Director of Public Prosecutions v Caballero (a pseudonym)
[2023] VCC 886
•30 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUGO CABALLERO (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2023 | |
DATE OF SENTENCE: | 30 May 2023 | |
CASE MAY BE CITED AS: | DPP v Caballero (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 886 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Sexual assault on a child under 16 – No criminal history – Biological daughter as victim – Mid-range example of offence – Genuine remorse – Good prospects of rehabilitation – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 s 49D(1); Sentencing Act 1991, ss 5, 6AAA, 18, 44; Sex Offenders Registration Act2004.
Cases Cited:DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148; Clarkson v The Queen (2011) 32 VR 361; DPP v Weybury [2018] VSCA 120, [54]; Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 6 months and following the period of imprisonment placed on a 2 year Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F Holmes | Office of Public Prosecutions |
| For the Accused | Ms A Beech | Tony Hargreaves & Partners Lawyers |
HIS HONOUR:
Introduction
1Hugo Caballero,[1] you have pleaded guilty to one rolled-up charge of sexual assault of a child under 16 contrary to s 49D(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016, which carries a maximum penalty of 10 years imprisonment.
[1] A pseudonym.
2You have no prior criminal history.
Circumstances of the offending
3A prosecution opening was tendered on the plea and may be summarised as follows:
4You were born in 1980 and were 42 years old at the time of the offending. The victim in this matter is your biological daughter, who was 12 years old at the time of the offending.
5You resided at an address in regional Victoria with your wife and biological mother of your children. Aside from the victim, you and your wife have one other child, a son who was born in 2014.
6Despite having her own bedroom, the victim mostly slept on a mattress on the floor next to your and your wife’s bed in the master bedroom. Your son has co-slept with your wife from birth and would also sleep in the master bedroom with you and your wife, in your bed.
7Sometimes the victim would also sleep in the main bed in the master bedroom. When this happened, you would all sleep horizontally, along the short side of the bed, to allow everyone to fit.
8On Monday 25 April 2022, the victim had a cold and your wife suggested she sleep in the main bed in the master bedroom with the rest of the family as it would be warmer.
9Around 10.00 pm that night, the victim went into the main bed in the room with you. You grabbed the side of the victim and rubbed your penis between her buttocks for ‘maybe over 10 seconds’ until your wife entered the room (Charge 1 – Sexual assault of a child under 16). At this point, you withdrew your penis and began ‘being a dad’, ‘hugging’ and ‘kissing’ your daughter goodnight.
10Your wife lay on the bed on the other side of the victim, who was now lying between you and your wife with her back towards you. Your son was on the other side of your wife. You again rubbed your penis between the victim’s buttocks until you ejaculated on her anus (Charge 1). You told her not to tell anyone about the incident.
11Your wife lay awake in bed 30 minutes after having entered as she had napped earlier in the day. She noticed the victim was stirring a little and she assumed you were asleep as you were still. The victim continued to stir for a short while after which time your wife placed her arm to her right, trying to feel for where the victim’s body was under the blanket. She felt that the victim’s stomach was bare up to and over her breasts. Your wife’s arm went diagonally over the victim’s stomach and chest, and she felt your arm withdraw quickly from the victim’s upper body.
12The victim then said, ‘Everybody get off me, I’m going to bed’. She went to her mattress on the side of the main bed and then got back up to go to the bathroom. Whilst in the bathroom, she wiped her vagina and anus with a tissue, noticing your bodily fluid which she described as ‘slimy and slippery’. When she returned from the bathroom, she went to sleep on the mattress on the floor in the main bedroom.
13The offending on this occasion was not an isolated incident.
14The next morning, on 26 April, your wife waited for you to leave the house to take your son to school. Once you had left, she told the victim she had felt your arm on her breast the evening prior and asked if you had been touched anywhere else. The victim disclosed that you touched her everywhere, including her stomach, breasts and vagina. Your wife told her to act normal and to not say anything to you whilst she worked out a plan for them to be safe.
15Your wife gathered clothes until you came back from school drop off and the post office. She was working remotely at the time and told her employer that she had a situation to attend to, and logged off for the day. She tried to sneak around and get clothes and motioned to the victim to be quiet. When you commenced a work call, your wife signalled to the victim to follow, and they left the house through the front door.
16Your wife and the victim collected your son from school before heading to the Seymour Police Station where the incident was reported to the police. The victim provided a statement in the form of a video and audio recording of evidence (VARE) to Detective Senior Constable Andrena Taylor. An early evidence kit was completed by the victim at the time, and the clothing she was wearing at the time was seized.
17At approximately 1.43 pm on 26 April, Police attended at your residence where you were cautioned and arrested. You asked the investigators if you could return inside to remove a pot from the stove. You were allowed to do so and whilst inside, obtained a kitchen knife and immediately caused a self-inflicted injury by slitting your own throat.
18You would not drop the knife on police request. OC foam was deployed and police used their tasers which proved effective. Police provided immediate first aid and you were ultimately flown to Royal Melbourne Hospital for urgent medical attention.
19At approximately 4.20 pm on 26 April, the victim was examined at the Royal Children’s Hospital. Dr Jennifer Anne Sutherland Smith noted that the victim had showered prior to the assessment, her ano-genital anatomy was normal with no sign of trauma and no fluid, discharge or acute injuries were detected. Forensic specimens were collected from three areas of the victim: the vaginal vestibule, anal verge and anal canal.
20DNA results excluded you as a contributor on the anal verge and anal canal swabs however you were not excluded from the partial, single source DNA detected on the vaginal vestibule swab. This source was regarded to be a non-sperm fraction.
21Eight days later, on 4 May, you were under hospital guard during which time you were confident and alert. Detective Leading Senior Constable Michael Guppy and First Constable Keely Gissing conducted an interview at 3.22 pm in which you gave ‘no comment’ responses.
Nature and gravity of the offending
22Sexual offending against young people under the care of adults is very serious offending. The victims of such offending are vulnerable and reliant on adults to care for them particularly where in this instance you are the biological father of the victim who lived with you as part of your family. Further, in the circumstance of this case where the victim had come into your bed and was sleeping between you and your wife, she was entitled to feel safe. You took advantage of that circumstance for your own sexual gratification, grossly breaching your role of trust as the victim’s parent. Further, while this is offending on a single day, your inappropriate conduct towards your daughter had begun with other sexualised behaviour as you described to psychologist Patrick Newton and which is reproduced in his report of 11 May 2023.[2]
[2] At [37]-[38].
23It is well settled that the absolute prohibition on sexual activity with a child is founded on a presumption of harm. The significance of violence and harm which such conduct entails cannot be overstated.[3]
[3] DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148, [47], referring to Clarkson v The Queen (2011) 32 VR 361, [3].
24The seriousness of the offending is also recognised by the maximum penalty imposed by parliament. Sexual assault of a child under the age of 16 carries a maximum penalty of 10 years imprisonment. It is also a standard sentence offence where the standard sentence is 4 years imprisonment. I note also that the charge to which you have pleaded guilty is a rolled up charge reflecting the two instances where you rubbed your penis between your daughter’s buttocks, the second instance concluding when you ejaculated on your daughter’s anus.
25Ms Beech who appeared on your behalf submitted that the offending is not at the high end of the spectrum of seriousness, and in all the circumstances fell in the mid-range of gravity. Ms Beech highlighted the fact that the offending was of short duration and lacked features of aggravation, such as the fact that no physical pain was suffered by the victim.
26In my view, in the circumstances, while your offending does not represent the most serious example of an offence that may be captured by this charge, as noted, it is still, by its nature, serious offending. While terms such as ‘mid-range’ may be problematic when assessing where offending sits within a range,[4] in this instance I accept that categorisation.
[4] DPP v Weybury [2018] VSCA 120, [54].
Personal circumstances
27You are now 43 years old. You were born in the Philippines, an only child raised by your grandparents and aunt in your early years. You describe these years as having been stable, with your grandparents and aunt providing consistent care and discipline in a context of affection. You did not have frequent contact with your mother, who you saw approximately once a year, and on the occasions where she did see you, you report that she displayed ‘aggression’ towards you. You had no contact with your father until meeting him just before you migrated to Australia at age seven.
28Your mother married your stepfather in 1986, when you were five or six years old. She migrated to Australia with your stepfather and you joined them here soon afterwards. The three of you settled in the outer eastern suburbs of Melbourne. From this point onwards, your childhood was ‘difficult, mostly highly unstable and subject to periods of intense family violence and fleeing from residence’. Your stepfather was a chronic alcoholic and subjected your mother to repeated physical, verbal and emotional abuse. Your mother in turn also physically abused you, including once breaking a mug on your head during an argument. You were also physically and verbally abused by your stepfather.
29Your mother and stepfather separated for the first time shortly after the birth of your half-sister, when you were 10 years old. Thus began a cycle of reconciliation and separation, until permanent separation in 1998. Your mother went on to have other relationships which were also marked by instability.
30You received primary schooling in the Philippines, which continued after you migrated to Australia. You excelled academically in the Philippines but were only an average student in Australia, where you were subjected to teasing, harassment and exclusion due to your race. You also received limited support from your teachers. You did not experience any significant academic or disciplinary issues in high school, even though your home life was relatively unstable due to your parents’ abusive behaviour. You completed Year 11 and left to seek employment.
31You went on to work in a range of positions, including in a factory and in a major supermarket while studying over a long period to complete pilot training. You passed your commercial pilot exams in 2009 but have never worked as a pilot. You worked for Melbourne City Council from 2003 until you were made redundant in April 2022. Up until this point , your work history was positive and consistent. More recently, you have worked as a contracted food delivery driver and have been developing your skills to undertake construction work.
32Your relationship with your wife has been your only serious relationship. You had been together since 2002 until your arrest on these matters. You describe this relationship as having been ‘a good relationship’ and have expressed considerable grief at its loss. Although you are hopeful that you and wife may ultimately reconcile, you have acknowledged that it would take ‘a miracle’. You remain in contact with your wife via text message, with your discussions, which you characterise as being ‘respectful and positive’, focusing primarily on the welfare of the children and the management of your assets.
33You are an infrequent drinker and other than some brief experimentation with cannabis as a teenager, have not used illicit substances.
34Clinical and forensic psychologist Patrick Newton assessed you on 3 April 2023 and a report authored by him, detailing the findings of that assessment, was tendered on the plea. As noted above, you explained to Mr Newton that the offending developed out of the physical proximity between you and your daughter which came about as a result of the co-sleeping arrangement, a practice common amongst south-east Asian families. Your family had slept in this fashion since the children were infants. As your daughter began to mature physically, your interactions had ‘steadily become more intimate in character’ – you began ‘rubbing her tummy: not in a medicinal way, but affectionate’. You then began touching her on other areas of her body, perceiving her to be welcoming this conduct, reporting to Mr Newton that your daughter had also initiated by placing your hand on her body – ‘it just became something that happened between us and it shouldn’t have’.
35You told Mr Newton that this offending had occurred in a period of particular stress; you were working lengthy hours and dealing with chronic financial stressors. You had also been informed that your job was likely to be made redundant. You denied that the offending was sexually motivated, notwithstanding the nature of your conduct and the fact that you were erect at the time. You unequivocally acknowledged to Mr Newton that your conduct was wrong and abusive, and were able to demonstrate some empathy for your daughter regarding the effects of your behaviour and the violation of her trust.
36Mr Newton concludes that you meet the diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mood, but notes that your symptoms are ‘reactive in nature rather than reflecting the outworking of a more fundamental mental disorder’, in the sense that your symptoms have arisen primarily as a response to your ongoing legal matters. Mr Newton regards your periodic bouts of suicidal ideation with some concern, concluding that you are at an elevated risk for impulsive acts of self-harm.
37With respect to your sexual adjustment, Mr Newton identified two key areas of concern. The first is your tendency to attribute a precocious sexual interest to young women and your perception of them as being more sexually mature at a given age than is accurate. The second is your problem distinguishing between healthy affectionate contact on the one hand and erotic or sexualised feelings on the other. Mr Newton opines that there is a clear need for you to engage with intensive offence-specific treatment, as your comments about your daughter ‘initiating’ contact and deriving pleasure from the sexualised contact suggests you have only limited self-awareness.
38You have been engaging with psychologist Peter Hanley since May 2023 to gain better insight into your offending and have expressed an intention to continue with Mr Hanley after your legal matters are finalised. Mr Hanley authored a psychological report dated 13 April 2023, which was tendered on the plea. Mr Hanley notes you have made ‘very good progress’ towards your treatment goals, which include expanding your understanding of sexual violence and its impact, improving your coping skills and management of stress, enhancing empathy for the victim and developing skills for implementing boundaries and minimising your risk of reoffending. Mr Hanley attests that you have expressed ‘emotionally congruent’ empathy for your daughter and have discussed the abuse of your position of trust in relation to her. I take the contents of Mr Hanley’s report into account, however I must also balance his conclusions against those of Mr Newton, who is of the view that your progress towards the goal of maintaining appropriate ‘interpersonal boundaries’ remains ‘only partial’, as even now you continue to ‘equivocate about whether your conduct had a sexual motive’.
39Using the STATIC-99R and RSVP tools to assess your risk Mr Newton’s opinion, based on the totality of the information he had to hand , assessed you as posing a moderate risk of recidivism, which is about average relative to other sex offenders undergoing sentence.
40Mr Newton concludes that your risk of sexual recidivism would be best reduced through your participation in a comprehensive program of offence-specific treatment, focusing on assisting you in ‘improving your insight into issues surrounding the sexual development of young people, sexual boundaries, and the harms caused by sexual contact between adults and children’. I note the treatment you are currently undertaking with Mr Hanley is offence-specific in this sense, although Mr Newton cautions that there are ‘still areas of concern which require more intensive attention’. That said, you have expressed a ‘strong desire’ to continue with treatment and this is encouraged by Mr Newton.
41Your mother and sister each prepared character references for the Court, as did your friend. Each speak of the shock they experienced when they heard of your offending, and are adamant that this behaviour is out of character and not in keeping with the honest and reliable family man you have shown yourself to be in the past. Your mother and sister speak with a united voice with respect to your acceptance of wrongdoing and the steps you have taken to address your psychological issues. Your mother in particular highlights that you remain committed to counselling despite the financial pressure this places on you, as you continue to work to support your wife and children.
Sentencing considerations
42Ms Beech highlighted a number of matters in mitigation.
43First is your plea of guilty, which was entered early. Your plea carries significant utilitarian value, sparing the time and expense of a jury trial and saving witnesses from having to give evidence. In the current circumstances, the plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[5]
[5] Worboyes v The Queen [2021] VSCA 169 at [39].
44It was submitted that you have demonstrated ‘overwhelming’ remorse over and above that signified by your plea of guilty, and this is substantiated by the comments of Mr Hanley and Mr Newton in their respective psychological reports. The personal references provide further support for your genuine expressions of remorse. In the circumstances I accept that you are beginning to develop insight into your conduct and that you have expressed genuine remorse.
45Turning to your prospects of rehabilitation, I note that you have no prior criminal history and there has been no subsequent offending. Ms Beech further submitted that your sustained engagement with offence-specific treatment, as demonstrated through your completion of 22 sessions with Mr Hanley, over the last 12 months, demonstrates a sustained commitment to rehabilitation. While you still have some work to do, Mr Hanley’s assessment of your progress is positive and you are committed to continue this treatment, or any other treatment as ordered by the Court. In all the circumstances I assess your prosects of rehabilitation as very good.
46It was submitted that any time in custody would be more burdensome for you based on two factors. First, the nature of your conduct would require that any time in custody would be served under protection. Secondly, that you would be vulnerable as you have experienced a significant emotional reaction as a result of the charges and the criminal process. While it was not submitted that your psychological conditions gives rise to Verdins principles, I take into account your vulnerabilities as outlined in Mr Newton’s report and the potential impact of a custodial sentence.
47General deterrence and denunciation of your conduct are the prominent sentencing considerations in this instance. A message must continue to be conveyed that people in positions of trust as parents or guardians of children will be met with stern consequences if they consider breaching that trust by engaging the type of conduct that you engaged in in this instance. As to specific deterrence, given your lack of prior history, your sustained treatment to date and the further treatment you will be required to undertake, in my view specific deterrence need only carry minimal weight in the sentencing discretion.
48In addition to the matters that I am required to take into account under s 5 of the Sentencing Act1991 (‘Sentencing Act’) I must also take into account that sexual assault of a child under 16 is a standard sentence offence. The standard sentence for that charge is 4 years imprisonment.
49Having identified and considered the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty and the standard sentence, in this case I form the view that the sentence I will impose on the charge on the Indictment falls well below the standard sentence.
50It was submitted on your behalf that a term of imprisonment is not required and that the applicable sentencing considerations are able to be met by a Community Correction Order alone. Having taken into account all relevant matters, in my view your offending does require a term of imprisonment to be imposed. However, I am also of the view that a combination sentence pursuant to s 44 of the Sentencing Act is able to meet the relevant sentencing considerations, while also providing you with support and treatment as you continue your rehabilitation in the community.
Sentence
51Mr Caballero, would you please stand.
52Hugo Caballero, on Charge 1, sexual assault of a child under 16, you are convicted and sentenced to 6 months imprisonment as the prison component of the combination sentence.
53Upon your release from custody you will be placed on a Community Correction Order for a period of 2 years. While all Community Correction Orders are punitive in nature, the focus of the order will require you to continue offence specific treatment, you will be required to undergo treatment in relation to your mental health and you will be subject to supervision.
54Pursuant to s 18 of the Sentencing Act, I declare that 10 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
55Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 2 years with a non parole period of 12 months.
56Pursuant to the Sex Offenders Registration Act 2004, you will be a registered offender with a requirement that you report for a period on 8 years.
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