging in sexually deviant fantasies involving children or developing paraphilias.  You left school after completing Year 9 and completed then a five-year apprenticeship as a fitter and turner.  Thereafter you were employed in that role with the exception of one period of unemployment for some two to three years.

25In 2001 you suffered a work injury to your spine.  You do not and have not had any issues with alcohol or drug use.  You denied any history of depression or anxiety.  You described contradictory experiences with psychotic symptoms which you related to managing your diabetes.  You denied any history of self-harm except in 2021 when you overdosed on insulin.

26You play computer games and enjoy the pokies but are not subject to gambling issues.  Mr Candlish had an opportunity to refer to a number of documents for the purpose of this report, which he listed in Appendix 1 to his report, which included medical community psychiatry progress notes and mental health intake assessments.  By reference to those he outlined at paragraph 36 that you had complained of complaints in the community about your status on the sex offender register, to which I will refer in a moment, and consequential harassment.  You said you would not be able to return to volunteer work at a local op shop due to the potential for contact with children.

27You met your first wife aged 21.  You remained married for about five years.  Your wife then left with her two children for Western Australia.  You said that you gained custody of your two stepdaughters at some stage but you offered a confused narrative of these events.  Aged 26, you met your second wife and you were married to her for some 50 years, separating in 2022.  You described this relationship as not sexually active and completely asexual after your injury.  You said you had never discussed your prior sexual offending with her and that now she has divorced you because of these allegations.  You told Mr Candlish you do not know how to mix properly with others. As to your own
stepdaughters mentioned above, you said one had died from an overdose and you were not sure of the other's whereabouts.  Prior to incarceration you were renting a house and it was mentioned in a medical report of 2021 to the fact that prior to that rental you had lived in a van for some two and a half years.

28In order to properly contextualise some of the matters that follow this background and the opinion expressed by Mr Candlish, I note that two relevant matters were mentioned in your past.  The first was a conviction in 1967 where a bond and a small fine were imposed.  You were there convicted at age 20 for carnal knowledge of a girl between the age of 10 and 16.  There was no depositional material on any other details available as to this matter. 
You discussed this matter with Mr Candlish, asserting that you had, 'dobbed yourself in'.  Then in 2011 you were convicted of indecent assault and fined three and a half thousand dollars in the Magistrates' Court.  You were also placed on the Sex Offender Register for eight years.  This conviction is not a prior as the offending involved in the current matter, I am dealing with took place between 2002 and 2003, but it is a relevant antecedent.  The offence the subject of that conviction occurred in 2008 when you indecently assaulted a
nine-year-old girl who was known to you.  She had attended at your home with a close friend of yours and had been left in your care.

29The circumstances are relevant.  The victim regularly visited your home and called you ‘Uncle Samuel’.  You were sitting on a lounge chair when you called her over to sit on your knee. You told her you would teach her about sex. 
You placed your hand down her pants and into her underpants, rubbing over her vagina.  She was resisting and yelling.  When questioned by police you answered that you had taken it upon yourself to teach the nine-year-old that she should not let anyone touch her in a bad way.  You said the allegations were lies.  However, you pleaded guilty before the magistrate at Ararat.  Despite some, as he described it, 'gentle challenge', you maintained your stance to
Mr Candlish that you were trying to teach the child.

30In his report Mr Candlish noted, paragraph 7, that despite assertions of, 'nothing to hide', you never-the-less gave the impression of evasiveness and dishonesty at times. This was, he wrote, 'Partly related to suppression and shame, appearing to be grappling with strong feelings of loss and grief', particularly over the demise of your marriage. When administered the deception scale psychometric testing the impression management that is the tendency to give inflated self-descriptions, fell into the very much above range, paragraphs 10 and 11.  Mr Candlish administered the personality assessment inventory, however, he questioned the validity of the results involving considerable distortion and unlikely to be an accurate reflection of your objective clinical status.

31Within the framework of this result the inventory results indicated a withdrawn and isolated individual, pessimistic and hopeless, at an increased risk of
self-harm. These difficulties he wrote, 'are consistent with a significant depressive experience', which he described at paragraph 66 to 71, 'with a harsh negative self-concept'.  You appear to be impaired in interpersonal functioning with withdrawal and isolation, anger and distrust issues.  Based on these results you appear to meet criteria for a persistent, depressive disorder of mild severity.  You are considered by Mr Candlish to meet the criteria for the paedophilic disorder with your sexual interest in female children stronger than your interest in adult females for most of your life.

32An assessment of risk for sexual offending was carried out using actuarial structure and unstructured professional judgments.  The risk level was very low with low to moderate current levels of protection required, despite the likelihood that you have convinced yourself that you do not have deviant sexual interests in female children.  Mr Candlish reiterated that sexual offender literature indicates that sexual recidivism seems to decline in older age cohorts with very low rates of recidivism.  Despite offending in three periods of your life revealing some persistence, a period of incarceration, according to Mr Candlish, in view of your age means that upon return to the community your risk would remain low.  Although the risk might be realised by any ongoing unsupervised contact with a female child, which should be avoided, a relatively stable lifestyle does not indicate a history of entrenched antisocial poor self-control or chronically impulsive behaviour in other life domains.  You may have developed some capacity to manage your sexual deviance although you lack insight and
self-awareness to effectively manage the paedophilic disorder at the time of the offences.

33Mr Candlish, at paragraph 116 then set out his intervention recommendations.  The matters contained in this report inform the assessment to be made of your prospects of rehabilitation, the need for specific deterrence and community protection.  Each of the last two of these, in my view, can be moderated substantially given your age and health, which I am about to come to.  As for the prospects of rehabilitation that needs to be balanced between the time without further offending now since 2008, and your lack of insight, lack of remorse and denial, those prospects remain, in my view, problematic and likely to be guarded but not impossible. The recommendations of Mr Candlish,
if implemented, may be effective in dealing with the import of your sexual disorder.

34As to the concomitant issue of your health, apart from your advanced age and what inevitably follows such age, such as your reported diabetes and high blood pressure, in September 2022 you were struck as a pedestrian by a motor vehicle in a hit and run incident.  That resulted in a complex poly-trauma which included a fractured spine, ribs, hips, pelvis and intra-abdominal bleeding. 
You were in ICU for some weeks.  You required rehabilitation and therapy and you were discharged in November 2022.  At the time of trial, you had an IVC filter, which had been inserted whilst treated in hospital.  You wear a hearing aid.

35The health scenario as a result of the hit by the car was clearly serious.  There were complications during your hospital admission and I have reviewed all of the medical material tendered to the court which indicated deep vein thrombosis causing the inferior vena cava filter inserted in September 2022.  I note the trial was managed to include breaks to allow you to have movement and avoid long periods sitting down.  Your pain management has significantly reduced since your hospitalisation but having read all the discharge documents it is clear that this was a serious event with serious physical repercussions for you involving lumbar fractures, rib and sternal fractures, a fracture of the lower iliac pubic ischium and extensive retro perineal haematoma.  This gleaned from a letter of Dr Ahmad of 27 January 2023.  I understand that the IVC filter removal had not taken place as of the plea date.

36Given all of these matters I accept that your advancing years will add to the burden of any terms of imprisonment which detrimental impact will increase as your age further increases.  In this context I do not overlook the fact that each year of the sentence will represent a substantial portion of the period of life which is left to you.  Your age and physical health are relevant to general deterrence and may be moderated by them in that in appropriate cases general deterrence may be required to surrender some ground to the need to exercise mercy to take account of the possibility that you may not live to be released.  See The Queen v Saw [2004] VSC 117 and The Queen v RLP [2009] VSC 271.

37This does not mean that general deterrence falls away when sentencing the elderly or infirm.  Even allowing for age and ill-health the sentence must be just and within the range of offences which reflect the objective gravity of the offending.  See The Queen v Van Boxtel [2005] 11 VR 258. The importance of denunciation, proportionality, just punishment and general deterrence continue to apply. I take these considerations into account on fixing a shorter non-parole period than I otherwise would have, particularly after a trial. This is so that the sentence will not destroy any reasonable expectation that you might lead a useful life after release.

38In terms of your care whilst in prison I note that on many recent occasions, though not in this case, I have heard general evidence that Corrections endeavour to provide prisoners in a custodial setting equivalent care to that available in the community.  I also take into account that particularly in light of the current pandemic that will create extra concerns for elderly prisoners with health issues, which is also likely to impact on your mood and depressive state.  I can only express confidence that the State, which has a duty of care to ensure you have continuity of adequate treatment, will meet its duty and continue to provide care at an appropriate level.

39I note also that no Verdins considerations were relied upon during the plea.  You fall to be sentenced as a serious sexual offender and under ss D and E of the Sentencing Act those provisions must be taken into consideration when fixing the sentence in terms of cumulation and community protection unless otherwise ordered. A disproportionate sentence was not sought by the prosecution and I do not intend to so impose it.  However, in my view, some measure of cumulation should be applied in recognition to the discrete offending, particularly those separate occasions at which time you committed the offences.  I am mindful of totality in this context, where your age and health bring a particular focus on the tension between parliament's intention in that legislation and the principle of totality, but in my view, the effective sentence will properly reflect a proportionate response to the gravity of the offending, as well as reflect an appropriate sentence for historical offences.

40I note pursuant to Stalio v The Queen [2012] VSCA 120 and
Hague v The Queen [2019] VSCA 218, that while sentencing practices at the time of offending are relevant, they cannot constrain an appropriate sentence. The parties did not advance any evidence of sentencing practices at the time of the offending and I have not discerned any such divergence in practice myself by reference to the time of the offending, however, except marginally.
I note both the advance in community feelings in the last 20 years in relation to sexual offences against children, as well as the reality of the passage of
20 years before this matter came before the court, which tends, as I have said, to moderate the sentence.  In my view, the amount of cumulation as between Charges 1 and 2 should reflect the timeframe of those offences having practically been committed in a continuum.  The other two occasions should be reflected by a greater level of cumulation in relative terms to Charge 2.

41In relation to Charge 1 you are convicted and sentenced to two years' imprisonment. 

42In relation to Charge 2 you are convicted and sentenced to four and a half years' imprisonment.  

43In relation to Charge 3 you are convicted and sentenced to two years' imprisonment. 

44In relation to Charge 4 you are convicted and sentenced to nine months' imprisonment. 

45I order that four months on Charge 1, six months on Charge 3 and two months on Charge 4 be cumulative on the sentence upon Charge 2 and upon each other, and makes a total effective sentence of five years and six months.

46I order a non-parole period or three years and nine months.

47I declare that you have served 90 days by way of pre-sentence detention and
I will have that number noted in the records of the court.

48Are there any other ancillary orders?

49MS BALL:  No, Your Honour.

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