Sentence: 2 years' imprisonment wholly suspended for 2 years.
[3]
Colin Grixti, you have pleaded guilty to one rolled up charge of sexual penetration of a child under 16 years of age . The maximum penalty for this offence is imprisonment for 10 years. Your offending occurred between the 1st January 2001 and the 25th August 2001 at which time the victim of your offending attained the age of 16 years. At the time of offending you were aged 23 years.
You have no relevant prior convictions. Importantly, however, in 2015 you were convicted at trial of crimes which were later set aside on appeal and verdicts of acquittal entered. Consequent upon the initial convictions you served thirteen months' imprisonment for crimes that you were later acquitted of so that in the period between this offending and being dealt with for these matters you have served 13 months of what amounts to "dead time". This is an important matter in sentencing you.
The circumstances of your offending are contained in a prosecution summary that was tendered and read to the court by the prosecutor Mr Brown. Save for one factual matter, your counsel, Mr Dann QC conceded that the prosecution summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you. The dispute concerns the occasion upon which you first had sexual intercourse with the complainant. You do not deny that you had a sexual relationship with her from shortly after you met her. You deny that you had sexual intercourse with her on the day that you first met her.
In 2001 you were introduced to the complainant through friends and relatives. She was aged 15 and you were 23. Almost immediately a sexual relationship commenced. You knew the complainant was only 15 years old. At the time she resided with her uncle, a friend of yours. Her uncle knew that you had commenced a sexual relationship with her, yet no one did anything about it. It was condoned by her relatives and friends. That this is so is a shocking state of affairs. No one it seems was interested in protecting her as a child.
Your relationship with the complainant expanded over about five years and produced three children who are now cared for by you. The period of offending is confined to the first six months of the relationship when the complainant was still aged 15.
This is a serious example of what is a serious offence. Offences against children are always serious matters and this case is no exception. Were it not for matters that I will shortly come to I would have sent you to jail for this offending. However, I have been persuaded by your counsel not to take that course. Appropriately in the circumstances, the prosecutor also conceded that a non-custodial disposition was within the proper range of sentencing in this case.
You have pleaded guilty to the charge, and that is to your credit. A guilty plea was entered at committal without a contest. By your plea of guilty you have saved the time and costs of a trial and you have saved the complainant from having to give evidence, reliving these events. By your plea of guilty you have admitted responsibility for your crime, and you have facilitated the administration of justice. Because you have pleaded guilty at the earliest available opportunity you are entitled to a reduction in sentence, and this will be reflected in the sentence that I will shortly pass. By your plea you have also expressed appropriate remorse.
You have no relevant prior convictions. Mr Dann filed with the court a written outline of submissions which I marked as an exhibit on the plea. I refer to some of the matters expanded upon at length in the submissions.
I also received into evidence a written psychological report from Michael Bilyk dated 10 December 2018. He carried out various psychological tests of you and gave the opinion you are a low risk of offending again in this way. I accept and act on that opinion.
The complainant first went to the police and reported this matter in 2006. At that time she did not want the complaint to go any further.
In October 2015 you were tried in this court in relation to allegations of sexual offending brought by your sister. You were convicted and sentenced in December 2015. In March 2016 the complainant revisited the police and made a statement. You were interviewed in April 2016 but remarkably not charged until February 2018. In the meantime your convictions in relation to allegations brought by your sister were set aside by the Court of Appeal and a verdict of acquittal directed to be entered. By that time you had served 13 months imprisonment, only to be charged three months later with this offending. That was almost two years after you were first interviewed. In my view that is an unacceptable delay through no fault of yours. I have taken this delay into account. You have had these matters hanging over your head for too long.
You are now aged 41 and still relatively young. You live with and care for your three sons of the relationship, all now teenage boys who all attend a local college. That is a considerable responsibility which you appear to have well embraced. I received into evidence a number of references from family and friends including former work colleagues and your father and the sister of the complainant. All speak highly of you and your commitment to raising your three sons. I agree that in the circumstances of this case in arriving at an appropriate sentence I must take into account the impact upon your sons should I send you to prison. This is an important reason why I will not do so.
You had an uncomplicated upbringing, leaving school after Year 10 when you commenced an apprenticeship as a motor mechanic. You did not complete that apprenticeship but commenced another as a fitter and turner and studied at TAFE. You have a good work history in various skilled jobs which came to an end when you were jailed for a crime you have now been acquitted of. You now receive unemployment benefits and you are looking for work.
I doubt you will re-offend in this way again.
Sentencing in cases like this must be guided by application of the principle of general deterrence. The sentence imposed must send a clear message that this sort of conduct will not be tolerated. However, in the overall circumstances of this case I have decided that the purposes of sentencing can be achieved by imposing a sentence of imprisonment that reflects the seriousness of the offending, but to meet the justice of the case in all the circumstances, I will wholly suspend the term of imprisonment that I impose for a period of two years.
On the charge of sexual penetration of a child under the age of 16, you are convicted and sentenced to a term of imprisonment of two years.
I wholly suspend the operation of the term of imprisonment imposed, for a period of two years.
The effect of this is, that you will be released and you can leave on the rising of the court. However, you must be of good behaviour for a period of two years. If you commit any offence punishable by a term of imprisonment for the next two years you can be brought back before me and the sentence of imprisonment of two years can be restored. Do you understand that?
ACCUSED: Yes, Your Honour.
HIS HONOUR: Now, pursuant to the application of the Sex Offenders Registration Act 2004 you are a registrable offender within the meaning of that Act with reporting obligations for 15 years.
I strongly advise you to take advice as to your obligations under the Sex Offenders Registration Act 2004. You will have to comply with the reporting obligations for the next 15 years and that is onerous. A breach of that Act can amount to an offence which may breach the suspended sentence, and you need to be aware of that. It is for that reason that I strongly suggest to you that you take advice and fully understand and comply with your obligations under the Sex Offenders Registration Act 2004. For the purposes of s.6AAA of the Sentencing Act, I say that had it not been for your plea of guilty to the charge, I would have sentenced you to a term of imprisonment of three years and I would have fixed a non- parole period of two.
The prosecution seeks the making of a forensic sample order under s.464ZF of the Crimes Act. The application was not opposed and I have made the order for the reasons stated in it. Having made the order a member of the police force may use reasonable force to take a sample from your body, in this case a swab from your mouth. You will be given a notice about this and you will have to report to the local police station within the next 28 days for that purpose. Do you understand?
ACCUSED: Yes, sir.
HIS HONOUR: Yes. Very well. Come out of the dock, if you would please, Mr Grixti. Take a seat behind Mr Dann. Any questions arising out of that Mr Brown?
HIS HONOUR: The only reason why I emphasise it, is that so often one imposes a community corrections order or some non-custodial disposition, only to find that very shortly thereafter offenders breach the Sex Offenders Registration Act for one reason or another. And as you know, it is very onerous obligations. So it is important that everyone understands, or that your client understands what his obligations are.
MR DANN: Yes.
HIS HONOUR: Otherwise he might trigger a breach of the suspended sentence, even inadvertently.
MR DANN: Yes. No, I understand. Thank you, Your Honour. I certainly will talk to him about it.
HIS HONOUR: Very well.
MR DANN: We have already had a discussion but we will have more.
HIS HONOUR: Very well. Feel free to leave the Bar table gentlemen.