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District Court 23 April 2021

R v Castro Santafe

[2021] NSWDC 323

Sexual offences

Citation: R v Castro Santafe [2021] NSWDC 323
Court: District Court of New South Wales
Date: 23 April 2021
Judge(s): Buscombe DCJ

Background

The offender was the original tenant of a Sydney apartment who had sublet rooms to the victim and three other women. Although he no longer lived there, he retained intermittent access to the apartment and stored restaurant and personal items in it. The offender and the victim had no romantic history.

In the early hours of 28 September 2019, the victim returned to the apartment building after a night out during which she had consumed a significant amount of alcohol. CCTV footage showed her entering the building at 1.29am. She had no memory of events after getting into a taxi and was found asleep on the floor outside the apartment door by the offender when he arrived at approximately 4.10am.

The offender carried the victim into her bedroom. The victim woke at approximately 5.20am to find the offender kneeling beside her bed performing cunnilingus on her while she was naked. She was fully clothed when found at the door. A jury convicted the offender of sexual intercourse without consent, an offence under s 61I of the Crimes Act 1900 (NSW), carrying a maximum penalty of 14 years' imprisonment and a standard non-parole period of seven years.

  • What facts could be established beyond reasonable doubt consistent with the jury's guilty verdict, including whether the offender initiated the act while the victim was still asleep and whether he removed her clothing?
  • What was the appropriate sentence, having regard to the objective seriousness of the offence, the standard non-parole period, the offender's personal circumstances, and the statutory purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • Whether departure from the standard non-parole period of seven years was justified on the facts.

Decision

Buscombe DCJ found, beyond reasonable doubt, that the offender began performing cunnilingus while the victim was asleep and that he had removed her clothing in order to do so. Her Honour drew this as an "overwhelming inference" from the evidence: the victim always slept in pyjamas, not naked; she had no recollection of events from entering the taxi; she did not wake until she found the offender in the act; and the offender was fully clothed throughout. DNA evidence, including testing of a panty liner that produced a result over 100 million times more likely to be consistent with the offender's profile than an unknown person, supported the findings.

Her Honour was satisfied the victim did not consent and that the offender knew she was not consenting. The court also accepted the victim's immediate complaint to a fellow tenant, made while visibly distressed and still under the influence of alcohol, as consistent with her account.

On sentence, Buscombe DCJ assessed the offence as below the mid-range of objective seriousness, noting that this was the offender's first offence. Her Honour took the standard non-parole period of seven years as a legislative guidepost but departed from it downward, reflecting both that assessment of objective seriousness and the offender's prior good character. The court emphasised the serious nature of the offending as a breach of the victim's security in her own home and the need for both specific and general deterrence.

Sentencing statistics and comparative cases were considered, but Buscombe DCJ noted that sentencing remains an individualised process and that the cases cited did not establish a fixed range for this type of offence.

Orders Made

  • The offender is convicted of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW).
  • A sentence of three years' imprisonment is imposed, with a non-parole period of two years.
  • The sentence commences 22 April 2021 and expires 21 April 2024.
  • The non-parole period expires 21 April 2023, being the earliest date of eligibility for release to parole (subject to the State Parole Authority).

Key Takeaways

  • In sentencing proceedings following a jury trial, the sentencing court must find any facts adverse to the offender beyond reasonable doubt, consistent with the jury's verdict.
  • An overwhelming inference that a sexual act commenced while a victim was unconscious or asleep can be drawn from circumstantial evidence, including the victim's stated habits, her state of undress upon waking, and DNA findings.
  • The standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) operates as a legislative guidepost rather than a fixed starting point; departure is available where objective seriousness and personal circumstances justify it.
  • A first-time offender status is a relevant mitigating factor but does not displace the need for meaningful deterrence in cases of sexual assault, particularly where the offence occurs in the victim's own home.
  • Sentencing remains an individualised exercise: comparative statistics and case references inform, but do not determine, the appropriate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A (purposes of sentencing), 21A (aggravating and mitigating factors)

Cases:
- Suleman v The Queen [2009] NSWCCA 70
- R v Tadrosse [2005] NSWCCA 145