Director of Public Prosecutions v Alves Dos Santos

[2022] VCC 1209

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

CR-21-02437

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSE ALVES DOS SANTOS

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2022
DATE OF SENTENCE:	27 July 2022
CASE MAY BE CITED AS:	DPP v ALVES DOS SANTOS
MEDIUM NEUTRAL CITATION:	[2022] VCC 1209

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW -- Sentence

Catchwords:              Sexual Assault of a Child Under 16 --- Sexual Penetration of a Child Under 16 --- Accused aged 27 years --- No prior criminal history --- Accused from Timor Leste --- In Australia on Temporary Work Visa --- Visa cancelled --- Likelihood of Deportation --- Plea of Guilty --- Remand during COVID-19 Pandemic --- Mandatory SORA Registration

Legislation Cited:      Sentencing Act 1991 --- Sex Offender RegistrationAct 2004

Cases Cited:Guden v The Queen (2010) 28 VR 288 -- Matamata v The Queen [2021] VSCA 253

Sentence:                  Four years imprisonment with non-parole period of two years and three months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	Office of Public Prosecutions
For Accused	Ms S. Wendlandt	Fitzroy Legal Service

HER HONOUR:

The Charges

1Jose Alves Dos Santos, you have pleaded guilty to the following charges:

·     Charge 1 of sexual assault of a child under 16; and

·     Charge 2 of sexual penetration of a child under 16.

2You were 27 years old at the time of this offending.  You were born in East Timor.  In October 2019 you entered Australia on a working visa and have worked in various locations as a fruit picker.

3The victim of those offences was 12 year old Ellie Moulden.[1]  She was a stranger who you picked up late at night on 9 May 2021 as she walked along the roadside near Mildura.  You drove and parked your vehicle in a secluded location near the Murray River before you sexually assaulted her.

[1] pseudonym used.

Background to the Offending      

4On Sunday 9 May 2021 the victim, Miss Moulden, was at her home with her parents.  During the night she had an argument with her father which culminated with her father breaking her phone.

5Following this, Miss Moulden left home and walked north along the Calder highway towards Mildura.  She planned to stay the night with a friend in Mildura.  There was no moon and no street lighting so it was extremely dark.

6You were driving with your friend Nelson Da Costa along the Calder Highway towards Mildura from Melbourne, returning from a holiday.

7You drove past Miss Moulden, stopped your vehicle and offered her a lift.  She accepted and sat in the rear seat of the car.  You had not met her until that time.

8When she got into the car she asked you to drop her off at Centro, Mildura Central Shopping Mall, in Mildura.  You told her that you were going to drop off your friend, Mr Da Costa, first.

9You and Mr Da Costa had a conversation with Miss Moulden.  You asked her her name, her age and why she had left home.  She told you her name and claimed that she was 14 years old.  She told you about the argument and the fact that her phone was broken.

10You dropped Mr Da Costa home to his address in Mildura.  You then invited Miss Moulden to sit in the front passenger seat.  She moved to the front seat and again asked to be dropped off at Centro.  You told her you did not know where that was.

11Before you drove away from Mr Da Costa's home you asked Miss Moulden if she smoked and offered her money and food.  She told you she did not smoke and she did not want any money or food.  You then asked her if she wanted to go back to your house and stay with you.  Miss Moulden told you she did not want to do that.

12You then grabbed her backpack and placed two $50 notes into it.  She told you she did not want any money and tried to give it back to you.  She asked you what the money was for and you did not reply.

13Miss Moulden then asked you to drop her off at her friend's home in Argyle Street,[2] Mildura.  You again told her you did not know where that was.

[2] pseudonym used.

14You then drove through the Mildura Central Business District to a remote area on Hugh King Drive near the Murray River.

The Offending

15You parked the car and sat in your car and talked.  You again asked her how old she was and where she went to school.  She told you that she was nearly 14 years of age and went to a local college.

16You then showed Miss Moulden your mobile phone, including social media accounts with images of girls, and asked her if she knew any of them.

17You then reached over and touched her face.  You said, 'I really want to kiss you'.  Miss Moulden refused and shut her mouth.  You then used your thumb to force her mouth open and kissed her on the lips.  As you kissed her you forced your tongue into her mouth.  She bit your tongue and you pulled away and looked at her in a strange way.  You are not charged in relation to kissing her but it provides the context of what followed.

18Undeterred, you then reached your hand under her jumper and under her bra, grabbing her breasts.  That act constitutes Charge 1, sexual assault of a child under 16.

19You grabbed her and tried to pull her closer.  She was resisting you and able to push your hands away from her body.

20You then unclipped her seatbelt, looking around to see if anyone else was in the area.

21You then reached over and undid the top button of her jeans.  She asked you, 'What are you doing?'  You did not respond and you then undid the zip fly on her jeans.

22Miss Moulden asked you to stop.  You did not reply, putting your hand into her jeans and moving it towards her vagina.  She crossed her legs in an attempt to stop you, but you placed your hand into her underwear and touched the skin in the area around her vagina.  You then inserted your fingers into her vagina.  That act constitutes Charge 2 of sexual penetration of a child under 16.  Miss Moulden described that touching as much deeper than she would wipe after she had urinated in the toilet.  It is not alleged that there was full penetration of your fingers into her vagina, but the penetration is constituted by what she described.

23As you were penetrating her vagina Miss Moulden slapped your neck.  You pulled your hand out of her clothing and rubbed your neck.  You did not say anything and again looked at her in a strange way.

Subsequent Events

24Miss Moulden then told you to drive her to her friend's home.  You agreed.  You asked her why she wanted to go there, but she did not reply, instead directing you where to go.

25As you were driving away from the river you stopped the vehicle and asked her to return the money you had given her.  She returned the two $50 notes and you then placed a $20 note into her backpack.

26You then drove Miss Moulden to her friend's address.  You tried to say something to her as she left the vehicle, but she ignored you.

27She made an immediate complaint to her friend whose father then called police.  Police attended just after midnight.  Miss Moulden reiterated her complaints to police, telling them you had your finger in her vagina for about five seconds.

28Miss Moulden underwent a forensic medical examination.

29CCTV footage assisted police to identify your vehicle.  However, by the time they attended at the registered address you were already living in New South Wales, having moved to Coffs Harbour on 12 May 2021.

30You were spoken to on 17 May 2021 in Coffs Harbour.  When asked about this incident you told police you and your friend had helped out a girl.  You were later arrested and interviewed on 19 May 2021.  You essentially reiterated that you had picked a girl up on the roadside and helped her out.  When sexual allegations were put to you, you claimed that you kissed her with her consent, and that any other sexual touching was consensual, though you denied putting your hand into her pants or penetrating her vagina.

31You admitted that she looked very young and that it did not surprise you to hear of her true age.

Sentencing Principles

32Sexual offending against a child is inherently serious.  It is so because of the likely harm, potentially physical but almost always psychological, when sexual offending is committed against a child.  The sentencing court must impose a penalty which expresses the community's denunciation of such conduct.  It must generally deter others from engaging in such a breach of the bodily integrity of a child and must protect other children from such abuse.  The sentence I impose must also deter you from ever acting in this way again.  

Victim Impact

33This must have been a frightening event for Miss Moulden. 

34I have received victim impact statements from her and her auntie.  Miss Moulden's is a drawing which demonstrates her feelings in pictures.  It includes the word 'Trust' which I interpret to mean she trusted you to take her where she needed to go.  Instead you took advantage of her.

35Miss Moulden's auntie states that Ellie has been living with her since this event.  Initially she was not going to school and was hiding in her bedroom.  She blamed her parents who she saw as putting her into the situation where you picked her up on the roadside.  Your offending left her blaming her parents for not keeping her safe.  She says Ellie is a closed book, reluctant to discuss these events.  She has told her aunt that she thinks about what occurred once or twice a week.  The court processes and delays have overshadowed life.

Objective Seriousness

36Although there are features of this offending which decrease the seriousness, such as the relative brevity and limited extent of contact, there are a number of matters which elevate the objective gravity of this offending.

37First, the victim here was a very young girl - not even a teenager, but a 12 year old.  You were aware she was very young and a schoolgirl.  You were 15 years her senior.

38Second, she was vulnerable, not just because of her age but because of the circumstances she found herself in.  That is, she had fought with her parents and left home late at night.  You knew about those circumstances because she told you.  You also knew she had no way to contact anyone or call for help because she had no working phone. 

39Third, you ignored her repeated requests to drop her to safety, deliberately keeping her in your car and driving her to a remote location.  There she was even more isolated and vulnerable.

40Fourth, although picking up Miss Moulden arose from a chance meeting, your offending was premeditated at least from the time you dropped off your friend.  From then you kept Miss Moulden in your car with an intention to have sexual contact with her.  Consent is no defence when the victim is a child, but it is apparent you determined to have sexual contact with her regardless of her views. 

41Fifth, tied to that, even when she resisted you persisted.  First, despite her verbal protests you continued your determination to kiss her.  Then, despite her biting you on the tongue, you were undeterred, putting your hand up her jumper and grabbing her breasts.  Still she protested and still you continued, putting your hand into her pants and managing to touch her vagina despite her efforts to cross her legs.  Only her physical slap of your neck brought you to your senses.

42The whole incident, though fortunately brief, must have been terrifying for her.  Her distress was immediately observed by her friend and her friend's father, and by police who soon attended. 

43In contrast to those aggravating features, the touching in Charge 1 was brief.  The penetration in Charge 2 was slight and was also brief.  Any premeditation as I have described was limited and the situation arose more broadly due to the opportunity of you passing Miss Moulden on the roadside.

44Taken together I accept the submissions of your counsel that these offences fall at less than the mid-range of seriousness.  That argument was not resisted by the prosecution who characterised the offending as 'approaching mid-range'.

45There is no doubt that offending such as this warrants a term of immediate imprisonment.  Your counsel sensibly agreed that that is the only option here.

Maximum Penalties

46The maximum penalty for Charge 1, sexual assault of a child under 16, is 10 years' imprisonment.  The maximum penalty for Charge 2, sexual penetration of a child under 16, is 15 years' imprisonment.

Standard Sentencing Regime

47Further, these sentences are now subject to the standard sentencing regime.  The standard sentence for Charge 1 is four years' imprisonment.  The standard sentence for Charge 2 is six years' imprisonment.

48Standard sentencing is but one factor I must take into account.  Those figures are neither a starting point nor an end point, representing what a mid‑range offence under those sections warrants, subject to the range of mitigating and aggravating features pertinent to the particular case.

49I have taken those matters into account.  I have also taken into account current sentencing practices more broadly while recognising that most other authoritative cases were not decided under the standard sentencing regime.  As with all cases there are similarities and differences which point in opposite directions.  Ultimately I am required to impose a sentence which is just in all the circumstances and that is what I have endeavoured to do.

Matters Personal

50Turning to matters personal to you, you were born in a small village called Kribas in Timor Leste.  You are now 28 years old.  You are second in a sibship of eight children.  Two of your siblings, including your  twin brother, have passed away.

51Your parents remain living in Timor Leste.  Your upbringing was very simple and a reasonably impoverished one.  Your mother was the primary carer and your father worked mainly as a carpenter and ran a small holding, mostly in market gardens.  He is now in receipt of a veteran's pension in recognition of service during the Indonesian occupation of East Timor in 1999.

52You attended primary school in your village, but there was no local high school.  You were only able to attend high school in Dili after your father started to receive a pension.  You then went on to study a four-year Bachelor of IT course at the Institute of Business in Dili.

53In 2013 you withdrew from your course and started to work as a labourer on a dam construction site to earn money to support your family.

54You arrived in Australia in October 2019.  You applied for and received a temporary visa for a farm work program.  The purpose of your trip was to work and earn money in Australia and remit those funds home to your family.

55You worked as a farmhand in Werribee South, then in a meat production factory in Warrnambool, in Coffs Harbour picking blueberries, and finally in Mildura picking grapes.  You have limited English skills.

56You have no criminal history here or overseas.

57You have no substance misuse or alcohol dependency issues.

58You were arrested and charged on 19 May 2021 and you have been in custody since that time.  You are very isolated.  Your legal proceedings are all conducted with the help of a Tetum interpreter. 

59Despite completing English and IT courses in custody your English remains very limited. 

Immigration Status

60Your immigration status now is that your temporary work visa has been cancelled.  You are aware that you will likely be deported on completion of any sentence I impose and you have not lodged any documentation against that likely outcome.

61I accept that the prospect of deportation will not necessarily stop you being granted parole.  I accept that deportation is not a matter which can be relied on to either increase a non-parole period, nor for that matter to decrease a head sentence.

62Further, although the possibility of an executive action which may see you deported is not a matter which I can take into account, the impact on you is discrete.[3]  That is a matter which the authorities indicate I can and should take into account.  For you your time in custody will be made more difficult because, first, you are aware of that eventuality; second, you remain isolated from family and friends in a foreign country; and, third, you carry the burden of the fact that your goal to work here and send money home is now thwarted; and, four, any intention you may have had in settling in this country is now lost to you.

[3] Guden v The Queen (2010) 28 VR 288 as referred to in Matamata v The Queen [2021] VSCA 253

Remand During COVID-19 Pandemic

63In addition to those matters I take into account that your period of remand has been entirely through the COVID-19 pandemic.  Higher courts have recognised that that is a most difficult period for prisoners in this State with more frequent lockdowns and other restrictions.  I take those matters into account.

Pleas of Guilty

64I also take into account the fact that a plea of guilty entered during the backlog created by the pandemic warrants a palpable discount in sentencing.  I take that into account. 

65You indicated your intention to plead guilty to Charge 1 at the committal hearing on 24 November 2021.  That was a very early plea.  A plea of guilty always saves the community the time and expense of a jury trial.  Importantly in a matter such as this it saves a young girl from giving evidence and reliving what was no doubt a traumatic event.  I take that into account. 

66The matter came before me as a Sentence Indication Hearing on 6 May 2022. On 16 June 2022, Ms Wendlandt, your counsel, indicated that you intended to also plead guilty to Charge 2.  You were then arraigned at the Plea Hearing on 13 July 2022.

67Whilst the plea of guilty to Charge 2 is not at the earliest possible stage, I take it into account in the ways I have described.

68I also take into account the fact that the victim's VARE did not disclose extensive detail of the offending.  The complainant, no doubt traumatised, was very reluctant to talk about her experience.  There is of course no criticism of her.  However, it does make your plea of guilty, in particular to Charge 2, reasonably significant.  That is, it was not a strong or overwhelming prosecution case and you may otherwise have elected to test that evidence at a trial.  As was rightly conceded by Mr Sonnet, the prosecutor at the Sentence Indication Hearing, the fact you did not do so warrants a significant discount in sentencing.

Cumulation and Concurrency

69I also take into account that these two offences occurred in the same incident and in close succession.  While they are distinct offences, their temporal and circumstantial connection warrants a greater degree of concurrency.

70I have also reduced the non-parole period I would otherwise have imposed to reflect your lack of prior criminal history, your pleas of guilty entered during the COVID pandemic and time on remand during that pandemic, and the matters relevant to your immigration status which create additional isolation and burden on you.

Sentence

71Mr Alves Dos Santos, the sentence I impose is as follows:

·     On Charge 1, of sexual assault of a child under 16, you are convicted and sentenced to a term of two years and four months' imprisonment.

·     On Charge 2, of sexual penetration of a child under 16, you are convicted and sentenced to a term of three years and 10 months' imprisonment.

72I direct that Charge 2 is the base sentence.  I direct that two months of Charge 1 be served cumulatively on Charge 2.   The total effective sentence therefore is four years imprisonment.  I further direct that you are to serve two years and three months' imprisonment before becoming eligible for parole.

73I declare that you have served 434 days pre-sentence detention and that such term should be reckoned as having been served under this sentence.

74Pursuant to s6AAA of the Sentencing Act 1991, but for your pleas of guilty the sentence I would have imposed would have been one of six years' imprisonment, with a non-parole period of four years and two months' imprisonment.

Sex Offender Registration

75Finally, you have been found guilty of one class 2 offence (i.e. Charge 1 – sexual assault of a child under 16) and one class 1 offence (i.e. Charge 2 – sexual penetration of a child under 16).  As a result you are a registrable offender under the Sex Offender Registration Act 2004 and the mandatory period is one of life. I make that order.