DPP v Barajas

1. At the time of the offending, the victim was menstruating and wearing a tampon. The penetration compacted the tampon and pushed it further into her vagina. She lay there in shock while you continued to penetrate her. Eventually you got off the victim and walked back down the hallway to your bedroom at the front of the house. She lay on the couch crying for about 20 minutes. Wesley woke up and tried to console her.
2. She located her pants and underwear on the ground next to the couch, dressed herself and went to the front bedroom where you and Ms Barajas were asleep in bed. She woke up her mother and told her what you had done.
3. She went to the Wonthaggi police station to report the incident, arriving there at around 4.15 am. She told Wesley's father, Oliver Hubbard[8], what had happened by phone. He phoned you and demanded that you go to the police station.
4. At 4.45 am, you went to the Wonthaggi police station and said you wanted to hand yourself in. You said there had been an incident that night. You were arrested.
5. You were interviewed and gave an account of the evening consistent with the prosecution opening. You were asked about the offending. You said you had no idea what had happened, and you could not remember the offending. You said you had a blackout the whole time. The allegations were put to you, and you said:

1. You described having blackouts when drinking to excess and said this had happened on more than one occasion. You said you went to the police station to find out what had happened. You said you consider the victim to be your daughter and not your stepdaughter.
2. The victim's DNA was located on a swab taken from your penis, and sperm fractions on the vulval/labial swabs also implicated you.
3. You pleaded guilty at a committal mention on 20 September 2024. This was effectively the earliest opportunity for a guilty plea.

1. A victim impact statement was tendered from the victim. She said that this incident has caused her severe anxiety and depression and difficulty with sleep. She fears leaving the house. She has trouble interacting with men. She said she has spoken to many professionals, but she cannot get the memory of you on top of her or your voice whispering out of her head.
2. She describes a decline in her mental health. She was unable to work after the incident. She has experienced financial hardship. She has had to stay in motels with her son because she did not want to return home. Her family has cut her off and does not speak to her anymore because she reported this incident to the police. It is very unfair the family has reacted against her.
3. The multifaceted impacts on the victim are important matters in sentencing in this case and underscore the need for just punishment for this offence.

1. The seriousness of the offence you have committed is reflected in the lengthy maximum penalty of 25 years' imprisonment.
2. Consent is not an element of this offence, but a substantial aggravating feature of your offending is that the victim was asleep and intoxicated at the time of the penetration. She had no idea you were going to sexually violate her while she was asleep on the couch. You opportunistically took advantage of the situation for your sexual gratification whilst her four-year-old son was sleeping nearby. No doubt you thought you would get away with this conduct, thinking she would not wake up.
3. This was a very significant breach of trust. She is your stepdaughter. In your words, you regarded her as your daughter. She would have felt safe in your presence at a house where her mother lived.
4. You told Ms Cokorilo you had consumed more than 15 drinks on the night of the offending and that you have no recollection of the offending. I find this difficult to accept given the purposive nature of the conduct. Your alcohol consumption is the context to the offences, but it is not a mitigating factor.
5. Having regard to the serious nature of the offending in this case and the substantial breach of trust, which is inherent in an offence of incest, general deterrence, just punishment and denunciation must all be emphasised in deciding the appropriate prison sentence in this case.

1. Your personal circumstances are set out in the defence submissions and in the psychological report of Ms Sandra Cokorilo. You were born in India. You are the youngest of six children. You have a close relationship with all your siblings although they live in India. You visit them every year and you speak to them nearly every day.
2. You describe your upbringing as stable and positive. Your parents had a good relationship and remained together until your mother's death in 2020. Your father died in 2022. You felt loved and supported growing up.
3. You migrated to Australia on your own in 2008. Your initial time here was challenging because you were separated from your family. However, you met Angelina Barajas soon after arriving, and the two of you started your own family. You also have a strong social network and describe your workplace as a second home.
4. You finished Year 12 and then completed a Bachelor of Computer Applications. You also started a Diploma in Automotive in 2008, but you did not finish that diploma and stopped participating when you met Angelina.
5. You have a consistent employment history. You have supported your wife and children and your two siblings in India. You have worked in cleaning, deliveries and factory work. In the last 10 years, you have worked as both a delivery driver and a garbage collector.
6. You describe one significant relationship in your life, and that is to Angelina. You have three sons - aged 11, 12 and 14 - from that relationship.
7. In September 2024, your 12-year-old son, Allen, was diagnosed with a very high-risk B-cell acute lymphoblastic leukemia. Following the diagnosis, he was admitted to the Monash Children's Hospital and has remained under the care of the paediatric oncology department. Your wife, Angelina, is currently living with your son at the hospital.
8. Your son's prognosis is described as uncertain, and he has received intensive chemotherapy and immunotherapy treatments. In late 2024, it was proposed that as part of his treatment, Allen would receive a bone marrow transplant. In early 2025, you were confirmed as the donor for the transplant.
9. In a letter dated 10 January 2025, Ms Melissa Ridley of Monash Children's Hospital informed the court that Allen's mother and siblings were not a match, and you were identified as the 'only available donor for Allen'. An initial appointment to determine relevant procedures was scheduled in January 2025.
10. I adjourned this matter from the original plea date to allow you to stay out of custody whilst the treatment took place, and it was after that, in January, that I was informed that you were to be the donor. I was later provided with further information, that the procedure had been delayed, and there have been several adjournments to allow this procedure to take place. I have been provided with a further letter that indicates the procedure took place on 7 May 2025 successfully at The Royal Children's Hospital. Your son is still undergoing treatment in respect of his illness. There is some possibility that further bone marrow treatment will be required. If that happens, arrangements will have to be made with Corrections to facilitate that further treatment. I will return to the significance of these matters.
11. You have been a consistent drinker since you were 24 years old. You describe consuming five to six drinks per night on most weekends.
12. You have never been diagnosed with any mental health disorders.
13. You have no criminal history.
14. Ms Cokorilo, the psychologist who assessed you, conducted a risk assessment for further sexual offending and described you as a low risk of sexual recidivism.
15. She said you currently meet the criteria for a moderate major depressive disorder. This is the first time you have experienced depression, which is a response to the offending and your son's leukemia diagnosis. There are no mental health factors considered relevant to the offending. Ms Cokorilo says that your depression will be exacerbated by a period of imprisonment, particularly due to the separation from your family in circumstances where your son will be undergoing treatment.
16. Your counsel, Mr Barreiro, submitted based on the psychological evidence that principle 5 of Verdins applies in that your mental health will render your time in custody more onerous than a prisoner not suffering from depression. He also highlighted that there is a possibility your condition will worsen in gaol. He did not make a submission that principle 6 of Verdins applies. In the circumstances, I have had regard to the fifth limb of Verdins in that your depression will increase the burden of your imprisonment. Of course, your depression is interlinked with your other circumstances and in particular the situation relating to your son, which I take into account separately.
17. Further, you are not an Australian citizen, and you will be liable for deportation back to India at the end of your sentence, which will be considerably longer than the 12 months which triggers the automatic or the mandatory cancellation provisions in the Migration Act. Your future is uncertain. I cannot act on the basis that you will be deported, but it is obvious there is a significant risk of deportation in this case. You are a permanent resident but not a citizen. I am satisfied that the risk of deportation will make your time in prison additionally onerous. Furthermore, you have established strong roots in this country. You have a long marriage and three children born here. Your life was in this country. The prospect of deportation therefore has an additional punitive consequence for you.
18. I accept your son's illness and medical treatment will significantly increase the burden of your imprisonment, subjectively. His condition is very serious. He has a life-threatening illness. I accept that this will cause you considerable anguish while you serve your sentence.
19. I am also satisfied in this case that given his leukemia, exceptional circumstances exist which justify that I take into account the effect on your family. I have been provided with a letter from Ms Barajas. She says this:

I am Gary's wife. I have been married to Gary for 15 years. We have three boys together: George, 14; Allen, who is 12; and Christopher is 11.

Allen and I have been staying at the Monash Children's Hospital for the last four months. I was recently admitted to hospital due to my diabetes. I don't have siblings or family that I can ask for help during this hard time. Gary has been my support for the past 15 years, and at the present time I am requesting an extension of his bail due to mine and our son's health.

1. That was dated 10 December 2024, but it provides relevant background to this factor. It is obvious you are leaving your wife, your son and your other children in a very difficult position. Your wife is living with your son whilst he receives his treatment, which makes care for the other children very difficult. You have been coparenting with her, and you have been looking after the other children. After today, given that the only option is a period of imprisonment, that will no longer be the case, so there is a significant impact on your son and your wife, and flow-on effects to the other children which will be substantial. You will not be present to help your wife in these circumstances. You will be in gaol, facing a significant risk of deportation while your family deal with the impact of your son's illness. This is a significant matter that moderates the sentence to be imposed in this case.
2. You pleaded guilty to these matters at an early stage. The case proceeded as a hand-up brief plea. You therefore have shown a willingness to facilitate the course of justice, and your plea is indicative of remorse. You have spared the court and the prosecution the use of the resources required for a trial in this matter, and you have spared the victim the experience of having to relive these offences by giving evidence at a trial. Obviously, the case against you was a strong one, but nonetheless you must receive a significant discount in sentence based on your guilty plea.
3. You have no prior convictions. Ms Cokorilo indicates that there is nothing in your background consistent with a sexual offender profile. You have a strong work history. The offending, although very serious, was opportunistic. In my opinion, your main risk of further offending would occur if you were to continue abusing alcohol, but in my opinion, in the circumstances, you have good prospects of not offending again.

1. In sentencing you, I must regard to the need for deterrence both personal and general, to denunciation of this offending and to just punishment.
2. Given my view of your prospects of rehabilitation, community protection does not play a significant role. I must take into account your rehabilitation and the need to facilitate that rehabilitation as far as is possible in the circumstances.
3. In sentencing you, I have tried to balance the seriousness of this offending against the significant mitigating factors. There is no doubt that the only sentencing option in this case is a period of imprisonment with a non-parole period. This was conceded by your counsel.

1. The non-parole period is the minimum period justice requires you to serve before becoming eligible for release. It mitigates punishment in favour of rehabilitation, but it must be consistent with the objective gravity of the offence. In fixing the non-parole period, I have balanced the seriousness of the offending with the mitigating factors and your prospects of rehabilitation.

1. In this matter, the sentence that I impose for this serious offending is a period of imprisonment of five years and eight months. I fix a non-parole period of three years and four months.
2. Pursuant to s6AAA, I indicate that but for your plea of guilty, I would have imposed a sentence of seven years and eight months with a minimum