R v Mendoza-Torrico [1999] NSWCCA 413

New South Wales Court of Criminal Appeal CITATION : R v Mendoza-Torrico [1999] NSWCCA 413 FILE NUMBER(S) : CCA 60257/99 HEARING DATE(S) : 10/12/99 JUDGMENT DATE : 10 December 1999

PARTIES : Regina v Boris Mendoza-Torrico JUDGMENT OF : James J; Sperling J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0103 LOWER COURT JUDICIAL OFFICER : Freeman DCJ

COUNSEL : PM Naughtin (Applicant) CC Maxwell QC (Crown) SOLICITORS : E Fredericks & Co (Applicant SE O'Connor (Crown) CATCHWORDS : Criminal law and procedure - sentencing - no question of principle DECISION : Leave granted to appeal - appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 060257/99 JAMES J SPERLING J FRIDAY, 10 DECEMBER 1999 BORIS MENDOZA-TORRICO v REGINA (NSW)

JUDGMENT

1 JAMES J: Boris Mendoza-Torrico has applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Freeman, after he had pleaded guilty to one count of sexual intercourse with a child under the age of 10 years and two counts of committing an act of indecency with a child under the age of 10 years. 2 All of the offences were committed against the same victim, a girl, who was apparently nine years old when the offences were committed. The victim was a daughter of a sister of the applicant's de facto wife. 3 On the third count Judge Freeman imposed a sentence of a fixed term of imprisonment for nine months to date from 23 April 1999, which was the day, or the day before the day, on which Judge Freeman passed sentence. 4 On the second count, Judge Freeman imposed a sentence of a fixed term of imprisonment for 12 months, also to date from 23 April 1999. 5 On the first count his Honour imposed a sentence of imprisonment for four years, consisting of a minimum term of two years, also to date from 23 April 1999, and an additional term of two years. The third count was the count alleging sexual intercourse. 6 As all the sentences were made to commence from 23 April 1999, the effective sentence was the sentence imposed on the first count. 7 The objective facts of the offences can be summarised as follows. 8 In about 1996 the applicant formed a de facto relationship with the victim's aunt. The applicant consequently came in contact with his de facto wife's sister, the victim's mother. The two sisters then had a close relationship. At one stage they lived together and when not living together they frequently visited each other. 9 The facts of the offence charged in the third count, which was the first of the offences to have been committed, were stated by the sentencing judge in his remarks in sentence as follows: "The first offence in time is said to have taken place at the prisoner and his partner's unit, when the two women had gone, he thinks, to get a video. The prisoner was watching television in his bedroom. The child came in and lay on the bed. He began to kiss her on the mouth inserting his tongue. He certainly moved her clothing, if not entirely removed it, kissed her on the body from the neck and then kissed her on the vagina and placed his hand on her." 10 The facts of the offence charged in the second count, which was the next offence to have been committed, were stated by the sentencing judge in his remarks on sentence as follows: "at the unit occupied by the child and her mother, with the women apparently both present within another room, the applicant engaged in open mouth kissing [of the child] which he describes as like the way he would kiss a girlfriend." 11 The facts of the offence charged in the first count, which was the most serious offence and which incurred the heaviest penalty, were stated by the sentencing judge as follows: "The first count, that of sexual intercourse, occurred at the prisoner's unit. He had showered and dressed in the same room as the child and then again removed his shirt ... He began to kiss the child again. She protested, identifying her appreciation of the wrongfulness of the prisoner's approach by telling him that he had "V" (the applicant's de facto wife). The prisoner proceeded with kissing the child's face, mouth, inserting his tongue. He pulled up her t-shirt, kissed her breasts, her belly and finally pulled down her pants and underclothes and licked her vagina and inside of her vagina." 12 His Honour regarded the offences as objectively serious. His Honour observed that this was not a case of a one-off yielding to some spontaneous urge but a case of a repeated pattern of behaviour. The applicant was, in effect, a member of the victim's family who had been entrusted with the supervision of the victim and who had breached that trust. On the other hand, in favour of the applicant, his Honour accepted that the offences did not involve penile penetration, nor had there been violence or overt aggression. 13 At the time he was sentenced the applicant was 35 years old. He had been born in Bolivia. He had had what his Honour described as a wretched childhood. He had been subjected to physical violence and sexual abuse. When he was six years old his father had committed suicide in his presence by dousing himself with petrol and then setting himself alight. 14 The applicant had married an Australian woman in Bolivia and had migrated to Australia in 1994. However, after they had arrived in Australia, he and his wife had separated. In about 1996 the applicant entered into his relationship with the victim's aunt. 15 The applicant had qualified as a mechanic in Bolivia but his qualifications had not been recognised in Australia. In Australia he had worked regularly in such jobs as a cleaner and a carpark attendant. His Honour found that he was a hard-working and productive member of the community. 16 In his remarks on sentence his Honour accepted that on 4 October 1998 the applicant had voluntarily gone to the police and had taken part in a long electronically recorded interview in which he had made extensive admissions, including admissions of offences, which, at least up to that time, had not been disclosed by the victim. It was suggested by the Crown in the proceedings on sentence that the applicant had gone to the police so as to put on record his version of what had happened, the applicant knowing that it was probable that the victim's mother or grandmother would soon report him to the police. The sentencing judge observed: "That may detract, to a certain extent, from the willingness displayed by the prisoner but in my view it is a marginal matter. The fact is that instead of hiding his head in the sand he did go and make full disclosure". 17 His Honour also noted that the applicant pleaded guilty at the earliest opportunity, that the applicant's pleas of guilty had a utilitarian value, evinced contrition and had saved the child victim the ordeal of giving evidence. 18 As further evidence of the applicant's contrition, Judge Freeman referred to evidence given by a number of witnesses in the proceedings on sentence, including his de facto wife who had continued to support him. After going to the police and while he was on bail, the applicant took a number of steps showing both contrition and his ability and willingness to engage in rehabilitation. The applicant had had grave difficulties with alcohol and had often engaged in binge drinking. With a view to overcoming his problems with alcohol, the applicant had undertaken counselling at a clinic conducted at the Royal Prince Alfred Hospital. After his arrest he had entered into counselling and group programs run by the Child Abuse Prevention Service. 19 The sentencing judge said in his remarks: "I accept that the prisoner is doing what he can to cure himself". 20 On this ground his Honour found that there was special circumstances within s.5 (2) of the Sentencing Act. 21 In the proceedings on sentence some attention was devoted to what had been the effects upon the child victim of the conduct of the applicant. His Honour observed:- "Some evidence was led concerning the observable effects upon the child and that evidence from the child's grandmother and from the prisoner's partner relating to their periodic, occasional, but not ongoing, contact with the child, is relied upon as indicating that there is no discernibly grave manifestation of damage to the child in a psychological or emotional sense. It may of course be, as Mr Norton himself conceded, that the full effect upon the child may take some time to appear. I am certainly not about to find that this child has somehow escaped damage as a consequence of the prisoner's action. One does not need to sit very long in these courts, regrettably, to see that there is a pervasive form of affect on child victims and, as I understand the authorities, this court is not only entitled but is indeed obliged to approach matters such as this on the basis that all children will show some, if not all, of the following constellation of problems: Children feel fearfulness as a result of offences of this nature; illogically, but nonetheless keenly, they feel guilt and this is frequently compounded by a feeling of guilt about seeing the effects upon their family of their disclosure; children can tend to shoulder the blame for the split which occurs in families frequently in circumstances like this although it is both wrong, and as I say, illogical for them to do so. Nonetheless, it is a real consequence. All children feel a sense of loss of worth, of "emptiness" as it is frequently described. Such a disturbance of the normal process of sexual maturation, frequently leads to difficulties in trusting adults and often their own age peers. The ability to form and maintain relationships is frequently damaged and these effects may, if not permanent, certainly be of very long lasting duration. No child is ever the same once their innocence has been taken from them by a sexual predator." 22 A number of grounds of appeal were stated in an annexure to the Notice of Appeal but all of the grounds really amounted to assertions that the sentences imposed were manifestly excessive and that the sentencing judge had failed to take into account at all, or at any rate not sufficiently, the circumstances making the offences less objectively serious and various subjective circumstances, including the applicant's pleas of guilty, his going voluntarily to the police, his cooperation with the police, his contrition, his lack of any previous convictions, the steps taken by him to rehabilitate himself, his good prospects of rehabilitation, the unlikelihood of the applicant re-offending, and certain other favourable subjective circumstances. The court was also referred in written submissions to a number of parts of the evidence given in the proceedings on sentence by the applicant himself and by other witnesses. However, none of these matters were overlooked in the sentencing judge's careful and quite lengthy remarks on sentence. I am unable to conclude that the sentencing judge did not take into account any material consideration. The remaining question is whether the sentences, and particularly the sentence on the first count, were manifestly excessive. It may be that the sentencing judge could properly have imposed a less severe sentence. However, I am unable to conclude that the sentences passed by his Honour, even allowing for the circumstances favourable to the applicant, were manifestly excessive. The offence under s.66 A of the Crimes Act committed against a child under the age of 10, to whom the applicant stood in a position of trust, was a grave offence. The offence carries a maximum penalty of penal servitude for twenty years. The offence was not an isolated aberration. The good character of an offender is of less significance in child sexual assault cases than in cases of other types of offences. 23 We were furnished with statistics kept by the Judicial Commission of sentences passed between January 1990 and December 1998 on offenders with no previous criminal convictions who had pleaded guilty to one count of sexual intercourse with a child under 10 in contravention of s.66 A of the Crimes Act. There are 42 such instances. 24 As has been said by this Court on other occasions, the use to which statistics kept by the Judicial Commission can be put is limited. However, it seems to me that the statistics furnished to us show that the sentence passed by his Honour fell well within the range of sentences which were within a sound exercise of his Honour's sentencing discretion. His Honour was of course also sentencing the applicant for the two offences of committing an act of indecency, the sentences for which he made fully concurrent with parts of the minimum term of the sentence for the offence under s.66 A. 25 I would propose that leave to appeal be granted but I would dismiss the appeal. 26 SPERLING J: I agree.