R v Castro Santafe [2021] NSWDC 323

District Court New South Wales

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 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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.