Moutsos v Kinghorn

[2023] VCC 459

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. AP-22-1356

ANASTASIA MOUTSOS

v

D.S.C. TRAVIS KINGHORN

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JUDGE:	His Honour Judge Rozen
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2023
DATE OF SENTENCE:	27 March 2023
CASE MAY BE CITED AS:	Moutsos v Kinghorn
MEDIUM NEUTRAL CITATION:	[2023] VCC 459

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW

Catchwords: Appeal – Appeal out of time pursuant to s 263(2) of the CPA – inadequate  legal advice - leave granted - assault of person with a disability in residential facility by carer – general deterrence - youthful offender – rehabilitation to be promoted - qualified nurse – Magistrate convicted and fined appellant – nursing registration revoked – whether conviction should be imposed – impact on future work prospects – parity with co-offenders - CCO without conviction.

Legislation Cited:      Criminal Procedure Act 2009 (Vic.); Disability Service Safeguards Act 2018 (Vic.); Sentencing Act 1991 (Vic.)          

Cases Cited:Cao v Collister [2022] VSC 36; R v Mills [1998] 4 VR 235; Lowe v The   Queen (1984) 154 CLR 606; Worboyes v The Queen [2021]

Sentence:                   Community Correction Order of 9 months duration without conviction

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms I. Skaburskis	Doogue & George Lawyers
For the Respondent	Ms A. Morris	Office of Public Prosecutions

HIS HONOUR:

1This is an appeal against a sentence imposed by the Broadmeadows Magistrates’ Court on 6 June 2022.  On that day, Ms Moutsos, the appellant in this matter, was convicted and fined $800 in relation to one charge of Common Law Assault.

Appeal out of time

2The notice of appeal was lodged on 11 November 2022, more than five months after the date of the orders, and approximately four months out of time.

3S 255 of the Criminal Procedure Act 2009 (‘CPA’) stipulates that an appeal is to be commenced within 28 days of the date of the orders of the Magistrates’ Court. An appeal made after that time period expires is taken to be an application for leave to appeal out of time.[1]

[1] S 236 of the Criminal Procedure Act 2009

4Pursuant to s 263(2) of the CPA, the Court’s discretion to grant leave in such circumstances is enlivened only if it is satisfied that:

i.Ms Moutsos’ failure to comply with the time limit was due to exceptional circumstances; and

ii.the respondent’s case would not be materially prejudiced because of the delay.

5Ms Moutsos bears the onus of establishing that the failure to file the appeal within time was due to exceptional circumstances — that is, ‘circumstances that rarely occur or are outside reasonable anticipation or expectation’.[2]  This inquiry is directed to the circumstances relevant to the failure to appeal within time, rather than to the merits of Ms Moutsos’ appeal.[3]

[2] Cao v Collister [2022] VSC 36, [16].

[3] Cao v Collister [2022] VSC 36.

6In summary, Ms Moutsos relies upon the following factors to establish exceptional circumstances for the purposes of s 263(2)(a):

(i)She was provided with ‘disorganised’ legal representation in the Magistrates’ Court proceedings;

(ii)She was advised to accept the sentence indication but she does not recall whether a submission was made for a non-conviction disposition, and further does not recall receiving advice on the implications of the recording of a conviction;

(iii)She was not given appeal advice immediately after the hearing of 6 June;

(iv)At a later date, she was given advice by both her solicitor and barrister that she should not appeal;

(v)Whilst overseas in Greece, she became aware that Lisa Wilson, her co-offender, successfully appealed her sentence to the County Court on 4 October 2022 and received a non-conviction disposition;

(vi)When Ms Moutsos returned to Australia on 19 October 2022, she immediately sought new legal representation from lawyers with criminal law expertise and the appeal was lodged shortly thereafter; and

(vii)Ms Moutsos is a youthful first offender with a nursing degree and stands much to lose if a conviction is recorded against her.

7With respect to the last factor relied upon by Ms Moutsos, I note that s 263(2)(a) of the CPA is confined to an inquiry regarding the failure to file the appeal in a timely manner; consideration of exceptional circumstances for the purposes of this section ‘must relate solely to the explanation for the delay’,[4] and accordingly I have accorded no weight to this factor.

[4] Shire of Carnarvon v Klein Corporation Pty Ltd [2008] VSC 24, [42].

8After hearing submissions from counsel, I have concluded that the late filing of Ms Moutsos’ appeal was due to a constellation of exceptional circumstances that were, to use the words of Redlich JA, ‘clearly unusual or quite special or distinctly out of the ordinary’.[5] 

[5] The Queen v John Ioannou [2007] VSCA 277, [17].

9In relation to the second limb, that the delay not materially prejudice the respondent’s case, Ms Cipollone, in written submissions filed on behalf of the respondent, concedes that no prejudice will flow from the granting of leave in this instance.[6] 

[6] Respondent’s Submissions dated 15 March 2023, [12].

10I am accordingly satisfied that both limbs of the test under s 263(2) are satisfied and that my power to grant leave to appeal out of time is enlivened.

11Pursuant to s 263(2) of the CPA, I grant leave for Ms Moutsos to appeal the sentence imposed in the Magistrates’ Court on 6 June 2022 out of time.

Appeal against sentence

12Turning now to the appeal against sentence.

13It is appropriate at this stage to provide a brief summary of the offending.

Summary of offending

14The Appellant was a Disability Support Worker at the facility at which Ms Mackey, the victim in this matter, resided at the time of the offending.  Ms Mackey has been diagnosed with cerebral palsy, resulting in spastic quadriparesis and dysphagia.  She has severe spasticity and, due to her immobility and low body weight, she has been diagnosed with osteoporosis.  Although Ms Mackey is non-verbal, she is not mentally disabled, and is able to communicate using eye contact and other techniques.  

15The Appellant held a position of trust and authority over the complainant, who, it goes without saying, is particularly vulnerable and was utterly reliant upon professional care. The offending occurred in a facility where Ms Mackey was a long-term resident and that she considered her home.

16In 2018, Ms Mackey communicated complaints to her mother about her treatment by staff at the residential care facility.  As a result, in early 2019, Robert Mackey, Ms Mackey’s father, installed a covert CCTV camera and recording device in the complainant’s room.  Neither Ms Moutsos nor Ms Mackey had any knowledge of the recording device.

17Each week, Loraine Mackey, Ms Mackey’s mother, reviewed the footage. Based on the footage shown in court and the agreed police factual summary, the court finds as follows.

18On 3 November 2020 the appellant and her co-accused Ms Wilson attended to Ms Mackey.  Ms Mackey was lying in her bed, while both co-accused danced around her. Ms Moutsos removed her top – she danced in her bra. At one point, Ms Moutsos, in the presence of Ms Wilson, put a pole – usually used to put a hoist onto the overhead rail – into Ms Mackey’s mouth for a period of approximately five seconds (Charge 2 – common law assault).

19The Court has viewed the CCTV footage of Ms Moutsos assaulting Ms Mackey.  Her conduct was utterly appalling. Vulnerable members of our community, such as Ms Mackey, are entitled to be treated with respect and dignity. The disrespect Ms Moutsos displayed to Ms Mackey was morally reprehensible and warrants the Court’s unequivocal denunciation. 

20In assessing the objective gravity of this offending, I consider it aggravating that Ms Moutsos was in a position of trust and authority over Ms Mackey, and that this assault involved an abuse of power against a profoundly vulnerable victim.  

21Ms Skaburskis, on Ms Moutsos’ behalf, submitted that this ‘interaction appears playful and was done in good spirits’[7] and that the gravity of the offending is mitigated by ‘a context of seeming joviality’.[8] I reject this categorisation in light of the footage and the Victim Impact Statement made by Ms Mackey via her mother. In that statement, Ms Mackey states that she lay on her bed ‘worried what you would do to me next and think it was funny’.[9]

[7] Appellant’s Submissions dated 16 March 2023, [21].

[8] Appellant’s Submissions dated 16 March 2023, [24].

[9] Victim Impact Statement of Lee Anne Mackey 3 October 2022.

22Counsel for the appellant also submitted that her conduct was ‘done in jest, for the purpose of making Ms Mackey laugh’.[10] I also reject this submission. In her VIS, Ms Mackey stated that ‘at times I laughed but what else could I do. If I tried to indicate my objection I was told to “stop don’t do that” or “shut the fuck up”’.[11]

[10] Appellant’s Submissions dated 16 March 2023, [61].

[11] Victim Impact Statement of Lee Anne Mackey 3 October 2022.

23In making an assessment of the gravity of this offending, I have had regard to the agreed police summary, which indicates that, in addition to a Bachelor of Nursing, Ms Moutsos has completed the following training:

i.Human Rights and You (NDS) – SCOPE;

ii.Understanding Abuse & Zero Tolerance – SCOPE;

iii.NDIS Worker Orientation Module – SCOPE;

iv.SCOPE induction;

v.Introduction to epilepsy;

vi.SCOPE 2019 Code of Conduct;

24In addition, at the time of the assault upon Ms Mackey, Ms Moutsos had been employed in Disability Services by SCOPE for approximately three years.

25I conclude that it is likely that Ms Moutsos was aware that her behaviour was inappropriate and degrading. This is why she is now ashamed.

26This offending has traumatised Ms Mackey and eroded her trust in strangers.[12] It has also had a significant and enduring impact on her family, who are plainly devoted to their daughter’s wellbeing.[13] I acknowledge that the Victim Impact Statements do not distinguish between the impact of the appellant’s offending and that of her co-offenders. I have taken this into account as best I can.

[12] Victim Impact Statement of Leeanne Mackey 3 October 2022.

[13] Victim Impact Statement of Lorraine Mackey and Robert Mackey dated 7 May 2022.

Personal circumstances

27I turn now to discuss the appellant’s personal circumstances.

28Ms Moutsos was born in Greece in 1998 and migrated to Australia with her parents and siblings when she was 13. Although she spoke very little English when she arrived in Australia, to her credit, she finished school at Hume Central Secondary College and become fluent in English during the course of her schooling. Upon completing secondary school, Ms Moutsos began studying nursing at Australian Catholic University and completed her degree in May 2022. Upon her completion of her high school education in 2017 she began working at SCOPE disability services.

29Following her graduation, she applied for registration with the Australian Health Practitioner Regulation Agency (AHPRA). At first it was granted, but later revoked, apparently after this incident became known to AHPRA. She will be unable to work in her chosen field of nursing unless this changes. I will return to this topic later in these reasons.

30After the incident the subject of this offending, Ms Moutsos was dismissed from her employment with SCOPE following an internal investigation. In addition to the present criminal proceedings, she has been the subject of disciplinary proceedings by the NDIS, the Victorian Disability Workers Commission and the Department of Family, Fairness and Housing. Her Working with Children certificate has been cancelled.

31Ms Moutsos is the subject of an Interim Prohibition Order made by the  Victorian Disability Workers Commissioner pursuant to the Disability Service Safeguards Act 2018 (Vic.). The Order prohibits her from providing a ‘disability service’ in Victoria. The court was informed that this would be reviewed in light of the Court’s decision on this appeal.

32Following her dismissal from SCOPE Australia, Ms Moutsos found employment working in a pharmacy and remains employed there now.

Matters in mitigation

33I turn now to discuss the matters in mitigation.

34First, by pleading guilty, Ms Moutsos has saved Ms Mackey and her parents the ordeal of giving evidence. She has also preserved the resources of the criminal justice system. In the context of the ongoing disruption inflicted upon the courts by the COVID-19 pandemic, this plea is of particular utilitarian value and I have ameliorated the sentence in an actual and palpable manner.[14]  

[14] Worboyes v The Queen [2021] VSCA 169 at [35].

35In addition, as evidenced by her plea, I accept that Ms Moutsos is genuinely remorseful for her offending and acknowledges responsibility for her entirely inappropriate behaviour. This is confirmed by what is reported to the Court by Corrections Victoria in its assessment of the appellant’s suitability for a CCO. According to the report, Ms Moutsos ‘showed remorse for the victim and acknowledged the effects that her actions could have had on them’.[15] Having said that, I note that no apology has been forthcoming to any of the victims themselves.

[15] Corrections Victorian Assessment Report for Ms Moutsos dated 21 March 2023, p 2.

36An important consideration in this case is the appellant’s youth. She was 21 at the time of the offending and is now 24. She has no prior convictions and nothing subsequent.

37The respondent has referred the Court to the case of Director of Public Prosecutions (Cth) v MHK.[16] In that case, the Court of Appeal, citing the well-known case of Mills,[17] held that:

‘Ordinarily, and in general, the youth of an offender is an important mitigating circumstance. It is relevant to an assessment of the moral culpability of the offender, as the law recognises that the immaturity and impressionability of youth may be, and commonly is, an important contributing factor to the involvement of a young offender in the crime for which that offender is to be sentenced.  In addition, the law regards the rehabilitation of young offenders of substantial, if not primary, importance, not only in the interests of the offender, but also in the interests of the community.

On the other hand, it is recognised that those principles need to be appropriately moderated where, as in a case such as this, the offender has been involved in serious and dangerous offending.’

[16] [2017] VSCA 157

[17]   R v Mills [1998] 4 VR 235

38In that case, the accused was 17 and was sentenced for engaging in a terrorist act, being planning and building bombs with a view to detonating them in a public place to kill as many people as possible.

39The Court of Appeal has made similar observations in cases of armed robberies, intentionally causing serious injury, and sexual assaults.[18] In such cases, general deterrence will be more important than the rehabilitation of even youthful offenders.

[18] See generally Azzopardi v The Queen [2011] VSCA 372; Director of Public Prosecutions v Lawrence [2004] VSCA 154

40This is clearly an entirely different case. As serious as the offending in this case is, it can’t be compared to planning a terrorist bombing campaign. Further, the prosecution concedes that the appellant is the least culpable of the 3 co-accused persons. The prosecution concedes further that Ms Moutsos had ‘limited involvement in this incident’.[19]

[19] Respondent’s Submissions dated 15 March 2023, [21].

41In my view, Ms Moutsos’ youth is a significant factor in her favour in accordance with accepted sentencing principles. A sentence that promotes rather than undermines her rehabilitation is necessary.

42Ms Moutsos has good prospects of rehabilitation in light of her lack of prior convictions, remorse and stable employment. She seeks the opportunity to be a valuable contributor to an overburdened and underfunded profession.

Sentencing Considerations

43The principal sentencing considerations in this case are general deterrence, just punishment, community protection and rehabilitation.

44General deterrence is important because official government reports in recent years have detailed worryingly high levels of abuse of vulnerable people in both group homes for people with disability[20] and residential aged care homes.[21]

[20] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Interim Report, (October 2020), pp 247-266.

[21] Royal Commission into Aged Care Quality and Safety, Final Report (2021), Vol 2, pp 159-161.

45Pulling in the opposite direction, rehabilitation is important because it is in both Ms Moutsos’s interests and those of the community more broadly that she be allowed to play a constructive role and contribute to society in her chosen profession being a profession that is of vital importance to community wellbeing.

Parity

46Parity is another important consideration in this case.

47The principle of parity stipulates that offenders who have jointly engaged in the same type of criminal conduct should ordinarily receive similar sentences. While differences in outcomes can, and in fact must, reflect the differing culpability of co-offenders as well as their differing personal circumstances, any difference that engenders a ‘justifiable sense of grievance’ on the part of the more heavily sentenced co-offender that justice has not been done will amount to a sentencing error.[22]

[22] Lowe v The Queen (1984) 154 CLR 606.

48Two other SCOPE employees have been charged with assaulting Ms Mackey at the same residential home, albeit on different dates. This is the same type of criminal conduct that was engaged in by Ms Moutsos.

49Lisa Wilson faced charges of common law assault arising  from conduct engaged in on an earlier occasion. The video recording of that conduct was in evidence before me. It shows Ms Wilson inserting a cardboard tube into Ms Mackey’s mouth and commenting to her colleague on Ms Mackey’s lack of a gag reflex. I was informed by the prosecutor that the medical evidence in Ms Wilson’s case was to the effect that this conduct placed Ms Mackey at risk of physical harm. It was also grossly disrespectful. I consider that Ms Wilson’s offending is more serious than Ms Moutsos’s

50On 4 October 2022,  his Honour Judge Carmody of this Court set aside the Orders of the Magistrates’ Court of Victoria (a 15-month CCO with conviction) and in their place imposed a CCO of 12 months without conviction. As a condition of the CCO, Ms Wilson is required to perform 175 hours of unpaid community work.

51Ms Paniczko was convicted and sentenced to a 12-month CCO by the Broadmeadows Magistrates’ Court on 6 June 2022 for common law assault. Her appeal against conviction and sentence is listed to be heard by a Judge of this court on 17 April 2023. The details of her alleged offending are not before the court but I was informed that Ms Paniczko was the supervisor in charge of the appellant.

Should a conviction be recorded?

52The central issue agitated by counsel for the appellant in this appeal against sentence is whether a conviction should be recorded as part of the sentence. The fine imposed by the Magistrate was imposed with conviction. It was submitted on the appeal that a conviction is excessive in light of the circumstances of the offending and the circumstances of the offender.

53Section 8(1) of the Sentencing Act 1991 governs the issue. It provides:

In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including—

      (a)     the nature of the offence; and

      (b)     the character and past history of the offender; and

      (c)     the impact of the recording of a conviction on the offender's economic or social well‑being or on his or her employment prospects.

54I have already concluded that the offending is serious. This factor weighs in favour of the imposition of a conviction. However, I have also concluded that the appellant’s offending was less serious than that of her co-offender, Ms Wilson, who did not receive a conviction.

55Turning to the appellant’s character which I have discussed earlier, this is a factor that favours a non-conviction outcome. She comes before the court as a young first time offender with an unblemished character.

56The application of the final factor in paragraph (c) also favours a non-conviction outcome. As noted, the appellant is currently unable to pursue her chosen vocation of nursing which she has studied for. This is because her AHPRA registration has been revoked.

57It is likely that AHPRA will re-visit the appellant’s registration after this proceeding is concluded. According to AHPRA’s published criteria governing the exercise of this power, whether or not a conviction is recorded by this Court is a relevant consideration in AHPRA’s decision about restoring the appellant’s registration.[23] This does not mean that whether or not a conviction is recorded will be decisive in AHPRA’s consideration. However, it does mean that the recording of a conviction could be influential. Put simply, there is more chance that the appellant’s registration as a nurse will be restored if the court does not record a conviction than if it does.

[23] AHPRA, ‘Registration  Standard: Criminal History’ (July 2015), p. 2

58In my assessment, that consideration is decisive in this case. The impact of a conviction on the appellant’s economic and social well-being and her employment prospects are such that, despite the seriousness of her offending, I consider that no conviction should be recorded.

59However, that does not conclude this appeal which, as noted above, is a re-hearing of the case. This court is required in sentencing the appellant to impose the sentence that is most appropriate for the offending having regard to sentencing principles and the provisions of the Sentencing Act 1991.

60In the hierarchy of sentences this court can impose, a fine is lower than both a custodial sentence and a community correction order. A custodial sentence is inappropriate in this case especially as Ms Wilson did not receive one. A community correction order is a punitive sanction that is served in the community.[24] In my view, that is the appropriate sanction in this case.

[24] Boulton v R [2014] VSCA 342.

61Conditions may be imposed on such an order. Of the available conditions, a requirement that the appellant perform unpaid community work is appropriate in this case. This is the only condition recommended to the Court by the CCO assessment report dated 21 March 2023. I have taken into account the appellant’s current circumstances in setting the number of hours to be worked. I have also had regard to the CCO imposed on the co-offender Ms Wilson.

62Because a CCO is a more severe sanction than a fine,[25] in an appeal such as this one, the court is required to warn the appellant of the possibility that it will be imposed.[26] This is to provide the appellant with the option of discontinuing her appeal. At the hearing on 17 March 2023, I provided such a warning to the appellant and was informed by her counsel that, if a CCO was imposed without conviction, it would not be considered a more severe sanction than the existing fine with conviction. The appeal was not discontinued and must therefore be determined.

[25] Sentencing Act 1991, s 5(6).

[26] CPA, s 256(3).

63Ms Moutsos, I need to explain to you the standard terms attached to all community correction orders and I will go through those now.  Listen carefully, please:

•    You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment. 

•    You must comply with any obligations or requirement prescribed by the regulations. 

•    You must report to and receive visits from the Secretary or their delegate during the period of the order.

•    You must report to the Community Correction Centre specified in the order within two clear working days after the order comes into force, that is, within two clear working days of today.

•    You must notify the Secretary or their delegate of any change of address or employment within two clear working days after the change.

•    You must not leave Victoria except with the permission of the Secretary or their delegate either generally or in relation to a particular case.

•    You must comply with any direction given by the Secretary or their delegate that is necessary for the Secretary or their delegate to give to ensure you comply with the order.

64In addition to those general conditions which apply to every community correction order I impose the following special conditions to the order that I impose on you:

•    You must report to Broadmeadows Justice Centre within two working days of today.

•    You must complete 80 hours of unpaid community work.

•    You are to be supervised, monitored and managed as directed by the Secretary or their delegate.

65Ms Moutsos, under the law I cannot make a community correction order unless you agree to the terms and conditions.  I note that you agreed to them when you were assessed for suitability for the order.  I need to ask you now, do you agree to comply with the community correction order and the terms and conditions which I have set out?

66You must understand, Ms Moutsos, that if you contravene any of the conditions of the order, which will commence today, then that in itself is an offence punishable by a maximum of three months' imprisonment.  Should that occur you will be brought back before this court and it is possible that, depending upon the circumstances, the order will be cancelled and you will be ordered to serve a term of imprisonment instead. 

Orders

67The sentence of the Magistrates’ Court dated 6 June 2022 is set aside.

68You are found guilty and sentenced to a community correction order of 9 months’ duration without conviction.

69The Order commences on 27 March 2023 and ends on 26 December 2023.

70In addition to the mandatory terms, you must perform 80 hours of unpaid community work as directed by the Regional Manager.

71You are under the supervision of a Community Corrections Officer for the duration of the Order.

72Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have imposed a sentence of 3 months’ imprisonment.