Director of Public Prosecutions v Villagran

[2024] VCC 820

IN THE COUNTY COURTOF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01818

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODRIGO VILLAGRAN

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 June 2024
CASE MAY BE CITED AS:	DPP v Villagran
MEDIUM NEUTRAL CITATION:	[2024] VCC 820

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW - SENTENCE

Catchwords: Persistent contravention of family violence order; Common Law Assault; Rape.

Legislation Cited: s36A Crimes Act 1958 (Vic); s38 Crimes Act 1958 (Vic); s123A of the Family Violence Prevention Act; ss5A, 5B and 11A

Cases Cited: Brown v The Queen [2019] VSCA 286; Pasinis v The Queen [2014] VSCA 97; Gray v Queen [2018] VSCA 163; Dalgleish [2017] ALJR 91;

Sentence: 9 years and 3 months imprisonment.

6AAA: 12 years with a minimum of nine years before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Pillai	Office of Public Prosecutions
For the Accused	Mr C. Sloan	McNally & Gleeson

HIS HONOUR:

1Mr Villagran came before the Court when Mr McConaghy and Ms Skvortsova appeared at the pre-trial hearings which were on 13 February and 14 February, when the matter settled.  A new indictment was filed over on 15 February, being indictment M12172484.1.  The plea was conducted on 16 April 2024 when Ms Pillai, appeared for the DPP, and Ms Skvortsova appeared for Mr Villagran.

2Exhibit A was the prosecution opening which Ms Skvortsova accepted as being the facts upon which I am to sentence you, Mr Villagran. Importantly, in regard to those facts, paragraph 13 indicated that insofar as your pleading guilty to the charge of rape, the plea was entered on the basis that such rape occurred with you believing that the victim was consenting, albeit unreasonably so, given the arguments and the assault that had taken place beforehand.  Insofar as the satisfaction of the elements of 38(1), all of which are accepted by your plea. This matter was settled on the basis that though you believed the victim was consenting, such belief was not reasonable. 

3Pursuant to s36A of the Crimes Act the relevant belief depends on the circumstances. As I have said here, it is accepted that you had the belief that the victim in this matter was consenting, albeit such was not reasonable. Logic says, although this state of mind satisfied the elements set out in s38, that your culpability must be seen as less than, for example, (a) knowing that the victim did not consent; or (b) taking no steps to ascertain the question as to whether a person was consenting. Indeed, such reduced culpability was conceded by the prosecution as set out in Exhibit C, the submission on sentencing at [3].

4It is to be noted in the Bench book, at 7.3.2 at [41], that insofar as this element is concerned, there has been no consideration by the Court of Appeal and certainly no authority has been given to the Court insofar as the issue of culpability. The matter is further explained in the Bench book at 7.3.1.2 at [54], a reference to s36A and reasonableness in all the circumstances.

5Mr Villagran, at the time of these offences you were aged 45.  You are now 48, having been born on 10 May 1975.  The first offence is a breach of the intervention order which was part of cross-intervention orders between both yourself and Diana Meades[1], made at the Magistrates' Court in Dandenong on 31 March 2021. The offending in Charge 1 is between the 16th and 17th of October 2021 being a continual breach of such order, as detailed in Exhibit A at [7]. Such is an offence against s123A of the Family Violence Prevention Act for which the maximum penalty prescribed is five years' imprisonment.

[1]A pseudonym

6The second charge is one of common law assault, an offence which has a maximum penalty of five years imprisonment.  Again, it occurred in the period 16 to 17 October when the victim was staying with you overnight and involved circumstances where the victim was calling out in her sleep.  She woke you, perhaps woke herself, I am not sure, but that led to the assault by you by way of strangulation. 

7The third charge is the rape charge that I have spoken of.  The act of rape involved vaginal intercourse and the maximum penalty prescribed for rape is 25 years imprisonment with a standard sentence, pursuant sub-s3, of 10 years. This also happened in the period 16 to 17 October, when it is accepted that your belief was that she was consenting, albeit not a reasonable belief in the circumstances.  Insofar as that standard sentence is concerned, I must take into account ss5A, 5B and 11A.  Parliament has therefore taken into account the personal insult involved in such a crime.

8Pursuant to s5(2G), rape is a Category 1 offence, which means that only imprisonment can be imposed.  Insofar as the sections that I have indicated already, s5A, limits what I can take into account as the objective circumstances as being set out in s5A(3) which excludes sub-s(i) personal matters and requires me to be wholly consider of the nature of the offending.  Section 5B(2)(a) indicates that I must take the standard sentence as one of the factors which is relevant to sentence and also under such section, I am required to take into account only sentences of standard sentence offences. 

9Pursuant to s11A, unless it is not in the interests of justice, I am required to impose the non-parole period as detailed therein.  Insofar as the standard sentence, refer to Brown v The Queen [2019] VSCA 286, [55] which gives legislative guidance in regard to standard sentences and indicates that a standard sentence is simply another legislative guidepost, At [56] Markarian is referred to as to the functioning of such and at [57] the Court says:

'Just as judges have always had in mind a notion of worst possible cases, so they must now have in mind a notion of an offence in the middle of the range of seriousness'.

10Insofar as the victim was concerned, she lodged a victim impact statement dated 21 September 2023 which was read out to the Court. In that statement she described the relationship. She indicates that at the end of such relationship, in particular the circumstances of this offending, the impact upon her night sleeping, of her being scared and her disturbing dreams. I am not too certain about the diagnosis and the effects set out therein, given the totality of your relationship. As was pointed out in discussions with the prosecutor, the statement, with great respect, as to the bruising all over the body, does not align with the summary of the prosecution at [21].

11Considering the victim impact statement, it is a victim impact statement which clearly relates to the whole of this sad relationship.  I am of course not sentencing on the basis of what occurred throughout the relationship,
Mr Villagran.  I am not sentencing on the basis of her allegations as to the manner in which you allegedly controlled her whole life and/or controlled her friends.  My sentencing involves the circumstances of these crimes in this indictment.  These circumstances of course are concerning, as evidenced by the quotation relevant to any such violence which I will come to and which was referred to the prosecutor.

12It is sufficient perhaps to finally make the point that as a result of what happened to the victim, in the motor inn, she was found in Mount Alexander Parade by two bystanders, who had been to the market that morning, in a totally hysterical state.  Insofar as principles of sentencing involving family violence situations, I of course take into account Pasinis v The Queen [2014] VSCA 97, at [53], [54] and [57].

13I come then to your history which shows that you are not a person who complies with family violence orders.  Your breaches of such orders go back some time, although it must be accepted that all of these matters have been agreed as what is called 'contact offences', rather than any more serious offences of breach or a family violence order.  In March of 2011 you had a finding which was reckless cause injury, however there was no conviction recorded in that matter.  In June 2016, for a breach of family violence order, you were given a community correction order for 12 months.  This apparently related to your marriage, from which two children were born. 

14Subsequently, in November 2016 a further community correction order for a family violence breach, unfortunately at about this time apparently because of such break-up you started to self-medicate with drugs.  You also were diagnosed subsequent to that time with anxiety and depression.  You subsequently had a further offence in June 2019, again for persistent harassment, for which a community correction order was passed, and then in June 2021 a breach of community correction order for which you were finally fined $3,000. There has been a subsequent offence, although that occurred allegedly, on the 26 July 2021, which was of course three months before the offending in this matter. 

15The prosecution lodged a submission on sentence, Mr Villagran, and at [7] thereof submitted that the appropriate sentence is one of a head sentence with a non-parole period.  Insofar as sentencing in a rape case, I read out from Exhibit C, at [13] the reference by the prosecutor to Gray v Queen [2018] VSCA 163, at [53], where the Court observed:

'Rape is an intensely personal crime.  The effects on the victim are not just those that flow from the physical invasion of their person and security but also from the more intangible loss of their rights and freedoms.  This significant impact of rape on the victim needs to be given proper weight in sentencing.  It cannot be overlooked or undervalued'.

16At [16] the prosecutor submitted that the paramount factors to be considered in this sentence were general deterrence, denunciation of your crimes, just punishment and protection of the community.  The prosecutor also pointed out, your persistent background of failing to comply with family violence intervention orders and submitted at [18] that I should not take this as an early plea.  My own practice, and which Ms Pillai accepted as correct in the hearing, is that this plea should be seen as a plea at the earliest.  Once you have a redrafted indictment, you are entitled to be as a matter of law to be seen to have entered a plea at the earliest time. The learned prosecutor also accepted that there was a degree of delay in this matter, which I need to take into account.

17Coming to the submission filed on your behalf by Ms Skvortsova, your background was set out at [6] to [22]. The toxic relationship as described by Ms Skvortsova with Ms Meades was detailed, and it would appear from the period that I have indicated earlier from about 2016, that certainly this relationship, involved excessive drug use.  It would appear unfortunately that your condition was such that you were involved, as a result of drug use, in what is described as psychotic drug binges. 

18You also in the period 2020 leading through to 2021, because of your condition and affliction, were involved in periods of homelessness, indeed with
Ms Meades.  During the period that you have been on remand, which is now considerable, you have undergone various course which were tendered in the plea, at Exhibit 2, since that time I have also received a further four certificates of your achievements in custody and the two statements from KANGAN as to your results at that Institute. 

19It is put at [46] by Ms Skvortsova, that you are now drug-free.  There is of course no evidence in regard to that and I hope it is correct, but it is a matter that you are always going to have to attend to and ensure when you finally are released that drugs do not again become a part of your life.  Insofar as [51] was concerned as to head sentence, if I may say so respectfully, it seemed to me the submission on the head sentence by Ms Skvortsova was a step too far.  She stressed the principles set out where a person enters a plea of guilty. 

20I accept those matters of mitigation totally.  You are entitled to mitigation for the utilitarian benefit to both the justice system and the community for your plea and in the circumstances that it is a valuable plea.  Ms Skvortsova also mentioned under the head of 'Mental Health' the issues that you had and with your father, in particular, his death and the impact on you, the fact that you made a promise to him insofar as drugs and were not able to keep that promise and of course the issues with your mother's illness from dementia and cancer which are difficult to deal with while you are gaol.

21I come then to the objective circumstances of the rape itself as I determine them to be.  The context of course is a three-year abusive relationship.  As I have already said, described as somewhat toxic.  There was also cross-intervention orders, taken out at the same time in March of 2021.  The circumstances required you to have no contact whatsoever and the order itself was served on you on 9 June 2021.  Clearly, both parties breached those orders.  At the Alexandra Motor Inn, I accept the evidence of the victim that she told you she did not want to be involved in sexual activity.         

22As I have already indicated, in bed in the early morning you had got upset with her and strangled her, the circumstances of which make up Charge 2.  Later in the night, after the victim had gone to the toilet, you had sexual intercourse with her.  During such time in the toilet, you had indicated to her that she should put, to use her words, 'more effort into it' and as she said, though she did not consent, she, again to use her words 'faked it'.  It is clear that the intercourse that took place was not reasonably assessed by you as taking place with consent, given the assault that had been perpetrated, the arguments that had taken place and the fact that she had told you she was not interested in sex.

23However, I accept that the plea in those circumstances was a valuable plea.  Although I do note that you had denied in the record of interview ever having been at the motel. 

24As to the two cases put to me by Ms Skvortsova, I do not think I could take the view as Judge Smallwood did in Skeates that the plea that was accepted was concerning.  In the background of the plea in that case, there was a very, very severe bashing that occurred which led His Honour to make those remarks. In regard to the case of Jarrett, I did not think there is any relationship, given the circumstances there either.

25Given what I have described as a valuable plea, in the circumstances of this particular case and the particular relationship, I have determined upon my instinctive synthesis, after taking into account all the permissible matters that I can, that a just and appropriate sentence in regard to this rape charge should not be as long as the standard sentence for rape.  In this regard, I take into account the matters referred to in the Brown v The Queen and also the submission of the defence at [5] of Exhibit 1.

26Pursuant to the considerations in s5B(5), the sentence imposed relates not only to the objective criminality, but all my findings in regard to the charges and all the factors put to me.  As to s5B(4)(b), the facts, apart from the objective criminality, are such as to impose the non-parole period set out statutorily in s11A(4)(c) and are such that it is in the interests of justice to impose such a period, that is the statutory period. 

27In regards to your sentencing, Mr Villagran, the High Court has determined in Dalgleish [2017] ALJR 91 at [1063] and [1072], at [49], that you are entitled by way of the administration of the criminal law to an individualised and just sentence based upon the facts as have been determined in this indictment. I hope that I have done so.

28If you would stand, please.  In regard to Charge 1, the family violence continuous breach, you will be sentenced to 18 months' imprisonment, in regard to the assault charge, Charge 2, 12 months' imprisonment, in regard to the rape charge, Charge 3, eight years' imprisonment.

29The base sentence will be the eight years on Charge 3 and cumulated upon that and each other will be, nine months from Charge 1 and six months from Charge 2.  The total effective sentence therefore will be nine years and three months imprisonment.

30The non-parole period which is assessed according to s11A(4)(c), will therefore be 66 months or five and a half years. 

31The pre-sentence detention has been agreed at 961 days.

32I declare that that pre-sentence detention of 961 days will be deemed as service of this sentence, and that such be recorded in the records of the Court.

33The Parliament requires me to indicate to you that had you not pleaded guilty what sentence you would have received.  It is a very difficult determination, but it is important for you to know the benefits of your plea.  Doing as best I can, taking into account only one factor, can I indicate to you that instead of a sentence of nine years and three months with a minimum period to serve of five and a half years or 66 months, had you not pleaded guilty, the sentence would have been 12 years with a minimum of nine years.  That is to demonstrate the benefit of the plea.

34You can take a seat, Mr Villagran.  Are there any matters that I need to attend to or that I have not got right?

35MS PILLAI:  Thank you, Your Honour, thank you, nothing further from the prosecution.

36HIS HONOUR:  Mr Sloan?

37MR SLOAN:  Nothing further from defence, Your Honour.

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