R v Arcuri
[2011] VCC 90
•31 January 2011
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIONELLO ARCURI (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE COTTERELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 31 January 2011 | |
CASE MAY BE CITED AS: | R v Arcuri | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 90 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. El-Asmar | |
| For the Accused | Ms J. Garner |
HER HONOUR:
1 Lionello Arcuri, you have been found guilty by a jury of 11 charges of indecent assault, the maximum penalty for this offence being five years' imprisonment at the time and four charges of sexual penetration of a child under 10, the maximum penalty for that offence is 20 years' imprisonment.
2 The complainants in this matter were your two daughters, now known as Jasmine McKay[1] and Sarah Walker[2].
[1] A pseudonym
[2] A pseudonym
3 The facts of the matter are as follows:-
4 You married your first wife, Lea Jones[3], in 1975 and that marriage produced five children; Mitchell[4], Jasmine, Fergus[5], Sarah and Angela[6]. You lived as a family in a rural town in Victoria from about 1984 to 1992. The offending occurred between 3 January 1984 and 18 September 1990.
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
[6] A pseudonym
5 The first nine charges relate to Jasmine and the remaining six relate to Sarah.
6 Your offending against Jasmine began when she was nearly seven when you got into bed with her wearing your underpants. You lifted her nightie and put your hand under her underpants and touched her on the vagina. This is Charge 1. You then moved her to another position and held both her hands on your penis and used them to masturbate yourself. That incident finished when you left the room. That offending occurred between 3 January 1984 and 31 January 1985.
7 During 1985 there was an occasion when you lifted Jasmine into the shower, you got in with her and lathered some soap and said to Jasmine "Help daddy wash himself." Placing suds on her hands, you guided her hands to your navel and your legs and then to cup your testicles. You then guided your hands to your penis and she washed that for a period of time.
8 You then stopped washing her, told her it was her turn and began to wash her back and bottom. You turned her around so her back was to your stomach, you turned the soap on its edge, ran it down her bottom and into the opening of her vagina while holding her with the other hand on the chest. A corner of the soap actually went into her vagina, thus penetrating her.
9 Similar circumstances occurred one or two months later when you were again showering with Jasmine and again you used the corner of the soap to penetrate her vagina. You desisted from this behaviour when Jasmine told you that the soap was hurting her. You then turned Jasmine around so that she was facing you and told her to kiss you indicating your penis. Jasmine did not understand your request and you took hold of her by the back of her head and guided your penis into her mouth with your other hand causing her to have trouble breathing.
10 In the summer of 1987 when Jasmine was about nine and sharing a bedroom with Sarah, she felt you get into bed behind her. You pulled her underwear down to her knees and rubbed your penis between her thighs from the back, thus between her thighs and on the outside of her vagina.
11 On the same night you shook Jasmine to wake her up as she had been pretending to be asleep during that earlier incident. She then pretended to wake up and you pulled her up so she was kneeling next to you and you were lying on your back. You told her to lick your penis as though it were a lolly pop. You held her head again and guided her to put your penis into her mouth. You later ejaculated and cleaned yourself on the corner of the sheet and also cleaned Jasmine's hands.
12 On the day of Jasmine's confirmation, her mother had stayed away the night before as she was doing a course. Jasmine went into your bedroom and you asked her for a hug. She got into bed with you and you asked her to stroke you on the stomach and then holding her hand, you moved down into your pants and made her masturbate you. Following ejaculation, you picked up a t-shirt from the floor and used that to wipe any semen and she also wiped her hands with it. That is the last of the offences in relation to Jasmine.
13 In relation to Sarah, your younger daughter, her first memory that she could identify of being abused by you was in about 1986 when she was sharing a room with Angela, your youngest daughter. You entered the bedroom and she was wearing her favourite red silk pyjamas. You unbuttoned her pyjama top and told her she should sleep in her birthday suit and explained what that meant. You slipped your hands down under the blankets and put your hands into the shorts of her pyjamas and used your fingers to rub the outside of her vagina. That incident ended when someone came to the door of the room. You pulled out your hand, said goodnight to Sarah and Angela and left.
14 Another night Sarah was in bed with Angela in the other bed when she heard stomping coming down the hall. That indicated to her that someone was in trouble and that you were very angry. You opened the door, pulled her doona back, lifted her nightie up and dragged her underwear down. You put your fingers inside her vagina and moved your hands very roughly so that your knuckles bashed against her pubic bone. You were very angry and you said that you had guns and you were going to shoot her mother. You left her in her bed with her underwear still down, her nightie still bunched around her waist the doona sort of thrown back over her.
15 There was another incident when friends had been at your home and your wife had gone out with them. Sarah said it was morning and she was put in the shower by you. She noticed that your penis was erect and you took her hand in yours, pulled out her middle two fingers and used that hand to stroke the underside of your testicles saying from time to time "Good girl."
16 On that same occasion, you asked Sarah to kiss your penis. When she kissed it you said "No, put out your tongue" and you showed her how you wanted it to be in a flat position. You then rubbed your penis on her tongue from the side. From time to time you again said "Good girl." You then attempted to angle your penis into her mouth but were not successful. You then put Sarah out of the shower, wrapped her in a towel and went back into the shower and masturbated.
17 There was an incident that occurred which Sarah identified by the fact that she was at St Paul's Primary School[7]. It occurred in 1987. She was woken by you getting into bed with her. You placed your fingers inside her vagina, then took her hand, placed it on your penis and used her hand to masturbate you. Sarah said she could feel your penis against her hip and that you ejaculated and as she did not know what that meant, she was thinking that you had urinated on her.
[7] The name of the school has been changed to protect the identity of the victims
18 The final incident occurred when Sarah was about eight. The family had given your wife a game called "The Game of Life." Sarah was excluded from playing, even though she was age appropriate. She recalled going next door where she was smacked for swearing. Then she was sent back home and later that night when she was sleeping in the top bunk in her bedroom, you went into the room and inserted your fingers into her vagina.
19 Sarah also gave evidence of other activity that occurred which was not the subject of any charges on the indictment. She said that you would get into her bed or kneel at the side of the bed, put your hands into her underwear or use her hands to masturbate you. That occurred regularly enough for her to anticipate these events. She also gave evidence of an incident where you put soap on your fingers and rubbed her vagina and she recalled that because the soap stung her.
20 I accept from that evidence, although you are not to be sentenced in relation to those other acts, that this was a course of behaviour on your part where you would enter the room where your daughters, in particular, Sarah, were sleeping on the pretext of saying goodnight and would take advantage of those circumstances in order to sexually assault your daughters.
21 You come before the court with one conviction in relation to a charge of indecent assault in which the complainant was indeed your older daughter, Jasmine McKay. In May 1993 you were sentenced to a term of imprisonment of two months which was partially suspended and you were ordered to serve one month of that sentence.
22 There were also a number of subsequent matters, none of which are relevant to the offending which brings you before the court today.
23 This is very serious offending involving acts of sexual penetration on both of your daughters which could not all be charged as acts of sexual penetration under the law as it stood at that time. The indecent assault charges involve digital penetration of Sarah and are therefore at the more serious end of the range of acts constituting indecent assault.
24 The effect of your offending on your family has been devastating. Victim impact statements declared by each of your daughters were tendered on the plea. Your daughter, Jasmine, declared that your family would look from the outside as the perfect happy family. That appearance, however, concealed your abusive behaviour. She describes her own anger issues, inability to trust and lack of confidence which have affected all aspects of her life. She felt trapped in a cycle of destructive behaviour and self-loathing, was bulimic for nearly a decade and indulged in destructive behaviour because of her confusing sex with love and approval. She says that what you did to her destroyed the family from within and then broke the family apart for good. Looking at your behaviour and conduct towards her now that she herself is a parent she concludes that you never loved her and had no regard for her health and well-being.
25 Your daughter, Sarah, writes of flashbacks of being sexually abused by you which affect her relationships and which intrude on her life randomly. She writes how the memory of being sexually abused never leaves her, no matter how hard she tries not to think about it. It has damaged and strained her relationship with her younger sister who frequently witnessed the abuse or was present but neither of them ever mentioned or discussed it. She also, now that she has become a mother, is haunted by concerns of abuse in relation to her own child.
26 Your youngest daughter, Angela, who was not herself abused describes the impact that the actions that you committed against her siblings and against her mother had a serious impact on all aspects of her life. She writes that your behaviour caused terrible damage to all the relationships within the family and how even now so many years later, they are all struggling to come to terms with it and I take that evidence into account as far as it is relevant and admissible.
27 These victim impact statements are indicative of the terrible effect that abuse by a parent can have on a family.
28 I now turn to matters personal to you. You were born in Southern Italy in 1954 into a family of farmers. Your father migrated to Australia in 1955 and you yourself arrived in Australia at the age of three. I understand that you have two surviving siblings, a third sibling having died in infancy.
29 You lived in rural Victoria with your grandparents. You attended primary school and not surprisingly had difficulties at school due to your poor English, having arrived here already speaking Italian or dialect.
30 You continued to have difficulties during your early education and you were bullied at school as a result. You then changed schools on two occasions and you found yourself, due to your dark complexion, not accepted by either the Anglo or Koori community.
31 You were eventually made a ward of state when you were very young and it is not clear to me under what circumstances that arose. You were in Turana and then Allambie and you were finally transferred still as a ward of State to St Joseph's Boys Home while you were still a child in primary school. This was obviously very distressing and you were being brought up and educated by what your counsel describe as merciless nuns.
32 You cried yourself to sleep during this period of your life when you were separated from your family and in a fairly hostile environment.
33 You were then transferred into the care of the Christian Brothers where again you were frequently beaten, particularly by one brother whom you describe as being very sadistic.
34 You would frequently abscond, often staying away for up to two weeks and were, of course, punished on your return.
35 In mid 1964 you were taken back to visit your family and your father then accompanied you back to Spencer Street station and put you on the train to return to the Christian Brothers. Your father was killed in a motor vehicle accident on his way back and you recall being present at the funeral and seeing your father's body.
36 You spent a further three years with the Christian Brothers and then left there when you were 13. You were taken to Italy for a period of two to three months and following your return, you stayed with your family and were sent to the technical school where you were put into a low achiever's class.
37 You then won a scholarship for year eight and moved into the high achiever's class. However, when you were about 17 you lost interest in your education, despite your obvious ability and you left school in the middle of 1971.
38 You were then employed in various occupations and in 1973 you met Lea Jones, your future wife. In 1976 the first child of that union was born and the youngest, as I understand it, was born in 1984.
39 You were obviously enterprising. You became a self-taught carpenter and builder and achieved formal qualifications in 1978. From 1981 to 1983 you, your wife and children travelled around Australia. After your return in 1985 you set up a roof truss company which became very successful and you became involved with a large builder in rural Victoria. However, the company's business declined in the early 1990's during the recession which dominated the economy in those years and your company finally went into liquidation in 1992.
40 In 1993 you underwent that period of imprisonment I referred to earlier involving the first offence against your daughter, Jasmine, and you met your current partner after that period of imprisonment.
41 You and your partner were involved in two motor vehicle accidents and as a result of the second accident in 1995, you suffered back injuries. In 2000 you became interested in ultra light aircraft flying and got your licence.
42 In June 2002 tragedy again struck your family when your sister Zahra's[8] five year old son was killed on the road which left the family grief-stricken.
[8] A pseudonym
43 Your mother who is aged 76 is in poor health and to a certain extent, dependant on you, as is your partner who was certainly at the time of the trial and plea on crutches.
44 A number of references were tendered on your behalf. Mr Cyrus McIntyre[9] who attended throughout the trial has known you for some 35 years. He was aware that you had been married with five children but that they were no longer part of your life and he understood that you had moved on from that period in your life. He described you as being giving and generous with time and friendship and described your supportiveness to your mother.
[9] A pseudonym
45 Mr Ollie Morrison[10] described you as honest, reliable and obliging and describes also your dedication to your partner, your mother and your siblings. All of the references describe you as generous and obliging in that you assist anyone who has difficulties or are going through difficult periods of their life. Your partner, Maja Duncan[11], writes very highly of you and not only the help that you give to others but in particular, your support and assistance to your mother and in addition to that, you are a caring and considerate partner.
[10] A pseudonym
[11] A pseudonym
46 All of these references revere your capacity to be a contributing, well-loved and respected member of the community and in particular, of your family.
47 In relation to your health, in addition to the aftermath of the injuries you suffered in the accidents I described, you also suffer from severe sleep apnoea and have been treated for that. You deal with the resultant pain from your back injuries which is ongoing, with pain killers when necessary in order to avoid surgery and clearly, those will be ongoing matters which will cause you some difficulty.
48 Clearly, following the breakdown of your family you have made another life which involves very little contact with your children. I now turn to the submissions from counsel.
49 Ms Garner, on your behalf, made submissions in relation to the Charter of Human Rights in relation in particular to cumulation referred to in s.60 of the Sentencing Act which was not in force at the time these offences were committed.
50 As in your case, there is no suggestion that any cumulation should be such as to offend against the principles of proportionality which apply in sentencing. I do not make any finding as to questions of incompatibility with the Charter.
51 Your counsel also made submissions that I must have regard to the penalties and sentencing practices at the time of your offending and I do so. However, I am sentencing you also in the year 2011.
52 I note the wide variation in sentences for indecent assault in the 1980's, note that the median in the 80's was from nine months to 12 years. I take account of that with the other factors in arriving at a sentence which reflects your particular offending which, as I indicate, is at the most serious end of the offence of indecent assault.
53 Your counsel further made submissions that due to the lengthy period of delay in complaint and again in prosecution, you have been able to demonstrate that you have taken significant steps towards rehabilitation and therefore she argued that you should receive a lower minimum sentence.
54 The prosecution argued that these are extremely serious offences of a hideous nature. It represents repeated offending over a long period of time. In relation to rehabilitation, the prosecution argued that you have remained a hard working man as far as you are able, you have demonstrated no remorse whatsoever and your rehabilitation is more a cessation of offending due to your changed circumstances.
55 Counsel for the Director submitted that the offending went on over a six year period which involved you being dealt with in 1992 for a similar offence against your oldest daughter. He argued that you actually spoke to police and were interviewed in the middle of the period of these offences and did not come clean at any time in relation to the overall scope of the offending and that that, he submitted, was evidence that you had no remorse at all.
56 In relation to the Magistrates Court matters, he submitted there were three complainants, that you were indeed convicted and sentenced to a period of imprisonment for offences against them but I have no details of what the offending involved and I have taken into account all of the submissions of counsel.
57 I now turn to the other matters I am required to take into consideration in sentencing you. Firstly, I turn to specific deterrence, that is that you must be deterred from committing any such offence again. Given that your offending ceased in 1990, I consider specific deterrence is of lesser importance in sentencing you and I give it lesser weight.
58 I am also required to consider general deterrence, that is that other members of the community must be deterred from taking advantage of the position of trust created within a family by abusing the very children they are there to protect and provide for. It must be understood by the community that such actions will have serious consequences for those who do so, even long after the offences have been committed.
59 Further I am required to denounce your conduct on behalf of the community and I do so. Your behaviour has resulted in perhaps irreparable damage to your daughters and has affected their lives until this day. The individual members of your own family have suffered strain in their relationships because of the abuse you perpetrated on your two daughters. It has made their adult lives extremely difficult and such devastation of children by sexual abuse and the consequent effect that that devastation has on the adults that they must inevitably one day become offends against the values of any civilised community.
60 Indeed the courts have taken a very serious view of the abuse of children. Parliament has seen fit to recognise the seriousness of such offending as yours by changing the classification and definition and increasing the penalties applicable to such offending, recognising the importance of a society protecting its children from sexual abuse by adults, particularly parents or those entrusted with their care. Such offences within the family involve the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult and of course, a gross breach of the trust placed in the offender by the children themselves, by the family and the community and of course that irreparable fundamental damage which is caused to any victim of such behaviour. The position of natural dependency a child has on its parent and the natural affection that a child also has for the parent often weakens the resolve of the victim to resist the demands of the offender.
61 The final matter, and one which is very difficult, is that I am required to take into account that I must impose just punishment in all the circumstances. I am required of course to balance all the matters which have been put on your behalf in mitigation against those matters I have just listed. It is clear that you are a person who enjoys respect and affection from the members of your family of origin, from your friends and your partner who represent the people who are important in your life now. You have been supported by their presence throughout the trial and pre-hearing and I have also received those references on your behalf and I take all those into account in considering an appropriate sentence.
62 Further I need to take into account that on Count 2 on the presentment you will be sentenced as a serious sexual offender for the purposes of s.6 and 6(e) of the Sentencing Act. With respect to these offences, I am required to regard the protection of the community from you as a principal sentencing purpose and with respect to that s.6(e) applies in relation to cumulation. However, as I indicated previously, and assisted by a submission from your own counsel and counsel representing the Director of Public Prosecutions, I consider it neither necessary nor appropriate to achieve that purpose by imposing a sentence that is longer than one which is proportionate to the gravity of each of the relevant offences, considering the sentences applicable at the time and today and accordingly I do not do so.
63 I have considered how each of the sentences imposed relate to each other. I have applied the principles relating to concurrency, cumulation, totality and proportionality and I have determined that there must be some cumulation so that the total effective sentences imposed are just and adequately reflect the total criminality involved, while at the same time imposing a sentence which is not crushing.
64 Now, I am going to ask you to stand please. Firstly I am going to take Count 6 as the base sentence and on Count 6 you will be convicted and sentenced to a period of four years' imprisonment.
65 On Count 1 you are convicted and sentenced to ten months' imprisonment.
66 On Count 2 you are convicted and sentenced to a period of 18 months' imprisonment. Those two sentences will be concurrent with each other and four months of the sentence will be cumulative on the base sentence and other sentences I impose.
67 In relation to Counts 3 and 4, on Count 3 you are convicted and sentenced to 12 months' imprisonment.
68 On Count 4 you are convicted and sentenced to three years' imprisonment and Counts 3 and 4 are concurrent with each other but five months of that sentence will be cumulative on the base sentence and the other sentences imposed.
69 On Count 5, you are convicted and sentenced to three years' imprisonment.
70 On Count 6, which is the base sentence, you are convicted and sentenced to four years’ imprisonment.
71 Those two sentences are concurrent with each other as they arise out of the same set of circumstances.
72 On Count 7, you are convicted and sentenced to 18 months' imprisonment. Four months of that is to be served cumulatively on the base sentence and other sentences.
73 On Count 8, you are convicted and sentenced to four years' imprisonment. Five months of that is to be served cumulatively on the sentence imposed in Count 6 and other sentences.
74 And finally on Count 9, you are convicted and sentenced to 18 months' imprisonment. Four months of that is to be served cumulatively on the sentences imposed in Count 6 and other sentences that I have imposed.
75 On Count 10 you are convicted and sentenced to ten months' imprisonment. Four months of that is to be cumulative on Count 6 and other sentences.
76 On Count 11 you are convicted and sentenced to three years’ imprisonment. 12 months of that is to be served cumulatively on Count 6 and other sentences.
77 On Count 12 you are convicted and sentenced to 12 months’ imprisonment.
78 On Count 13 you are convicted and sentenced to two years’ imprisonment. Those are to be served concurrently with each other but five months of that sentence will be served cumulatively on the sentence imposed in Count 6 and other sentences.
79 On Count 14 you are convicted and sentenced to two years’ imprisonment and five months of that is to be served cumulatively on Count 6 and the other sentences.
80 On Count 15 you are convicted and sentenced to two years' imprisonment and five months of that is to be served cumulatively on Count 6 and the other sentences.
81 That is a total effective sentence of eight years and five months imprisonment. And I order that you serve a term of six and a half years imprisonment before being eligible for parole.
82 Further, as a result of my sentencing you today, you become a registrable sex offender pursuant to the Sex Offenders Registration Act and I will have you handed a form to be signed which acknowledges that you have received notification of your reporting obligations and you will, according to that legislation, be required to comply with those reporting obligations for life.
83 Further, there is an order sought pursuant to s.464ZF of the Crimes Act which is to take an intimate sample. I intend to grant that order. Ms Garner, is that opposed?
84 MS GARNER: No, it's a matter for Your Honour.
85 HER HONOUR: I intend to grant that order. I note that it is not opposed and given the seriousness of the circumstances of the offending, I am satisfied that in all the circumstances the making of the order is justified and I find that the granting of the order is in the public interest and although the order has been made without opposition by you, I am obliged to tell you if at the time of taking the sample you were not to cooperate, an authorised member of the Police Force may use reasonable force to enable that procedure to be conducted and the procedure will be a taking of a scraping from your mouth. I will sign those orders. And I will authorise my associate to date those orders.
86 MS GARNER: As Your Honour pleases. Your Honour, there is just the matter of pre-sentence detention as well.
87 HER HONOUR: No, I didn't have an up-to-date figure.
88 MR EL-ASMAR: Yes, Your Honour. That is 63 days including today.
89 HER HONOUR: And I declare that the period of pre-sentence detention, 63 days, be deemed time served and I direct that the records of the court reflect that. I have just had my associate do those calculations and I understand it is eight years and five months.
90 MS GARNER: Yes, Your Honour, we agree with that.
91 HER HONOUR: So I will now ask Mr Arcuri to sign that acknowledgment which will be taken down. I will ask you to assist him to do that, Ms Garner.
92 MS GARNER: Yes, Your Honour. I have explained to him that he will sign the document so he is quite prepared to do that.
93 HER HONOUR: Right, thank you. I will just wait till those documents are signed. Do you want to go down, Ms Garner?
94 MS GARNER: Yes, thank you, Your Honour.
95 HER HONOUR: Thank you. I will now adjourn.
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