R v Castro Santafe

[2021] NSWDC 323

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Castro Santafe [2021] NSWDC 323

Hearing dates:

19 January 2021 – 3 February 2021

Decision date:

23 April 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentenced to a term of 3 years imprisonment with a non-parole period of 2 years

Catchwords:

CRIME — Sexual offences — Sexual assault — Consent

Legislation Cited:

Crimes Act 1900 (NSW) ss 61I

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 3A

Cases Cited:

Suleman v The Queen [2009] NSWCCA 70

R v Tadrosse [2005] NSWCCA 145

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Castro Santafe (Offender)

Representation:

Counsel:
Ms Heywood (Crown)
Ms Lin (Offender)

Solicitors:
Ms Fay (Crown)
Mr Soubris (Offender)

File Number(s):

2019/303949

Publication restriction:

Non-publication order re name of victim

SENTENCE

Introduction

1. The offender stands to be sentenced having been found guilty by a jury after trial of an offence that he on 28 September 2019 at Sydney, had sexual intercourse with JSM without her consent and knowing that she was not consenting to the sexual intercourse. That is an offence under s 61I of the Crimes Act and has a maximum penalty of 14 years' imprisonment. There is an applicable standard non-parole period of seven years.

The Facts

2. Turning then to the facts, these are sentence proceedings after trial, and I am required to find the facts consistent with the jury's verdict. To the extent that I find a fact adverse to the offender, then I must be satisfied of that fact beyond reasonable doubt.

3. The jury's verdict of guilty reflects a general acceptance of the victim's evidence as to the act of sexual intercourse occurring and that the victim did not consent, and the jury's acceptance of the Crown's argument that the offender knew the victim was not consenting. The offender both in his record of interview conducted with the police on 29 September 2019 and in his evidence before the jury said that no act of sexual intercourse occurred on 28 September 2019 with the victim. Again, the jury's verdict reflects its rejection of the account given by the offender in both his interview and in his evidence concerning there being no act of intercourse between himself and the victim.

4. Since May 2019, the victim had rented a room which she shared with another person in an apartment where the offender had been the original tenant, and he sublet the apartment to the victim and, in effect, three other women, including the woman whom the victim shared her room with. Two of those women, Ms Bernardes and Ms Velasquez‑Cortes, gave evidence in the trial.

5. The victim is a young woman in her early 20s. The offender did not live in the apartment at the time of the offence, although he had intermittent access to it. He operated a restaurant in the same building as the apartment and stored certain items associated with the restaurant in it. On occasions he would access the apartment in order to access those items and other personal items that he stored there. The offender and the victim had never been romantically involved.

6. On the evening of Friday, 27 September 2019, the victim went out to dinner in Kings Cross with some friends. At around 10.30, she left the restaurant and went to a Latin disco in the city. At both establishments the victim consumed considerable quantities of alcohol. On her own estimation, she left the disco at around 1.30am when she was very drunk and had been asked to leave the disco by the security guards.

7. The victim caught a taxi from the disco to the apartment building where she lived. The victim was captured on CCTV footage entering the apartment building at 1.29am. She proceeded through the apartment building’s concierge area and into the lift and up to the level where the apartment was located. The victim had no recollection herself as to going into the apartment building, and her last memory prior to waking up to find the offender performing cunnilingus upon her was of entering the taxi after leaving the disco.

8. The offender, on the evening of 27 September 2019, attended a party in Newtown. Liliana Pabon, a woman who worked in one of his restaurants, also attended the party. After the party the offender drove himself and Ms Pabon, along with other persons, back to the city. The offender at one point parked his vehicle in the relevant apartment building's car park. The offender and Ms Pabon were captured on CCTV entering the lift in the basement of the car park at 4.10am.

9. They then proceeded up to the level that the apartment was on, level 42. When they approached the front door of the apartment, they saw the victim lying on the floor and she was asleep. The door to the apartment was closed, but not locked. The victim was wearing jeans, a jacket and boots and was essentially fully clothed.

10. The offender opened the door to the apartment and Ms Pabon entered the apartment and went to the bathroom. After going to the bathroom, Ms Pabon spoke with the offender about the victim and he said that they should bring her into the apartment. The offender then carried the victim into her room in the apartment, and Ms Pabon went into Julia Velasquez's bedroom and fell asleep. Ms Velasquez was not sleeping at the apartment that evening.

11. The victim woke up that morning around 5.20am to find that the offender was kneeling down and performing cunnilingus upon her, she being naked on the bed. It is an overwhelming inference that the offender commenced to perform cunnilingus when the victim was still asleep. The offender was fully clothed at the time and the victim was naked.

12. I have no doubt that the offender knew that the victim was asleep when he was performing cunnilingus and that the victim did not consent to the sexual intercourse and the offender knew that the victim was not consenting. As far as the victim was aware, the cunnilingus lasted for between 20 or 30 seconds, but that was the period of time during which she was aware the cunnilingus was performed.

13. Given my finding beyond reasonable doubt that the cunnilingus commenced while the victim was asleep; that is, prior to her being aware of cunnilingus being performed, I am not able to say for how long the intercourse lasted. Upon waking up, the victim asked the offender where her clothing was, and he responded with words to the effect of, "Over here," and she then told the offender to get out of her bedroom, which he did. I am satisfied beyond reasonable doubt, that the offender removed the victim's clothes in order to perform cunnilingus upon her.

14. Like the jury, I found the victim to be a compelling witness. It is clear that she was significantly intoxicated and tired at the time she went to sleep near the door to the apartment. The evidence was that the door to the apartment was unlocked, so it is a reasonable inference that the victim was unable to open the door due to a combination of intoxication and tiredness.

15. The victim gave evidence that she never herself slept naked and always slept in pyjamas. The evidence suggests that she did not wake up that morning until the point when she found the offender performing cunnilingus upon her.

16. I am satisfied in these circumstances beyond reasonable doubt that the offender removed the victim's clothes in order to perform cunnilingus upon her. The victim effectively made immediate complaint to one of the other women who was staying in the apartment, Julia Bernardes. The woman who shared the victim's room was not staying at the apartment the night of the offence.

17. The victim was visibly upset and distressed when she first spoke with Ms Bernardes about what had occurred and continued to be so for some little time. The victim was also still under the influence of alcohol when she spoke with Ms Bernardes.

18. At the point of the initial complaint to Julia Bernardes, the offender was still in the apartment with Ms Pabon. The evidence suggested the offender left the apartment around 8am. The victim eventually went to sleep in Ms Bernardes' bed. She woke around 11am and then spoke with another, woman Julia Velasquez, who then attended the apartment. When Ms Velasquez attended the apartment the victim told her what had occurred between her and the offender.

DNA evidence

19. The victim subsequently that day attended Redfern Police Station and was then examined medically at the Royal Prince Alfred Hospital. A genital examination was conducted by Dr Bastas. A buccal swab was taken from the victim, along with a number of swabs and smears from the victim's genital area. Blood and urine specimens were also taken from the victim for testing. The victim's underwear was also removed, which had attached to it a panty liner and the swab specimens and underwear, including the panty liner was sent to a laboratory for testing.

20. The YSTR testing methodology, which was explained by Dr Collins and Ms Roebuck in their evidence in the trial, was used to test the external labia swab taken from the victim. There was a low amount of a male DNA profile found, although it was said to be consistent with that of the offender.

21. Dr Collins also gave evidence of the results of testing of the panty liner. The evidence was that the DNA testing of the panty liner revealed a mixture of DNA from two individuals and that the victim and the offender could not be excluded as contributors to the mixture.

22. Dr Collins' evidence was that assuming that there were two contributors to the mixture and that one was the victim, it was greater than 100 million times more likely that the mixed profile originated from the victim and the offender, rather than from the victim and an unknown individual in the Australian population. Dr Collins considered that it was more likely that the DNA was sourced to a rich source of DNA such as blood, semen or saliva.

23. The offender at the trial called an expert witness in relation to the DNA, a Ms Roebuck. There was some disagreement between the two experts. Ms Roebuck conceded that there was a full DNA profile consistent with that of the offender found on the victim's panty liner. Ms Roebuck however, considered that only a moderate amount of DNA was found and that she could not confidently attribute that DNA to a particular cell type. Her opinion was that it was not possible to attribute the DNA to having come from a biological fluid as distinct from the shedding of skin cells.

24. The DNA evidence essentially addressed the issue of the possible mechanisms by which the offender's DNA could have been transferred to the victim's panty liner. The offender's case at trial placed significant reliance upon the evidence of possible secondary or tertiary transfer of DNA from him having touched the victim and her clothing when he carried her from the front door and placed her onto her bed. That was something which, in his police interview and evidence at trial, he admitted doing.

25. In my opinion, the DNA evidence significantly supported the victim's account and supported the Crown's case, given where the profile of the offender's DNA was located, in particular, a profile consistent with his DNA being detected on the victim's panty liner.

26. The offender was arrested and interviewed by police in the early hours of the 29 September 2019. In that interview, he described going to the apartment with Ms Pabon, finding the victim on the floor at the front door of the premises and carrying her into her room and placing her on top of the bed. He told the police in his interview that the only item on the victim's clothing he removed was her shoes.

27. In the interview as I noted earlier, the offender said he did not engage in any form of sexual intercourse with the victim. Clearly, the jury rejected that last assertion.

28. There is a victim impact statement before me which speaks eloquently of the psychological effect the offence has had upon the victim, a young Objective seriousness

Objective seriousness

29. Turning then to my assessment of objective seriousness, the offence can be described as opportunistic given the circumstances in which it occurred. The offence occurred within the victim's home, indeed her own bedroom, a place where she was entitled to feel safe. The offender took advantage of a young woman who was asleep. I cannot make a finding beyond reasonable doubt that he knew that she was intoxicated or as to her level of intoxication as at the time of the offence. I cannot be certain as to how long the sexual intercourse lasted, given my finding that it commenced while the victim was still asleep. It would, however, appear to have been relatively brief and certainly the victim was only aware of it for 20 to 30 seconds. The offender desisted, it would seem, immediately upon the victim waking up.

30. There is no hierarchy of sexual intercourse as far as the law is concerned. Cunnilingus is generally considered to be less serious than penile/vaginal or penile/anal intercourse. I am not able to find beyond reasonable doubt that the offender did, in fact, lick the victim's clitoris given the victim's uncertainty about that issue under cross-examination. However, of course, the offence does not involve the licking of the clitoris.

31. The offence is a serious offence, however, I consider it to be considerably less than a mid‑range offence in terms of its objective seriousness, although clearly not at the bottom of the range.

32. The Crown submitted the following aggravating factors were present under s 21A of the Crime (Sentencing) Procedure Act:

33. 1. The offence occurred within the victim's home. I am satisfied that aggravating factor is made out, but have had regard to it in my assessment of objective seriousness to avoid double counting.

34. 2. The Crown also submitted that the offender had committed an abuse of trust because he had keys and access to the victim's apartment. I do not consider in the circumstances here that the fact the offender was able to access the apartment created a position of trust as between the offender and the victim, as discussed in cases such as Suleman v The Queen [2009] NSWCCA 70.

35. In my opinion, for the purposes of sentencing, a position of trust does not arise simply because the two persons are involved in a commercial relationship, which is essentially what the situation was here. There must be some peculiar aspect of the relationship that imposed a position of trust on one or both of the participants. I do not consider that the nature of the relationship between the offender and the victim, essentially that of sublessee, meant that the offender occupied a position of trust in respect to the victim.

36. 3. The Crown also submitted that the victim was vulnerable due to her significant intoxication, and that was an aggravating factor under s21A(k) to (l). In R v Tadrosse [2005] NSWCCA 145, it was made clear that vulnerability within the statutory provision refers to persons in a particular category or class whom the law considers to be vulnerable. The fact that the victim here was intoxicated does not, in my opinion, put her into a class that falls within the aggravating factor.

The offender’s subjective case

37. Turning to the offender's subjective case. The offender's date of birth is 15 July 1983, so he is currently 37 years of age and was 36 as at the time of the offence. He has no criminal record, so that entitles him to some leniency on sentence. He has been a successful businessman in Sydney, essentially in the food and restaurant business. He is generally a person of good character on the material before me and that too entitles him to some leniency here.

38. Documentary material

39. In terms of documentary material, there is before me the following: A report by Dr Richard Furst, consultant psychiatrist dated 19 April 2021; a letter from the offender dated 23 April 2021; and testimonials from the offender's current partner and from friends.

Family background

40. In terms of his family background, the material before me is that the offender was born in Colombia. He came to Sydney in 2003 and was granted permanent residency in 2007 and citizenship in 2010. He separated from his wife some four and a half years ago and they have two children. His wife and the two children reside in Japan. It appears the offender maintains a good relationship with his wife and children and he continues to make provision for them. He has been in a relationship with Ms Henao for the last three years or so, and she remains supportive of him.

Education and employment history

41. Turning to the offender’s education and employment. The offender indicated in his letter that he also financially supports his mother back in Colombia where the majority of his family reside. Based on what he told Dr Furst, he completed high school in Colombia before coming to Australia. There are no indications that he experienced learning difficulties or childhood psychiatric problems.

42. When he first came to Australia, he worked as a kitchen hand and studied cooking at TAFE and worked in the hospitality industry in the 2000s. He and his wife started a coffee shop and a pizza shop before they started Per Kilo, which is a South American takeaway shop, and there are now two other similar businesses in other parts of Sydney. He appears to be the principal driving force behind the businesses.

Substance use

43. There are no substance abuse issues here.

Psychological/psychiatric history

44. Dr Furst's report records that the offender does not have a history of mental health problems. Dr Furst's report states that the offender is anxious about his business, his capacity to provide for his children and his workers. He is also depressed due to his current circumstances, which is understandable. He is not said to be suicidal.

Attitude to the offence

45. The offender continues to deny the offence, so there is no remorse. Dr Furst assessed his risk of reoffending using the Static-99R tool and found that his risk of reoffending is less than the average for a male sex offender.

46. It was submitted on behalf of the offender, that due to some adverse postings on Facebook upon him being charged, there had been a decline in revenue from his business and that I should consider that to be in some way extra-curial punishment. The evidence does not support any finding of causation between the publicity on Facebook and any downturn in the offender's business. I do not consider that the argument about extra-curial punishment is made good.

The future and risk of re-offending

47. Given his lack of a criminal record, his general good character and Dr Furst's assessment of his risk of reoffending, I consider he has reasonable prospects of rehabilitation, despite his lack of remorse.

Imposition of sentence

48. I am satisfied on the evidence, as I say, that he has reasonable prospects of rehabilitation. This is his first time in custody. Much of his family lives overseas. He is being sentenced during the COVID-19 pandemic, which has resulted in restrictions on inmates in their contact with persons outside of the prison system. I propose in fixing the non-parole period to make a finding of special circumstances for those reasons.

49. The offender spent some nine and a half hours in custody upon his arrest and has been on bail conditions requiring weekly reporting since his arrest, daily reporting since the jury found him guilty. I propose to backdate the sentence by a day to take account of the prior time he spent in custody.

50. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing) Procedure Act, which include the need to impose adequate punishment general and specific deterrence and protection of the community in denouncing the offender's, conduct, recognising the harm done to the victim and the community and rehabilitation of the offender.

51. Sexual assault on young women is a very prevalent offence within our community. Young women are entitled to go out and enjoy themselves and to feel safe, in particular within their own homes, and should not be at risk of a sexual assault. A sentence which will act as a deterrent to both the offender and others in our community who might entertain the idea of committing a sexual assault upon a young woman must be imposed for such offending. The only appropriate sentence, given the seriousness of the offence, is one of imprisonment.

48. I have considered the cases that I have been referred to by the parties. They do not establish a range of sentence for this offence and it must be remember that sentencing remains individualistic and instinctive within the confines of accepted legal principles. I have also had regard to the statistics that I was provided with by counsel for the offender and on the Judicial Commission data base, bearing in mind the limitations upon the use of statistics frequently discussed by the Court of Criminal Appeal.

49. The maximum penalty and standard non-parole have been taken into account as legislative guideposts. It will be seen that I have departed from the standard non-parole period due to my assessment of the objective seriousness of the offence and the fact that this is the offender's first offence.

50. Stand up, Mr Santafe, please. You are convicted of the offence of sexual intercourse without consent. I impose a sentence consisting of a non‑parole period of two years and a balance of term of one year. That is a total sentence of three years' imprisonment. It commences on yesterday, 22 April 2021 and expires on 21 April 2024. The non-parole period expires on the 21 April 2023.

51. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period, which 21 April 2023. Whether you are in fact released to parole that day is a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison. Have a seat. You may sit. It is three years with a non-parole period of two commencing yesterday. I think the dates are right.

Orders

1. The offender is convicted of the offence of sexual intercourse without consent.

2. Impose a sentence of 3 years imprisonment with a non-parole period of 2 years. The sentence commences on 22 April 2021 and expires on 21 April 2024. The non-parole period expires on 21 April 2023.

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Amendments

20 July 2021 - Edit title (no capital letters)

Decision last updated: 20 July 2021