Coronado v The Queen

[2016] VSCA 86

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0252

CRISTIAN ANDRES CORONADO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2016
DATE OF JUDGMENT:	29 April 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 86
JUDGMENT APPEALED FROM:	DPP v Coronado [2015] VCC 1859 (Judge Misso)

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CRIMINAL LAW – Sentence – Rape – Whether sentence manifestly excessive – Leave to appeal granted – Appeal allowed with respect to total effective sentence – Appellant re-sentenced. 

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G F Connelly	Papa Hughes Lawyers
For the Respondent	Mr D A Trapnell QC	Mr John Cain, Solicitor for Public Prosecutions

OSBORN JA:

1. The applicant seeks leave to appeal against the sentence imposed by his Honour Judge Misso in respect of two charges of rape following conviction by a jury at trial. 

1. The maximum penalty for the offence of rape is 25 years’ imprisonment. 

1. His Honour sentenced the applicant to three years’ imprisonment on charge 1, one year of which was ordered to be served cumulatively upon a four year term of imprisonment imposed on charge 2.  The total effective sentence was thus five years’ imprisonment.  The sentencing judge fixed a non-parole period of three years. 

1. The proposed ground of appeal is as follows:

Ground 1 : The individual sentences imposed, order for cumulation, total effective sentence and non‐parole period, are manifestly excessive in view of:

a.        The objective seriousness of the offending:

i.The entire duration of offending was a matter of seconds;

ii.The conduct at charges 1 and 2 was brief and separated by less than 10 seconds;

iii.The offending was absent any physical force, violence, aggression, degrading language or persistence.

b.        The applicant’s personal circumstances:

i.First time offender;

ii.Youthful at 20 years of age at time of offending;

iii.Positive prospects for rehabilitation;

iv.Four months spent in immigration detention prior to sentence; and

v.Without the support of his family whilst incarcerated in Australia.

Background facts

1. The sentencing judge summarised the relevant facts as follows:

You attended a party on 24 May 2013 at a house in Brunswick East. The complainant also attended that party. It was a housewarming party. One of the people putting on the party was Andy Hoffman. At about 1.00am, the complainant got into Hoffman’s bed and went to sleep. At some point, the complainant removed her lower clothing so that she was naked from the waist down.

At some stage after she had fallen asleep, you entered the bedroom and lay beside her. She gave evidence that she felt you touching her vagina. She felt you running your fingers along her vagina and then she felt you penetrate her vagina with your fingers. She pushed your hand away. She said that what I have just summarised occurred over a matter of seconds. She then felt you penetrate her vagina with your penis.

She believed that the lapse in time between you penetrating her vagina with your fingers, and then with your…