Director of Public Prosecutions v Castillo
[2020] VCC 1673
•16 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW CASTILLO (pseudonym) |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 October 2020 | |
DATE OF SENTENCE: | 16 October 2020 | |
CASE MAY BE CITED AS: | DPP v Castillo | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1673 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Indecent act in the presence of a child under the age of 16 years - plea entered at earliest opportunity - unusual historical sexual offending – general deterrence - little need for specific deterrence - COVID-19 pandemic - lower end of the scale of moral culpability - remorseful
Legislation Cited: Sentencing Act 1991 (Vic) - Sex Offenders Registration Act 2004
Sentence: Community Correction Order for a period of 18 months with a condition that during that period you perform 100 hours unpaid community work – 6AAA: Community Correction Order for a period of three years with conditions that you perform 300 hours of unpaid community work and undergo courses directed at reducing your risk of re-offending
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Roodenburg | Office of Public Prosecutions |
| For the Accused | Mr D. Grace QC |
HIS HONOUR:
1 Matthew Castillo[1], on 7 October 2020, you pleaded guilty to committing an indecent act in the presence of a child under the age of 16 years between 1 March 2005 and 28 February 2006.
[1] A pseudonym
2 The maximum penalty for this offence is 10 years’ imprisonment.
3 Tendered as Exhibit A and read aloud in court was the Summary of Prosecution Opening Upon Plea. In short, you are presently 56 years of age. However, at the time of your offending you were aged between 41 and 43 years. Your victim is your daughter who was aged seven years at the time of your offending.
4 At the time of your offending, your daughter resided with you and your wife in Donvale. Your relationship with your wife, however, had been marked by separations and reconciliations throughout the period that you were married.
5 On one evening, your daughter fell asleep in the matrimonial bed. At the time that your daughter fell asleep, neither you nor your wife were present. Eventually, both you and your wife went to bed but at separate times. Your daughter recalls waking in the night to see you on top of your wife having intercourse with her. Your daughter could feel the bed moving and she quickly shut her eyes and pretended to be asleep, so that you and your wife would not know that she had seen you. After making these observations eventually, your daughter fell asleep. (Indecent act in the presence of a child under 16 years)
6 Your wife recalls the night and deposed that she awoke to you laying on top of her with your hand over her mouth, with your other hand you pulled down her pyjamas and underwear. You then put your penis inside your wife’s vagina and began having sexual intercourse with her. You told her to “shush”, an indication that you did not wish to wake your sleeping daughter.
7 Your wife recalls that, the following morning, your daughter spoke with her. Your wife, believing that her daughter had seen you and her engaging in sexual intercourse, apologised to her daughter and said that it would not happen again.
8 Your daughter made statements to the police concerning your conduct towards her. In your daughter’s second statement, dated 6 May 2019, she alleged the conduct that founds the charge on the indictment.
9 Your daughter’s statement of May 2019 contains many allegations of sexual impropriety said to have been committed by you against her when she was a child aged around seven years.
10 A committal proceeding was conducted in respect of all charges filed against you by the police and, ultimately, the prosecution against you resolved on 23 June 2020 with the Crown accepting that you be charged with the instant offence alone. Accordingly, your plea must be taken as one entered at the earliest opportunity and you are entitled to the benefits that flow to you from your plea being that it is some evidence of your remorse and that it has utilitarian value.
11 You do not have any prior convictions. However, you have relevant subsequent convictions in that, on 14 September 2011, you were convicted and sentenced by his Honour Judge Tinney to a total effective sentence of three years and one month imprisonment with a non-parole period of 20 months’ imprisonment for:
(a) sexual penetration of a 16 year old child under care, supervision and authority (one charge);
(b) indecent act with a 16 year old child under care, supervision and authority (two charges); and
(c) possess a drug of dependence (cannabis).
12 At the outset of the plea proceedings, Mr Grace, of Her Majesty’s Counsel, objected to the Crown tendering a Victim Impact Statement prepared by your victim daughter. The basis for the objection was that the contents of the statement proposed to be read aloud in court could not, in any real sense, be directed to the offending for which you fell to be sentenced.
13 In addition to the allegations made against you by your daughter that are no longer the subject of any criminal proceedings, your daughter had made a statement in respect to offending against her by another adult male at or about the same time as her allegations of sexual impropriety committed against her by you.
14 Having read the document proposed to be read aloud in court, I could not discern any of its contents as being referrable to the offence for which you must be sentenced. Accordingly, I did not accept the document or permit it to be read aloud in court. However, I must and do accept that, as a result of your offending conduct, you caused harm to your daughter.
15 Should you be sentenced to a term of imprisonment in respect to the instant offending, you will fall to be sentenced as a serious sexual offender in respect of that offence. Further, as you have previously been found guilty of both Class 1 and Class 2 offences, and as you will be found guilty of the present charge, which is a Class 2 offence, you will be required to comply with the reporting obligations under the Sex Offenders Registration Act 2004 for life.
16 Before continuing, I must note that it was contended by Mr Grace on your behalf, and not contested by the Crown, that neither you nor your wife realised that your daughter was awake at the time that you engaged in sexual intercourse. Further, it was not in contention that by saying “shush” to your wife, you indicated an intention to your wife that you did not wish to wake your daughter by the act of sexual intercourse. However the law must operate to deter the commission of indecent acts in the presence of children.
17 Mr Castillo, you are 56 years of age. You grew up in Fawkner and were raised in a loving and supportive family. Your father was an Italian migrant and worked as a fruiterer in his own business. Like many family businesses, you grew up working in that business.
18 You attended the local primary school, but were sent to Rossbourne School in Hawthorn, which caters for students with special needs. You had difficulty in literacy, numeracy and concentration. Later, you attended the Fawkner Technical School until you were 16 years of age.
19 Upon leaving school, you obtained and completed an apprenticeship in hairdressing. Whilst working as an apprentice, you worked part-time as a waiter. During this period, you lived at home with your parents and worked hard.
20 After finishing your apprenticeship, you worked in a number of different hair salons until, when aged about 24 years in 1988, you went into your own business. You went into business with a partner and your business failed owing to his dishonesty.
21 At the age of 30 in 1994, you travelled to England where you worked as a hairdresser, and worked at nights and weekends in a pub. It was whilst in England that you met your wife, and whilst in England she became pregnant. Together, you decided to return to Australia and lived with your parents in Doncaster. When your daughter, the victim, was born in 1998, you moved into your own home in Doncaster. However, you separated from your wife shortly thereafter.
22 During the initial separation, you maintained a good relationship with your wife and you had custody of your daughter. You worked part-time as a hairdresser and placed your daughter in care whilst you worked. After 12 months’ separation, you resumed your relationship with your wife. In 2001, a son was born to the marriage.
23 From 2000 until 2008, you ran a hairdressing business in Melbourne. During this time, from time to time, you would separate from your wife and thereafter reconcile with her. Throughout this time your wife assisted you in your business as your bookkeeper. When separated from your wife, you lived with your parents, and maintained a cordial relationship with your wife.
24 Throughout this period, you provided for your family’s financial needs and, in 2008, you sold your business and worked for a tree lopping company for a period of approximately two years. As part of this employment, you obtained your forklift driver’s licence and certificates to operate heavy machinery. You also learnt skills in sheet metal fabrication and welding. Later, you drove buses for a living and undertook courses to enter the security industry as a security guard.
25 In 2010, you commenced a relationship with a woman with whom you had been close friends since the early 2000s. It was against the 16 year old daughter of your partner that you committed the offences for which you were sentenced by his Honour Judge Tinney on 14 September 2011.
26 It was put to me, at the time of committing the offences for which you were sentenced by his Honour Judge Tinney, that you were separated from your wife but maintained a close relationship with her and your children. I was informed that you continued to provide financial assistance to your family.
27 Your absence whilst in prison was explained to your children by creating the fiction that you had obtained work interstate in the mines, and you were therefore unavailable to your children.
28 I was informed that when your daughter, the victim in this matter, found out about the true reason for your absence in her life, she cut off all contact with you and your parents, with whom she had been very close.
29 Whilst undergoing the sentence imposed upon you in 2011, you undertook the sex offenders’ course and you were released on parole at the earliest possible opportunity.
30 Upon being released from prison in 2013, you obtained work as a hairdresser and have continued to work in this occupation. You have not re-offended since being released from prison. It was put to me that you are completely rehabilitated and that you hoped to eventually reconcile with each of your children.
31 I was informed that, in April 2016, a chance meeting with your daughter brought about a rapprochement between you. However, this renewed relationship came to an end in September 2017, when your daughter made a statement to police alleging that you had offended against her sexually.
32 In the interim, you had commenced a relationship with another woman, and you have a child together, a daughter born in 2016. During this period of rapprochement, your daughter, formed a loving relationship with her half-sister. However, by March 2017, when your daughter, the victim, married, she expressly forbade you and your parents from attending her wedding.
33 As a result of being charged with a number of serious sexual offences, your relationship with your new partner ended, as she was informed by the Department of Health and Human Services (DHHS) that you were a registered sex offender, and had been charged with further offences and, as a result, you were not permitted to have any contact with your young daughter.
34 Tendered as Exhibit B was a letter from you directed to the court together with a bundle of references. You reside with your elderly parents and your father is recovering from cancer treatment. You were described by your mother as “invaluable in our day to day lives”. One of your referees, Mr Ensabella, in his reference, wrote as to your mother suffering from severe arthritis and Meniere’s Disease.
35 It was put on your behalf that this is an unusual historical sexual offending. I agree. Whilst there is a need to reflect general deterrence in any sentence that is imposed upon you, there seems little need for specific deterrence, as you have served a sentence of imprisonment for subsequent offending and completed a sex offender’s course as part of that sentence. You have not re-offended since your release from prison. You have always been gainfully employed save for the period in which you were imprisoned and for a few months in recent times owing to the COVID-19 lockdown restrictions.
36 Your offending is mitigated by your belief that your daughter was asleep at the time that you engaged in intercourse with your wife and, further, by the evidence that you took steps to ensure that you did not wake your daughter whilst you engaged in intercourse with your wife.
37 I accept the submission that the circumstances of your offending places it at the lower end of the scale of moral culpability and criminality.
38 Mr Grace submitted that the appropriate sentence in all the circumstances was an adjourned undertaking with conviction.
39 In response, the Crown conceded that your offending was at the lower end of the scale.
40 Further, the Crown acknowledged that you were remorseful and had attempted to rebuild your life. The Crown submitted that, in all the circumstances, a Community Correction Order with conviction was the appropriate sentencing disposition.
41 When questioned as to what conditions should be placed on such an order, the Crown submitted that the only appropriate condition was one of unpaid community work. Would you please stand?
42 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I convict you and, with your consent, I sentence you to a Community Correction Order for a period of 18 months with a condition that during that period you perform 100 hours unpaid community work. Are you prepared to enter into that Community Corrections Order?
43 OFFENDER: Yes.
44 HIS HONOUR: Thank you.
45 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to a Community Correction Order for a period of three years with conditions that you perform 300 hours of unpaid community work and undergo courses directed at reducing your risk of re-offending.
46 I direct that you be subject to the reporting conditions under the Sex Offenders Registration Act 2004 for life.
47 Now, Mr Castillo, my associate will bring to you a document that sets out the terms of the Community Corrections Order and you are to read it and sigh it. Now, Mr Grace, do you wish to assist your client in that respect?
48 MR GRACE: Yes, thank you, Your Honour.
49 HIS HONOUR: Mr Castillo, as well, there is a document that relates to the provision of the Sex Offenders Registration Act. I ask you to sign it. It is an acknowledgement that you have received that document and that is all it is. Thank you Mr Castillo. You may come out of the dock please and sit behind your counsel.
50 Now, Mr Castillo, would you please stand? In respect to the Community Corrections Order, it is to last for 18 months and will expire on 15 April 2022. You must attend at the Ringwood Community Correctional Services at Level 1, 2 Bond Street, Ringwood, Victoria within two clear working days after the commencement of this order. The terms of the order is it is to last 18 months from today and you are to perform 100 hours of unpaid community work during that period.
51 What would take place now is I will have a copy of the Community Corrections Order and the document relating to the provisions of the Sex Offenders Registration Act copied for your records. You may be seated please.
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