Police v Hilarion Urdanivia
[2024] ACTMC 27
•8 November 2024
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Hilarion Urdanivia |
Citation: | [2024] ACTMC 27 |
Hearing Dates: | 4 November 2024 |
DecisionDate: | 8 November 2024 |
Before: | Magistrate Theakston |
Decision: | See paragraph [24] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of Indecency without consent – Deceptive conduct – Two victims |
Legislation Cited: | Crimes Act 1900 (ACT) s 60 (1) |
Cases Cited: | R v De Simoni (1981) 147 CLR 383 |
Parties: | Samantha Everest ( Informant ) Robelt Hilarion Urdanivia ( Defendant) |
Representation: | Counsel Ms Drumgold ( DPP) Mr Walker ( Defendant) |
| Solicitors ACT Director of Public Prosecutions ( Informant) Hugo Law ( Defendant) | |
File Number: | CC 1898/2024 CC 3602/2024 |
MAGISTRATE THEAKSTON
Introduction
These are my sentencing remarks in relation to this matter.
Background
The offender has pleaded guilty to two charges of Act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900. These offences occurred nine days apart on two separate occasions and involved two separate victims. In order to preserve their anonymity, I will refer to them as the first victim and the second victim.
The offender initially entered pleas of not guilty to both charges and the charges were subsequently listed for summary hearing. On the day of the hearing, the offender pleaded guilty to both charges. In the weeks leading up to that date, the parties engaged in negotiations and the day before the hearing reached an agreement. While the parties and witnesses had prepared for the hearing, the hearing did not proceed and ultimately no witnesses where required to attend court. That is of significance. The giving of evidence is often difficult for witnesses, particularly for complainants in these types of matters. While it would have been better had the offender pleaded guilty earlier and avoided the need for the complainants to go through the process of preparing for, and anticipating the giving of evidence, the late pleas still saved them from actually giving evidence and it is therefore appropriate to provide here, and to signal for future matters, a discount in sentence in such circumstances. I will provide a discount of 10%.
The offender invited me to also take into account the fact that a plea of guilty had been indicated to one charge before a plea of not guilty had been formally entered. While such early indications, followed by confirmation by way of a plea of guilty, are routinely characterised as an early plea of guilty, it would not be appropriate to do so here. The subsequent plea of not guilty nullified any utility, demonstration of remorse and intention to facilitate the course of justice that could be inferred by that earlier indication.
I also take into account the offender made early admissions to police about one of the charges.
Circumstances of the offending
The offender used the Tinder application to meet and communicate with the two female victims. In both cases he adopted both a false name and image. He used the name ‘Raul’ and an image of a 20-year-old male, with tanned skin and athletic build. The offender did not have an athletic build and was later described by the second victim as about 170 cm tall, chubby build, with darker skin and of south-east Asian appearance.
The second victim expressed suspicion about the offender’s Tinder profile and the offender sent her a screenshot of a Bumble profile to convince her the details he had provided were accurate. Each victim agreed to attend the offender’s address at night for the purpose of engaging in casual sex. When each victim arrived, the offender wore a hooded top and let the victim quickly into the premises that were darkened.
At approximately 1:00 am on 1 February 2024, the first victim attended the offender’s premises. As the offender guided the first victim through the darkened house, she became suspicious. She saw the offender’s silhouette and face and observed a man with a different physique than that depicted on the Tinder profile. The first victim said multiple times ‘I don’t want this’. The offender ignored her words and rubbed his hands up and down her arms. He placed a hand up her hooded jumper where she was not wearing a bra. He placed his hands down her track pants and rubbed her vagina over her underwear. The first victim immediately pushed the offender away and screamed at him. The first victim turned, moved to the front door, attempted to open that door, but it was locked. The offender followed her and touched one of her breasts under her hooded jumper. The first victim screamed at him again. He unlocked and opened the door and she ran to her vehicle. The first victim was in the house for no more than one to two minutes. The offender attempted to call her, and there was further but brief texting between the two.
At approximately 9:30pm on 10 February 2024, the second victim attended the offender’s residence. Once she was inside, the offender placed the mobile phone she was using as a light onto the bed. He pressed his body against hers and rubbed his hands on her body around her stomach, waist and buttock. He placed his left hand on her hip and right hand on her buttock underneath her dress but on top of her underwear and squeezed it. This occurred for about five seconds. The second victim felt uncomfortable and told the offender she needed to return to her car to get a tampon. The offender lifted her dress, bent down and said words to the effect ‘I’ll lick you baby’. The offender’s fingers brushed against her vagina on the outside of her underwear, near her clitoris. This occurred for no more than a second or two. The second victim said ‘No’ and pushed the offender away. The second victim left the premises, and the offender handed the second victim her phone as she was leaving.
It is an unavoidable inference that the offender’s conduct in the circumstances he arranged would have been extremely alarming for these women. The first victim’s victim impact statement confirms that evaluation and describe her consequential loss of security and well-being.
The gravity of the offending
It should initially be observed that the offender is not charged with the more serious offence of attempting to engage in sexual intercourse without consent, or any similar form of offending due to luring the victims for casual sex while using a fake Tinder profile. Rather, he is to be sentenced for the offences to which he has pleaded guilty, namely acts of indecency, based on his conduct with the women and in the context of how they came to be together. I would fall into error if I sentenced him for the more serious offending: see R v De Simoni (1981) 147 CLR 383.
The maximum penalty for these offences is seven years imprisonment. My jurisdictional limit is five years imprisonment.
In both cases the offending was very brief and occurred in an atmosphere of anticipated sexual activity. Only for the first victim was there an element of skin-on-skin contact. However, the offending did include deliberate touching of the victims’ vaginal area, albeit outside their underwear. That area is clearly the most intimate part of the female body. The offending followed a deliberate and methodical attempt to conceal the offender’s identity and features, in circumstances where potential intimacy was dependant on such identity and features. The victims were lured on the promise of engaging with someone other than the offender. When they arrived, the offender attempted to maintain the deception while, abruptly and almost immediately fondling the victims. The offending is repeated on the second victim, nine days after the offending on the first using an almost identical method of deception.
Subject to reciprocal consent, individuals are entitled to choose who they engage with intimately. Again, subject to reciprocal consent, they may pick and choose who the other person may be, and who that other person will not be. Deception about identity and material features violates that choice. Further, that entitlement continues notwithstanding any earlier expression of agreement or intent. Individuals are entitled to change their mind. The offender’s deception attempted to subvert that choice to and his rapid fondling appeared to be for the purpose of taking advantage of that deception before the victims became aware of the deception and or before they changed their minds. Additionally, the scheme arranged by the offender placed both victims in a particularly vulnerable situation. That is alone with a stranger, in an unfamiliar home, in the dark. A stranger who may take advantage of them. A stranger who did take advantage of them. That context of the offending must be an aggravating feature.
Offender’s subjective circumstances
The offender is 29 years of age and grew up in Peru. He arrived in Australia in April 2023 and received a temporary 12-month visa. That visa has expired, and he is expected to remain in custody or immigration detention until he leaves Australia. It appears the offender had hopes of a future in Australia, but now acknowledges that he will not be allowed to stay.
He completed school and tertiary studies, with honours, and was working in construction before his arrest. He appeared to have excelled in his studies and sport and is well travelled. He is described by his family as a kind, compassionate, well-rounded and open minded individual.
He has no criminal history in either Australia or Peru.
The offender has expressed insight, empathy and remorse through a letter to the court and to his mother and sister. His time in Australia appears to have been characterised by isolation. For example, while he worked and lived with people, they did not share a common language. He describes wanting to meet someone and appears to have turned to Tinder for that purpose. His use of a fake profile also appears to be related to that purpose. He has expressly acknowledged the distress he has caused the victims and the impact the proceedings have had on his sister and mother. He describes the time in custody as very difficult, but reflective. He has been in custody since his arrest on 11 February 2024, a period approaching nine months.
I am satisfied that while the offending occurred on two separate occasions, it was otherwise aberrant behaviour by a young man who previously engaged productively with society. I am also satisfied that the offender is genuine with respect to his insight and remorse and is consequently a low risk of reoffending.
Comparative cases
A number of previous sentencing decisions were put before me for the purpose of demonstrating current sentencing practice. None of those matters involved offending similar enough to be of much assistance. What is clear from those decisions, is that the offence of act of indecency without consent covers a wide range of conduct of varying gravity, and consequently the sentencing also vary considerably and, at times, involved alternatives to full time custody.
Purposes of sentencing
The sentences I impose need to serve a number of purposes, namely:
(a)denounce the offender’s conduct and ensure the punishment is adequate in a way that is just and appropriate;
(b)recognise the harm done to the victims;
(c)deter the offender and others from committing the same or similar offences;
(d)promote the rehabilitation of the offender; and in doing so
(e)protect the community from the offender;
I need to take into account the nature and circumstances of the offending, the offender’s pleas of guilty and assistance with the administration of justice, his subjective circumstances, and his insight, empathy and remorse. Also of significance is the almost nine months the offender has already served. While I have found that the first offence is slightly more serious than the second, that difference is not such as to require a markedly different sentence.
Ultimately, I am of the view that nothing other than custodial sentences would be appropriate. Due to the offender’s immigration status a community based form of custodial sentences would not be effective. While the two charges involve separate offending, a degree of concurrency is warranted given that there are common purposes of sentencing across both charges, and each sentence will augment those purposes for the other. In the circumstances of the time already served and the offender’s pending immigration detention, I see no utility in suspending part of those sentences.
Orders
The Court makes the following orders:
(a)In relation to CC 2024/3602, the offender is convicted and sentenced to 6 months imprisonment backdated to have started on 11 February 2024 and ended on 10 August 2024; and
(b)In relation to CC 2024/1898, the offender is convicted and sentenced to 6 months imprisonment, cumulative on the above term for 3 months, and therefore backdated to have started on 11 May 2024 and will end on 10 November 2024.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Magistrate Theakston Associate: Alyssa Zanardo Date: 8 November 2024 |
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