DPP v Spiteri
[2015] VCC 1675
•19 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. Cr-15-00906
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERIC SPITERI |
---
JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 November 2015 | |
DATE OF SENTENCE: | 19 November 2015 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2015] VCC 1675 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: One charge of sexual penetration of child under the age of 16 – pleaded guilty –at time of offending complainant 14 years old and accused 21 years old – first offence – high remorse – accused diagnosed with adjustment disorder – rehabilitation high consideration – balanced against seriousness of offence
Sentence: Placed on sex offender register for 15 years – Convicted and sentenced to Community Corrections Order for 2 years
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms W. Duncan for plea Mr J. Domantay for sentence | OPP |
| For the Accused | Ms M. O’Brien for plea Ms E. Clark for sentence | Stary Norton Halphen |
HER HONOUR:
1 Eric Spiteri, you have pleaded guilty to one charge of sexual penetration with a child under 16, which has a maximum sentence of 10 years’ imprisonment at the time of the offence.
2 I sentence you on the basis of the prosecution opening which was read out in court.[1] In summary, you met up with a 14 year old girl, Bianca Jones[2], who was the younger sister of a friend of yours. You were aged 21. She took a liking to you and began talking to you on Facebook which you responded to, and soon, the chat between the two of you became sexual. You exchanged sexually explicit photographs of yourselves. Bianca’s brother told her she could not spend time with you, but despite that, she and you arranged to meet. On 29 September 2014, you picked her up from her home, and in your car, the sexual activity which forms the subject of the charge took place. You inserted your fingers into her vagina and your penis into her mouth. She also masturbated you.
[1] Exhibit A
[2] A Pseudonym
3 The next day, her brother read some of the sexually explicit messages you had exchanged, told his father, and Bianca was spoken to. It was then reported to the police. You were not spoken to by police until January 2015. At that time, you did not fully admit the sexual acts you had engaged in with Bianca or admit to knowing she was only 14 at the time the sexual activity took place, but by your plea of guilty, you admitted those things and have taken responsibility for committing the offence.
4 I received a statement from Bianca, outlining how she said the offence affected her. You heard that read out in court yesterday. She said that you made her feel special, and like a real girlfriend, and now she feels she was used by you. She now suffers from depression, has left school because of the bullying she received after word got around about you being reported to the police, and has moved to another part of Victoria with her mother and misses seeing other family members, especially her brother. She now realises that she should have listened to her brother when he told her being with you was wrong.
5 I take into account the impact on Bianca in deciding the appropriate sentence for you. I do hope that she is able to complete her schooling in her new town, and I highly recommend that she take the advice of seeing a counsellor to help her get through the effect on her of the offence. I wish her well for her future.
6 Her statement about her feelings shows very well the reason why there is a law to prohibit sexual activity with young people under 16 years. A person might feel they are old enough to cope with the intimacy of a sexual relationship, and feel that everyone else is in a relationship, so they want to be too, but the reality is that people under 16 are just too socially immature to realise this. This case is also another example of how young people on social media say and do things they might not say or do in person, and later regret these things. Bianca is now learning this, and should get some professional help as she works through it. In saying this, I am not for one second suggesting that the offending by you was her fault. It was not. I am just trying to point out that this is the reason this particular law exists: to protect young people from themselves, as well as from older people taking advantage of them.
7 In this case, you were yourself socially immature, and it seems you did not really think through the consequences of what you were doing. As you were the adult, it was your responsibility to stop anything before it went too far. After the sexual activity took place, too late you took the step you should have taken at the beginning, to block her on Facebook, especially when your chat became sexual. This has been made clear to you now, through discussion with lawyers and others who support you, and by your plea of guilty I accept you are now taking full responsibility for the offence. I want to make it clear, so I repeat: a sexual offence committed against a child is never, never the child’s fault, and this was not Bianca's fault.
8 There are a number of factors that I take into account in your favour. The first of these is your plea of guilty. By your plea, the community has been spared the time and cost of a trial, and Bianca has been spared the ordeal of giving evidence. I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.
9 Next, you made your intention to plead guilty clear at a very early stage. I take the early plea of guilty into account as a sign that you are remorseful for the crime you have committed. I also accept that you have told others how remorseful you are.
10 You are now aged 22. You have never been in trouble with the police before, and have not been in trouble since. This means that you are to be sentenced as a person who was of good character before this offence was committed.
11 You live at home with your parents, who were in court to support you, as was your partner, with whom you have been in a relationship since January 2015, and with whom you are expecting a baby due next March. She is aged 23. I also received a number of references[3] from people who support you, and I was impressed by one in particular from a family friend, Mr Leahy, who very clearly spelt out how you have come to realise the seriousness of what you did, and now realise that it was your responsibility to act as the adult and not let things go on.
[3] Exhibit 3
12 I also received a report from a psychologist, Dr Barth,[4] who formed the professional opinion that you are still emotionally and socially immature and have poor coping skills. He also found that you suffer symptoms that are sufficiently severe to give you a diagnosis of adjustment disorder with depression and mixed anxiety. Your doctor confirmed in a report that you have been on anti-depression medication since January this year, although you told Dr Barth that you have felt very down since 2007 when your grandfather passed away, and added to this was the death of your uncle in 2013, and finally, this offence and the case going to court.
[4] Exhibit 2
13 Dr Barth confirmed that you indicated in tests he conducted levels of distress which were so extreme as to not be taken into account by him for his opinions, but these results are useful in showing that you struggle to deal with stressors that occur in everyone’s life.
14 You left school at Year 10 and worked for a couple of years as described in your resumé, part of Exhibit 3. You were then unemployed for a couple of years and you feel that you have not been able to settle on a direction in life. All of this is consistent with you not yet being able to move into responsible and mature adulthood. You did a 10-week placement with a motor mechanic and this is where you have a passion. You hope to be able to follow this up with some permanent work with that employer in the near future.
15 You are motivated to find a direction in life by your new situation with a pregnant partner. Ms Carr, your partner, supports you in this, but at present you are both living with your parents, and far from being independent. On the other hand, living with your parents means that you are able to undertake the care of your grandmother who also lives with you, on the occasions your mother has to be absent, and it is a sign of a caring nature that you are able to cope with a loved one who is very elderly and suffering from dementia.
16 Because you are still quite young, and still reaching a full level of emotional and social maturity, I agree with your counsel that rehabilitation is an important aspect of the sentence I am about to give you. Full rehabilitation means you will not reoffend, and the community will then be protected. Because of the factors in your favour, I am satisfied that your chances of rehabilitation are reasonably good, but I agree with Dr Barth that it is essential that you do a sex offender program to reduce your risk of reoffending.
17 It is of high importance that my sentence sends a message to other adults that sexual activity with children is a serious crime. It is also important that my sentence sends you that message, even though you are now much more aware of that than you were.
18 Application has been made for an intimate forensic sample to be taken from you and through your counsel you have not objected to this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offence, that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. Although you have not objected, if you change your mind, I must inform you that the police may then take a blood sample, and they may use reasonable force to enable such a procedure to take place.
19 Next, as a result of my sentence of you today, you become a registrable sex offender. As your crime was committed against a child, it is a class one offence. You will be required within 7 days of today to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for 15 years.
20 Your counsel submitted that a community correction order would meet all the objectives of a sentence in your case, and the prosecution conceded that such a sentence was within the range. You were assessed as being suitable for such an order.
21 I have decided that a Community Correction order is appropriate in your case. If you agree, I will convict you on this charge and release you on a community correction order for 2 years with the conditions that attach to every order, and special conditions, all of which I will go through now.
22 The conditions that attach to every order are that you must not commit another offence during the period of the order, which is as I have said is 2 years. You must report to and receive visits from the community correction office during the order. Within 2 clear working days of today, you must report to the community corrections order specified in the order, a copy of which you will get before you leave today. If you change your address or if you obtain a job or change that job, you must notify the community corrections office within 2 days of change. Within the time of the order, you must not leave Victoria except with written permission of the community corrections office, and you must comply with any direction or order given by the community corrections office.
23 So those conditions are attached to every community corrections order. The special conditions that will apply in your case are that you be under supervision of the community corrections office for that 2 year period, that you undertake unpaid community work for 200 hours, that you be assessed for and if found suitable undertake a sex offender program, and that you also be assessed for psychological and other treatment, and that if you are ordered to do so, you do any other programs that are designed to reduce your reoffending.
24 Your counsel referred to perhaps assistance with employment or parenting; they are not the sorts of programs that necessarily reduce reoffending so they will not be part of the order. However, as part of your supervision, your discussions with the community corrections officer who will be assigned to your case, you may be directed to those sorts of areas which may be of assistance and you can certainly voluntarily undertake those.
25 Could you stand up please, Mr Spiteri.
26 Do you understand those conditions?
27 OFFENDER: Yes, I do, Your Honour.
28 HER HONOUR: Do you agree to those conditions?
29 OFFENDER: Yes, I do.
30 HER HONOUR: If you are ill during the course of the order or there are other exceptional circumstances that arise, then the order may be suspended for a period of time. If your circumstances change, you may apply to the court for the order to be suspended or varied or even cancelled. If your circumstances change, you must notify the community corrections office and I recommend you also get legal advice so you know what the steps are that you need to take.
31 If you do not complete any condition of this order, you will be brought back before me to be re-sentenced on the original offence and also be dealt with for breaking a condition. What will happen then will depend on a number of circumstances, but you should be aware that my options are limited, and one of those limited options is gaol. Do you understand what will happen if you fail to do things under this order?
32 OFFENDER: Yes, I do, Your Honour.
33 HER HONOUR: I know that you are hoping to get some full time work so if you are successful, that will be important for your rehabilitation but it also means you will need to work with the community corrections office to complete your order as well as undertake your full time work. So you must understand that whilst that is important, this order is of paramount importance.
34 The order of the court is that you are convicted and released for two years on a community correction order with the conditions I just outlined.
35 If you had not pleaded guilty, but were found guilty after a trial, the sentence I would have imposed is 3 months’ imprisonment, with a community correction order of 2 years’ duration.
36 In the event that it is necessary to re-visit this sentence I note that you have not served any days in custody.
37 You may now come out of the dock and take a seat behind your counsel. You will be asked to sign two documents in a moment. The first is your agreement to abide by the conditions of the community correction order, and the second is a form notifying you of your reporting obligations under the Sex Offenders’ Registration Act. Your lawyer will assist you with these forms. So we will just take a moment to prepare that, thank you.
38 All right, so my associate will now bring those documents to you, Mr Spiteri. If you can just come next to your lawyer there. So the first document is the community correction order with the conditions on it.
39 All right, so I have now signed the community correction order that you have signed, Mr Spiteri, so a copy of that will be provided to you and you have also just received the sex offender registration material. Do you have any questions?
40 OFFENDER: No, Your Honour.
41 HER HONOUR: All right. I hope that I do not see you again and that you will be able to complete the order. Any other orders required?
42 MR DOMANTAY: No, Your Honour.
43 HER HONOUR: No, all right, thank you very much. We'll stand down now and the next matter can be brought on. Yes.
- - -
0
0
0