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…