Director of Public Prosecutions v Alaniz (a Pseudonym)
[2016] VCC 1274
•26 August 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COLIN ALANIZ (a pseudonym) |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 August 2016 |
| DATE OF SENTENCE: | 26 August 2016 |
| CASE MAY BE CITED AS: | DPP v Alaniz (A Pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1274 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW – sentencing
Catchwords: Making threat to inflict serious injury and persistent sexual abuse of a child under the age of sixteen – immediate custodial sentence imposed
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited: DPP v Charlie Dalgliesh (A Pseudonym) [2016] VSCA 1488; Bussell (A Pseudonym) v The Queen [2014] VSCA 310; BM v The Queen [2013] VSCA 3; Hassan v The Queen (2010) 31 VR 28; Hudson v The Queen (2010) 30 VR 610
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Stylianou | Mr John Cain Public Prosecutions |
| For the Accused | Ms L Line (Plea) Ms K. Phair (Sentence) | Balmer & Associates |
HER HONOUR:
1Colin Alaniz,[1] you have pleaded guilty before me to one charge of making a threat to inflict serious injury and one charge of persistent sexual abuse of a child under the age of 16. The complainant in both your matters is your biological daughter, Natalie.[2]
[1] Colin Alaniz is a pseudonym.
[2] Natalie is a pseudonym.
2You are now aged 39. Your daughter Natalie was born on 28 July 2001. The offending the subject of Charge 1 occurred when she was aged nine and the offending the subject of Charge 2 involves multiple incidents and multiple sexual acts commencing when she was aged nine and ending when she was 14.
3The offences for which you are before the court are serious. The maximum penalty with respect to persistent sexual abuse of a child under 16 is 25 years' imprisonment. That is the highest maximum penalty in the criminal calendar short of life imprisonment and reflects the community's abhorrence of sexual crimes committed against children. The maximum penalty for make threat to inflict serious injury is five years' imprisonment.
4You have admitted your criminal record. There is a previous court appearance in the County Court Melbourne. You were convicted of kidnapping, aggravated burglary and common assault. You were the driver of a vehicle that took two co-offenders to a private address where they invaded the home armed with knives and wearing balaclavas. They terrorised the wife of a former boss and her daughter and another toddler. The daughter was kidnapped and a ransom demand made. It was accepted that you played a lesser role than the co-offenders but nonetheless you participated in what was described as a heinous crime.
5Following a successful Crown appeal to the Supreme Court at Melbourne, your sentence was increased to four years and six months' imprisonment with a non-parole period of two years for those offences.
6I shall now proceed to sentence you in respect to the current Indictment on the basis of the prosecution opening that was read at the plea hearing. There was no objection taken to the summary of the prosecution opening.
7You were born in the Philippines and had a difficult childhood. Both your parents were unemployed and your father was reported to be somewhat absent. You came to Australia at aged 18 sponsored by an aunt who lived in Melbourne. You are an Australian citizen and have permanent residence in Australia.
8On your arrival, you studied English and eventually secured work in the hospitality industry and you have completed an apprenticeship in cooking. You were working as a cook full-time until the time of your remand.
9You were married in 1995 but that marriage was short-lived. There were no children born to that marriage. In 2000, you married Isabelle[3] who had known you since childhood, you both having grown up together in the same village in the Philippines. You had resumed contact with her through letters and phone calls and moved back to the Philippines to marry her. Following your marriage, you lived initially apart from your wife. Natalie and Carlos,[4] your eldest children, were born in the Philippines.
[3] Isabelle is a pseudonym.
[4] Carlos is a pseudonym.
10In 2007, Isabelle and your young family joined you in Australia and your youngest son Daniel[5] was born here and he is aged seven. In about 2010, your wife commenced to study nursing three days a week in the city and later worked in that capacity.
[5] Daniel is a pseudonym.
11Around 2010, there was an occasion when you became concerned about your children's safety because you said you had seen a man standing at the front door of your premises where you were then living. You were so concerned about them sleeping in another room that you arranged for the children to move into the parental bedroom and sleep on mattresses on the floor.
12Your younger son Daniel was already sleeping next to you and your wife. Your two sons complained about having to sleep next to their sister and so Natalie ended up sleeping next to you on a mattress on the floor while the boys slept on the bed close to their mother.
13I now turn to the circumstances of the offending.
14Insofar as the persistent sexual abuse charge is concerned, your daughter stated the offending commenced when she was about nine and her mother was away at work. She was at home with you and her two younger brothers. The first occasion she related is an occasion when you tried to get her naked. She was playing on her iPod on her bed and the brothers were in the lounge room. You came into the room, locked the door and started undressing her. You fondled her on her breasts and vagina. She tried pushing you away as she found it very uncomfortable and told you to stop.
15She managed to leave the room but you followed her. She then started screaming and her brothers rushed to her. You started yelling and so she hugged her little brother because she knew that you would not hurt him. You removed her little brother from her and put him behind you. She ran out into the lounge room and you then went into the kitchen to get a knife and called her back to talk. She did not want to go near you. She recalls being on the floor crying and you holding the knife in your hands, threatening that you were going to stab her and yelling to her that she should obey you as you are the father of the house. Those circumstances constitute Charge 1, make threat to inflict serious injury.
16When the victim was aged 10, between December 2011 and February 2012, she remembers many times when she was in the bath and you would come in and start putting soap on her even though she had already soaped her body. You would help her to dry herself and touch her private places such as on her breasts and her vagina. While she was still naked, you would go into her room. You forced her to have penile-vaginal sex.
17She said that the sexual abuse occurred on occasions when she was home sick from school or when you were home and her mother was away at work. She said that you would force her to have sex and that it occurred every year from when she was aged nine.
18On 2 January 2012 whilst the family was at the beach, Natalie drifted out on the water and you intervened to bring her safely back to shore. After this incident, you would often say to her that you had saved her life and that she owed you something in return.
19You would usually go to Natalie when she was alone in her room doing homework or playing with her phone. She made it clear to you that she did not want you to be doing these things to her as she was not comfortable. You would tell her that since you had saved her life that she owed you that in return and you continuously reminded her of that fact whenever you forced her to have sex.
20Natalie recalled an occasion when she was between 10 or 11 years of age between 28 July 2011 and 28 July 2012 when she was asleep on the sofa. She woke up and noted that she was undressed. She said that you were putting lotion onto a vibrating massager as a lubricant and had started to insert that object into her vagina. She asked you to stop after her skin became caught. You then wanted to insert your penis but you were stopped from doing so because one of your sons had come into the house disturbing your actions.
21Towards the end of Grade 6 when Natalie was aged 12, you began trying to have anal sex with her. She was menstruating and you wanted to avoid the possibility of pregnancy and you made your reasons known to her. She was 13 when you managed to successfully anally penetrate her and on that occasion, she told you that it hurt and asked you to stop but you did not do so until after you had reached your climax. You continued to have penile-vaginal sex and anal sex with her over the years including an occasion whilst you were visiting the Philippines and staying with family and people were sleeping nearby. That occasion is an uncharged act.
22At aged 13, you forced your daughter to give you a blowjob. You made her watch a pornographic movie to learn what she had to do. She expressed her dissatisfaction about being asked to do this but you showed her the movie and told her that she just needed to do it and it would help with lubricating. This occurred whilst her brothers were asleep in the same room. She made it clear to you that she did not want to do this, however you forced her into doing this act.
23In September 2014 you moved premises. The family continued to have the same sleeping arrangements, that is, sleeping in the one bedroom. You did so purportedly on the basis that it provided for your children's safety.
24In November 2015, your parents came to Australia from the Philippines to visit and they lived with you, with the family, until January 2016. Even whilst they were visiting, you would wake Natalie up and have sex with her.
25Over time you continued to force your daughter to watch pornographic movies and forced her to do whatever was on the video. The viewing of the pornographic material is an uncharged act.
26The last occasion when you had sex with your daughter occurred two days prior to her making her video-audio recorded evidence statement. On that occasion, you waited until your wife had left for work and then woke her up. You started to undress your daughter and fondled her vagina. You inserted your penis into her vagina. On that occasion you asked your daughter about a lump on her stomach. She said to you she did not know what it was. You were worried, thinking she may be pregnant. You then asked her if it would be all right if you could have anal sex and she said “no”. On that occasion, you stopped when her little brother woke up. However, you had reached your climax before doing so.
27In late 2015, your daughter started to have the symptoms of pregnancy. She started vomiting and getting morning sickness. You were worried that she was pregnant. In about December 2015, you told her to get more active so that if she were pregnant, the baby would stop clinging onto the placenta and would not grow.
28On the day before the pregnancy was confirmed, when the subject of her stomach came up at dinner, you tried to persuade your wife that it was probably just kidney stones and that your daughter should drink more water. You also suggested that it could be perhaps pancreatic issues because you had read about those symptoms on the internet and they were akin to those suffered by your daughter. You blamed her for not eating well or drinking enough and said she would feel better if she ate and drank what she was asked to.
29On Monday 22 February 2016, your daughter and wife consulted Dr Puno, a general practitioner. Following her medical examination, she referred Natalie for an obstetric ultrasound and her pregnancy was confirmed. When the doctor told your wife about your daughter's pregnancy, she then spoke to her daughter. Upon direct questioning, she told your wife that you had been interfering with her. Your wife then collected your younger son and returned home whereupon she told you that she never wanted to see you anymore. You left the home and that is the last time you have spoken with your wife.
30The obstetric ultrasound confirmed your daughter was 19 weeks and five days pregnant. Your daughter was devastated by this news and was upset and afraid. She underwent a late-term termination of pregnancy one week later on 29 February 2016.
31On 23 February 2016, you were intercepted by police in your vehicle just outside Echuca and you were taken into custody and interviewed. During the interview, you made many admissions about your offending behaviour. You admitted that you had raped your daughter. You confirmed the details of the family's sleeping arrangements. You told police you were ready to face the consequences of your actions and you felt sorry for your daughter, wife and children. You admitted that you had become a predator.
32Through your answers, you showed some insight into your offending behaviour. You said what you did to your daughter had ruined her and that she was very stressed by what had happened and that you took away her dignity. You admitted what you did was wrong and that you felt very, very bad. You told police what you did was sick, and I quote, you told them, "I am not human. I am not a human being, I am worse than an animal".
33You admitted the incident concerning the knife. You admitted that you sexually abused your daughter over the years and that you had shown her pornographic videos. You admitted that the penile-vaginal penetration started when she was about 11 or so and that you were having frequent sex with your daughter twice a week, sometimes once, since moving to your new place.
34You were aware of the pain that she suffered as a consequence of the penetration. As a reaction to her pain, you said that there was - and I quote - "Nothing". You just kept doing it.
35The impact of your offending has been profound. Your daughter feels very confused and does not understand why you abused her in this manner. She suffers mood swings, has difficulty sleeping, is angry because she did not tell anyone, and is upset because she thinks about her baby. She feels disappointed in you because instead of protecting her, you hurt her. She feels different from other girls of her age. She has become very isolated, has trouble communicating with others even her closest friends. She is very frightened that others will find out about what has happened to her and she finds it very hard to concentrate in class. She feels very uncomfortable to be around guys especially at school.
36Your wife in her victim impact statement sets out the devastating consequences of your actions. She is fearful of the negative effects that they will have on her children in particular your daughter in the future. Her heart is deeply broken for her daughter who has suffered physically, emotionally and mentally at a very young age. She is upset that you took away her childhood and her innocence. You did not let her enjoy life as a normal teenager and she has learnt a lot of things in the wrong way. She is worried about how her daughter will handle life after all the trauma she has been through and it concerns her what will happen to your daughter in the future in terms of her relationships.
37Your offending has also had a real impact upon your sons. Your older son expresses upset because of all the extra responsibility he must now undertake. He wrongly attributes blame to his sister. Your younger son is sad because he does not really understand what has happened and why you no longer live at home. The family now avoids going to social gatherings for fear people will ask about what happened and your wife has made up a story to tell your younger son. She is worried ultimately that he may find out the true reason for you leaving the family home.
38Your wife finds it difficult to work because she cannot concentrate on her job and she often ruminates about what has happened to her daughter and her family. She is very concerned about her children's safety particularly whenever she is away from them at work. Your wife's sleeping patterns have been disrupted and she is finding life very difficult. She has not forgiven herself for what occurred because this happened inside her own home without her knowledge.
39She blames herself because her daughter was not able to confide her problems to her, and she is very upset about the breakdown of the family unit. She feels conflicted because she still loves and cares for you but she is also concerned about her daughter and her future. Most of all, she states that she does not tolerate your wrongdoing.
40A victim impact statement was also filed by an aunt. She was told by your wife about the sexual abuse and the fact that your daughter was pregnant. The news hit her very hard and she has now disowned you as her nephew. She too is acutely aware of the impact of the offending on your family. She is very concerned for your daughter and fears for her future coping mechanisms and wellbeing because your daughter continues to experience nightmares and has trouble sleeping.
41Mr Alaniz, the gravity of your offending is serious, very serious. There are a number of aggravating features to your offending. As discussed with counsel during the plea hearing, I consider this to be a serious example of this sort of serious offending. Your behaviour was egregious and showed complete disregard for your daughter's humanity. You treated your daughter with utmost disdain like a mere chattel to be used for your own selfish needs. You had no regard for the harm that you inflicted upon your daughter whom you professed to love and protect.
42I have had regard to the fact that the offending concerns your biological daughter, it was over a protracted period of many years and that there was a significant age difference between you both. You exploited and abused your position of power over your daughter.
43The circumstances of the first charge would have been terrifying for her and thereafter you continued to manipulate and cajole her into submitting to your base demands. You exploited further the fact that you had saved her life in 2012 and used that fact as leverage to make her perform sexual acts for you in return. You persisted in forcefully penetrating her even though she told you she was in pain and asked you to stop. You forced her to watch pornography so she could learn various sexual acts that you would make her perform.
44You offended when others were present or nearby, such as your young sons or on the occasion when your parents were staying. You often offended when your wife was absent from the home. On the occasion you used the massage tool, she was asleep. Each time you penetrated your daughter, that involved a risk of transmission of STDs and pregnancy and was in blatant disregard for her welfare.
45A further aggravating feature of this offending is the fact that Natalie became pregnant at age 14. She endured vomiting and nausea, the symptoms of pregnancy, for many weeks. She had to cope with a late-stage termination with all the associated anxiety and stress that caused, together with the physical and psychological hurt that followed, and she worries about her baby.
46When you considered that there was a strong likelihood that she was pregnant, you tried to coax her to do things such as jump on the trampoline to try and bring on a miscarriage. You concealed your offending by postulating ridiculous alternatives as to why it was that your daughter's stomach was growing.
47Your actions must have concerned her greatly as there did not appear to be any limits to what you would do or make her do to satisfy your sexual desires. Your behaviour was depraved and contrary to the protective role of that a parent should play. It was a gross breach of trust.
48The offending involved multiple occasions of sexual penetration involving vaginal, anal, oral and digital sex on your young daughter, and at least on one occasion you attempted a sexual act using a massage tool, all of which would have been extremely painful and violent towards your daughter.
49This was sexual abuse of a persistent nature involving physical and emotional coercion that has resulted in real harm to your daughter. It must have been terrifying for Natalie to have endured such sexual abuse over so many years and there remains the very real potential for long-term harm to your daughter.
50Your actions were violent, repugnant and abusive. You were aware that what you were doing was wrong and your criminality represents the lowest depths of human depravity and I consider your moral culpability to be high.
51The court must strongly condemn your behaviour through the imposition of a stern sentence.
52Ms Line, on your behalf, accepted that this was extremely serious behaviour that warranted the imposition of a term of imprisonment. She emphasised in formulating the appropriate sentence the court must take into account the mitigating factors, namely that the plea of guilty was entered at the earliest opportunity prior to any committal hearing, your fulsome admissions and your expressed remorse. I accept those mitigating factors.
53I accept that you are to receive a significant discount for your early plea and that you have shown significant remorse demonstrated through your plea and also the significant admissions made to police upon your arrest. There is real utility in your plea and you have facilitated justice, and in particular by your plea you have spared your daughter and your wife the ordeal of having to come to court and give evidence on your trial.
54Through your plea, you accept full responsibility for your actions and you understand completely the wrongfulness of your actions. You do have insight into the effect of your offending upon your daughter and you do understand that she will be burdened by your behaviour for future years.
55Ms Line submitted having regard to your reaction upon your arrest and your expressions of remorse and contrition that the need for specific deterrence is not as high as otherwise required. She submitted that your risk of reoffending is low given you will be registered as a sex offender for life, there are intervention orders in place protecting your daughter and your wife, you have no prior convictions for sexual offending and there is no suggestion that you have offended sexually against your sons. She submitted that apart from the offending that you have played a positive role in the life of your family.
56Whilst you may have provided financially for your family and you were on the face of it a loving and supporting father and husband, these offences are in stark contrast to the impression that you sought to portray. By reason of your actions, you have now destroyed your family unit. You no longer have any contact with any family members apart from some letters you have received in custody from your brother.
57Whilst I accept that you have some genuine concerns for your family's future and you are prepared to support them in any way possible, I do not accept the submission that specific deterrence is any less in your case. I have noted that you intend to seek employment whilst in custody and you will remit whatever moneys you can to your wife for child support including any potential tax refunds. I note that you have also said that you will continue to work if you can as a cook and that will also assist you in remitting funds to your wife to assist with the family.
58You admitted your past serious criminal offending. I noted that none of those convictions were for sexual offending but nonetheless they are for serious offences involving violence.
59A report from Dr Turnbull, psychiatrist, was tendered. He did not find that you suffered any major psychiatric disorder or mental illness. He considered that you had some prospects of rehabilitation whilst in custody and that you were able to fully participate in any programs that are recommended to address your offending behaviour.
60I accept with appropriate treatment that your prospects for rehabilitation will be enhanced. At this stage absent any proper assessment of your risk of reoffending, I am cautiously guarded about your future rehabilitation prospects.
61Ms Line submitted that there should be partial concurrency between the two charges to reflect that the offending involves the same victim, the period of offending overlapped and the threat was made in the context of sexual offending. The two charges do represent distinct offending against your daughter and your sentence will reflect that and there will be some cumulation.
62Ms Stylianou, the prosecutor, emphasised the many aggravating features that have already been identified. She referred the court to the recent Court of Appeal decision of DPP v Charlie Dalgliesh (A Pseudonym) (Dalgliesh).[6] Whilst Dalgliesh deals with sentencing practices for incest, she submitted and I accept that the principles of law expressed by the court concerning the presumption of harm in cases involving sexual penetration of a child, the significance of the harm and the violence which such conduct entails and the need for stern punishment have application when a court is considering a charge of persistent sexual abuse of a child under 16.
[6] [2016] VSCA 1488.
63I have had regard to current sentencing practices[7] and the sentences that were discussed during the course of the plea hearing.[8]
[7]Sentencing Act 1991, s 5(2)(b).
[8]Bussell (A Pseudonym) v The Queen [2014] VSCA 310; BM v The Queen [2013] VSCA 3.
64Comparable cases within the same category of seriousness as your case provide an important though limited guide to the range of sentences reasonably open to me, the sentencing judge.[9]
[9]Hassan v The Queen (2010) 31 VR 28, 41[55], citing Hudson v The Queen (2010) 30 VR 610.
65In formulating the appropriate sentence, I have had regard to the gravity of your offending. I consider that this case falls within the high range of seriousness for this type of serious offence. Your offending involves an extreme invasion of your daughter's person. You persistently exploited a vulnerable child whom you impregnated. You violated societal norms and you have undermined your family unit. Your actions have caused long-term serious consequences to your daughter and other significant family members. You significantly breached the trust reposed in you by your child and your parental responsibilities.
66The court must impose punishment sufficient to send a message out to would-be offenders that if you indulge in such conduct, that you will receive stern punishment.
67In sentencing you, I have had regard to the relevant sentencing provisions and the factors I must take into account. I must balance all the matters counted in your favour with the need to reflect denunciation, just punishment and deterrence.
68On behalf of the community, I must condemn your behaviour in the strongest possible terms and the sentence to be imposed must provide for community protection in the future.
69I am satisfied that no sentence other than a term of imprisonment to be served is appropriate in all the circumstances of this case.
70I now ask that you stand please, Mr Alaniz.
71In respect to Charge 1, the make threat to inflict serious injury, you will be convicted and sentenced to two years' imprisonment.
72In respect to Charge 2, persistent sexual abuse of a child under 16, you will be convicted and sentenced to 12 years' imprisonment.
73I order that 12 months of the sentence imposed with respect to Charge 1 be cumulative upon the sentence imposed on Charge 2, making a total effective sentence of 13 years' imprisonment and I direct that you serve 10 years' imprisonment before being eligible for parole.
74I make the following declaration pursuant to s.6AAA of the Sentencing Act 1991. But for your plea of guilty, I would have imposed a term of imprisonment of 16 years to serve 12 years' imprisonment.
75Pursuant to s.18(4) of the Sentencing Act 1991, I declare by way of pre-sentence detention that you have spent 185 days in custody and I direct that this be entered into the records of the court.
76Following your convictions, you are subject to registration for life pursuant to the Sex Offenders Registration Act 2004 and this is mandatory. Shortly, my associate will approach you with your instructing solicitor and ask that you sign an acknowledgement of receipt of documents that tell you about the Sex Offenders Registration Act.
77I do not think there were any other ancillary orders, were there?
78MS STYLIANOU: No, that's correct, Your Honour.
79HER HONOUR: All right. So Ms Phair, can you accompany my associate and ask that your client sign that document.
80MS PHAIR: Yes, Your Honour.
81HER HONOUR: All right. A copy of that will be provided. So that completes the matter and Mr Alaniz can be removed from the dock, thank you.
82MS STYLIANOU: As Your Honour pleases.
83MS PHAIR: As Your Honour pleases.
84HER HONOUR: All right, we can adjourn.
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