Director of Public Prosecutions v Guzman Acosta
[2018] VCC 888
•8 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for publication |
Case No. CR-16-02060
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSE GUZMAN ACOSTA |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May 2018 | |
DATE OF SENTENCE: | 8 June 2018 | |
CASE MAY BE CITED AS: | DPP v Guzman Acosta | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 888 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Indecent act with a child under 16 years – Sexual penetration of a child under 16 years.
Legislation Cited: Sentencing Act 1991 – Migration Act 1958 – Sex Offenders Registration Act 2004.
Cases Cited: R v Verdins [2007] 16 VR 269.
Sentence:8 years’ and 6 months’ imprisonment with a non-parole period of 6 years’; 182 days pre-sentence detention; Sex Offenders Registration Act 2004 reporting be for life; Forensic sample order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N. Hutton | Office of Public Prosecutions |
| For the Accused | Mr D. Gibson | Victoria Legal Aid |
HIS HONOUR:
1 Mr Guzman Acosta, you came before me for trial on 28 November 2017 on six charges, being Charge 1, indecent act with a child under 16 years. Charge 2, sexual penetration of a child under 16 years. Charge 3, sexual penetration of a child under 16 years. Charge 4, indecent act with a child under the age of 16 years. Charge 5, indecent act with a child under the age of 16 years. Charge 6, indecent act with a child under the age of 16 years.
2
Preliminary argument took place on 28 and 29 November with a ruling on
30 November 2017. You appealed the interlocutory ruling which appeal was dismissed. A jury was empanelled on 1 December 2017 and on 7 December 2017 a jury acquitted you on Charge 1 but convicted you on the balance of the charges on the indictment.
3 A brief chronology of this prosecution has some relevance. On 12 December 2014 you were arrested and interviewed during which you adamantly denied the alleged offending. On 7 March 2016 you were charged. On 21 and 22 November 2016 you conducted a contested committal. On 7 December 2017 you were convicted and remanded in custody. Your plea was conducted on 21 May 2018. Tendered as Exhibit A and read aloud in court was the prosecution opening for the plea. This document has some deficiencies as it referred to depositional material as opposed to the trial transcript references that set out the evidence relevant to the charges upon which you were convicted.
4 Charge 2 alleged that you sexually penetrated the complainant, a child under the age of 16 by the introduction of your finger into her vagina. This charge is a course of conduct charge. On Sunday mornings when you stayed the previous evening at the complainant's mother's home in order that you attend mass with her, whilst the rest of the complainant's family were in bed, the complainant would get up to watch television. You had her sit on your lap astride you and facing you and you placed your fingers inside her vagina and rubbed her clitoris. You said to the complainant the word, "Cordova", a Spanish word which so far as the complainant was concerned translates into English to mean, "Move like a wild form like an animal." See trial transcript p.138, lines 4-41, The complainant said that this conduct occurred some 30 to 35 times when she was aged about 14 years.
5 Charge 3 is also a charge of sexual penetration of a child under 16 years in that you introduced your tongue into the vagina of the complainant. Like Charge 2, this charge also is a course of conduct charge. Again, on Sunday mornings whilst the other occupants of the house were in bed, you would entice the complainant onto the couch where you had slept the night before and licked and sucked on the complainant's clitoris. See trial transcript p.133, lines 18-29. The complainant swore that this occurred about 20 times.
6 Charges 4 through to 6 both inclusive are charges of indecent act with or in the presence of a child under the age of 16 years. These offences occurred on an occasion when you were with the complainant, having returned to her home having had your motor vehicle repaired at a place in Camp Road. It was daylight during school holidays and no one else was present in the house. The complainant went to her bedroom and was lying on her bed. You went into her bedroom, undid the buttons on her shirt and touched her breasts, Charge 4. You then put your mouth over the complainant's breasts, Charge 5. After this you took off your trousers and lay in the bed with the complainant and told her to touch your genitals. You placed the complainant's hand on your erect penis and masturbated yourself while her hand was on your penis. You masturbated to the point of ejaculation, Charge 6. See trial transcript p.166, line 1 to p.168, line 21.
7 The maximum penalty for sexual penetration of a child under 16 years is 15 years' imprisonment, whilst the maximum penalty for indecent act with a child under 15 years is ten years' imprisonment. In respect to Charges 2 and 3 pursuant to s.5(2F) of the Sentencing Act 1991, in sentencing an offender for a course of conduct charge the court,
"(a) must impose a sentence that reflects the totality of the offending that constitutes the course of conduct, and
(b) must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence."
8 Tendered as Exhibit A and read aloud in court by the complainant was her victim impact statement. The effect of your offending against the complainant has been profound. She feels worthless. There are times when she hurts herself to relieve the pain, anger and hate that she feels as a result of you offending against her. This conduct includes cutting herself. These self inflicted injuries scare the complainant. That complainant has entertained thoughts of ending her own life as is common and a pernicious aspect of the consequences of offending of the kind committed by you. The complainant feels guilty for allowing the conduct to have occurred even though she was but a child and an innocent victim in your hands. She feels responsible for distressing her mother by bringing your offending to light. She experiences trouble sleeping and often suffers nightmares. She suffered from anxiety and panic attacks and compensated for the anxiety by over eating that caused her to gain weight and so further reduced her self esteem and increased her levels of anxiety. She fears having older men around her as it puts her on edge and your offending has impacted upon her relationships with her family and her community and particularly with her own father.
9
Tendered as Exhibit C and read aloud in court by the prosecutor was the victim impact statement of the mother of the complainant. She like you,
Mr Guzman Acosta, was born in El Salvador and suffered greatly during the civil war that occurred in that country for ten years or so between 1978 and 1988. She was raped and tortured by soldiers and saw one of her own daughters interfered with whilst she endured that indignity. She feels guilty that she was unable to protect her daughter, the complainant, and since your offending came to light she has suffered from depression and panic attacks and flashbacks that make her runout of the house and try and harm herself. She swore that her depression and panic attacks have led her to hear voices telling her that she was a bad mother for not protecting her child. She feels completely isolated from her family, friends and community.
10 Your conduct has had far reaching and profound effects upon the complainant, her mother and by necessary inference the complainant's entire family.
11 Tendered as Exhibit 1 was your counsel's plea submissions, and as Exhibit 2 the psychological report of Mr Coffey, clinical psychologist dated 7 May 2018. Mr Coffey opined that there was no formal thought disorder, abnormal ideation, perceptual disorders or any other symptoms which might suggest a psychotic illness on your behalf. See paragraph 62 of the report. Whilst you suffer post traumatic stress disorder because of your experiences during the civil war in El Salvador, Mr Coffey opined,
"Notwithstanding his mental disorder, his judgment in relation to the offending act was unlikely to have been impaired and it is probable his actions were purposive and goal directed."
12 Later Mr Coffey further commented,
"It is again difficult to draw any clear connection between his mental state and the repeated offending at this time. By its nature the offending was planned and required careful concealment. A mental condition that elevates a tendency towards emotional disregulation and impulsivity is unlikely to promote this kind of offending. It is my opinion that the offending was purposive, goal directed and unaffected by any mental disorder."
13 In respect to a personal history you are 68 years of age having been born in El Salvador. You arrived in Australia in June 2004 and sought asylum. You were granted a permanent protection visa and became an Australian citizen in 2011. Your wife joined you in Australia in 2009.
14 Your parents were farmers and you grew up in a village in the Cuscatlan region. Your family had little money but the farm always provided sufficient food for you all. You described to Mr Coffey that your family was hardworking and harmonious. You completed five years of school until the age of 14 and then began to work on the farm. When you were aged 15 your father died. You found your first paid work in early adulthood at a Toyota parts factory where you worked for a period of approximately two years and there you met your wife. You became a couple when you were in your early 20s and you and your wife moved back to the family farm where your mother lived. You built your own house on the land and there you and your wife enjoyed life in the country despite that it required hard work to make a living. Your first child was born in 1972 when you were aged but 22 years and your last and eighth child was born in 1990 when you were aged 40 years.
15
You told Mr Coffey that the war in El Salvador began to affect your family in 1978 and that it lasted until 1992, during which you and your family were displaced on many occasions. You were sympathetic to the left wing movement that opposed the government and became a commander in the "popular militia" with your role being one of organising logistics in your area. You would look after the families of the fighters and ensure that everyone including the fighters had enough food and support. See paragraph 20 of
Mr Coffey's report.
16 Supporting the militia would mean leaving your own home from time to time so that the militia could be housed. You were also forced from your home from time to time by government forces. It is to be noted that during the many years of intermittent displacement, your family was never detained and none of your children were seriously ill. This does not mean however that you were not affected by the war. Your brother was shot dead by the military in 1980. In 1983 your mother and sister with her nine children were killed when the house they were sheltering in was bombed. In the late 1980s government forces killed another of your brothers. You had many close relatives who were killed as a result of this war. You told Mr Coffey that you were confronted with the violent consequences of war from time to time which included coming across the scene of a massacre of 70 adults and children and that you assisted in burying their bodies.
17 In 1988 through the international committee of the Red Cross, you and your family were given land in an area near the capital San Salvador where you settled. You became involved in restoration programs, the rebuilding of houses in rural areas and what could be described as political education in that you were involved in promoting the rights of farmers and peasants in contra distinction to the rights of large land owners within your country. The process of reconstruction was highly politicised and your association with the left wing of that process put you at risk. Your sister's husband was shot and wounded in your presence during the period of reconstruction. Your family was urged to leave the country for their safety. You left your country in circumstances where it was not possible for your entire family to receive a visa to come to Australia, and you left El Salvador hoping that your family would follow you to Australia without much delay.
18 You were sponsored to Australia by your sister and initially lived with her for a few months, then with a niece for six months. You then obtained public housing in Carlton where you lived for five years from 2006. You attended English classes for a year but have little or no command of the English language. Between 2006 and 2008 for a period of approximately two and a half years, you were employed by a coffee retailer in Brunswick but were retrenched when the business suffered a downturn. After the arrival of your wife in Australia with some of your children in 2009, you earned income by selling plants with your wife at the Thomastown Market. In 2011 your wife suffered a stroke. She was unable to walk for a period of three months and her speech was markedly impaired for a period of six months. You became your wife's full time carer and as I understand it have remained so since that time.
19 In respect to the post traumatic stress disorder from which you suffer, from August 2004 until 2009 you had contact with the Victorian Foundation for Survivors of Torture and through that organisation received counselling and mental health services. Since being remanded in custody you have been visited regularly by your wife, son and daughter and your wife telephones you on a daily basis. According to Mr Coffey, you reported that you were coping reasonably well in prison but found it difficult being separated from your family. Further, as you are the only Spanish speaker within the prison in which you are presently held, you feel isolated within that environment.
20 During your plea Mr Gibson public defender who appeared on your behalf, conceded that your offending was extremely serious. Further he conceded that your offending had profound effects upon both the complainant and her mother. He placed no reliance upon the principles set out in R v Verdins and submitted that your history of post traumatic stress disorder should be dealt with as part of the broader context of your life.
21 You met the complainant's mother by attending Sunday mass at Broadmeadows. You became what she believed to be a friend. Prior to your wife's arrival in Australia you would regularly stay over at the complainant's home on Saturday night in order to be ready to attend mass with her mother on Sunday morning. You were trusted by the complainant's mother and respected by the complainant. You abused your position of friendship and trust in respect of both the complainant and her mother. You offended against a child in her own home, a place where she was entitled to feel safe. However, you do not fall into the class of persons to which s.5AA of the Sentencing Act 1991 applies.
22 You are 68 years of age and are facing a significant sentence. On any view the sentence that I will impose upon you will be a significant proportion of the remainder of your life. Mr Gibson on your behalf relied upon your age and health as relevant sentencing matters. However just punishment, public denunciation and general deterrence remain primary sentencing considerations notwithstanding your age. As you will be sentenced to a term of imprisonment in respect to Charges 2 and 3, you fall to be sentenced as a serious sexual offender in respect to Charges 4, 5 and 6. I must regard the protection of the community from you as the principal purpose for which sentences are imposed in respect of those charges. However Charges 4, 5 and 6 arise out of one incident and occur towards the end of your offending against the complainant. Charges 2 and 3 however are course of conduct offences and you offended against the complainant in respect of the act which found Charge 2 on between 30 and 35 occasions, and in respect to the act that founds Charge 3, on 20 occasions or so. To arrive at an appropriate sentence in your circumstances it is appropriate to order substantial cumulation between Charges 2 and 3, and only moderate cumulation in respect to Charges 4, 5 and 6.
23 You stood your trial. You gave sworn evidence denying the commission of the offences upon which you were convicted. There is no evidence of remorse in you. Your offending calls for condign punishment. Whilst you have had a troubled background, and experienced the horrors of civil war, this is but part of the general context of your life and who you are. You suffer from no relevant psychological or psychiatric illness or deficit and you are an appropriate vehicle for the application of the sentencing principle of general deterrence.
24 You are currently an Australian citizen. However some of your offending occurred prior to you becoming an Australian citizen. Presently a sentence of imprisonment of more than one year will trigger the character test under s.501 of the Migration Act. However it was conceded by your counsel that I cannot be asked to speculate in respect to the issue of your possible deportation. However it is likely that the prospect of deportation will weigh heavily upon you whilst you are in prison.
25 Would you please stand.
26 By this sentence I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must look to the protection of the community. I must look to your rehabilitation taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purpose of sentencing in a manner appropriate to you, I sentence you as follows.
27 On Charge 2, five years' imprisonment.
28 On Charge 3, five years' imprisonment.
29 On Charge 4, 12 months' imprisonment.
30 On Charge 5, 12 months' imprisonment.
31 On Charge 6, 12 months' imprisonment.
32 I order that two years of the sentence imposed on Charge 3 together with six months of each of the sentences imposed upon Charges 4, 5 and 6 be served cumulatively upon each other and upon the sentence imposed on Charge 2. This results in a total effective sentence of eight years and six months' imprisonment. And I fix a period of six years' imprisonment before you will become eligible for parole.
33 I declare that you have spent 182 days by way of pre-sentence detention not including today.
34 I direct that it be caused to be entered in the records of the court that in respect to Charges 4, 5 and 6, the fact that you have been sentenced as a serious offender. I declare that pursuant to the provisions of the Sex Offenders Registration Act 2004, that you be subject to the provisions of that Act for life.
35 You maybe seated. You may remain seated Mr Guzman Acosta.
36 The Crown have made application for what is known as a forensic sample and I have granted that order and the forensic sample that will be taken from you is a scraping from your mouth. I must inform you that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. I have granted the order because of the seriousness of the circumstances of your offending warrant the order and the order is made in the public interest.
37 I hand down three copies of that order.
38 Mr Guzman Acosta, because of the offences that you have been convicted of, you are registrable under the Sex Offenders Registration Act for life. My associate will come to you now and provide you with some documentation which naturally enough is written in the language of the court and this nation, English. The document is to be signed by you and that signature is simply an acknowledgement that you have received it. However it will have to be translated for you so that you understand the consequences of the order, and that can be done at a later stage.
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HIS HONOUR: Mr Gibson, do you want to go down and speak with your client about this document?
MR GIBSON: I was going to go down and see him afterwards Your Honour, so I can explain all that to him then.
HIS HONOUR: All right thank you very much. Madam Interpreter, if you would return my draft reasons for sentencing to my associate please. Thank you very much. Are there any other matters?
MR GIBSON: No Your Honour.
HIS HONOUR: Remove the prisoner please. Thank you Madam Interpreter.
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