Director of Public Prosecutions v Espinosa

[2024] VCC 1895

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01819

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUANITO ESPINOSA

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2024
DATE OF SENTENCE:	26 November 2024
CASE MAY BE CITED AS:	DPP v Espinosa
MEDIUM NEUTRAL CITATION:	[2024] VCC 1895

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE

Catchwords:              Charge of procuring sexual act by fraud - false representation of wearing a condom during intercourse – serious offending – vulnerable victim – sex work - indifference to dignity and conditions of agreement - concerns of infection, trauma, financial loss – willing to plead guilty at the earliest possible stage – modest mitigation for contrition – lack of insight into offending – difficult childhood – delay – suitably-tailored order – offender specific programs

Legislation Cited:         Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic)

Cases Cited:   DPP v Zhang [2019] VCC 1962, DPP v Diren [2020] VCC 61

Sentence:  Two year Community Corrections order, 6AAA: Were it not for the plea of guilty in this case, had the matter proceeded to trial but resulted in a guilty verdict, the sentence that would have been imposed is 18 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Albert	Office of Public Prosecutions
For the Accused	Mr N. Goodenough	Victoria Legal Aid

HER HONOUR:

Introduction

1Juanito Espinosa, you have pleaded guilty to an indictment containing one charge of procuring sexual act by fraud, which carries a maximum penalty of five years' imprisonment.

2The circumstances in which you came to commit that offence are outlined in the summary of prosecution opening on plea dated 8 November 2024, which was read into evidence in your plea in mitigation of penalty and marked as Exhibit A.

3Since the conclusion of the plea in mitigation of penalty, I have received a community correction order assessment outcome report dated 18 November 2024, which I will now receive and mark as Exhibit B.

4In addition to the matters developed in oral argument, your counsel relied on the following exhibited documents:

·        outline of submissions on plea dated 8 November 2024 (Exhibit 1);

·        psychological report prepared by Dr Matthew Barth dated 3 November 2024 (Exhibit 2); and

·        character reference of Mary Espinosa (your wife) dated 11 November 2024 (Exhibit 3).

5I have taken all exhibited documents into account in determining my reasons for sentence and the ultimate order, as well as having reflected carefully upon the matters advanced by counsel in oral argument.

Circumstances of offending

6At around 11pm on 15 December 2021, you arrived at a brothel in a suburb west of Melbourne, and attended the 'Intro' room, where you were introduced to each of the sex workers available for an engagement.  Signs were displayed in that Intro room which stated 'No condom, no sex', and 'It is illegal to remove a condom.  Removing a condom without consent is sexual assault'.  The complainant, whom I will refer to using a working name 'Star', which is not the working name that she uses, was working that evening as a sex worker at the brothel.  You booked her through the manager of the brothel, for a 30-minute standard service, paying the $120 cost in cash.

7Star led you upstairs to Room 6, which also displayed the 'No condom, no sex' sign. She checked you for sexually transmitted infections, and you then had a shower, and she went downstairs to get a condom and a plastic freezer rubbish bag and then she returned to Room 6.

8You engaged in sexual activity with her, and mounted her and attempted to insert your penis into her vagina without wearing a condom.  She told you 'No', and that you had to put a condom on.  You said 'Okay', and got off her.

9She removed a condom from a packet, and fitted it tightly onto your penis, and then she sat back on the bed.

10You then inserted your penis into Star's vagina and penetrated her for a few minutes.  During this sexual act, she could not see your penis, nor feel if you were wearing a condom.  During intercourse, the condom dislodged, and you became aware that you were not wearing it. You continued to penetrate her without advising her that you were not wearing a condom, which is your false representation for the purpose of your charge of procuring sexual act by fraud.  Intercourse continued in this way, until you then ejaculated. By your plea, you have admitted your intention that Star would continue to participate in unprotected sex as a result of her being unaware that the condom had dislodged.

11She had agreed only to participate in intercourse that was protected by the use of the condom.

12When you got off her, Star looked to make sure that the condom was still on your penis, and noticed, for the first time, that it was missing.  She asked you where it was, and you told her that it 'fell off'.  She then inserted her fingers into her vagina to check whether it had come off inside her, but established that it had not, and, as she removed her fingers from her vagina, she scooped out semen.  She then saw the condom on the floor about halfway down the long side of the bed.

13You went into the shower, and she approached you with semen on her hands and confronted you, using the words 'You took the condom off because this is cum inside me'.

14Understandably, she was distraught and immediately went downstairs.  She told the manager of the brothel, and another of the sex workers.  She showed them the semen on her fingers, and then washed her hands.

15The manager went up to Room 6, and found you getting dressed, and she asked you what had happened, and said to you 'You've taken the condom off and ejaculated in her.'  You falsely denied ejaculating in her, and told her that what Star had on her fingers was her own bodily fluid.

16The manager informed you that it was against the law to remove a condom without consent, and offered you two alternatives: ie, to apologise to Star and give her $30 for a morning-after pill, or the manager would call police.  You told her to call police, and that 'Police won't do anything; this is what happens at a brothel'.

17She told you to get dressed and come downstairs, which you did, and you sat in the reception area, and police were called.

18Star and her co‑worker went upstairs to Room 6, picked up the condom, and observed that it was dry and did not contain semen, and they confronted you.

19The manager took a photo of you, in case you left before the police came, and at that point you became agitated, and tried to pay the manager the $30, which she would not accept, and you attempted to leave.

20Star initially stood in front of the doorway and told you that you were not leaving until police arrived, and she then moved away.  You went to your vehicle.  At that time, police were on the phone with the manager, and asked to speak to you, and the manager brought you the phone in your vehicle, and police told you to remain until they arrived, which you did, and the police arrived minutes later.

Investigation and interview

21Police arrived at the brothel at about 11.20pm, and spoke to Star, the manager, and you, and removed the condom for investigative purposes.  The scene was photographed, and you were arrested and interviewed, and you gave a DNA reference sample.

22Star was taken for forensic medical examination, and the examination swabs taken from her vagina later revealed the presence of sperm, containing a mixed DNA profile of two persons.  Results of the forensic analysis of the profile indicated of the analysis were that the sample provided extremely strong support for you being a contributor to the profile.

23During your police interview, you said to police that you had attended the brothel many times, and on this occasion you were not told anything about the services they provided.  You told police that a month earlier, you had been to the brothel and had intercourse with Star, and you purchased extra services from her, for an additional amount.

24You falsely denied that there was a rule at the brothel that a condom must be worn when having sex, and you claimed you did not pay attention to the signs on the walls indicating that a condom must be used during sex.

25You told police that you had paid $120 for the engagement with Star, and you believed that you would be obtaining intercourse during that booking.  You denied that there was any conversation about a condom, but accepted that Star put a condom on you, and you falsely claimed the condom was a bit loose.

26You accepted penetrating her vagina with your penis, and accepted that it looked like the condom was going to pull off.  You were not looking at the condom, because you were concentrating on intercourse with Star.

27You denied removing the condom, and claimed it was an accident that the condom came off, and denied realising that the condom had come off.

28You told police that during intercourse, it felt as if the condom peeled off, and that you did not stop when you realised the condom had fallen off because you and Star were enjoying it, and you were not a clever person to think that way, you were in the middle of it, and both of you were aroused.

29You accepted that of course you felt the condom was off, and that you finished intercourse earlier because it was off.  You denied ejaculating inside Star, and denied that Star said anything about the condom coming off, until you were out of the shower after intercourse.  You accepted that you did not tell Star anything like that the condom had fallen off during intercourse.

Effect on the victim

30I was informed by the learned prosecutor that Star has declined the opportunity to provide a victim impact statement. Instead, I will read aloud a portion of her police statement as to the impact of your offending upon her.

31She stated:

'This whole incident has been traumatic for me.  ...  [I felt] like I had no rights and no right to charge him because I'm a sex worker.'

32In addition to the trauma that you have caused her, I note that, as a result of your offending, she was required to have a hepatitis B vaccine and an immunoglobin prophylactic for hepatitis B antibodies, which were extremely painful.  You exposed her to risks of infection and endangerment to her health and wellbeing, and possible pregnancy. As a result of the necessity of testing and treatment, she was prevented from returning immediately to work, and as a result she had no income just before Christmas, and had no extra money to buy her children presents.

Plea of guilty and timing; remorse

33Whilst your offending occurred on 15 December 2021, as you were overseas for a large part of the 2022 calendar year, you were not charged until January 2023,.  You offered to plead guilty to the proceeding charge at the filing hearing in the Magistrates' Court, which was unfortunately rejected by the prosecution.  This offer resulted in the resolution of the matter at a point approaching the commencement of trial. A committal had, in the meantime, ensued, and you were committed to stand trial on a more serious charge that did not proceed.

34I accept and take into account that you were willing to plead guilty to this charge at the earliest possible stage of proceedings.  At the time of your offer to plead guilty, the Court was continuing to experience a significant backlog of cases due to the effect of the COVID‑19 pandemic upon the listing of trials. I significantly mitigate penalty to reflect the utilitarian benefit of your expressed willingness to proceed on this charge, and eventual plea of guilty.

35My assessment of the quality of your remorse is somewhat more guarded. In your interview with police, you used expressions consistent with an attitude that deprioritised the rights of sex workers, and Star in particular, and you falsely denied what had occurred.  In your recent assessment for a Community Corrections Order, you continued to misunderstand some of the elements of this charge. I understand that you have now had the opportunity to reflect upon your behaviour and its considerable criminality, undermining Star's capacity to negotiate boundaries around the sexual act that she had agreed to, and that you had paid for, as it did, exposing her to the fear of infection and trauma, and I provide modest mitigation for your contrition as presently expressed.

Personal circumstances

36You are now aged 47, and were 44 at the time of your offending.  You were born and raised in the Philippines, the only child from your parents' union.  You have a younger half-brother and half-sister.

37I have the benefit of a psychological assessment and report from Dr Matthew Barth, and he has told me that you told him that your childhood in the Philippines was 'very tough', and you were exposed to violence as you lived in a high-crime area.  You were often anxious about your surroundings.

38Your parents separated when you were very young, and your father did not have any involvement in your life.  Your mother worked hard to support you, and you were mainly raised by your maternal grandparents.  Your mother subsequently moved to Australia, and you remained in the Philippines with your grandparents.  Whilst your grandfather was very strict with you, you were never mistreated or abused, and you report that they raised you like you were their own son.

39You immigrated to Australia when you were approximately 17 years old, and I am sorry to observe that your mother died from complications from diabetes about one year after you arrived, which understandably caused intense grief in you.  Your grandparents died about 20 years ago.

40You have two adult children with a former partner: a son aged 21, and a daughter aged 19.  You were with another former partner for 7 years, and you share a son who is now 16 years of age.  I understand that your 16-year-old has autism spectrum disorder, which has proven to be very challenging for your previous partner, from whom you are now separated.

41You completed your schooling in the Philippines, and, after you arrived in Australia, you attended Doncaster High School and undertook Year 10, and then were required to repeat that year due to your poor English proficiency.  You then left school at the beginning of Year 11, and joined the workforce.  You have mainly been employed in the hospitality industry, ultimately working as a chef for a number of restaurants in Melbourne and Sydney.

42You have a strong work ethic, and you enjoyed your career as a chef.  However, during the pandemic, you found work hours interfered with your capacity to raise your children, and in 2020 you left the hospitality industry and gained employment as a forklift driver.  You have been employed with DHL for approximately 18 months.

43You have been married to your present wife for four years, and I have the benefit of a letter from her.  She has known you for more than 25 years, as you were classmates in high school back in the Philippines, and childhood friends.  She came to Australia in April 2023 with her daughter to live with you, and you now share a house, with her daughter and your youngest son.

44You are a mild social drinker, and have not used illicit substances since your late teens.

45You reported to Dr Barth periods in your history of depressed mood and suicidal ideation, including after the relationship break-up prior to your marriage four years ago.  You consulted a psychologist in Caroline Springs for ten sessions, pursuant to a mental health care plan.

46I understand that you experienced a period of intense loneliness during 2021 which was prior to your wife arriving in Australia; and your engagement of sex workers, and offending, occurred in this context.

47I note that this is the first time that you have come to police attention, and you have no prior criminal history, and I take into account in mitigation of sentence your good character prior to the commission of this offence.

48Dr Barth diagnoses in you symptoms of mild emotional distress, in that you have been anxious about your future prospects due to the nature of your criminal charge, and the potential impact of the consequences of this charge upon your family.  Your symptoms are not sufficiently severe, in his opinion, to meet diagnostic criteria for any mood disorder, anxiety-related disorder, or adjustment disorder.

49In his view, your interpersonal and sexual adjustment is characterised by an awkward approach to relationships, which has contributed to difficulties in understanding mature adult intimacy.  To him, your offending indicates a dysfunctional understanding of appropriate sexual boundaries with Star, and to him you continue to lack insight into your offending and into the impact of your offending on her.

50A comprehensive risk assessment indicated a low to moderate risk of sexual recidivism, and your risk is likely to reduce further with the completion of a specialist sex-offender treatment program, together with supervision and support.

51I have mentioned that I have the benefit of an assessment as to your suitability for a community correction order.  You indicated to the author of that assessment that you are sorry about the offending, but you also denied intending to do what you did, and claimed it was an accident.  You indicated that you do not feel as though you need treatment for your offending behaviours, as 'he has his "wife and children" 'and 'will never return to those places or do that again', however he stated that 'I will do it', referring to his willingness to do what is required of him.

52Your assessor indicated that you were suitable for a community correction order, were I minded to impose such an order, with a recommendation that the order be for at least 18 months' duration due to the nature of the offending and associated program durations.  It was recommended that community work, supervision, and treatment and rehabilitation in programs designed to reduce reoffending, be imposed as conditions of that order.

Objective gravity of offending; moral culpability

53In my view, this is serious offending, involving, as it does, a complainant who is engaged in sex work as a profession, who deserves both professional and personal respect.  Your criminality lay in you continuing to engage in intercourse with Star after you became aware that you were no longer wearing a condom, without disclosing that you were no longer wearing that condom, which led to your continuation of the sexual act as a result of that fraud.  She would not have agreed to continue the sexual act had she been aware of the true circumstances.  She was vulnerable, and you took advantage of the sexual engagement and the condom coming off, for your own enjoyment of the sexual activity, utterly indifferent to her dignity and capacity to establish conditions of the act that you had negotiated by payment for the booking.  You exposed her to unprotected ejaculation, and as a result she understandably experienced trauma and experienced risks to her health, financial loss, and the necessity to engage in a painful process of vaccination.

Current sentencing practices; purposes of sentencing; sentencing submissions

54I have the benefit of a number of past cases, helpfully provided to me by counsel, which involve sentencing decisions of past Judges of this Court, in the cases of DPP v Zhang[1] and DPP v Diren[2] each of which involved a misrepresentation that a sexual act would be protected when the accused then engaged in an unprotected act.

[1][2019] VCC 1962

[2][2020] VCC 61

55These cases assist me to remind myself of current sentencing practices in relation to the offence to which you have pleaded guilty.  I do observe that some of the aggravating factors present in those cases, such as a sexual act being affected by the accused's fraud from the outset, or the act being accompanied by violence, are absent in your case. Yours was a single act, unaccompanied by violence.

56Like Judge Wraight, who passed sentence in the case of DPP v Diren, your case involves unprotected sex, with your fraud being that representation by silence in your case, that the act would be protected after the condom had come off.  General deterrence is the paramount sentencing consideration, and, as part of this sentence, I must emphasise that others should be sent a message that this type of conduct will not be tolerated in our community.

57I am concerned about your lack of insight into your offending, expressed as recently as in the course of your community correction order assessment, but, given your lack of previous criminal history and the salutary effect of these proceedings, I am prepared to infer that your prospects for rehabilitation are good, and may improve further once you have been obliged to participate in relevant courses.  I must specifically deter you from other similar offending, and I will denounce your conduct as well as allowing for your continued rehabilitation.

58Your counsel submitted, entirely appropriately, the delay in sentencing between charge and your indication of a willingness to plead guilty to the proceeding charge on the one hand, and today's sentence on the other, as mitigating the sentence that I should otherwise impose.  I accept that the matters have been hanging over your head in the meantime, and do weigh heavily upon you, and you have demonstrated that you have not reoffended in the meantime, and I mitigate sentence on the basis of the delay.

59Your counsel submitted that a suitably-tailored community correction order ought be imposed in all of the circumstances of this case, and prosecution counsel concurred.  I accept these submissions, and I intend to impose that order.

Sentence

60On the charge of procuring sexual act by fraud, you are convicted and I will impose a community correction order of two years' duration, on conditions that you undertake 150 hours of unpaid community work, that you be supervised, and that you participate in offender-specific rehabilitative courses. All hours credited.

61Were it not for your plea of guilty in this case, had the matter proceeded to trial but resulted in a guilty verdict, I would have imposed 18 months' imprisonment.

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