R v Michalopoulos
[2020] ACTSC 27
•5 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Michalopoulos |
Citation: | [2020] ACTSC 27 |
Hearing Date: | 4 February 2020 |
DecisionDate: | 5 February 2020 |
Before: | Mossop J |
Decision: | See [45] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – maintaining sexual relationship with young person – contravening a personal protection order – contravening a family violence order – offender and victim engaged in illicit drug use together – considered themselves to be a couple – circumstances made it clear to the offender the victim was under the age of 16 – sentence of imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT), s 56(1) Crimes (Sentence Administration) Act 2005 (ACT), s 108 Family Violence Act 2016 (ACT), s 43(2) |
Cases Cited: | R v Degioannis [2019] ACTSC 47 R v KN (No 2) [2019] ACTSC 5 R v Sirl (No 3) [2019] ACTSC 355 |
Parties: | The Queen (Crown) Chris Michalopoulos (Offender) |
Representation: | Counsel R Khazma (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Numbers: | SCC 106 of 2019 SCC 107 of 2019 SCC 108 of 2019 |
MOSSOP J:
Introduction
The offender, Chris Michalopoulos, has pleaded guilty to the following offences:
(a) one count of maintaining a sexual relationship with a young person between 1 August 2018 and 13 January 2019 contrary to s 56(1) of the Crimes Act 1900 (ACT) (Count 1);
(b) one count of contravening a personal protection order between 23 December 2018 and 26 December 2018 contrary to s 35 of the Personal Violence Act 2016 (ACT) (Count 7); and
(c) one count of contravening a family violence order on 12 January 2019 contrary to s 43(2) of the Family Violence Act 2016 (ACT) (CC2019/877).
The maximum penalties for these offences are as follows:
(a) Section 56 of the Crimes Act: 25 years’ imprisonment;
(b) Section 35 of the Personal Violence Act: five years’ imprisonment and a fine of 500 penalty units; and
(c) Section 43(2) of the Family Violence Act: five years’ imprisonment and a fine of 500 penalty units.
The commission of these offences puts the offender in breach of three good behaviour orders imposed in relation to charges of:
(a)fail to appear after bail undertaking (CC2018/11097); and
(b)contravening a family violence order (CC2018/13664; CC2018/13663).
Facts
The relevant facts are agreed and are set out in the Statement of Facts which formed part of the Crown Tender Bundle as well as in the statements of facts prepared for the offending which is the subject of the breaches of the good behaviour orders. In summary the facts are as follows.
On 13 July 2018 the offender failed to appear in the Magistrates Court in relation to a drug driving charge after he had given a bail undertaking to do so. This failure to appear was the subject of a conviction and a good behaviour order which he has breached by the current offending. It is charge CC2018/11097 and the good behaviour order was for the period 4 December 2018 until 3 June 2020.
In July 2018 the offender, who was then 44 years old, met a 15-year-old girl who I will refer to as ML. At the time ML was staying at the home of a friend of hers. The offender visited the house and befriended ML. A week later the offender and ML became friends on Facebook. At the end of July 2018, after an argument with the friend with whom she was staying, ML accepted a previous offer from the offender to live at his residence in Scullin. ML moved in. A friend of ML who I will refer to as MS, who was also 15 years old, was living there at the time although she moved out on 14 August 2018. From the time that ML moved in until 12 September 2018 she and the offender had sex every few days in the offender’s bedroom. They considered themselves to be a couple.
On 4 September 2018, police executed a search warrant at the offender’s residence and located items such as black female underpants, personal lubricant, a bag of sex toys, green vegetable matter and drug paraphernalia. ML denied having sex with the offender. Forensic examination of the underpants revealed that they contained sperm and semen.
On 12 September 2018 police found ML at the offender’s residence. On 14 September 2018 the Director-General of the Community Services Directorate was granted an interim family violence order in relation to the offender and ML. The order prohibited the offender from being within 100 metres of ML or contacting her. That order was served on the offender on 20 September 2018. Notwithstanding the service of the order, the offender and ML continued to have sex approximately once per week.
In November 2018 ML had a contraceptive rod placed in her arm to prevent her from becoming pregnant to the offender.
On 10 November 2018 following a report from ML’s mother, police attended the offender’s residence. When the offender eventually answered the door police exercised their emergency powers of entry and found ML hiding in the kitchen corner cupboard. The offender was arrested for breaching the interim family violence order on that day (CC2018/13663). Based on the evidence that ML had been staying at the house for a number of days prior to that, he was also charged with breach of the interim family violence order between 5 November and 10 November 2018 (CC2018/13664). He pleaded guilty to these charges and was sentenced to good behaviour orders with a total of 50 hours of community service. The good behaviour orders were from 4 December 2018 until 3 June 2020. Both of those good behaviour orders were subsequently varied so as to delete the requirement to perform community service. Both of the good behaviour orders were breached by the current offending and need to be dealt with.
Following his sentencing, the offender was released on 4 December 2018.
Notwithstanding the existence of the interim family violence order and his recent conviction for breaching it, there were then four occasions when the offender arranged to meet ML at various hotels and stay there overnight. These may be summarised as:
(a)6 December 2018: Ibis Budget Hotel in Watson;
(b)21-23 December 2018: Statesman Hotel in Curtin;
(c)24-28 December 2018: Adina Serviced Apartments in Dickson; and
(d)On 12 January 2018: Forrest Hotel and Apartments.
In relation to the stay at the Adina Serviced Apartments, at some time during that stay MS attended and was in company with the offender and ML. That gave rise to a breach of a personal protection order which prohibited the offender from being within 100 metres of MS. It had been granted on 22 November 2018 and served on the offender on 28 November 2018. This gives rise to count 7 (contravention of a personal protection order).
On 12 January 2019 at the Forrest Hotel and Apartments the offender played pornography on a laptop computer while ML performed fellatio on the offender. Police executed a search warrant soon after and the offender directed ML to turn off the pornography. He barricaded the door as police attempted to force entry as he attempted to pull up his pants and underwear. It is the 12 January interaction that gives rise to charge CC2019/877 (contravention of a family violence order).
After the offender was arrested he made admissions that he was in a relationship with ML and that he knew that she was 15 years old.
Objective seriousness
The most serious offending is the maintenance of a relationship with a young person. Both parties referred in their submissions to the decision of Jerrard JA in R v SAG [2004] QCA 286; 147 A Crim R 301 and the aggravating factors there identified. Having regard to those factors it is relevant to note:
(a)The period of the relationship was a period of five months. That is a substantial period particularly in circumstances where it must have been clear to the offender both by reason of the facts that he knew about her age as well as the service upon him of a family violence order that it was not a lawful relationship. He took active steps to continue the sexual relationship and keep it secret from the police.
(b)The relationship involved penile vaginal intercourse as well as other forms of sexual activity. This sexual activity occurred on numerous occasions and obviously many more occasions than the statutory minimum required to establish the offence.
(c)No pregnancy arose and there was no violence within the relationship. There was no exploitation of a parental or other such relationship.
Further significant features of the relationship were that although ML was approaching the age of consent, there was a very substantial age difference between the offender and ML. Unlike the situation in R v Sirl (No 3) [2019] ACTSC 355 (Sirl), the case did not involve a clear exchange of methamphetamine for sex (see Sirl at [4]), notwithstanding that there was joint use of methamphetamine. While there was a relationship between the two that went beyond sexual activity, having regard to the age difference between the two and the distorting effect of the use of methamphetamine as part of the relationship, that does not significantly reduce the gravity of the offending.
The offending appears to be in the mid-range of objective seriousness for this offence.
The breaches of the family violence order and personal protection order are both in the mid-range of objective seriousness. The breaches involved deliberate and substantial defiance of orders in circumstances where it must have been obvious that they were designed to ensure the protection of vulnerable young women from the offender. Both are aggravated by the fact that the offender had, shortly prior to the offending, been arrested and sentenced for the breaches of the family violence order relating to ML on 10 November and between 5 and 10 November 2018 and was on conditional liberty as a result of his convictions. However, it must be recognised that in both cases the contact with the young women was consensual on their part.
Subjective circumstances
The subjective circumstances of the offender are outlined in a pre-sentence report prepared by ACT Community Corrections.
He is now 46 years old. He was raised in Sydney and is the youngest of five children. He was raised by his mother and stepfather who was described as strict and violent at times. His mother is no longer alive and he has contact with his siblings around two or three times a year. The offender’s first marriage ended in divorce after a short time. He then had a relationship with the mother of his two eldest children. That relationship lasted for an extended period. After that relationship ended he commenced another relationship in which his third child was born. That relationship broke down in 2017 and the third child is in the care of its maternal grandmother.
The offender disclosed that at age 11 he was the victim of sexual abuse by a priest. He has not undertaken any treatment in relation to that abuse.
He has resided alone in an ACT Housing property since 2016. That property is still allocated to him. He has some outstanding debts to ACT Housing and a phone company. He received Centrelink allowance for the 12 months prior to his current period on remand.
He has completed Year 10 at school. He has been mostly employed since that time in roles including telecommunications, labouring and printing. He stated that he had been employed for two short periods in 2018 as a labourer. At the Alexander Maconochie Centre (AMC) he is employed as a “Dixie”, a role which appears to be a form of kitchenhand.
The offender reported no history of problematic alcohol use. He first tried cannabis at age 13. He began smoking it daily in his early twenties. He began using methamphetamine at age 26. This developed quickly into a daily habit. In 2015 he started a drug rehabilitation program at Karralika. He completed the residential program there. He subsequently transitioned to the Nexus program, which is akin to a halfway house. He resided there for eight months. Following this treatment he was drug free for three years. His relapse into drugs in 2018 involved using methamphetamine and cannabis regularly, prior to his remand. During that time his drug habit cost $800 per week.
The offender is prescribed medication to treat depression and anxiety symptoms, although he has no official diagnosis of a mental health condition. He continues to suffer feelings of grief over his parents’ death. The pre-sentence report recommended that he take part in counselling to address this.
The opinion of the author of the pre-sentence report is as follows:
[The offender] is assessed as a medium-high risk of general reoffending. His lack of employment, pro-social networks, drug use, mental health and attitude all contribute to his assessed risk level. Although [the offender] has completed drug treatment in the past, it appears he requires further treatment. Most significantly, it appears treatment for sexual offending and drug treatment appear to [be] the priority, each of which are offered in custody or in the community.
It is particularly concerning that [the offender] continued his relationship with the young person despite several orders and directions to cease the relationship. While [the offender] claimed he was not aware the victim was 15 years of age at the time of the offences, ultimately this excuse appeared of no value given he pursued the relationship when he was made aware of her age and made attempts to conceal the relationship from police, Child Youth and Protection Services (CYPS) and staff supporting her. He also encouraged the victim to do the same.
The offender is assessed as a below average risk of sexual reoffending based on an actuarial risk assessment tool. The pre-sentence report author noted that further assessment will be required, and appropriate referrals made for relevant interventions.
He was assessed as not suitable for community service. In relation to the possibility of a good behaviour order, he was assessed as suitable for a medium to high level of intervention.
Criminal history
He has a criminal history in both New South Wales and the Australian Capital Territory. In New South Wales his criminal history between 2006 and 2010 consists solely of motor vehicle offences relating to his licence or the registration of his vehicle. In each case they were dealt with by fine. In the ACT his offences commence in 2017. Apart from the offending involving the breaches of good behaviour orders he has some driving offences, including two convictions for having a prescribed drug in his oral fluid which were dealt with by way of fine and disqualification. Both related to methamphetamine. He also has a conviction for contravening a family violence order which occurred between 3 August and 18 August 2019, that is, postdating the offences for which I am sentencing him. This related to contact made with ML via the offender’s former wife at a time when the offender was remanded in custody. It involved an attempt to get ML to communicate with the offender’s solicitor. A six-month period of imprisonment was imposed, backdated to commence on 13 January 2019 (the day after his arrest) and conclude on 12 July 2019.
Plea of guilty
On the two counts on the indictment (counts 1 and 7) the offender pleaded guilty in the Supreme Court after committal for trial but prior to the scheduled criminal law case conference. He had been committed for trial on 14 May 2019. A pre-trial ruling on evidence had been given on 22 August 2019. Pre-trial evidence was meant to be taken from ML and MS but they both failed to appear. A criminal case conference had been adjourned on 8 and 22 October and was listed for 13 November 2018. On 5 November 2018 the parties communicated that agreement had been reached as to pleas of guilty. Having regard to the evidence available and the admissions made by the offender the Crown case was very strong. The plea had very significant utilitarian value, most obviously avoiding the need for ML and MS to give evidence at a hearing. Notwithstanding the criminal case conference had not concluded, having regard to the stage of the plea and the strength of the Crown case a discount of approximately 15% is appropriate.
In relation to the breach of the personal violence order in relation to MS between 23 and 26 December 2018 the same considerations apply and a discount of approximately 15% is appropriate.
In relation to CC2019/877, the breach of the family violence order on 12 January 2019, the offender initially pleaded not guilty but then pleaded guilty on 3 April 2019 in the Magistrates Court prior to committal. He was then committed for sentence. On this charge the Crown case was overwhelmingly strong. Because of that s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) prevents any significant reduction in the sentence. I nevertheless take into account the plea of guilty and the early stage at which it was made.
Time in custody
The offender has been in custody since 12 January 2019. In the period 13 January 2019 until 12 July 2019 he was serving the sentence imposed by the Magistrates Court for the contravention of the family violence order in August 2019.
Consideration
The offending appears to be associated with the offender’s relapse into methamphetamine use after a period of successful rehabilitation. To some extent the offending is likely to have been contributed to by the distorted thinking associated with methamphetamine use. It must have been clear to the offender that the relationship was an unlawful one and that he was being investigated and pursued by the authorities in relation to it. Yet, he persisted with it and attempted to avoid detection by police. His past success with rehabilitation means that there is some prospects of rehabilitation in the future. The picture presented by the pre-sentence report is somewhat mixed. There is a medium to high risk of general reoffending. So far as sexual offending is concerned his attitude to the offending seems to demonstrate a lack of insight into the unlawfulness of his conduct and yet he has been assessed as being at below average risk of sexual reoffending. It is not possible to say from the letter written by the offender, which seeks to articulate likely impacts upon ML, that he has truly taken onboard the significance of the impact on her and in consequence, understood the significance of his offending.
Each of the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act is significant to the present case. In my view the gravity of the offending is such that only a custodial sentence is appropriate. Further, it is appropriate that the sentence be served by way of full-time detention rather than in some other way.
In Sirl the starting point for the offence of maintaining a sexual relationship was a sentence of five years. This case is more serious because of the length of the relationship and the persistence with the relationship when it must have been clear that it was an unlawful one. On the other hand, there was not the clear drug for sex arrangement that existed in Sirl and the offender in the present case has a less serious criminal history. I have also had regard to the sentencing decisions in R v KN (No 2) [2019] ACTSC 5 and R v Degioannis [2019] ACTSC 47.
On the charge of maintaining a sexual relationship the starting point is a sentence of imprisonment of six years reduced to 61 months on account of the plea of guilty.
On the charge of breaching the personal violence order involving MS the starting point is 6 months’ imprisonment reduced to 5 months.
On the charge of contravening the family violence order involving ML the appropriate sentence is 10 months’ imprisonment. The breach of the personal protection order involved a different victim but formed part of the overall course of conduct. Some degree of concurrency is warranted. It will be cumulative as to one month upon the previous sentence but otherwise concurrent.
The charge relating to the breach of the family violence order should be made largely concurrent with the charge of maintaining a sexual relationship. That is because the contact occurred within the context of the maintenance of that sexual relationship. However, it must also be cumulative to some extent to reflect the additional criminality involved in so flagrantly disregarding the terms of the orders with which he was served. The remarkable feature of this case is that the offender was so unaffected by the service of these orders that he continued the relationship with ML and allowed MS to continue to be in contact with him.
As I indicated earlier, the offending was contributed to by the distorted effect of methamphetamine use. That tends to make the issue of rehabilitation a more significant one. The sentence for this offence will be cumulative as to three months but otherwise concurrent. I do not consider that it is appropriate to make the sentences concurrent to any significant extent with the sentence imposed for the August 2019 breaches of the family violence order relating to ML. Although arising out of the same course of criminal conduct, it involved temporally separate offending with a distinct and separate purpose. There will however be concurrency as to one day, so as to take into account the day in custody not taken into account by the sentence imposed for the August 2019 offence.
On the three breach matters, two of those relate to breach of a family violence order. Having regard to:
(a)the significant sentences being imposed on the substantive offences being sentenced;
(b)the fact that the two counts of contravening a family violence order form part of the conduct going to make up the offence of maintaining a sexual relationship;
(c)that the offender is being sentenced for subsequent contraventions of the same provision in relation to which his past breaches of both orders have been taken into account in determining the appropriate sentence; and
(d)the limited criminal history that the offender had when those offences were committed,
it is appropriate under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT) to take no further action in relation to those breaches.
In relation to the non-parole period it is appropriate that a non-parole period be set that is approximately 60% of the head sentence. This recognises that rehabilitation from drug use is a significant issue in relation to the offender and that a shorter period in custody before a grant of parole is appropriate. I have also calculated the 60% as if s 66 of the Crimes (Sentencing) Act applied so as to require a setting of a non-parole period for both the sentences relating to the August 2019 offending as well as the current offending. That would have been the case had he been sentenced at the same time for all of the offending, but did not apply because the sentence has been completely served at the time of sentencing for the current offences, even though the ultimate sentence will be concurrent with that sentence to the extent of one day. This approach has the effect of reducing the non-parole period from 39 months to 37 months. Therefore, the effect of the sentence that I am about to pronounce is a head sentence of 65 months with a non‑parole period of 37 months.
Orders
The orders of the Court are:
1. On the charge of maintaining a sexual relationship with a young person (count 1 on the indictment) the offender is convicted and sentenced to imprisonment for a period of 61 months commencing on 12 July 2019 and ending on 11 August 2024.
2. On the charge of contravening a personal protection order (count 7 on the indictment) the offender is convicted and sentenced to imprisonment for five months commencing on 12 April 2024 and ending on 11 September 2024.
3. On the charge of contravening a family violence order (CC2019/877) the offender is convicted and sentenced to imprisonment for 10 months commencing on 12 February 2024 and ending on 11 December 2024.
4. The non-parole period commences on 12 July 2019 and ends on 11 August 2022.
5. In relation to the breaches of the good behaviour orders imposed on charges CC2018/11097, CC 2018/13663 and CC2018/13664 the court takes no further action in relation to those breaches.
6. The Court notes that the Crown is to file notices declining to proceed in relation to the charges not proceeded with.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 19 February 2020 |
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