R v Castro Santafe [2021] NSWDC 323

R v Castro Santafe [2021] NSWDC 323

The offence was opportunistic, occurred in the victim's bedroom, and involved the offender taking advantage of a sleeping young woman by removing her clothes and performing cunnilingus without consent. Although the offence was serious, it was assessed as considerably below mid-range objective seriousness, was relatively brief, and the offender desisted when the victim woke. The home aggravating factor was made out and taken into account without double counting, but abuse of trust and statutory vulnerability were not established. Given the offender's absence of prior convictions, good character, low assessed risk of reoffending and reasonable prospects of rehabilitation, but also the need...

Jurisdiction
Australia
Judgment Date
23 April 2021
Procedural Posture
Criminal Sentence for Sexual Intercourse Without Consent Under S 61 I of the Crimes Act 1900 (nsw) / Sentence After Jury Verdict of Guilty
Outcome
Offender convicted and sentenced to 3 years imprisonment with a non-parole period of 2 years.
Legal Topics
['sexual Intercourse Without Consent' 'consent' 'objective Seriousness' 'aggravating Factors' 'non Parole Period' 'special Circumstances']
['criminal Law' 'sentencing' 'sexual Offences'] ['sexual Intercourse Without Consent' 'consent' 'objective Seriousness' 'aggravating Factors' 'non Parole Period' 'special Circumstances']

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Procedural Posture

Criminal Sentence for Sexual Intercourse Without Consent Under S 61 I of the Crimes Act 1900 (nsw) / Sentence After Jury Verdict of Guilty

Legal Issues

  1. 1 ["What facts should be found for sentence consistently with the jury's guilty verdict." "Whether the offence was aggravated because it occurred in the victim's home." 'Whether the offender was in a position of trust because he had keys and access to the apartment.' "Whether the victim's intoxication made her vulnerable for the purposes of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)." 'What sentence and non-parole period should be imposed having regard to objective seriousness, subjective circumstances, deterrence, rehabilitation and special circumstances.']

Ratio Decidendi

The offence was opportunistic, occurred in the victim's bedroom, and involved the offender taking advantage of a sleeping young woman by removing her clothes and performing cunnilingus without consent. Although the offence was serious, it was assessed as considerably below mid-range objective seriousness, was relatively brief, and the offender desisted when the victim woke. The home aggravating factor was made out and taken into account without double counting, but abuse of trust and statutory vulnerability were not established. Given the offender's absence of prior convictions, good character, low assessed risk of reoffending and reasonable prospects of rehabilitation, but also the need...

Court Disposition

Offender convicted and sentenced to 3 years imprisonment with a non-parole period of 2 years.

Orders

  • ['The offender is convicted of the offence of sexual intercourse without consent.' 'Impose a sentence of 3 years imprisonment with a non-parole period of 2 years. The sentence commences on 22 April 2021 and expires on 21 April 2024. The non-parole period expires on 21 April 2023.']