Director of Public Prosecutions v Sastre (a pseudonym)

[2023] VCC 2293

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH SASTRE (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2023
DATE OF SENTENCE:	7 December 2023
CASE MAY BE CITED AS:	DPP v Sastre (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 2293

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Rape – Incestuous rape

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:Clarke v The Queen [2022] VSCA 89, Lockyer v The Queen [2020] VSCA 321

Sentence:                 11 years imprisonment with a non-parole period of seven years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher	Office of Public Prosecutions
For the Accused	Mr C. Hooper	Ann Valos Criminal Law

HIS HONOUR:

Introduction

1Mr Joseph Sastre[1], following a short trial on 30 October you were found guilty of two charges of rape.  The maximum penalty is 25 years' imprisonment and the standard sentence is 10 years' imprisonment.

[1] A pseudonym.

2The offences occurred in the early hours of 12 December 2021 and the complainant was your then 21-year-old daughter.  You were aged 39.  I am required to sentence you in accordance with the jury verdicts. 

Circumstances of the Offending

3The complainant was born in April 2002.  You separated from the complainant's mother when she was aged two and thereafter for many years had little to do with her.  Her mother re-partnered and she has two half-sisters.

4During 2021 the complainant was babysitting for her auntie.  You were living in that house in a western suburb, and thus in the course of her babysitting duties she had interactions with you in terms of phoning or messaging.  She described her relationship with you as at December 2021 as an acquaintance or friends.

5The complainant had previously been living in the south-eastern suburbs of Melbourne but had moved with her mother to a house near to her auntie in January 2021 and thereafter did the babysitting for her auntie who had a young baby.

6On 11 December 2021 the complainant's auntie, who had moved into a new address in a different western suburb, arranged for a family birthday party for the young child, and you and the complainant, along with her mother and other close relations were invited. 

7Late in the evening the complainant had a couple of shots of spirits.  Her mother and half-sister had left the party earlier.  She had intended to stay the night with her auntie.  You suggested to her that she should come back to your place to stay rather than stay with her auntie and husband who had been drinking.  She reluctantly agreed.  You left the party with her just prior to midnight. 

8When the two of you got to your house she prepared for bed.  You were watching television.  The two of you sat on the couch. You asked her to sit closer to you and she then proceeded to fall asleep.  She woke up.  She said that she was prepared to sleep on the couch.  You insisted that she sleep in your bed. You assisted her to get into the bedroom and you got into bed yourself with her.  She immediately fell asleep.

9She then woke and found you kissing her on the lips, licking her neck, you were groping her.  You were sucking one of her breasts, both of which had been exposed and her lower clothing had been removed. You were whispering affectionately to her.

10You then proceeded to place your fingers in her vagina and were wiggling them in and out.  This constitutes Charge 1 of rape.

11The complainant with unable to move and was attempting to resist you but you restricted her arms above her head, grabbed her wrists and used your forearm to add weight.  She was crying and asking you why you were doing this.  You replied by calling her name multiple times affectionately.  You were holding her hands.

12You then moved her thighs wider and then proceeded to insert your penis into her vagina .  She felt devastated and felt pain.  She was crying more and started wailing but you did not stop.  You asked 'what happened to you Milla[2]’, she could not understand why.  She was crying and wailing.  You then proceeded to thrust your penis into her vagina for what she said was less than five minutes.  She told the doctor two minutes.

[2] A pseudonym.

13After you stopped penetrating her, she was yelling at you seeking her shorts and underwear back.  She put them back on.  She was trying to get off the bed and tried to get her handbag.  You grabbed her by the waist and pulled her back to sit on the edge of the bed and she fell on the floor.  She was trying to get away and telling you she wanted her mother and wanted to go home.  She wanted to get her bag.  She panicked at that point and was crying and attempted to leave the bedroom but you stood in front of her and stopped her.  You blocked her from leaving and fell to your knees and said 'I regret it', I'm sorry'.  She told you she did not care, she just wanted to get out.  She went to the bathroom and you blocked the door to prevent her leaving the bathroom.  She was able to leave the bathroom through another door and she asked you to take her home.  When you went to get the keys she was able to leave the house through the front door and ran up the street.

14After she ran up the street, she hid behind a tree in a yard a few houses up and rang her mother and her grandmother.  Her grandmother attended and drove her home.  She saw your car driving up and down in the street.  Further she received numerous text messages from you in the hour or so after she left the house.

15The complainant told her mother what had happened and her mother insisted she be taken to the police station.  She told her mother that you had pulled her pants down.

16The complainant was seen to be extremely upset and distressed at the Sunshine police station.  She told the police officer that she had woken up and found you having sex with her.

17The complainant was then later examined by a forensic medical officer,
Dr Cohen. Dr Cohen undertook a forensic medical examination.  The complainant was unable to tolerate a speculum examination.  The doctor was however able to obtain vaginal swabs.  She also observed a small abrasion inside the complainant’s vagina and fresh blood.

18DNA from the high vaginal swab did not exclude you as a contributor.  Dr Cohen gave evidence that the small abrasion could have been caused by blunt force but was unable to say whether it was caused by a finger, a penis or a tampon.

19You were arrested later that morning and undertook a record of interview in which you denied any sexual interaction with the complainant.

20At the trial, the prosecution led evidence from the complainant as well as the complaint evidence from her mother and her grandmother, and the police officer.  The prosecution also relied on the DNA evidence and the expert opinion of Dr Cohen.  The prosecution also relied on the evidence of the complainant as to your statements in the bedroom that you were sorry, and statements in the text messages that you sent as constituting admissions against interest.

21Your defence in the trial as set out in your record of interview was that the complainant had requested that she come back to your house.  When she was back there the two of you had a discussion on the couch and she raised issues as to her past and relations with her stepfather.  In the course of that discussion she disclosed to you that she had been abused by him when she was aged eight or nine.  You became upset that she had not told you previously and you yelled at her.  She then ran out of the house.  You proceeded to get into your car and seek to search for her and sent text messages as you were worried about her.

22It was put to her in the course of the trial that her motive to make false allegations against you was that she did not want to deal with the earlier abuse at the hands of her stepfather.  The complainant refuted that suggestion of motive.

23The jury must be taken to have rejected your denials in the record of interview and have accepted the complainant's account as to the events, supported as it was by the DNA and forensic evidence and the complaint evidence.

Victim Impact

24Your offending had an immediate impact on the complainant.  She was distressed and upset when she rang her mother when she was outside the house, behind the tree.  When her mother arrived the complainant was also observed to be upset.  When she arrived at the police station she was observed to be distressed and remained distressed when she was examined by Dr Cohen.  She had told the doctor that she had pain in her vagina and was unable to tolerate a speculum examination.

25She has filed a victim impact statement. In the victim impact statement, which I incorporate in full and which I have read, she said inter alia:

'After the incident I struggled to understand what had happened to me in various ways.  The impact it has had on me emotionally was that I felt very betrayed by many people in one night mainly by the accused.  I felt disgusted by my own body at first which continued months after the incident occurred.

[She said] 'With the help and support of both my mum and my psychiatrist I was distracted every day to keep myself from thinking about the incident.

When I did remember the incident I became aware of every Asian man who walked near me that looked similar to the accused.

This made me struggle to leave the house the first couple of months by myself.

[She goes on to say] '… I struggled to have any appetite in eating meals and would rather have slept my days away.

[She said she struggled mentally and she needed a psychiatrist to help her.]

'Because the incident was on the birthday of [her] baby cousin who [she was] very close to, it has become very hard for me to go to her party or anywhere on the day.

[She] ' dreads the date of the incident as such I cry on the day every year.

[She] ' had lots of trouble going to sleep … [she has] to take sleeping pills.  [She had to take sleeping pills] every night for a couple months … [to enable her to get] to sleep … without waking up scared and crying.  [She has] to have a night light in [her] room … .

[She has] 'cut off all contact with [her] grandparents from [your] side as they have betrayed my trust … .

[She says] 'Looking back now I cannot even remember how the first couple of months went by and what I even experienced because my aim was to forget everything that happened and just to live to the next day.

'During the trial process I struggled every time I had to get on a train to get to the room to make my statement.  I felt drained and stressed before and after I finished answering the questions … .

[She says] 'Having the questions asked about the incident left me feeling frustrated and anxious every time I was on the screen.  I cried after the questioning was over or at home in the safety of my house … . 

[She goes on to say she] '…  felt unsafe in the area ….

[She] ' … installed cameras around the house … .

[She] '… felt uncomfortable and hated when [she] used things that [you had given her money to buy so she replaced them].

[She] '… struggled to be around men [and] went out with [her] mum

[She said] 'It made me very unsafe and scared to think of the men even walking near me at that point in my life which stressed me out leaving the safety of my home.

'Every time I hear the word dad I become depressed and unsafe.  [And] … cut off some family relationships because of him … '

26It is clear from her victim impact statement that your offending has had a significant and continuing impact on the complainant.  As she indicates she has required psychiatric treatment and it has had a major impact on her ability to function within society.  The continuing impact of your offending on her goes to increase the gravity of your conduct.

Objective Gravity and Moral Culpability

27In assessing the objective gravity of the offending a central consideration is the relationship between you and the complainant.  She was your young adult sexually inexperienced daughter.  As her father she was entitled to your protection.  It was your status as her father that was the circumstance in which she went with you to your home in the early hours of the morning.  She was fatigued as a result of having had a couple of drinks at the party and had gone to sleep on the couch at your home.  She was prepared to sleep on the couch that night but it was at your insistence that you effectively carried her into the bedroom.

28She was alone and isolated in your house.  You were fully aware that she was in a somewhat vulnerable state.

29She was asleep and woke up with you having exposed her breasts, groping her, kissing her and then, having removed her lower clothing, proceeded to insert your fingers into her vagina.  She was resisting your conduct yet you were whispering affectionately to her.

30Your conduct then escalated as you opened her thighs and then proceeded to insert your penis into her vagina.  She had never previously had penile vaginal intercourse.  She gave evidence that she was wailing and in pain and you proceeded to thrust your penis into her for what she believed was for two minutes.  Your act of penile vaginal intercourse was over her resistance, and caused pain.  The complainant also suffered the minor abrasion identified by Dr Cohen.

31An aggravating feature of this matter is that this was an act of unprotected intercourse.

32While it cannot be said that your offending was premeditated, it was submitted by your counsel that it was opportunistic.  While there was no premeditation as such, your offending however escalated from you taking advantage of her sleeping state and then over her resistance to your entreaties groping to the digital penetration and then proceeding to penile penetration which is charge 2.

33On an objective basis this was serious offending.  The breach of trust constituted by your conduct was grave.  While the offending was of a relatively short duration, it was a gross invasion of your daughter's bodily integrity and caused a minor injury.  There was escalation in relation to charge 2, some force was used, and the complainant was resisting you both verbally and physically.  As I have noted your offending and the trial process itself has had a major impact on the complainant.

34You must bear high moral culpability for this offending.  Having regard to the objective circumstances of the offending and your moral culpability this offending was well above the middle range of offending of this nature.

Matters in Mitigation

35In a comprehensive plea your counsel put a number of matters in mitigation.  First, you are now aged 42 and come before the court without any prior convictions.

36You were born overseas and were left with your maternal grandmother at the age of six when your mother moved to Australia.  You migrated to Australia in 1994 and lived with your parents and two siblings.  You moved to Sydney in 1995 and commenced schooling and were required to assist in the care of your siblings.  You received little care from your parents and moved to Melbourne in 2000 when you completed Year 10.

37You left school in 2001 and commenced working on a farm before going into business as a farm contractor.  Your parents and siblings relocated to Melbourne at the end of 2001.  You wound up your business in 2004 and started working as a factory hand and then returned to the farming sector until 2017 and supported your family financially.  You worked in a metal factory in 2018 and in 2019 your sister opened an earthmoving business and you worked in that business as a truck driver until you were remanded. You thus have a strong history of employment that goes in your favour. 

38In addition to the matters that I have just raised, your counsel tendered a number of references that indicated that those persons who have known you for some considerable period regard your offending as out of character.

39In your mother's reference she indicates that you are a strong supporter of her.  In a reference from your half-sister she indicates that she regards this event as out of character.  Your younger half-brother notes that you deny the charge but also show remorse.  This is a contradiction and I give it no weight.  He attributes your offending, which you deny, to ingestion of alcohol.  He also notes that you had an unstable upbringing.

40Your sister-in-law also maintains that the offending is out of character.  She regards you as a decent hard-working and trustworthy person and she continues to trust you even though she does not believe you are guilty of the offences.

41I have considered all the references.  It is clear from the references that you do have considerable family support although members of your family do not accept that you have committed these offences.

42Given that you have no prior convictions and nothing outstanding I regard the offending as out of character and that is supported by the references.

43Your counsel Mr Hooper submitted that I should regard your prospects of rehabilitation as good given your lack of prior convictions, your good employment record and your family support.

44There is no evidence of remorse here. However, notwithstanding that you have denied the offending, given your age and lack of any antecedents then with appropriate sex offender treatment I would regard your prospects of rehabilitation as good.

45In mitigation your counsel also relied on the issue of delay.  There is always delay in the criminal justice system and the delay here, of two years since the index offending, cannot  be seen as undue delay. 

46You are entitled however, to have that taken into account in your favour as you have had the matter hanging over your head since you were arrested until the jury verdicts and the sentence this day.  Further, you spent a period of some 60 days in remand before being granted bail and you remained on bail until the jury verdict.

47I have taken this period on remand into account in your favour as any period on remand is more onerous than being sentenced.

48You have not committed further offences over the period since your arrest and that is a factor that I take into account in your favour and is relevant to your prospects of rehabilitation.

Sentencing Submissions

49The learned prosecutor Mr Fisher referred the court to the case of Clarke v The Queen [2022] VSCA 89, as providing an appropriate approach to sentencing for this type of offending. I have considered this case not for the purposes of current sentencing practices but for the approach, and as being instructively different.

50Your counsel referred the court to a number of cases involving sentences for the crime of incest.  He submitted that the offending dealt with in those cases was more serious than here.

51I have not found the sentences for that offence, namely the offences of incest, as of any assistance.  While your offending here can be regarded as an incestuous rape, a significant feature of the gravity of the offending is the breach of trust constituted by your offending, as well as the forcible violation of the complainant, as I have discussed earlier.

52In sentencing you I am required to have regard to the standard sentence of 10 years as a guidepost.

53I must also have regard to the maximum penalty, which at 25 years is at the top of the criminal calendar. I am not to engage in two-stage sentencing. I must have regard to your antecedents and your prospects of rehabilitation, as well as the circumstances of the offences.

Purposes of Sentencing

54The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

55In the present case in sentencing you, considerations of general deterrence and denunciation loom large.  Given your lack of prior convictions, considerations of specific deterrence and protection of the community carry less salience.

56The sentence of the court must denounce your conduct.  You violated your own daughter and in doing so violated a significant societal norm and committed a grave breach of trust.

57General deterrence is also an important consideration, particularly where offending constitutes a breach of trust.

58The standard sentence of 10 years must also be considered as a guidepost.

59In the case of Lockyer v The Queen [2020] VSCA 321 the Court of Appeal said at [66]:

'As this Court recently said in Director of Public Prosecutions v Mokhtari:

'The very act of rape is inherently serious, simply by virtue of the invasion of the victim’s bodily integrity without consent.  It is, quite simply, an act of violence, whether or not accompanied by other violent conduct.  The violation is physical, emotional and psychological.  It follows that, aggravating features apart, all acts of non-consensual sexual penetration are objectively serious, regardless of the form and extent of the penetration.’

67 It must be understood that the standard sentencing regime, so recently introduced, does not in any way diminish the importance of giving proper weight to relevant mitigating factors.  These include the personal circumstances of the offender, his or her prospects of rehabilitation and, where appropriate, the need to give due weight to a plea of guilty (particularly if coupled with remorse).

68 If the standard sentencing regime is not approached in accordance with the principles laid down in both Drake and Brown, it will have replaced ‘instinctive synthesis’ with ‘two-tiered’ or ‘starting point’ sentencing.  It is clear that that is not the intent of the Parliament.

69 A standard sentence of 10 years’ imprisonment, for rape, represents a ‘legislative guidepost’, and is to be understood as but one factor to be taken into account in what is obviously a far more nuanced, and careful, process than one which is crudely arithmetic. '

60I have sought to have regard to those principles set out in Lockyer in sentencing you.  In addition to the standard sentence, your counsel submitted that the interests of justice called for a non-parole period of less than 60 per cent of the head sentence.

61He relied on your good prospects of rehabilitation and lack of antecedents in support of the submission that you should have a longer than usual period during which you will be eligible for parole.

62I have considered but do not accept those submissions.  The non-parole period is the period that you are required to be in custody before being eligible to serve the balance of your sentence in the community.  It should reflect the minimum period that will give effect to all the purposes of sentencing including general deterrence and denunciation.

63In sentencing you for these two charges, I propose to apply the 'one transaction rule'.  The two offences were very closely related in time and circumstance and in those circumstances I regard it as appropriate to order full concurrency in sentencing you.

64In sentencing you I am required to have regard to the matters set out in s5(2) of the Sentencing Act, which I do.  I must also take into account that the charges are standard sentence offences.  For the reasons set out above that I have identified and considered as relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty and the standard sentence for rape, in this case I have formed the view that the sentences that I will impose are equal to, and greater than, the standard sentence.  Could you please stand.

Sentence

65On Charge 1 you are sentenced to 10 years' imprisonment.

66On Charge 2 you are sentenced to 11 years' imprisonment.

67I order that the sentences be served concurrently.

68I order that you serve seven years before being eligible for parole.

69I declare that you have served 107 days presentence detention and order that it be deducted administratively.

70I want to thank counsel for their assistance in the trial and in the plea and wish the complainant all the best.  Adjourn the court.

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