Director of Public Prosecutions v Estrella (a pseudonym)

[2021] VCC 797

IN THE COUNTY COURT OF VICTORIA

             REVISED

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOMINIC ESTRELLA (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2021
DATE OF SENTENCE:	16 June 2021
CASE MAY BE CITED AS:	DPP v Estrella (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 797

REASONS FOR SENTENCE

Subject: Criminal law - sentence

Catchwords: Plea of guilty to one charge of sexual assault of child under 16 – child was offender’s daughter – effects on child and family - offender has acquired brain injury resulting in cognitive deficits including disinhibition – Verdins principles – intensive treatment undertaken – very good prospects for rehabilitation – low risk of re-offending.

Legislation Cited: Sentencing Act 1991, ss.5B and 5C

Cases Cited: DPP v Dalgliesh (a pseudonym) 2017 VSCA ; Shawcross; Verdins v R [2007] VSCA 102

Sentence: 2 year CCO  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett	OPP
For the Accused	Ms N. Karapanagiotidis	Dowling McGregor

HER HONOUR:

1Dominic Estrella[1], you have pleaded guilty to one charge of sexual assault of a child under the age of 16 (course of conduct).  This is a serious charge for which the maximum penalty is 10 years' imprisonment.

[1] A pseudonym.

BACKGROUND

2The charge refers to three occasions between 1 January 2019 and 8 June 2020 when you committed offences against your daughter, Mila[2].  You were then living with your wife, Rachel[3], and your two children, Mila and Jesse[4].  You were the primary carer of the children while your wife, a qualified nurse, worked in her profession of medical research and was the sole income earner.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

3Your ability to work was impeded by an acquired brain injury.  That occurred approximately 30 years ago when as a university student you were injured as a result of a car accident when you were the front seat passenger.  You were unconscious for over three weeks and spent six months to a year in rehabilitation at the Box Hill Hospital and later at Bethesda.  You had to learn to walk and speak again.  After further treatment at the Epworth Hospital you returned to live with your parents and later returned to your university studies.

4When you began university as a 19-year old your academic ability was recognised in your appointment as a University Scholar with your own office.  Sadly, when you returned after your recovery you struggled to maintain progress in the engineering degree you had commenced and changed course to complete a Bachelor of Science degree, followed by a Master's Degree in Information Technology.  You had some assistance in the form of extra time to complete examinations, as well as a tutor.

5Sometime in the mid to late 1990s you completed a Graduate Diploma in Education and Training, and then a Diploma of Education at Monash University.  However, in your first teaching placement you suffered a “grand mal” seizure and have been unable to return to full time work since then.

6In 1999 you met Rachel and in 2006 you married.  Mila was born in 2010 and Jesse in 2012.  You worked part time over about four years in a factory and later in IT.  More recently you have been working for a friend in a medical office for two and a half hours a week doing IT and office administration.

THE OFFENDING

7At the time of the offending you were aged between 47 and 48 years.  Mila was born in August 2010 and so was aged between eight and nine years at the time.

8During 2019 Mila had been unable to fall asleep without her mother sitting by her bed, and over time coming into your bedroom and getting into bed with you and your wife.  Ms Estrella noticed you on occasions hugging Mila in bed but quickly moving your arm away when you were aware she was watching.  Mila sometimes awoke with bad dreams and increasingly came into your bedroom during 2020.

9The charge of sexual assault of a child under 16 (course of conduct)  to which you have pleaded guilty, comprises three instances of offending.  The first occurred between 1 January and 31 December 2019.  The second occurred between 1 May and 8 June 2020, and the third was between 6 and 8 June 2020, a few days before Mila reported the matter to the police.

10On each occasion Mila awoke during the night and felt scared and came into your bedroom.  She got into the bed you shared with your wife and positioned herself between the two of you.  On each occasion you hugged her, which you later told police made her feel happy.  On each occasion you touched or rubbed her vaginal area under her clothing and she turned away from you.  When you hugged her again, she turned to face you, and you again rubbed her vaginal area.  On the second of these occasions you attempted to move her hand towards your penis, which she resisted.

11On the morning of 8 June your wife awoke and noticed you hugging Mila and when she leant over to look at this you quickly moved your arm away.  Ms Estrella asked you if you were doing anything to Mila and why you had quickly moved your arm away, you did not respond.

12The next day Ms Estrella asked Mila if, 'Daddy had ever touched you in a way you did not like?'.  Mila said that, 'He touched my vagina only at night-time', and that it happened, 'in their bed'.  She then told her mother further details.  For the next two nights Ms Estrella ensured that she herself slept in between you and Mila when Mila came into the bed during the night.

13On 10 June you had a discussion with your wife in which you said you, 'Had been very bad'.  Ms Estrella told you she might have to go to the police, but she would support you.  She telephoned the police to arrange to attend with Mila the following day.

14On 11 June, Ms Estrella took Mila to the police station and reported the matter and Mila made a VARE statement.  Later that day you were arrested.  You told the police that your wife had been your best friend for a very long time, but you guessed she had to do what she had to do.

15You took part in a record of interview in which you made admissions and acknowledged how wrong your actions were.  You said it was an extension of the hugging and you did not know why you did it, but you should have walked away.  You were released on bail to live with your parents and you were prohibited from seeing or contacting your wife and children.

16Rachel Estrella provided a victim impact statement in which she described the very significant effects your offending has had on the family.  While she knows that you are, 'Entirely responsible', in her words, for what you did she feels guilt and responsibility herself for not having prevented it.  She feels her trust in you and the trust of the children in you was betrayed.  She said Mila does not fully understand what happened and both children have become too anxious to sleep alone at night.

17Mila is scared of being alone at any time and she prefers not to leave the house.  She is less sociable than before, has a reduced appetite and struggles to concentrate for remote learning.

18Ms Estrella described her own experience of anxiety and panic attacks, disturbed sleep and severe migraines requiring professional help.  She tries to hide her distress from the children.  An ongoing issue is the tension between her and your mother which has understandably arisen, and she is aware of your hope, which you have conveyed to her, that you might be restored to the family.

19A similar tension appears to be the fact that she cannot talk to you as it reminds her of what you did, but she concedes that you did not understand what you were doing to Mila, 'feeling it was wrong and paralysed with fear but so confused with his conflicting affection and love'.  Ms Estrella states that she is now solely responsible for the protection of the children and for Mila’s recovery and for dealing with the lasting consequences.

20Because of the seriousness of such offending as this, a sentence of imprisonment is usually the only appropriate sentence.  The prosecution position is that rather than rely on the sentences imposed in cases such as Shawcross and Dalgleish a Community Correction Order is within range in the circumstances of this case.  This was because of the application of the principles in Verdins  as confirmed by the expert reports and the positive and comprehensive steps you have taken, despite some hesitation about your realistic prospects for rehabilitation.  This was also the submission made on your behalf by Ms Karapanagiotidis in her plea on your behalf.

MITIGATING FACTORS

21There are several mitigating factors which indicate the appropriateness of such a relatively unusual disposition in relation to a charge such as this.  The first is the clear application of the principles in Verdins.  Very helpful reports were provided by Dr Karen Owen, a forensic psychologist, and Dr Nathaniel Popp, a neuropsychologist. 

22Dr Owen gave evidence that you have had about 40 consultations with her and you are extremely motivated in your treatment.  You have struggled to understand why you offended.  Dr Owen said you offended in the context of your limited judgement and ability to make rational choices and with impaired inhibitory responses.  She considers you are at low risk of reoffending because of the discrete period and particular circumstances in which occurred, that it was not predatory, and you did not create the opportunities for offending.  Dr Owen said there is no evidence of deviant arousal or primary sexual interest in children.

23Dr Popp diagnosed a Major Neurocognitive Disorder (MND) due to an extremely severe traumatic brain injury.  He stated in his report that the impairment caused by your brain injury directly contributed to the offending and your limited capacity to reflect added to this this.  He noted that 30 years after the car accident you have continued to have a marked decline across all areas of function, cognitive, emotional and behavioural, and that the nature of your dysfunction[5] appears to be consistent with rather marked frontal lobe dysfunction.  He stated,

'These factors negatively impact upon his ability to exercise appropriate judgement and impaired his ability to make rational choices or to think clearly'.[6]

[5] These remarks purport to summarise Dr Popp’s findings in paragraphs 97 – 108  of his report dated 21 December 2020

[6] Ibid [papa] 108

24Dr Popp added that your difficulties impaired your ability to appreciate the gravity of the wrongfulness of what you did[7].

[7] Loc cit

25It was agreed by the parties that the principles in the decision of Verdins are enlivened in that your cognitive deficits require moderation of the need for general and specific deterrence by reason of the reduction of your moral culpability.  The basis of this proposition is, as I have just described, to be found in the evidence of Dr Owen and Dr Popp.

26Those principles also apply in respect of imprisonment in that the limitations and vulnerabilities due to your disorder would make prison more burdensome for you than for others not so afflicted.  The COVID restrictions operating in prisons would also weigh heavily on you.

27In addition to the evidence of Dr Owen and Dr Popp, the court heard from your uncle by marriage, Dr Albert Argyle[8], a psychiatrist who, through his family connection, has known you for your entire life.  He is also a psychiatric member of the Victorian Mental Health Tribunal and its predecessor, the Victorian Mental Health Review Board.

[8] A pseudonym.

28Dr Argyle described having spent about 100 hours over about 70 sessions with you since the offending, confronting you, as he put it, and supporting you.  He stated in a letter provided to the court that he has focused with you on the serious nature of the charges and their profound impact on your daughter and your wife, and the major breach of trust which occurred, as well as the need for empathy and giving due priority to the needs and feelings of others.

29Dr Argyle gave evidence about these matters.  He emphasised that while your brain injury is paramount in understanding your behaviour, it does not provide an excuse for your offending.  He believes you have responded well to these sessions and have committed to other professional services offered to you.  He confirmed your role as carer for your father, who was recently severely disabled by a stroke, assisting your mother who has health limitations of her own.  You are the only family member who can fulfil this role on a fulltime basis.

30Dr Argyle stated in his letter that he will continue to support you while at the same time prioritising the needs of those who have been affected.

31Other mitigating factors include your plea of guilty, as it has avoided the need for a trial and spared the complainant and other witnesses from having to give evidence.  It is of particular value now when trials have been delayed owing to the pandemic restrictions, and its utility is to be acknowledged by means of a discount on your sentence.

32It is also accepted as an indication of wrongdoing and remorse.  Indeed, you made admissions to police and have expressed your considerable shame and regret to others, and it is an indication of your very good prospects for rehabilitation.

33Those prospects are enhanced by the efforts you have made so far, despite your limitations.  You have no previous criminal history and you have a demonstrated ability to work.  Your current commitment to be a carer for you father, who is wheelchair bound, can be viewed as contributing to your rehabilitation, as well as the support you have from your family.

34Most importantly, the assessment that you are at low risk of reoffending also indicates your likely good progress.  Your counsel submitted that the circumstances of this case are compelling, indeed almost exceptional factors, which make a Community Correction Order appropriate.

35Ms Duckett, for the prosecution, submitted that the circumstances called for a moderation of the need for deterrence.  And as I said earlier it was conceded that a Community Correction Order was within range.

36The charge of sexual abuse of a child under 16 (course of conduct) attracts a standard sentencing procedure under s49D of the Crimes Act. The maximum penalty, as I said, is 10 years' imprisonment and the standard sentence is four years. In this regard I have taken into account the requirements set out in s5B and 5C of the Sentencing Act 1991.

37You have been assessed as suitable for a Community Correction Order and that is the order I will make.  There will be a conviction recorded.  The order will commence today and will last for two years.  You will be under supervision and you will be required to perform 100 hours of unpaid community work.  You will be assessed as to your suitability to take part in a forensic program dealing with your offending.  You will also be assessed as to your mental health needs.  Any hours that you spend attending programs will be deducted from the community work hours.

38Mr Estrella, do you agree to be bound by these conditions?

39OFFENDER:  Yes, Your Honour.

(Community Correction Order  and Sex Offender Registration acknowledged by offender)

40HER HONOUR:  Thank you.

41If you breach the order you may be charged with that offence and you would have to return to court to be resentenced.  I note there is an intervention order in place.

42You will be required to report to the Corrections office by 4 pm within two working days of today, that is by 4 pm on Friday.

43Shortly you will be emailed a form for you to sign confirming that you agree to these conditions and the other core conditions of the order itself.

44The prosecution has applied for an order placing you on the Sex Offender's Register, which is mandatory for this offence. 

45Dr Owen commented that in your case placing you on that register will provide no utility in risk management and  in her words, 'will have an extremely deleterious effect on you'.  However, I have no discretion in that regard, and I shall make that order.

46You must provide your contact and other details to the police every year for eight years.  Once again, you will be emailed a form to sign and once you have signed the two forms they should be returned to the court.

47Ms Duckett, are there any matters that I have omitted or neglected?

48MS DUCKETT:  No, no matters.  There are no further orders, Your Honour.

49HER HONOUR:  Thank you.

50MS KARAPANAGIOTIDIS:  Your Honour, I am sorry, just the one thing I would say, Your Honour, is you mentioned a couple of times in your reasons the offence of “persistent sexual abuse”.  Your Honour, I presume because you referred to the correct maximum, but it is a charge of sexual assault of a child under 16.

51HER HONOUR:  I am sorry.

52MS KARAPANAGIOTIDIS:  I do not suggest it has a consequence because it is clear what Your Honour's referring to and you referred to the correct maximum.  That was the first charge but it was amended, we had that time and that was the charge he pleaded to.

53HER HONOUR:  I am looking at the wrong indictment, I apologise.

54MS KARAPANAGIOTIDIS:  Yes.

55MS DUCKETT:  It is a course of conduct, Your Honour.

56MS KARAPANAGIOTIDIS:  Yes.

57MS DUCKETT:  Sexual assault, course of conduct.  Hence the three incidents.

58HER HONOUR:  I will correct that, thank you very much.

59MS KARAPANAGIOTIDIS:  Thank you, Your Honour.  And I take it that the SORA is made for the minimum period of eight years?

60HER HONOUR:  Yes, that is right.

61MS DUCKETT:  As was stated.

62MS KARAPANAGIOTIDIS:  Thank you.

63HER HONOUR:  I will leave the Bench now and my associate will see to the emailing of those documents.  So I will leave the link open in case Ms Karapanagiotidis you need to speak to Mr Estrella about them and, Ms Duckett, you may be excused.

64MS DUCKETT:  The court pleases.

65MS KARAPANAGIOTIDIS:  As Your Honour pleases.

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