Director of Public Prosecutions v Coronado
[2015] VCC 1859
•18 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-14-00315
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRISTIAN ANDRES CAMPOS CORONADO |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF PLEA: | 11 November 2015 |
| DATE OF SENTENCE: | 18 November 2015 |
| CASE MAY BE CITED AS: | DPP v Coronado |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1859 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – rape – penile and digital penetration – no prior convictions – each count of rape part of the same transaction of offending – no aggravating circumstances – lower end of seriousness for offences of this kind – period served in immigration detention reckoned as time served.
Legislation Cited: Crimes Act 1958; Sex Offenders Registration Act 2004; Sentencing Act 1991
Cases Cited:R v Simon [2010] VSCA 66; Hasan v R (2010) 31 VR 28; Director of Public Prosecutions v Cartwright [2015] VSCA 11
Sentence:Total effective sentence of 5 years’ imprisonment with a minimum non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P Stefanovic | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms L Torres | Sunshine Legal |
HIS HONOUR:
1Christian Coronado, you were charged with two counts of rape on indictment, constituted by digital penetration, followed by penile penetration. After a trial, the jury returned a verdict of guilty on both counts. The seriousness of your offending is demonstrated by the fact that these offences carry a maximum term of imprisonment of 25 years.
2You attended a party on 24 May 2013 at a house in Brunswick East. The complainant also attended that party. It was a housewarming party. One of the people putting on the party was Andy Hoffman. At about 1.00am, the complainant got into Hoffman’s bed and went to sleep. At some point, the complainant removed her lower clothing so that she was naked from the waist down.
3At some stage after she had fallen asleep, you entered the bedroom and lay beside her. She gave evidence that she felt you touching her vagina. She felt you running your fingers along her vagina and then she felt you penetrate her vagina with your fingers. She pushed your hand away. She said that what I have just summarised occurred over a matter of seconds. She then felt you penetrate her vagina with your penis.
4She believed that the lapse in time between you penetrating her vagina with your fingers, and then with your penis, was less than ten seconds. She felt your penis partially penetrate her vagina. She could not recall whether you withdrew your penis or whether it was the movement of your body on hers as she turned to look at you, which resulted in your penis withdrawing from her vagina. You got up from the bed and dressed. You then left the bedroom.
5Shortly afterwards, the complainant also got up from the bed, dressed and identified you as the person who had raped her. From the time you lay beside the complainant in the bed, until the time you got up from the bed, was probably a short period of time, given that the first act of penetration was fairly short lived, followed by some seconds, and then followed by the second act of penetration, which was also fairly short lived.
6What is clear from the evidence is that the complainant did not know you. Although she had spent some hours at the party before the rapes occurred, she had not met you nor spoken to you. It is unclear how you became aware that she was asleep in the bedroom but it is obvious that you saw a sleeping female in the bed in the bedroom, which prompted you to enter the bedroom and engage in sexual activity with her.
7It is trite to say that the jury’s verdict is consistent with you having engaged in that sexual activity intentionally, without the complainant’s consent, and that you were aware that she was asleep at the time when the sexual activity commenced, and that by reason of that fact, she could not have been consenting.
8Your counsel submitted that the circumstances of the offending should be characterised as follows:
·It was opportunistic. That is, there was nothing to suggest that it was predatory, premeditated or planned;
·From the time you entered the bedroom, to the time you left the bedroom, was a short period of time;
·When you appreciated that the complainant was not compliant, you discontinued the sexual activity immediately;
·There were no other aggravating features, such as any aggression demonstrated by you, any violence, any pressure or insistence by you, physically or verbally, that she be compliant.
9The prosecutor essentially agreed that this characterisation is consistent with the evidence of the complainant.
10You are now 22 years of age. You were 20 years of age when the offending occurred. You were born in Chile. Your mother and father reside in Chile, as do your two sisters, who are 21 and 15 years of age. Your father is employed in the tourism industry. The financial position of your family was described by your counsel as being relatively modest. Although your father was able to travel to Australia to see you, the financial position of your family is such that neither of your parents are able to travel to Australia to support you during the trial. The financial position of your mother and father is such that it is likely that they will be unable to travel to Australia to visit you in prison.
11Until the event of your offending, you appear to be a person of exemplary character. You showed intelligence and commitment as a schoolboy. You obtained high school entry based upon selection. You finished your formal secondary schooling in 2011. Your father’s involvement in tourism influenced you to seek training as a chef. He also influenced you to come to Australia to improve your English language skills.
12You arrived in Australia in 2012. You went to a college for the purpose of improving your English language skills. At first you lived with a Chilean family for about six months and then shared a house with other students. Your progression in learning the English language was productive. You applied for a training position at the William Angliss Institute, which is a well-known training college for persons interested in a career in the hospitality industry. The course had a duration of two years.
13You showed significant aptitude in training as a chef. You are one of five commercial cookery and patisserie students who earned a $2,500 scholarship in 2013 and you repeated that success in 2014. However, your counsel described a number of difficulties which you encountered while undertaking that course of training. The course occupied 25 hours per week. You were partly maintained by money sent to you by your mother and father. You supplemented that by working as a chef at the Quality Hotel on Collins Street.
14You combined attending the course five days per week with working 25 hours per week. You obtained subsequent employment as a chef at the Smith Hotel in 2014. Your employer was described to me as a tough employer. You were unable to maintain a hold over the share house. You were forced to reside in a backpacker establishment. You then lost your job.
15It would appear that it was in that setting that your bail was revoked on 5 May 2015 because you did not have a stable place of residence. You were subsequently bailed on 29 May 2015 but that came to an end when the Department of Immigration cancelled your visa. You were then held in immigration detention at a centre in Maribyrnong, and then on Christmas Island, from early June until the jury verdict, when I remanded you in custody.
16The immigration detention was something like being remanded in custody. You lost your liberty. You were no doubt detained under restrictions relevant to your movements. You were apparently given some freedom, such as access to a telephone. Since being remanded in custody, you have been held at the Port Phillip Prison. You have suffered bullying because you are a sex offender, or perceived to be such, by other inmates. You have been subjected to unreasonable detention by being put into lockdown for 23 hours per day, apparently for your own protection.
17The immigration detention and remand has placed you in a setting of isolation because you have no family to support you in Australia. The same will occur when you are sentenced to an inevitably significant term of imprisonment, and in particular, you will be faced with the cost of telephone calls to Chile to speak to members of your family, which will come as some financial cost to you. You will only be able to afford this expense if you can earn an income in prison, limited to $30 a week, and by whatever monies your family are able to deposit in an account for your benefit.
18You have no prior convictions. At 20 years of age, when you committed these offences, and now 22 years of age, you should be characterised as a youthful offender.
19In addition to the matters I have just summarised, your counsel referred me to two decisions which it was submitted should influence the sentence of imprisonment I must impose on you. The first decision was R v Simon [2010] VSCA 66. The accused was about 22 years of age when he entered the complainant’s bed. He indecently assaulted her by touching her breast, and he penetrated her vagina with his fingers on two occasions. Each occasion was separated by about a minute.
20Your counsel relied upon a number of aspects of the judgment of the Court of Appeal. The trial Judge concluded that the episode was effectively one continuous episode. The Court of Appeal did not interfere with that conclusion. The trial Judge sentenced the accused to six months’ imprisonment on the count of indecent assault and four years’ imprisonment on each count of rape with no cumulation. The total effective sentence was four years. The trial Judge fixed a non-parole period of two years.
21I was also referred to Hasan v R (2010) 31 VR 28, and in particular, the Court of Appeal’s observations regarding the limitations inherent in sentencing snapshots, and also the review of sentences for rape referred to in the body of the judgment and in an appendix.
22I was referred to the Court of Appeal’s observation that an examination of comparable cases will be of assistance to a trial judge in making an objective assessment of the range of sentences which are applicable to cases where the gravity of the offence is of a similar nature to the particular offence for which the offender is to be sentenced, while bearing in mind the limitations inherent in such an exercise.
23I am in no doubt, and the same was conceded by your counsel, that you must be sentenced to an immediate term of imprisonment because of the gravity of your offending. The sentence must suitably deter you from engaging in conduct of this kind. It must contain an expression of general deterrence to send a message that offending of this kind will attract an immediate sentence of imprisonment of significance. It must also contain the strong expression of denunciation of your conduct.
24Although I accept that the correct characterisation of what occurred is that what you did was opportunistic, you nonetheless set upon a young woman who was asleep in bed and proceeded to take advantage of the fact that she was asleep, and partially naked, to obtain sexual gratification. You must have known that she was asleep. You must have known that she could not be consenting to any level of sexual activity whilst in that state.
25It was as a result of her vulnerability, being both asleep and partially naked, and possibly suffering the effects of intoxication, that you set upon her in the hope that she might be compliant, or that you might obtain the sexual gratification you were after, from a woman who was possibly in a state where she might not be aware of what was happening to her.
26Despite her protesting, and waving you away when you penetrated her vagina with your fingers, you were not deterred. You persisted in your attack upon her by penetrating her vagina with your penis, and it was not until it was very apparent to you that she was non-compliant that you desisted. Your conduct, in all respects, was utterly abhorrent.
27The complainant has not made a victim impact statement. However, I accept that she was shocked by what you did when she emerged from the bedroom. I think it is understandable that she would be emotionally affected by being violated. In the absence of a victim impact statement, I cannot go beyond this likely level of impact on the complainant in determining the sentence I must impose on you.
28There are a number of factors which I must take into account in moderating the sentence of imprisonment which I must impose on you. You have no prior convictions. You are a youthful offender. The rapes were part of the same transaction of offending. The rapes are at the lower end of seriousness for offences of this kind. There were no aggravating circumstances associated with the rapes. Your service of a term of imprisonment will be all the more onerous because you will not receive any visits from your family, and will be without a level of support which others with family in this state would probably have available to them.
29In addition to each of those matters, I consider that I must take into account the period you have spent in immigration detention. It is approximately a period of four months, from early June to the date upon which I remanded you in custody, after the guilty verdicts were returned by the jury. It occurs to me that the reason why you were held in immigration detention was directly associated with this offending, and so I propose to take it into account, broadly in the fixing of the sentence I must impose on you.
30I have considered the relevant sentencing snapshot No 176 of June 2015; the rape case summaries published on the Judicial College of Victoria website, and the authorities which I have already referred to. As a result of your plea of not guilty, you are not entitled to a reduction in the sentence I must impose on you, which would ordinarily be attracted by a plea of guilty and statements of genuine remorse. Whilst I am influenced by Simon and Hasan, the sentencing snapshot, and the rape case summaries, I am not bound by them. They assist me in identifying the boundaries which mark the range within which the sentence must fall in your case.
31I have additionally paid due regard to the matters raised in the plea made by your counsel. The sentence which I now impose on you is proportionate to the gravity of the offences, in the light of the objective circumstances of their occurrence. I would now ask you to stand please.
32On the first count of rape, constituted by the digital penetration, I sentence you to three (3) years’ imprisonment.
33On the second count of rape, constituted by the penile penetration, I sentence you to four (4) years’ imprisonment.
34I order that two (2) years of the sentence on the first count be served concurrently with the sentence on the other count. You are therefore sentenced to a total period of imprisonment of five (5) years, and I will set a minimum term of three (3) years before you will become eligible for parole.
35You can now sit down. I order that the period of formal pre-sentence detention, totalling 54 days inclusive of today, be reckoned as part of the sentence to be served. I order that this be noted in the Court records.
36The offences are Class 3 offences, as defined under the Sex Offenders Registration Act 2004. I would need to be satisfied pursuant to s11(3) of the Sex Offenders Registration Act 2004 that you pose a risk to the sexual safety of one or more persons in the community before ordering that you be registered as a sex offender. I am not so satisfied. In exercising the discretion not to order that you be so registered, I have followed the two-step process referred to in the Director of Public Prosecutions v Cartwright [2015] VSCA 11. I am not satisfied that the risk you pose can be classified as a real risk.
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