Director of Public Prosecutions v Mendoza (a pseudonym)

[2021] VCC 1712

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 21-00289

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEONARD MENDOZA (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2021
DATE OF SENTENCE:	29 October 2021
CASE MAY BE CITED AS:	DPP v Mendoza (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1712

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords: Child Sexual Abuse; One charge of Persistent Sexual Abuse of a child under 16 contrary to Section 47A of the Crimes Act 1958; One charge of Persistent Sexual Abuse of a child under the age of 16 years contrary to Section 49J of the Crimes Act 1958; Standard Sentence Offence; Departure from the Standard Sentence

Legislation Cited:     Crimes Act 1958; Sentencing Act 1991; Migration Act 1958; Sex Offenders Registration Act 2004

Cases Cited: Victorsen v R [2020] VSCA 248; DPP v Toomey [2006] VSCA 90; DPP v Williams [2020] VCC 2065; DPP v Polat [2020] VSCA 174; DPP v Robards[2020] VCC 1665; Russell v R [2014] VSCA 310; Neubecker v R [2012] VSCA 58; Worboyes v R [2021] VSCA 169; R v Doran [2005] VSCA 271; Loftus v R [2019] VSCA 24

Sentence:Total Effective Sentence of eight years' imprisonment with a non-parole period of five years’ imprisonment.

s6AAA: Total Effective Sentence of eleven years' imprisonment with a non-parole period of seven years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott	Office of Public Prosecutions
For the Accused	Mr T. Antos	Radovic Lawyers

HIS HONOUR: 

Introduction

1Mr Mendoza[1], I will tell you at the outset the sentences I will impose upon you.  I will then explain how I arrived at those sentences.  Overall, I will sentence you to eight years' imprisonment and will set a non-parole period of five years.  I will declare 450 days of your pre-sentence detention as time already served under the sentence. 

[1] A pseudonym.

2You have pleaded guilty to two charges of persistent sexual abuse of a child under 16.  Each charge concerns your stepdaughter, whom I will refer to as 'the victim'.

3The first charge covers the period from 13 August 2016 to 30 June 2017.  The second charge covers the period from 1 July 2017 to 3 August 2020.  In effect, the two charges cover the period between 13 August 2016 and 3 August 2020, almost four years.  Between them, the two charges cover a range of sexual abuse.

4The offence in the first charge is created by s47A of the Crimes Act 1958 (‘the Act’). This section has been repealed by Parliament and replaced by the offence in the second charge, which was created by s49J of the Act. Both charges carry a maximum penalty of 25 years' imprisonment. However, the offence in the second charge is a standard sentence offence. I will explain its significance later.

5The first charge asserts at least three occasions of sexual abuse.  It then specifies three occasions during which one or more acts of sexual abuse occurred.  The first of the specified occasions asserts the wilful commission of an indecent act by you placing the victim's hand on your penis and you rubbing her vagina.  The second asserts you introduced your penis into her vagina.  The third asserts you introduced your penis into her vagina and introduced your finger into her vagina by rubbing her clitoris.  

6The second charge is differently worded.  It too asserts persistent sexual abuse on at least three occasions and then specifies four kinds of act of sexual abuse.  Each act is introduced by the word 'intentionally'.  Those acts are:  sexual penetration by introducing your penis into her vagina; sexual penetration by introducing your tongue into her vagina; sexual penetration by introducing your penis into her mouth; and taking her hand and placing it on and around your penis.  

7The circumstances underlying each charge are set out in the document entitled 'Summary of prosecution plea opening'. This document was admitted into evidence as Exhibit A.  Insofar as it contained statements of fact, your counsel agreed with its contents.

8The summary is long and is largely based on the victim's video and audio recording of her evidence, or her ‘VARE’.  A large part of the summary is devoted to describing the nature and circumstances of the various sexual acts you committed upon the victim.  It serves no useful purpose to summarise it in detail.  

9The other aspect of the prosecution opening is its summary of your interview with the police and your perception of the victim's willingness to engage in the acts of sexual abuse.  Your perception of her willingness was disavowed by your counsel and was not repeated in the matters submitted by him.  

Circumstances

Relationship with victim's mother

10In 2012, you met the victim's mother.  The victim was then nine.  In 2013, you and the mother started living together.  You and she married and you became the victim's stepfather.  During this period, the victim lived with her mother nine days each fortnight and the remaining days with her father.

Start of sexual activity

11Based on what you have told the police, sexual activity started when the victim was 12.  That is the reason why the period spanned by the first charge starts on her 12th birthday.  She recalls you inviting her into your bedroom, touching her vagina and saying words to the effect, 'Does it feel okay?'.  This activity is part of the first occasion of the first charge.  

First report to police

12In 2015 or 2016, while at her Primary School, the victim told a school friend you had told her to get out of her school uniform so you and she could have sex.  Her friend told her mother, who told the school principal, and the police were informed.  The police interviewed the victim.  She denied the allegation because she did not want to live with her natural father and stepmother; she believed her mother was happy with you and was scared about the consequences if she told the truth.  The police investigation ceased.

13After she had spoken to the police, your abuse of her stopped for a while.  When it restarted, it was no longer confined to touching.  It continued until shortly before 3 August 2020.  On that day, the victim told her mother of your sexual abuse of her.  The next day, her abuse was reported to the police and, on that day, the victim participated in a VARE.  

VARE

14In the VARE, the victim described the first occasion of penile penetration.  She spoke of the numerous occasions of you inserting your penis and fingers into her vagina.  Digital penetration was your first kind of penetration of her vagina.  As she put it, penile penetration occurred 'too many times'.  It could occur multiple times a week.  It stopped in the week before the VARE because she was having her period.  She described what happened on the first occasion of sexual intercourse. 

15Digital penetration of her vagina was the first form of penetration you undertook.  Later, there was penile penetration of her vagina.  

16She spoke of you putting your penis into her mouth multiple times and, on more than one occasion, you required her to suck your penis.  She spoke of you licking her vagina.  This first occurred when she was about 14 and a half.  It happened several times.

17She described the first time she had an orgasm during penile and vaginal penetration.  In all, she had an orgasm about 10 times with the first time occurring when she was about 14.  You said you were happy she had an orgasm because you did not want to be the only one enjoying intercourse.  She replied she did not enjoy it.  

18She spoke of the occasions when you used and did not use a condom during penetration.  You used a condom for protection against pregnancy.  When you did not, you would withdraw before ejaculating.  

19Finally, she spoke of you placing her hand on your penis.  She described an instance when she was playing on PlayStation.  This kind of abuse last occurred three days before her VARE.  She did not say how often this kind of abuse occurred.  

20Usually, the sexual activity occurred at the home before her mother got home from work.  You collected the victim from school and took her home.  At home, you would take her into the bedroom, tell her to lie on the bed, saying, 'You know what to do.'  Although she would say she did not want to do it, you ignored her.  You repeatedly told her you loved her.  On several other occasions, intercourse occurred while her mother was in her own bedroom, watching television.  

21You told the victim you really needed her and said that it was her responsibility as her mother was not having sex with you.  She told you that that was not how it works and you needed to sort it out with her mother.  She said she had nothing to with it and that she should not have to do it.

22On 5 August 2020, police members interviewed you.

23You described the first occasion of sexual behaviour between you and the victim when she was 12.  It involved you touching her clitoris followed by sexual intercourse.  

24You described five other occasions of sexual intercourse with the last occasion occurring about two weeks before the interview.

25You said you had had penile-vaginal sex on about seven occasions.  Although she performed oral sex on you, you had not performed it on her.

26You described your relationship with the victim as beautiful.  You adored her as a daughter.  You had loved her from the moment you first met her.

27When questioned about the victim's allegations, you denied them.  A constant theme of the interview was that the victim was the instigator of the sexual behaviour, not you.  You said you were confused because you did not know how to stop what was happening.  You said she threatened to tell her mother if you did not do what she wanted.

28As I said earlier, your counsel did not rely upon this view of your offending. 

Legal considerations  

Standard Sentence scheme

29On 1 February 2018, the standard sentence scheme commenced operating.  Only a few criminal offences are standard sentence offences for which standard sentences are prescribed.  The offence contained in the second charge is one such offence.  The standard sentence for the offence contained in the second charge is 10 years' imprisonment.  What is the meaning of a standard sentence?

30First, it is the period of imprisonment specified for a particular offence.  Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence, and is in the middle of the range of seriousness.[2]  The objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.[3]  Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing.[4]

[2] S 5A(1)(b).

[3] S 5A(3).

[4] S 5B(2)(a).

31In the case of Victorsen v R[5], the court discussed the standard sentence scheme.  At paragraph 18, it said this:

“In Brown, this Court said that a judge

when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’.  This requirement:

•    is to be treated as a ‘legislative guidepost’, having the same function     as the maximum penalty;

•    does not affect the established ‘instinctive synthesis’ approach to sentencing;

•    does not require or permit ‘two-stage sentencing’; and

•    does not otherwise affect the matters which the court may, or must, take into account in sentencing.”

[5] [2020] VSCA 248.

Serious Sex Offender

32Each of the charges is a 'sexual offence' as defined by s6B of the Sentencing Act 1991 (“the Sentencing Act”).[6] For the purposes of sentencing on the second charge, you are a 'serious sexual offender'. In sentencing you on that charge, s6D of the Sentencing Act tells me:

(a)   I must have regard to the protection of the community from you as the principal purpose for which the sentence is imposed; and 

(b)   in order to achieve that purpose, I may impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.

[6] Clause 1 of Schedule 1 of the Sentencing Act: sub-clauses (ixa), (xvih) and (xvihc).

33Counsel for the Director did not seek a disproportionate sentence and I agree it is unwarranted in your case.

34Finally, s6E of the Sentencing Act provides the sentence on Charge 2 should be served cumulatively upon the other sentence unless I otherwise direct.  Again, counsel for the Director did not seek full cumulation but did seek partial cumulation.

Personal

35You are 51.  You were born and raised in South America.  You have four older sisters.  Both your parents are dead, with your mother dying two years ago and your father when you were 14.  

36You had a good upbringing with good parents and sound relationships with your siblings.

37Your secondary education was limited for you left school at 14.  Your decision to leave school was due to your father's death and your wish to follow in his footsteps and become a diesel mechanic.  You worked hard to become a diesel mechanic through study and practical training.  After four years, you qualified.  Until your remand into custody, you have always worked as a diesel mechanic.  At one stage in South America, you owned your own business.

38In 2000, you came to Australia to visit your sisters.  You stayed for about six months, returning to South America to continue to run your business, which was prospering.

39In 2012, you visited Australia again.  Then in 2013, you emigrated.

40At 18, you started a relationship with Maria.  It ended after two and a half years.  This relationship ceased because of Maria’s post-natal depression.  You now have a good relationship with Maria and your daughter.

41At 27, you started a relationship with an older woman.  This relationship lasted 13 years.  It broke down because of your differing interests.  

42At 43, you started a relationship with the victim's mother.  One of your sisters introduced her to you.  This relationship lasted for seven and a half years and ended upon your arrest for these offences.

Psychologist

43Warren Simmons is a consultant psychologist.  On 16 September and 7 October 2021, he interviewed you at the request of your solicitors.[7]

“Mr Simmons did not diagnose you as suffering from any psychological illness or disorder.  He explained your offending:[8]  'With regard to the matters currently before the court, Mr Mendoza outlined a history that is frequently seen in a family where incestuous behaviour commences, particularly when roles are reversed for reasons such as illness or disability.  The victim had a more parental role as her mother suffered mental health problems, particularly after she ceased her medication.  It was in this context that the family dynamic changed and for Mr Mendoza, the victim became his partner in an emotional and physical sense.  Mr Mendoza does have some understanding of the mechanism by which this occurred and did not in any way blame the victim for what transpired.  He recognised that his behaviour was wrong and expressed remorse for his actions.  While he does struggle to understand the impact of his behaviour on the victim, this appears to be more a result of how he perceived it [to] be unfolding rather than a belief that she may not have been negatively impacted by what occurred.”

[7] Report dated 7 October 2021.

[8] At paragraph 28.

44Using the Static-99R test to determine your risk of reoffending, Mr Simmons considered you are a below average risk compared with other adult sex offenders.  Only 1.99 percent of the people in your category reoffend in the next five years.  

Discussion

45Section 5(1) of the Sentencing Act sets out the purposes for which sentences may be imposed.  Section 5(2) sets out factors which I must, if they are relevant, take into account in sentencing you.

46Plainly, the purposes of deterring you and deterring others from committing these offences or similar offences are important.  My sentences should manifest a denunciation of these offences.  They should also act to protect the community from you.  Aspects of these purposes may be achieved through your rehabilitation.  For if you are rehabilitated, then you will not reoffend by committing these or similar offences again. 

Victim impact statements  

47Both the victim and her mother made impact statements.

Victim

48The victim cannot remember how she was before your offending started because the offending was over such a long period. She has difficulty finding a sense of her self-worth and difficulty in trusting others.  Telling her mother what happened was a great relief but telling psychologists and the police what happened she found exhausting.

49Memories of your offending were overwhelming for her.  However, she is getting better at blocking them.  Initially, your offending left her depressed and anxious but with time she now feels numb.

50She took time off school.  She and her mother left their home because it gave her regular flashbacks of your offending and made her feel uneasy.  They lived with a friend of the family before obtaining another house.  They replaced furniture.  She was aware of the financial strain moving caused her mother. 

51She receives counselling from a psychologist and has received counselling from centres against sexual assault.  She also receives great support from her friends.  She is recovering slowly. 

Mother

52The mother spoke of your betrayal of her trust for her child and of her love of you.  She now finds it very hard to trust people.  It still affects her sleep.  It has cost her financially through moving home and replacing furniture.  She is receiving counselling from a psychologist and a counsellor from a centre against sexual assault. 

Maximum penalty

53Through Parliament, the community vehemently rejects sexual offending against children under 16.  This is shown in the maximum penalty for each charge being 25 years' imprisonment.  That maximum penalty is the second highest in the Crimes Act, the highest being life imprisonment.  

Nature and gravity of the offences

54The offences described in both charges are very serious.  The first charge describes three occasions involving four different acts of sexual abuse, of which two are forms of penetration.  The second charge speaks of at least three occasions of sexual abuse and involving four different acts of sexual abuse, of which three are forms of penetration.  Another difference between the charges is the much longer period over which the offending occurred in the second charge, 10 and a half months as against 37 months.  

55The prosecution opening does not permit a finding of the number of times these acts occurred over the period covered by the charges.  According to the victim, penile-vaginal penetration occurred 'too many times' and it could occur 'multiple times' in a week.  You said penile-vaginal penetration occurred on about seven occasions, but I will disregard that assertion and also your denial of performing oral sex upon her.  I am satisfied penile-vaginal penetration occurred on many more than seven occasions but I cannot find as to the number of occasions, whether for the first or second charges.  

56Your penetration of her vagina with your fingers occurred but she said nothing about its frequency.  Your penetration of her mouth with your penis occurred 'multiple times'.  Your licking of her vagina occurred 'several times'.  She says nothing about the frequency of the rubbing of her vagina.

57The gravity of your offending in the second charge is heightened by Parliament designating the offence as a standard sentence offence and by the need to sentence you as a 'serious sex offender'.  By these measures, Parliament is emphasizing the community's view of the seriousness of your type of offending.

58Underlying these measures is the view that such offending harms the child at the time, at least, psychologically and also harms him or her psychologically afterwards and into the long term.  That is why there is an absolute prohibition upon such activity.  There is an expectation of harm to the victim and its continuation for a long time afterwards.  The experience of judges of this and other courts continually reinforces the validity of the expectation.

59In one of decisions referred to me, there is a passage which is particularly apt to describe the point I am making:[9]  

“It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator.  Frequently the damage will be profound and a long time will pass before it can be addressed at all.  In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.  The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability.  The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.”

[9] DPP v Toomey [2006] VSCA 90 at [22].

60Your offending was spread over four years.  Following its disclosure, the victim has received professional counselling.  She speaks of the effect of your actions upon her.  She describes the changed emotional impact.  Being young, she sees the events as somewhat distant.  She seems to have benefited from the help of professional counsellors and the support of her family and friends.  She is still young.  Time will tell as to the medium and long term impact of your offending but one expects there will be a significant impact. 

61It must be remembered you were in a position of trust with the victim.  You were her step-father.  In her victim impact statement, her mother speaks of this breach of trust:[10]  

'First of all, I would like to say:  I trusted him to help me raise my child which is the most precious thing in my life and I told him that many times.'

[10] Victim Impact Statement declared 5 September 2021.

62Owing to nature of the sexual acts you performed and the time over which you performed them, the gravity of the offending in the second charge is above that of the first charge.  However, both charges represent grave examples of what are serious offences.  

Current sentencing practices

63As to current sentencing practices, the Director drew my attention to the sentencing remarks of judges of this Court and the Court of Appeal in DPP v Williams[11]; DPP v Polat[12]; DPP v Robards[13]; Russell v R[14]; and Neubecker v R[15].  The Director also drew my attention to passages from other judgments of the Court of Appeal.  

[11] [2020] VCC 2065.

[12] [2020] VSCA 174.

[13] [2020] VCC 1665.

[14] [2014] VSCA 310.

[15] [2012] VSCA 58.

Guilty pleas

64Your pleas of guilty were made at the earliest reasonable opportunity.

65In almost every case, a plea of guilty deserves a mitigation of the sentence which would be otherwise imposed.  At the very least, it avoids the need for a trial.  This saves time and the expense of a trial.  It allows other trials to be heard earlier than would otherwise be the case.  It avoids the need for witnesses to give evidence at a trial.  Generally, this is an onerous task for witnesses.  It is especially so where the witness would be the victim here and her mother.  These reasons for the mitigation of the penalty are well known in legal circles, but I doubt they are well known outside of legal circles or the additional mitigatory effect of a guilty plea made at this time. 

66Due to the restrictions caused by the pandemic, the courts have struggled to deal with criminal cases efficiently.  This has prompted the Court of Appeal in a case of Worboyes v R[16] to explain that pleas of guilty are worthy of a greater discount of the sentence if made at this time.  It is worth quoting a passage from the court's judgment which shows the emphasis it placed on pleas of guilty in this time of restriction:[17]

“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.”

[16][2021] VSCA 169.

[17] At [35].

Criminal history

67As to your criminal history, you have none, whether in Australia or South America.  Accordingly, for many years until the commission of these offences, you were of good character.  That requires some mitigation in penalty.  

Remorse

68Your pleas of guilty are evidence of remorse.  You were plainly remorseful when speaking to the psychologist.  Although in your record of interview with the police, you attempted to shift some of the blame to your victim, you did give information to the police which had not been obtained by them from the victim.  During the plea hearing, you did not maintain your attempt to shift the blame to the victim.  In fact, through your counsel, you resiled from that position.  That is to your credit.  I accept that you are genuinely remorseful for your offending.  What that means is that you will be determined not to reoffend after your release from prison.

69I have used your assistance in disclosing aspects of your offending which the victim did not tell the police as evidence of your remorse, bearing on the issue of rehabilitation and the extent of the need for specific deterrence.  These are the qualities of such assistance identified in the case of R v Doran[18].  However, that benefit is limited given the widespread nature of your offending. 

[18] [2005] VSCA 271 at [14].

Prospects of rehabilitation

70As to rehabilitation, your prospects are excellent.  You are remorseful.  You are assessed as a lower than average risk of reoffending sexually.  My sentences will act as a powerful deterrent against further offending, either sexually or otherwise.

Deportation

71You are not an Australian citizen but are a permanent resident under a permanent partner visa.  Under the relevant provisions of the Migration Act 1958, my sentence of imprisonment will mean your visa is automatically cancelled. However, the relevant Minister retains the power to revoke the cancellation.

72In Loftus v R[19], the court said this:  

“The potential for an offender to be deported at the completion of a sentence is relevant to sentencing in two ways. First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. This, in turn, may render the incarceration more difficult. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.”

[19] [2019] VSCA 24 at [79].

73Both considerations apply to you.  There is a real prospect of your deportation.  Whether you would seek to reverse the cancellation remains to be seen.  Nevertheless, you have lived in Australia since 2013.  You intended to stay permanently.  You have at least one sister living in this country.  

Pre-sentence detention

74You were arrested on 6 September 2020 and have remained in custody since then.  Excluding today, there are 450 days of pre-sentence detention.  I declare that those days are reckoned as already served under the sentences imposed today.

Custodial conditions

75Along with many other persons in custody at present, you have been subject to significant restrictions due to the pandemic.  

Sentences

76On Charge 1, persistent sexual abuse of a child under 16 between 13 August 2016 and 30 June 2017, I sentence you to two years' imprisonment.

77On Charge 2, persistent sexual abuse of a child under 16 between 1 July 2017 and 3 August 2020, I sentence you to seven years' imprisonment.  This is the base sentence.

78One year of the sentence on Charge 1 will be served cumulatively upon the base sentence.  The total effective sentence is eight years' imprisonment.

79I will set a non-parole period of five years' imprisonment.

80As I said earlier, I will declare your 450 days of pre-sentence detention, excluding today, is reckoned as time served under these sentences.

Departure from standard sentence

81The sentence on Charge 2 is less than the standard sentence for the offence.  This is due to a combination of factors including the seriousness of your offending, your level of culpability, your previous good character, your guilty plea, your prospects of rehabilitation and the effect upon you of the possibility of deportation.  

Section 6AAA

82If you had not pleaded guilty to these offences but were found guilty at trial, I would have sentenced you to a total effective sentence of 11 years' imprisonment with a non-parole period of seven years' imprisonment.

Sex Offender Registration

83These offences necessitate your registration under the Sex Offenders Registration Act 2004 (“the Act”). You are required to comply with the reporting conditions under that Act for the rest of your life.

84Owing to you not being physically present in the courtroom today, my Associate will send a document to you detailing your reporting obligations under the Act.

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