Director of Public Prosecutions v Romero
[2020] VCC 1002
•15 July 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-18-01193
Indictment No. H13392385.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DIEGO ROMERO |
---
| JUDGE: | HER HONOUR JUDGE DALZIEL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 May 2020, 6 July 2020 |
| DATE OF SENTENCE: | 15 July 2020 |
| CASE MAY BE CITED AS: | DPP v Romero |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1002 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Causing injury recklessly – Rape- plea of guilty
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence of
Section 6AAA declaration:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Warren | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms N. Allison | Leanne Warren & Associates |
HER HONOUR:
1.Diego Romero, you have pleaded guilty to one charge of recklessly causing injury and one charge of rape. The maximum penalties applicable for these offences are 5 years and 25 years, respectively.
2.These offences were committed against your then partner, whom I shall refer to by the pseudonym “Alice.” On 11 December 2017 you and Alice were at home. You had been drinking. You told Alice to suck your penis. She did so, despite not wishing to, because your manner was aggressive. When, at one point, she ceased to perform to your expectation you threatened her, saying “If you take it out one more time, I’ll break your neck.” I note that this conduct does not fall under the charge of rape, but rather is background to the charged events.
3.Alice was frightened, so she took up her phone and locked herself in the toilet, where she called 000. You broke down the door into the toilet room, damaging the lock and then physically removed Alice from that room. You tried to take her phone from her, biting her finger in the process. That act is the subject of Charge 1.
4.Having taken Alice’s phone you told her to get on the bed and to finish performing oral sex upon you. She did that for a time, then you made her lie down and you put your penis in her vagina. She lay there crying as you had penile vaginal sex with her. This is the subject of Charge 2. You finished and told her to have a shower and wash her face.
5.Neighbours had heard Alice screaming, and had called the police, who attended your home. Police knocked on the door. You told Alice to stay in the shower. Alice got dressed and from the bathroom door was able to indicate to the police officers that she needed help. She told police what had occurred and was then taken to the Royal Women’s Hospital where her injuries were photographed, and she was examined.
6.These injuries included a laceration to a finger on her left hand, which is the subject of Charge 1, and abrasions to her face and neck, which were caused in the struggle in the toilet.
7.You were arrested and interviewed. You said you had gotten into a verbal argument with Alice, but there was no violence. You said she injured her finger at work. You said that Alice and you had had consensual oral and then penile/vagina sex. You said the lock on the toilet door had been broken for months.
8.Alice has made a Victim Impact Statement in which she described how your offending has affected her. She has moved from Melbourne and her life here. She describes feeling low and unable to cope with things, and that she is always afraid and has difficulty trusting people.
9.Mr Romero, your offending is serious. Rape is a serious charge in itself, as demonstrated by the maximum penalty applicable. This rape occurred in the context of violence, after you had dragged her from the room in which she had tried to take shelter. She cried as you raped her. Alice was entitled to your care and support. You were not entitled to have sex with her regardless of her wishes. Violence – sexual or otherwise – against intimate partners is deplorable.
Procedural History
10.You were remanded in custody on the day of these offences, 11 December 2017. Since then you have remained in custody. Your appeal in respect of a sentence imposed on 6 December 2017 was abandoned on 23 February 2018, and you then served the sentence which had been imposed by the Magistrates’ Court.
11.You contested these matters and a contested committal was heard on 6 June 2018. The trial was listed in March 2019. After some delays and discussion the case resolved upon you entering a plea of guilty to these two charges. You were arraigned and pleaded guilty on 29 March 2019.
12.At the plea hearing listed on 4 July 2019 you indicated that you wished to change your plea. After a series of mentions that application was refused on 19 November 2019.
Personal Circumstances
13.You are now 45 years old and are the second of seven children. You were born in Uruguay, then your family moved to Australia when you were around 2. You finished year 12 then started but did not finish a Certificate IV in IT, at Victoria University. You then obtained a forklift licence and worked in warehousing for around 20 years.
14.You described having a close relationship with your mother and siblings, but a more difficult relationship with your father who was demanding and strict when you were young and often inflicted physical punishment upon you. You have had a number of relationships with women.[1] The first of these, with a woman named Michelle, commenced whilst you were studying at Victoria University. Michelle became pregnant, which precipitated you leaving your parents’ home and ceasing your tertiary studies. You had a child but found it very stressful to be a father at such a young age. You told Ms Lechner that Michelle had “a mental disability”, that the relationship deteriorated, and DHHS became involved out of concern for the child. This relationship involved domestic abuse by you towards Michelle.
[1] Lechner 24 June 2019, page 2
15.You had relationships with a number of other women, and had a second child who is now around 8 years old. You started your relationship with Alice in 2016.
16.You told Ms Lechner that you always choose the wrong woman, that Alice was addicted to Ice and Cannabis, and that you are a Catholic with standards. You said you did not know how to break up without an argument.
Psychological Reports
17.You were examined by Ms Lechner in June 2019, for the initial plea hearing. Ms Lechner considered you were presenting with Alcohol Use Disorder, some narcissistic personality traits and symptoms of a Major Depressive Disorder.[2]
[2] Lechner 24 June 2019, page 1 and 7
18.Ms Lechner interviewed you again and provided a further report dated 13 June 2020. She noted that your depressive symptoms appeared to be less severe than a year ago. Testing also indicated that you experience mild anxiety.
Criminal History
19.Your criminal history demonstrates a long history of domestic violence perpetrated by you. In May 2003 you were sentenced on a charge of recklessly causing injury. That offending involved an attack by you upon your heavily pregnant partner, Michelle.
20.In October 2005 you were sentenced to a 3 month ICO for unlawful assault and being on premises unlawfully. You had entered the home of your ex-partner despite being refused access. You assaulted her, slapping her face and dragging her outside. You ceased your attack only when confronted by her nephew.
21.In December 2012 you were sentenced to 18 months’ imprisonment for intentionally causing injury. This related to injuries you caused to a sex worker, by punching her repeatedly to the head and body, whilst demanding that she have sex with you for free. This attack caused a broken rib, bruising, swelling, and lacerations to the victim’s face.
22.Then, on 6 December 2017 you were sentenced to 168 days imprisonment, to be followed by a CCO, for Persistent Contravention of a Family Violence Order, Stalking and Committing an Indictable Offence whilst on Bail. This offending involved persistent harassment and abuse of your former partner, including sending untrue and offensive things about her to her employer.
23.Mr Romero, you are not to be further punished for these past offences, but they give rise to concern regarding your prospects for rehabilitation.
Plea of Guilty
24.Your plea of guilty, whilst late, saved the complainant the stress of giving evidence at trial and has utilitarian benefit. This utilitarian benefit is somewhat reduced by the change of plea application, however there does remain benefit, and your sentence will reflect that. The utilitarian benefit and the facilitation of the administration of justice is greater at this time, due to the restrictions placed on the Court’s activities due to the COVID-19 pandemic.
Remorse
25.Your counsel noted that you had expressed remorse for biting Alice on the finger.
26.Whilst a plea of guilty is often an indication of remorse, in your case there is other evidence which demonstrates that you continue to deny the sexual offending.
27.Ms Lechner, in 2019, noted that “Mr Romero admits to his offending but has had some difficult in conceptualizing his actions as ‘rape’. He stated that he was angry with the victim at the time and ‘exploded’. He had been drinking and felt unable to control himself.”[3] Ms Lechner noted that you lack insight into the seriousness of your behaviour towards Alice, and that you struggle with the nature of consent.[4] You told her you were sorry for what happened to Alice and for putting her and yourself through this situation.[5]
[3] Lechner 24 June 2019, pages 1-2
[4] Ibid page 3, 5
[5] Ibid page 5
28.In the course of the change of plea application you gave sworn evidence. In that evidence you repeatedly denied that there had been penile/vaginal sex with Alice and maintained that any sexual behaviour was consensual. You said the only reason you agreed to plead guilty was to receive a reduction in your sentence.
29.When interviewed again by Ms Lechner in 2020 you seem to have, on the one hand, maintained the position that the penile/vaginal sex did not happen, but also maintained that it was not rape as it was not a brutal attack, and that Alice was not crying when you had sex. You did concede that Alice was not enjoying “it”.[6]
[6] Lechner 13 June 2020,pages 2-3
Prospects of Rehabilitation
30.In the context of you admitting that you had raped Alice, Ms Lechner assessed your risk of sexual reoffending as moderate.[7] She noted that you had an egocentric, entitled view of life and your relationships. Despite your admissions at that time you minimised your offending and demonstrated deeply held attitudes to what you believed were your ‘rights’ in a relationship both as to sexual contact and what you describe as ‘respect’.
[7] Lechner 24 June 2019 page 2 and 5-6
31.In the more recent report from Ms Lechner she again assessed you as presenting a “’moderate’ risk of sexual reoffending relative to other sexual offenders.”[8] She noted her impression of you as socially and emotionally immature and that you have a limited capacity to understand the perspective of others.[9] Your social support network is limited to your family and you appear to place considerable importance on your need for what you describe as “respect” in your relationships.[10]
[8] Lechner 13 June 2020, pate 8 paragraph 3
[9] Lechner 13 June 2020, page 8 paragraph 2
[10] Lechner 13 June 2020, page 3-4
32.Your criminal history is of concern, in that it demonstrates that despite coming before the courts on many occasions for domestic violence matters, you have not been deterred from such offending.
33.The assessments and opinions of Ms Lechner, the nature of the offending before me, your attitudes towards this offending, and your criminal history lead me to conclude that both in respect to sexual offending and violent offending against women your prospects of rehabilitation are guarded at best.
Custody Issues
34.There have been a number of incidents during your time on remand that have necessitated you being placed into protection units, and thus under more restrictive regimens. Since May 2019 your main location has been at Hopkins Correctional Centre, where all prisoners are protection prisoners, so that the restrictions applicable to you as a protection prisoner at other jails no longer applied.
35.The affidavit from Corrections which was provided to me indicates that in February this year, before the COVID-19 restrictions, you reported good family support, with phone contact and you were anticipating an in-person visit. You were working, attending the gym and your mental health was good. In March you had stopped working.
36.Since the COVID-19 restrictions there was a period of lockdown, and hours out of cell were reduced from 11.5 hours to 10.25 hours. Face to face courses are not available, but online classes addressing offending behaviour are still delivered.
37.I accept that your depression and anxiety will have an effect on your time in custody and I afford you a degree of mitigation for that reason. The limitations on visits and prison life caused by the COVID-19 restrictions, as well as concern you may feel for your own health and that of your family, also warrant a degree of mitigation of your sentence.
Other Sentencing Principles and Factors
38.Specific deterrence carries considerable weight in sentencing you. As I have noted earlier you are not remorseful for your sexual offending against Alice, you hold beliefs about yourself and appropriate sexual conduct which are problematic, and your history of other domestic violence offending speaks poorly of your prospects for rehabilitation.
39.General deterrence is also an important sentencing factor. Those who think that a relationship entitles them to sexual contact whenever and however they wish should understand that sexual and other crimes against their intimate partners will lead to real consequences. The sentences I impose are intended to denounce your conduct, and administer just punishment. Furthermore, protection of the community is a factor in view of your prospects of rehabilitation.
40.You have been in custody since 11 December 2017. You served another sentence whilst on remand for these matters, for offending committed against a former partner, committed in April 2016. The offending before me was committed whilst you were on appeal bail on those matters. The principle of totality applies so as to moderate your present sentence to a modest degree. I also take into account the more than two and a half years since your arrest – although that passage of time has largely been due to the choices you have made, the uncertainty of the outcome of these matters has been hanging over your head for that time.
Sentences
41.Charge 1, recklessly causing injury, you are sentenced to one month's imprisonment.
42.Charge 2, rape, sentenced to six years’ imprisonment.
43.Two weeks of the sentence imposed on Charge 1 is to be served cumulatively upon sentence on Charge 2, resulting in a total effective sentence of six years and two weeks.
44.I set a non-parole period of four years and six months.
45.Pursuant to s.6AAA of the Sentencing Act I declare that if you had not pleaded guilty I would have sentenced you to a total effective sentence of seven and a half years, with a non-parole period of five years.
46.I declare and note and direct that it be entered into the records of the court that you have served 844 days of pre-sentence detention not including today.
47.I will make the disposal order sought by the prosecution.
48.Are there any other matters that need to be addressed?
49.MS WARREN: That is all, Your Honour. As Your Honour pleases.
50.MS ALLISON: No, Your Honour. As Your Honour pleases.
51.HER HONOUR: Thanks, we will adjourn the court.
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