IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION

VICTORIAN GOVERNMENT REPORTING SERVICE
219424

	Revised
Not Restricted
Suitable for Publication	
  GENERAL LIST

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
JUAN RODRIGUEZ (a pseudonym)		

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JUDGE:	HER HONOUR JUDGE DALZIEL	
WHERE HELD:	Melbourne	
DATE OF HEARING:	21 August 2020, 9 October 2020	
DATE OF SENTENCE:	15 October 2020	
CASE MAY BE CITED AS:	DPP v RODRIGUEZ	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1616	

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Sentence – Sexual penetration of a child under 16 – Recklessly causing injury – Plea of guilty – Sex offender registration exemption application	
Legislation Cited:	Sex Offenders Registration Act 2004 (Vic) ss 11A, 11B 
Cases Cited:	Clarkson v R (2011) 32 VR 361
Sentence:	Total effective sentence of 1 year and 4 months imprisonment, wholly suspended for a period of 2 years.
	Section 6AAA declaration: 2 years and 6 months imprisonment, with a non-parole period of 1 year.
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr B. Sonnet
	Solicitor for the Office of Public Prosecutions 	
			
For the Accused	Ms S. Joosten
	Nelson Brown Legal	

HER HONOUR:  
1.	'Juan Rodriguez', you have pleaded guilty to a course of conduct charge of sexual penetration of a child under the age of 16 years, covering your criminal conduct from 10 November 2003 to 24 January 2005.  You have also pleaded guilty to one charge of recklessly causing injury between 11 and 12 November 2004.
2.	The prosecution filed a Summary of Prosecution Opening, which was an agreed summary of facts.  I will sentence you on the basis of that summary and not have any regard to the other allegations made by V against you.  I will now set out briefly the facts in that summary.
3.	V was 14 years old when she met you.  You were 18 years old.  You were born in August 1985 and V was born in January 1989, so that you were approximately three years and five months older than her.  You asked for her phone number and a few days later called her to meet up.  Around two weeks later you picked up V from her home.  You met her mother who told you that she was young.  
4.	You started going out together.  At some point you told V that you wanted to wait until she was 16 to have intercourse.  Between 10 November 2003 and 
2 December 2003 you had sexual intercourse with V for the first time.  She was a virgin.  You did use a condom on this occasion.
5.	You returned from overseas on 1 January 2004.  V went with your mother to the airport to pick you up and she spent the night at your family home.  You had intercourse with her again that night.  You met with V every Thursday that month and went to her home while her mother was out at work.  You were not supposed to be there without V's mother being present.  You had sexual intercourse with V on each occasion.  She turned 15 in mid-January 2004.
6.	V's mother did not allow you to stay overnight at their home.  V eventually ran away from her mother's care and lived with your family for around a year.  Your sexual relationship with her continued.  You sexually penetrated V frequently and regularly.
7.	On or about 11 or 12 November 2004, V was in the front passenger seat in a car whilst you were driving.  You began verbally abusing V, calling her a 'fat slut'.  You then swung your left hand out and punched her in the mouth with a closed fist, fracturing her tooth and causing bleeding.  V was screaming and crying.
8.	V subsequently sought dental treatment in relation to her tooth from a dentist.  She told her parents that the dog had accidentally struck her and knocked her tooth.  This incident is the only physical violence alleged against you by the prosecution and gives rise to Charge 2.
9.	Sometime between 8 January 2005 and V's 16th birthday, you sexually penetrated her causing her to become pregnant.  Shortly after that you ceased your relationship with her, although you continued to live with her for some time before finally leaving on 1 November 2005.  V gave birth to her son in 
October 2005.
10.	Your offending was reported to the police in August 2018.  You were interviewed in March 2019, at which time you told the police:
10.1.	You had met V when you were 17.  You said that V had told you she was 15.
10.2.	You started having sex with her not long after you met;
10.3.	You denied hitting her during the relationship and in particular, denied the incident in the car which is the subject of Charge 2.  You said that V's tooth was knocked out accidentally while you were taking a photograph with the dog; and 
10.4.	You said you were not sure of the legal age of consent.
11.	The record of interview reflects a continuing attitude of slighting the victim, and whilst you made some admissions, you denied the offending to which you have now pleaded guilty under Charge 2.
Victim Impact
12.	V prepared a thoughtful and moving victim impact statement.  She speaks of the shame that has been imposed upon her and the labelling of her as sexually promiscuous at a young age.  This victim shaming has damaged her relationship with her brother, who was teased and abused about V at school.  V spoke of the strength she needed to find to come forward, and to expose herself to reliving your offending towards her.  She notes that as a 14 year and 15-year-old-girl, she was not capable of giving informed and full consent to the sexual relationship with you.  She says:
I may not have said to him no this is not right, but I certainly was not an adult who was capable of consenting. I was a14 year old child when this abuse began.
…
How did no one ever come to my rescue? How is it fair to have your childhood stolen from you, your dreams and aspirations and your ability to have loving, caring relationships destroyed by the years of physical and mental abuse I endured and then be told this animal will not be registered as what he is? Still, to this day, I do not understand how the hospital that registered my son's birth when I was only 15 years old and the father was 19 did not report this to the police for investigation.
13.	Your conduct has deeply damaged V.  It is to her credit that she came forward to report your criminal behaviour, and that she works to advocate for other victims of sexual and family violence. 
14.	V's father also prepared a victim impact statement, also.  He spoke of seeing her  sadness and depression, which was distressing for him to watch.  He says that the effects of your conduct continue to affect V still.
Gravity of Offending
15.	The maximum penalty applicable to Charge 1 is 10 years' imprisonment.  This is a course of conduct charge which encompasses approximately one year and three months of offending by you.  As I have noted earlier, you were around three years and five months older than V, and age discrepancy which is marked in the context of the ages of both of you.  The difference in maturity and experience between a 14-year-old and an 18-year-old is significant.
16.	Your counsel submitted, and the prosecutor agreed, that your conduct falls within the class where, due to the age of both offender and victim, and 'where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two', the offending is treated as less grave and the offender's culpability as reduced.  This is not a case, however, where it can be said that V did not suffer the harm the law presumes will be caused by premature sexual activity.
17.	I accept that in respect to Charge 1, certain aggravating factors were not present, such as a breach of trust or threats or associated violence.  
18.	The fact that your mother permitted you to pursue a sexual relationship with V whilst she was living in your home does not, to my mind, mitigate your offending.  Your early statement to her that you wanted to wait until she was 16 to have sex suggests that, despite what you told the police, you understood that you should not have sexually penetrated her whilst she was under 16.
19.	Even accepting that your offending is less grave than other instances of this offence, there are several factors that lead me to treat your offending as serious.
19.1.	First, this is not a case where it can be said that V did not suffer the harm the law presumes will be caused by premature sexual activity.  She was and remains emotionally and mentally scarred by your conduct;
19.2.	Secondly, whilst it was submitted on your behalf that you wore a condom on 'some occasions' over the charge period, clearly you did not do so on other occasions.  Your conduct caused a 15-year-old girl to become pregnant.  This is a significant factor in aggravation.  
19.3.	Thirdly, you are to be sentenced for the course of conduct of sexually penetrating this girl for over a year, regularly and frequently.
20.	Furthermore, Charge 2 is a serious instance of the offence of recklessly causing injury.  It was an instance of family violence committed by you against your girlfriend.  Your blow was powerful enough to crack her tooth and was inflicted in the context of verbal abuse and in a car where she could not escape.  
Personal Circumstances
21.	Your parents are Spanish but emigrated to Australia before you were born.  You and your younger brother were raised in Melbourne until you were around five, when the family returned to live in Spain.  You, your mother and your brother returned to live in Australia when you were around 14 years old.  You had limited contact with your father for some years but resumed contact with him when you were around 17.  You visited your father in Spain and have a close relationship with him now.
22.	You remain close with your mother, who lives in Melbourne.  You say that your relationship with V was your first intimate relationship.  When she found out she was pregnant in early 2005, you were 19 years old.  You say you panicked and ran away for a short time, before coming home.  You and V moved into a house provided by V's father and lived together.  The relationship deteriorated and you eventually left for good in November 2005.  You effectively abandoned a 16-year old-girl whom you had made pregnant.  Whilst I accept that you too, were young, your behaviour was shameful.
23.	You had intermittent contact with your child born to V, but this ceased when he was around 10.  I am told you continue to pay child support.  
24.	You met your current partner in 2010.  She had two children from a previous relationship.  You became engaged in 2016, and you now have two children together, aged three and two.  Your partner remains supportive of you and has provided a letter in which she describes you as a good family man and having respectful attitudes towards women.  I have also had regard to the letters written by your friends, Mr Brooks and Mr Li.
25.	You have a good work history and have been employed as a mechanic for most of your adult life, with some other work from time to time.  I am told you are currently fully employed as a mechanic.  Your employer has provided a good reference for you and speaks of your honesty and kindness.
26.	A report was prepared about you by Ms Cidoni, a consultant psychologist.  Her assessment of you is that you are of average intelligence.  You presented with acute anxiety, situational stress, worry, tension and depression.  Importantly, she assessed you as presenting a low risk of sexual reoffending.
Matters in Mitigation
27.	This matter resolved at the committal hearing in March 2020, before the complainant was called to give evidence.  I will treat this as a plea having been entered at an early stage, and it therefore carries significant utilitarian benefit.  The utilitarian benefit and the facilitation of the administration of justice is all the greater now, in view of the effect of the COVID-19 pandemic upon on the operation of the courts.  
28.	Your counsel relied upon the plea of guilty as an indication of remorse, regret and willingness to accept responsibility for your actions.  Whilst you accepted when you were interviewed that the sexual offending occurred, you denied that V was a virgin.  You denied the conduct forming Charge 2, and said you only held V off when she was aggressive towards you.  You repeated the story about the dog having caused the broken tooth.  You told Ms Cidoni that you understood your behaviour was wrong and were remorseful, but at the same time you expressed belittling attitudes towards V and gave explanations which, to some extent, minimised the offending.  I accept that you are, to some degree, remorseful for your conduct, but you do not appear to be particularly insightful about why the sexual offending was wrong.
29.	At the time of this offending you were 18 and 19 years old.  I accept that in assessing your moral culpability for this offending, it is relevant that you were a young person and immature.  Your age at the time is a factor in mitigation for this reason, and it is also relevant because of the nature of the offending itself, as I have already addressed.
30.	The offending occurred more than 15 years ago.  Since that time you have grown up, formed a new relationship and had children.  You have continued to work.  Whilst you have committed some other offences, these were for driving and dishonesty matters and not sexual or violent offending.  You have not been sentenced for any matter since July 2013.  Ms Cidoni assessed there was a low risk of you committing any further sexual offence.  I accept that you have very good prospects for rehabilitation.  There is no indication that you will commit a sexual offence of this type again.  In these circumstances, there is little need to deter you from committing further offences.
Other Sentencing Factors
31.	General deterrence is a significant factor in the sentencing exercise.  'The absolute prohibition on sexual activity with a child is founded on a presumption of harm.  The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.'  The sentences I will impose upon you are intended also to denounce your conduct.  You were old enough and intelligent enough to know better.  The 'ostensible consent' of V is relevant, but she was too young to properly consent.
32.	Whilst, as I have already said, your conduct is less grave than, for instance, where the age difference is greater or the context is predatory, this is nevertheless a serious criminal course of conduct committed by you and the effects of it upon V are long lasting.
33.	In respect to Charge 2, which involved a powerful blow in the context of family violence, general deterrence, punishment and denunciation all carry weight in the sentencing discretion.  
Current Sentencing Practice
34.	I was referred to a number of cases which were comparable on the facts.  Many of those cases involved a representative charge, or more limited offending in terms of frequency.  Often the offender was still a young offender at the time of sentencing.  It was submitted by the prosecution that a non-custodial disposition, such as a community correction order or a wholly suspended sentence would be within range.  Your counsel urged me to impose a community correction order.
35.	Taking into account the nature of the offending, the period over which it occurred, and that you caused V to become pregnant, I have concluded that your offending warrants a term of imprisonment, but in view of the passage of time and other mitigating factors, that that sentence should be wholly suspended.  
Sentences
36.	On Charge 1, sexual penetration of a child under 16 years, you are sentenced to a term of imprisonment of one year and three months.
37.	On Charge 2, recklessly causing injury, you are sentenced to three months' imprisonment.  
38.	I direct that one month of the sentence on Charge 2 is to be served cumulatively upon the sentence on Charge 1, resulting a total effective sentence of one year and four months.  I direct that the sentences imposed be wholly suspended for a period of 2 years.  
39.	Pursuant to s.6AAA Sentencing Act 1991 (Vic), I note that had you pleaded not guilty, you would have been sentenced to a total effective sentence of two and a half years, with a non-parole period of one year.  
Sex Offenders Registration Act
40.	The finding of guilt on Charge 1 enlivens the provisions of the Sex Offenders Registration Act.  Charge 1 is a class 1 offence, and registration is therefore mandatory.  You applied for an exemption from registration under s.11A of that Act, on the basis that you were 18 or 19 at the time of the offence.  It was submitted that you present a low risk to the sexual safely of one or more persons in the community.  
41.	The prosecution provided to me an assessment carried out on behalf of the Chief Commissioner of Police, pursuant to s.11F of the Act, covering the various matters I must take into account.  The position of the police was that your application for exemption was not opposed.  The prosecution did not seek to persuade me otherwise. 
42.	For the reasons canvassed by your counsel and covered in the assessment on behalf of the Chief Commissioner, I declare, pursuant to s.11B of the Sex Offenders Registration Act 2004, that you are not a registrable offender in respect to Charge 1.
43.	Now, in respect of the suspended sentence, I must give you the following warning.  The effect of suspending this jail sentence is that you do not need, at this time, to serve the sentence in custody.  If you commit an offence punishable by imprisonment during the period of the suspended sentence, you may be charged with breaching the suspended sentence.  If you were found to have breached the suspended sentence, you could be sentenced on that offence to a fine and, in addition, I would have to decide whether to require you to actually serve the suspended term of imprisonment in custody or, if I was satisfied of exceptional circumstances since the imposition of this sentence, require you to serve only part of the suspended sentence, or extend the period of suspension or take no further action.  
44.	Mr Sonnet, are there any other matters that I should address?
45.	MR SONNET:  No, Your Honour.
46.	HER HONOUR:  Is there anything you wish to raise, Ms Joosten?
47.	MS JOOSTEN:  No, Your Honour.
48.	HER HONOUR:  We will adjourn the court.
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