Reyniel Herrera Marcial is a very popular entertainer. He specialises in Latin music called Reggaeton. He went to a party on 6 December 2009. He had a lot to drink before and at the party. At 7 o'clock in the morning of 7 December 2009 he came into a room at the house where the party was and found a young woman who was asleep.
What Mr Herrera did then turned him from a popular, well regarded and respected musician into a criminal. He decided that he wanted to have sex with the woman who was asleep in the room. He penetrated her vagina from behind with his unprotected penis and had sex with her until he ejaculated. He did not ask her whether she agreed or not, he simply went ahead and did it.
The woman immediately complained to others at the party and a few days later Mr Herrera was arrested and charged with a crime commonly known as rape. Its technical legal expression is sexual intercourse without consent. It is a crime against s 61I of the Crimes Act 1900. Parliament regards this crime as so serious that it has fixed a maximum sentence of fourteen years imprisonment for anyone who commits that crime. Not only that, Parliament has fixed to that crime a standard non-parole period of seven years imprisonment.
It is my job now to sentence Mr Herrera. It is important for a judge in sentencing a person to set out their reasons for the sentence so that the offender, the parties to the case and the public know the reasons for imposing the sentence.
Mr Herrera denied that the sexual encounter he had with the young woman was without her agreement. He claimed that she consented. He was interviewed by the police and maintained that claim. He was prosecuted by the Director of Public Prosecutions in a trial before me earlier this year. On 12 May 2011, I convicted him of the offence after a jury had found him guilty of the crime.
One of the important things which a judge has to do in sentencing an offender for a crime that Parliament has fixed a standard non-parole period to is to determine and find where in the range of seriousness this particular crime lies. Is it one of the worst kinds of rapes, or is it in the middle of the range of rape crimes, or is it in the lower part of the range for rape crimes? In this case Mr Ken Gilson of counsel - who appeared as Crown Prosecutor in the trial and in the sentence proceedings - correctly, in my opinion, submitted that the crime committed by Mr Herrera fell below the middle of the range of objective seriousness which is the expression used by Parliament for crimes carrying a standard non-parole period.
Ms Dymphna Hawkins of counsel - who appeared at the trial and in the sentence proceedings for Mr Herrera - argued that this rape, too, fell below the middle of the range of objective seriousness but she said it fell at the very lowest in that range. She said that the offence when it was committed was of short duration and was spontaneous. Both of those assertions must be right. She also correctly pointed out that there was no additional violence over and above the very serious violence which is, by definition, part of a rape.
On the other hand I must take into account what I regard as three serious features of this crime. First is that Mr Herrera gave his victim absolutely no opportunity to prepare herself for this crime. The first she knew about the crime was when she felt his presence behind her and his penis inside her vagina. The second aspect is that the intercourse was unprotected; he did not wear any form of condom. The third thing which perhaps is the most serious is that he completed the intercourse by ejaculating into her vagina. The last two features obviously make the crime more serious because it must raise the possibility of sexually transmitted disease through unprotected sex or a pregnancy.
In my opinion this crime does fall below the middle range of objective seriousness for rapes but it falls just below the middle of the range. To be more precise it falls within the upper half of the lowest range of objective seriousness.
Mr Gilson did not suggest that there were any factors of particular aggravation in this case which fell within the terms of section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 and I accept that submission.
The impact of a crime such as this is graphically described in the victim impact statement prepared by the victim in this case.
I should say I am deliberately not naming her because this sentence may be published in due course and the law prohibits the public identification of the victims of sex crimes.
The victim of the crime was herself only about nineteen when this offence occurred. So far as she was concerned, she was at a party which was being hosted by a work friend of hers. As she pointed out in her victim impact statement, the crime is " not something you want to have to go through as a teenage female ". She had a partner of some four years and it was understandably particularly difficulty telling her partner about this because she was worried about his reaction. She was worried about telling her family as well. She found it hard to deal with. She never thought this would happen to her.
She went to counselling for up to eight weeks to help with her feelings and the obvious anxiety which the offence brought about but, as she, said the counselling " seemed to just bring up the events in my head again."
She found it very hard attending court. She was scared about seeing Mr Herrera. She was, as she said, " strong for myself and got through it thinking I could then move on with my life ." She then, unfortunately, had to come back to give evidence again because the first trial of Mr Herrera resulted in a hung jury. I presided over the second trial. This caused her more anxiety.
As a result of the incident she finds that she is " now a more scared and anxious person and I have a lot of trouble trusting people." She becomes very closed in public and tries not to interact with people or make eye contact. She is reluctant to go out on her own.
She was not able to go to work for several weeks and that had a financial impact because her partner was on an apprentice's wage. The job she had when this occurred involved her travelling a lot. She discontinued that employment because the travel involved public transport at early hours and she felt a lack of trust for people. It affected her sleep. She commenced new employment and became so stressed about the second court hearing that she had to be corrected about her performance. Luckily she did not lose her job. It affected her exams which she was undertaking. She had to repeat a twelve week course. This drew the attention of her employer.
It affected her appetite and she had to have sleeping tablets. Her social life was affected. She did not maintain contact with her friends. It affected her intimate life with her partner, as well as creating a lot of stress and strain between them.
The victim made reference at the commencement to " scratches on my lower back." I refer to that because there is an issue as to whether certain scratches which were on her back were caused in the incident or not. I cannot be satisfied beyond reasonable doubt that they were so caused because, as Ms Hawkins pointed out, the victim was carried once or twice during the course of the evening . Nevertheless the other observation which the victim made namely that "my intimate parts (vagina) was extremely sore for several days after the incident ", I do obviously accept.
It is important to make clear, as Ms Hawkins submits and Mr Gilson accepts, that none of the factors which I have read out which are contained in the victim impact statement are aggravating factors so far as s 21A of the Crimes (Sentencing Procedure) Act are concerned. It is not at all surprising that a victim of a rape such as this particular victim suffered the kinds of consequences which she so graphically described in her victim impact statement. A number of those consequences are sadly the sorts of things which judges come across regularly in victim impacts statements after sexual offences. One way of looking at that description is that it explains why Parliament regards such a crime as so serious that it fixes a maximum of fourteen years imprisonment to the crime.
It is important for a judge to make reference to personal features of an offender before sentencing the person so that they can be taken into account. Mr Herrera is twenty-nine. He is from Cuba and has been in Australia since 2007. He is applying for citizenship. He was married to an Australian woman but they have separated. He was brought up in Havana, one of nearly thirty brothers and sisters. He had a good upbringing. One feature of his early childhood however is that his first sexual encounter was at the age of twelve and as the helpful pre sentence report from the Probation and Parole officer says, " he enjoyed relationships of various lengths of time from then onwards ."
He has since separated from his Australian wife. He is a trained classical musician and a very accomplished performer in Latin music with a particular focus, as I have said, on Reggaeton. Indeed I have seen as one of the exhibits a video clip of one his performances. His lifestyle in Australia as a performer was characterised by casual relationships in an atmosphere of drugs and alcohol. That is a remark by the Probation and Parole officer, although it appears that Mr Herrera's drug use may have occurred later.
The alcohol intake became a serious problem in 2009 when his father died in Cuba. He lost another relative around about the same time. This affected him very seriously. He started to drink a lot more. He was drinking up to two bottles of rum a day. It obviously became an addiction. To his credit he took himself off to a detoxification unit at St Vincent's Hospital for three days and then attended a psychologist for four sessions.
However then in December 2009 he committed this crime and was charged. It is important to note that Mr Herrera maintains his innocence of this offence.
The Pre Sentence Report concludes that the offence " appears to have occurred within a context where casual relationships with women and abuse of alcohol and drugs was commonplace ." The author thought that the " confluence of his unresolved emotional issues and his lifestyle may have contributed to his attitude and actions in this matter ." The author thought that he would benefit from medical and psychological assessment to see whether these issues could be addressed. He was regarded as unsuitable for a community service order.
His legal advisers arranged for Mr Herrera to attend a psychologist, Dr John Jacmon. Dr Jacmon saw Mr Herrera on 5 July this year. Despite Dr Jacmon saying that he had " gathered considerable information " on Mr Herrera's " state of mind currently and at the time of the incident ", Dr Jacmon concluded that there were no disorders identified prior to the incident. This was despite the alcohol problem which I have described resulting from a combination of the performing lifestyle and his father's death, his attendance at a detoxification unit and seeing another psychologist. In addition, Dr Jacmon diagnosed, correctly I think, that Mr Herrera's daily " functioning is being impaired by depression, anxiety and substance abuse (alcohol and drugs) at clinically significant levels. " The psychologist thought that his depression and anxiety appear to have developed as aftermaths of the crime - that is my expression - which he had committed. He diagnosed him with a major depressive disorder and generalised anxiety disorder.
The psychologist whom Mr Herrera saw in late 2009 was a Mr Alfredo Goldbach. In a short report Mr Goldbach confirmed that he offered him psychotherapeutic support between September and November 2009. He had presented with " severe depression and extremely severe anxiety." He had "low mood, relationship problems and strong feelings of isolation ". The psychologist assessed Mr Herrera as having been " deeply affected by the loss of two family members and a friend during the previous three years and by the difficulties in the process of settling in Australia ."
Mr Herrera's success as a performer is demonstrated by a letter from a fellow performer known as " C Major ", whose full name is Carlo Velazquez.
Mr Herrera has previous convictions for driving an unregistered car and midrange PCA. Those offences have no bearing on my sentence to do with this case.
Ms Hawkins called her client to give evidence. He confirmed that the death of his father affected him tremendously. He was very close to him. He is not able to return to Cuba because he made a documentary containing his views about the conditions of the people in the country and he is therefore regarded as a counter-revolutionary. He acknowledged his drinking problem and that he had even started on drugs and the fact that he was very close to his father. He is prepared to undertake the counselling regime which Dr Jacmon suggested. He did not pursue his counselling with Mr Goldbach because of his travelling entertaining commitments. He has a lot of friends in his industry and in the community who provide him with a lot of advice and support.
He confirmed that his first sexual encounter was from the age of twelve when he was, as he described, raped by a fifteen year old girl. As a teenager he had relationships with older women, including two women in their thirties. He acknowledged in cross-examination that he realised that sex without consent was wrong and maintained his innocence of this crime. He said that the effect of the conviction and a gaol term would, he thought, destroy his future. Work had been going really well previously.
Ms Hawkins also called a friend of Mr Herrera, a Michael Hemmings Jones, a fellow Cuban who grew up with Mr Herrera in Havana. Mr Hemmings-Jones said Mr Herrera was the most outstanding Reggaeton singer in Australia at the moment and had performed with world leaders in that kind of music. They are very good friends and have worked together. Mr Hemmings-Jones helps Mr Herrera in the management of his performances and noticed his reaction to being charged with this offence. He also provides personal support for Mr Herrera as a friend. Mr Herrera is normally a very happy person and a very talented and professional musician. The effect of the conviction and gaol term would be the worst thing that could happen to him. Mr Hemmings-Jones also believes that his friend is innocent. He confirmed in cross-examination that Mr Herrera was very popular with women, particular his followers, and agreed that many threw themselves at him.
Mr Herrera spent some six days in custody after he was arrested. I accept that at the time that this offence occurred Mr Herrera was suffering from depression and anxiety and had also been drinking. Those observations point to the context and explanation of the circumstances in which the crime occurred. They do not excuse the crime. I accept Mr Gilson's submission that there is no demonstrated causal relationship between his condition and the crime.
Ms Hawkins in her written and oral submissions made reference to her client being probably the subject of child sexual abuse. That was based upon the evidence that her client had sexual relations from his early years. That may well be right but the only information that I have is that which I have set out. There is no clinical support or development of the proposition that Mr Herrera was the victim of childhood sexual abuse, nor is there any evidence about the impact which it had on him.
Ms Hawkins emphasised the need for her client having to have long term counselling for his depression and anxiety. She referred to his evidence which I have not yet mentioned that there are times when he thought about self harm and suicide.
The thrust of many of Ms Hawkins' submissions was to the effect that I should consider a suspended sentence. It was agreed that a intensive correction order was not available for this crime. Ms Hawkins pointed to the findings from a research paper which became MFI 26 about comparing the deterrent effect of imprisonment with non-custodial sentences. She pointed out correctly that the provision of s 5 of the Crimes (Sentencing Procedure) Act to the effect that I must not sentence an offender to imprisonment unless I am satisfied, " having considered all possible alternatives, that no penalty other than imprisonment is appropriate ." Ms Hawkins argued that her client and the community are going to be much better served by him undertaking a period of intensive therapy outside the prison environment. He is likely to be the subject of abuse in the prison system because he would be regarded as a sex offender.
My options in sentencing Mr Herrera are very limited. Clearly the crime is so serious that a sentence other than a prison sentence would be inappropriate. The only available way that a prison sentence could be imposed which does not involve immediate full time custody is to suspend that sentence. What, with respect, Ms Hawkins' submissions overlooked is that I cannot suspend a sentence which is more than two years. In my opinion a sentence of imprisonment of two years or less would be inappropriate for this crime. It therefore follows - despite all of the advantages for her client that a suspended sentence may have - that it cannot be imposed in a case such as this, given the findings which I have made.
I have been referred by Ms Hawkins and Mr Gilson to a number of cases which involve men raping women who are asleep or partly unconscious. I have been referred to Dean v The Queen (2006) 166 A Crim R 341, Sabapathy v the Queen [2008] NSWCCA 82 and Sudath v The Queen [2008] NSWCCA 207. In addition I have been referred to Da Silva v The Queen (NSWCCA, unreported, 30 November 1995) and JRB v The Queen [2006] NSWCCA 371.
Mr Gilson emphasised the seriousness of the offence in his submissions and argued that a non-parole period between two and a half and four years would be appropriate.
There is, I accept, some prospect of rehabilitation . This was a one off opportunistic offence and Mr Herrera has no record of such previous offending. His prospects of rehabilitation are guarded, given the complexity of the treatment required and his significant depression and anxiety. Naturally he cannot be accorded any benefit of contrition or remorse because his clear position is that he regards himself as not guilty of these offences.
As I say, I have made the finding as to where this offence lies in the range of objective seriousness. Taking into account that finding and the matters personal to Mr Herrera, I regard an appropriate overall sentence as one of four years imprisonment. Because it is his first time in custody and he will need some extended period in the community for his treatment to be undertaken I would regard there being special circumstances for departing from the normal relationship between a head sentence and the non parole period. Normally it is some seventy-five per cent so that Mr Herrera could expect to have a non-parole period of three years in this case. However I propose to reduce his non-parole period to two and a half years in this case.
I will backdate the sentence by some seven days to clearly take into account the period which he has spent in custody. The sentence will therefore commence on 10 August 2011.
Mr Herrera I am going to sentence you now, if you would stand up please. I set a non-parole period for your sentence of two and one half years which will commence on 10 August 2011 and expire on 9 February 2014. The balance of the term is one and a half years commencing on 10 February 2014 and expiring on 9 August 2015. Mr Herrera your sentence commenced on 10 August 2011. Your non-parole period - the time that you must be in gaol - expires on 9 February 2014. After that your sentence runs for another one and a half years in the community when you will be subject to parole and that will expire on 9 August 2015. The first date that you are eligible for parole is 9 February 2014. Whether or not you get parole will be a matter for the Parole Authority. Have a seat Mr Herrera.
HIS HONOUR: Now Ms Hawkins, Mr Gilson, two things: one the mathematics, I think I've got it right, the dates and periods and secondly whether there are any legal or factual matters which you want to draw to my attention which might be errors and which could be fixed at this time under s 43, or corrected under s 43. So first the mathematics, that I've got the dates and periods right.
GILSON: My part seems to--
HIS HONOUR: Thanks Mr Gilson.
HAWKINS: I've added it up, it appears to be correct your Honour.
HIS HONOUR: Thank you. Now any matters of fact or law that might be the subject of s 43. I don't mean further submissions but any factual errors or legal errors that I may have made.
HAWKINS: Your Honour the only thing that I can see is that your Honour made a reference to guarded prospects, giving the significant depression and anxiety. Did your Honour wish to say anything about his prospects regarding his, not family support but community support with respect to his rehabilitation.
HIS HONOUR: Yes, look I said guarded, no that I won't affect the sentence but thank you for drawing it to my attention. I use guarded because of the severity of the condition which Dr Jacmon had diagnosed and I acknowledge that he has a good deal of support in the community. I'll leave it at that.
HAWKINS: The other issue is your Honour, I have contacted the Probation and Parole Service, I took the liberty the other day, I spoke to the supervisor at Wentworth Avenue and told her with respect to the issues of possible self harm and she has already noted the file in case he comes into the system but I don't know whether your Honour wished to note that for the file from your Honour's viewpoint that this is something that they could possibly look out for.
HIS HONOUR: That's a good idea Ms Hawkins. The other thing I do in cases such as this - which the Corrective Services authorities encourage - is to provide any psychological material. I won't do it without your permission but if you agree I'll arrange for my associate to send Dr Jacmon's report and Mr Goldbach's report. I just have to ask her to rub out my pencil marks and then the sensible thing for her to do is probably to fax those. There's a person we know in Corrective Services who's in charge of the assessment process and we send them direct to him. Now what I will do - and she will do this later on today - is when we send the fax or email with those two reports I will ask her in the covering note to say that there has been evidence from Mr Herrera of ideas of self harm at various stages. I think that would cover it, so that they're alerted to it.
HAWKINS: They've already been alerted.
HIS HONOUR: I'll add it to. I'll ask my associate.
HAWKINS: He has given his own evidence of it.
HIS HONOUR: Exactly right, that's why I say, that he's given evidence of it. That's right, that's the point, he's given evidence. Thank you Ms Hawkins, anything else?
HAWKINS: No I don't think so your Honour.
HIS HONOUR: Now Mr Gilson?
GILSON: Your Honour there's only one, I must say, very slight slip of the tongue that someone might misconstrue, your Honour said, "When I sentence for these offences", in case somebody thought that there was a Form 1 or related or back up charges, there are no other charges related, back up or on a Form 1 and it was obviously just a slip of the tongue. Your Honour has sentenced for only one offence.
HIS HONOUR: What Mr Gilson says is correct. There are no back up charges, there's no charge to be taken into account under s 32 of the Crimes (Sentencing Procedure) Act . The only crime that I sentenced Mr Herrera for is the s 61I charge.
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Decision last updated: 01 September 2011