Director of Public Prosecutions v Artiga

[2016] VCC 2031

IN THE COUNTY COURT OF VICTORIA  Revised

Not Restricted Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR-15-01624

DIRECTOR OF PUBLIC PROSECUTIONS

v

VICTOR ARTIGA

---

JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATEOFHEARING:	21/10/2016 & 06/12/2016
DATEOF SENTENCE:	22/12/ 2016
CASEMAYBECITED AS:	DPP v Artiga
MEDIUMNEUTRAL CITATION:	[2016] VCC 2031

REASONS FOR SENTENCE

---

APPEARANCES:	Counsel	Solicitors
For the Director	Ms K. Mildenhall	OPP
For theAccused	Ms A. Valos	Ann Valos Criminal Lawyers

VICTORIAN GOVERNMENT REPORTING SERVICE

7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone [phone]

HIS HONOUR:

1Victor Artiga, you have pleaded guilty to one charge of rape and one charge of theft. The maximum penalties for these offences are as follows:

·       Rape, 25 years' imprisonment; and

·      Theft, ten years' imprisonment.

2I have heard a summary of the offending. It is not my intention to repeat the whole summary. It has been tendered as Exhibit A in the plea proceedings.

3Briefly, in the early hours of the morning on 14 February 2015, you entered a private property in Fitzroy, through an unlocked back door. The victim was asleep in her room. There had been a party at the address and she had gone to bed in the early hours of that morning.

4The victim had moved into the property on 2 February 2015 and her bed was located in the lounge room of the house. One of her friends saw her asleep that morning at 3.20 am. You entered the lounge room and you saw her asleep in the bed. You approached her and removed her underpants. You inserted your penis into her vagina from behind and moved it in and out of her vagina while she slept. The victim awoke and realised what was happening. She turned and saw you. You were not wearing a condom. She told you to leave and after a relatively short time, you did so.

5The victim immediately complained to her friends, Helena Sinclair and Olivia Cincotta Lee. The police were contacted at 4.05 am. They arrived at the address at 4.27 am. The victim noticed that her mobile phone had been taken. You were interviewed on 3 March 2015. You have been in custody since that date.

6Mr Artiga, this is grave offending. The victim was in her home and asleep in her bed.   You violated the sanctuary of her home, a place where she was

entitled to feel safe and secure. You entered her property without permission, you went into a room where she was asleep and you raped her. You were not wearing a condom.

7In assessing the gravity of your offending, I do acknowledge two matters. First, your actions were opportunistic and not planned. Second, the shocking violence that constitutes the offence of rape was not, in this case, accompanied by other acts of violence.

8Understandably, your offending has had a profound impact on the victim’s life.

The victim impact statement details how the victim has been unable to escape the reality of having been raped in her own bed by a complete stranger. She says this:

“Victor’s actions have instilled a level of fear that I have yet to overcome. Albeit having moved out of the house where it happened, I still experience nightmares of waking to him there. Shadows in my room turn into figures lurking in the dark, while a rustle outside or a knock on the door remains enough to raise my heartbeat. I can hardly bear to be alone at night and must sleep with the lights on in order to settle my fears.”

9The  victim  is  still  struggling  emotionally.    She  has  sought  help  from a psychologist and been prescribed anti-depressants to help manage her anxiety and depression. The victim concludes her statement with these words: “Victor may have left a deep scar on my life, but he has not destroyed it.”

10The victim’s friend, Ms Sinclair, has also provided a victim impact statement detailing how your criminal acts have negatively impacted on her life, both emotionally and socially.

11This is a case where general deterrence, that is, the need to deter others from behaving in the way that you did, is a paramount sentencing consideration. Denunciation of your behaviour and just punishment are also central sentencing considerations.

6.You have a significant criminal history. It commenced in the Children’s Court in 2004 with offending that included one count of robbery. Since 2006, you have appeared regularly in various courts for drug offences, low-level violence offences and dishonesty offences. In 2006 and 2007, you were found guilty on three occasions of wilful and obscene exposure. You have received probation orders, a youth supervision order, community corrections orders and imprisonment orders.

7.Because of this history, specific deterrence and protection of the community are relevant sentencing considerations. Your prior criminal history, together with your personal circumstances, which I will discuss more fully in a moment, also explain why I regard you as a poor prospect for rehabilitation. Past attempts to support you in the community have not been successful.

8.I now turn to matters relevant to your background and those matters in mitigation.

12       You come from a background of abuse and deprivation. You were born in El Salvador. Your mother was 16 years old at the time of your birth. You had no contact with your father. Your childhood was traumatic, with considerable violence between your mother, her family and your step-father. You were placed in your step-father’s care and lost contact with your mother. When you were six, you moved to Australia with your step-father. You were subject to regular physical abuse at his hands. The Department of Human Services intervened when you were 14 and you were placed in foster care for a short time. At the age of 15, you were moved to a residential unit in Keilor Downs. You were in residential care until your 18th birthday. You were sexually abused whilst in care. You have recently made a statement about that abuse to the Royal Commission into Institutional Responses to Child Sexual Abuse.

13Unsurprisingly, you did poorly at school and left during Year 10. You have an extensive illicit drug history that seems to have commenced around the time

you were taken into care. You started abusing alcohol as a 13 year old. You have been a heavy user of cannabis, heroin and amphetamines since your mid-teens.

9.Mr Artiga, I am satisfied that you have come from circumstances of deprivation and disadvantage. There must be some moderation of your moral culpability to reflect the great hardship you suffered during your formative years. On the other hand, your background has left you with a propensity to breach the law with monotonous regularity and your current offending is a dramatic escalation in your criminal behaviour. This means that I must give appropriate weight to the principle of community protection.

14Susan Carey, clinical neuropsychologist, who saw you on 27 October 2016, is of the opinion that your long history of heavy alcohol use and illicit polysubstance abuse has resulted in a substance-related brain injury that causes cognitive difficulties that are “predominantly related to verbal new learning and memory and difficulties with aspects of language-based executive functioning.” She opines that because of your brain injury you "may experience difficulties managing aspects of the prison environment".

15Based on this assessment, I accept that there should be some moderation of sentence, on the basis that imprisonment will be more onerous for you than it would be for someone without your brain injury. However, the other principles recognised in the case of Verdins have no application. Ms Carey states that your cognitive difficulties are unlikely to have caused or contributed to your offending behaviour and that your "current period of detention has not and will be unlikely to have an adverse effect on your mental health.”

16You will be given credit for your plea of guilty. It was not an early plea of guilty.

When the police interviewed you on 3 March 2015, you did not accept responsibility for your behaviour.

17In September 2015, you ran a contested committal where the victim was

required to give evidence. At that hearing, your barrister took issue with the victim’s account and suggested that what happened to her was not a nightmare, but a fantasy.

18The matter did not resolve until after the final directions hearing, which was held on 23 June 2016. I am satisfied that your change of heart in relation to the offending is indicative of remorse. You told Ms Carey that whilst you were on remand, you had watched a television program that involved a sexual assault and that it made you think you were in the wrong. You told Ms Carey that you had thought about your behaviour and the impact of your offending on the victim.  You felt bad about your actions and regretted your behaviour.

19Importantly, your plea of guilty has saved the victim and other witnesses from the trauma of giving evidence at trial. The victim has said in her victim impact statement that when she heard that you would plead guilty, "A wave of shock and relief passed over me." The victim is grateful that she will not be subjected to a trial. Your plea has also saved the community the cost and expense associated with a criminal trial.  You will be given credit for all these matters.

20Can you please stand.

21On the charge of rape, you are convicted and sentenced to six years' imprisonment.

22On the charge of theft, convicted and sentenced to 12 months' imprisonment.

23I order three months of the sentence on Charge 2 be served cumulatively upon the sentence on Charge 1.

24This makes a total effective sentence of six years and three months.

25I fix a minimum term of four years and six months before you will be eligible for release on parole.

26I make a declaration that you have served 660 days' pre-sentence detention.

27If you had pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence of eight years and three months, with a minimum term of six years and nine months.

28Because you have pleaded guilty to a Class 3 offence, I have to determine whether I should make an order under the relevant provisions of the Sex Offenders Registration Act 2004. I can only make such an order if I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons, or of the community. I have been advised that you have pending relevant charges that are yet to be resolved in the Magistrates’ Court. It is alleged that these offences were committed shortly after the offences on the current indictment. A finding of guilt on those matters would be a relevant matter to be considered on the application for registration.

29The prosecutor and your counsel both submitted that the application be adjourned until the summary charges have been resolved. I intend to follow that course. The application for registration will be adjourned to a date to be fixed.

30You can be seated there.

31Are there any other matters?

32MS VALOS: No.

33MS MILDENHALL: No, Your Honour.

34HIS HONOUR: The prisoner can be removed, thank you.

- - -