HMA v Carlos Delacruz

At Edinburgh Sheriff Court today, 4 September 2018, Sheriff Alison Stirling sentenced Carlos Delacruz to three years’ imprisonment after the accused pled guilty to two charges of sexual assault by penetration.

On sentencing, Sheriff Stirling made the following statement in court:

“Carlos Delacruz, you have pled guilty to two charges of sexual assault by penetration, being contraventions of section 2 of the Sexual Offences (Scotland) Act 2009. 

“In preparation for today’s sentencing hearing I have read the Crown narrative, the victim impact statements of both of your victims, the criminal justice social work report, the narrative provided by your solicitor and a letter obtained by your solicitor from Scottish Trans Alliance. 

“I note that the criminal justice social worker has assessed that you are at low risk of sexual reconviction and that you appear suitable for a community disposal. In the defence narration you accept that you deceived both women into thinking that they were being penetrated by a penis rather than a prosthetic penis and that you were wrong to do this.

“I have also taken into account your personal circumstances as set out in the narration and the report. I note also the explanations given by Scottish Trans Alliance. 

“However, in my view only a significant custodial sentence is merited having regard to the very serious nature of the offences to which you have pled guilty. 

“As regards the first complainer, you sexually assaulted her once every month or two, throughout the period from 27 May 2013 to 3 January 2016.

“Sexual intercourse took place with the lights off. You led her to believe that you were penetrating her with what the Scottish Trans Alliance letter refers to as a ‘flesh and blood’ penis.

“When she advised you that she was not using any form of contraception you used a condom. You pretended to ejaculate. She subsequently used the contraceptive pill and then came off the pill when you became engaged, prior to your marriage.

“According to her victim impact statement you made her feel that it was her fault she was not getting pregnant.

“She found sexual intercourse with you painful and she routinely suffered from thrush thereafter. You told her you had never had any problems before, again making her feel it was her fault. 

“She now has flashbacks, panic attacks, and finds it hard to trust people – particularly men. Intimacy is difficult for her. She feels dirty. She feels used. She moved house and changed her son’s school to stop you coming near her. 

“You sexually assaulted the second complainer about 10 times between 1 August 2016 and 14 May 2017.

“Again the lights were off. Again you used a condom, suggesting you had a penis.

“On the first occasion this complainer suffered extreme pain during penetration. Her vagina bled for days, and she continued to have pain for a week.

“On subsequent occasions this complainer tried to plan for sexual intercourse to take place in advance of days of annual leave because she knew her vagina would bleed and she would get thrush.

“In her victim impact statement she describes difficulties with eating and sleeping. She cannot trust anyone and cannot consider letting another man near her.

“She has had to move house with her son in order to feel safe, and she has had to take time off work to try to come to terms with what had happened to her.

“Neither complainer knows what object you penetrated them with. Both offences involved a significant level of deception on your part.

“They were serious sexual assaults. They caused significant physical and psychological harm to both complainers.

“You have shown a complete disregard for each complainer’s physical integrity and right to decide what happens to their own body. Instead you emphasised to the social worker preparing the report your ‘right’ to have sexual intercourse with a prosthetic penis and without informing either complainer of this. 

“I take into account your previous conviction. In 2017 you were fined and made the subject of a non-harassment order. While that offence is far less serious than the offences for which you are being sentenced today, it is significant that it is a domestic offence and was perpetrated against the complainer in charge 2. 

“In respect of charge 1, the headline sentence I have selected is a custodial sentence of three years’ imprisonment. In light of your early guilty plea I will sentence you to two years’ imprisonment on that charge.

“In respect of charge 2, this offence would justify a headline sentence of two years’ imprisonment as a standalone charge, which would then fall to be discounted in light of your early plea. In my view it is appropriate that consecutive sentences are imposed in respect of each complainer.

“Having regard to the cumulative effect of the sentences I will impose a custodial sentence of one year in respect of charge 2, consecutive to the sentence on charge 1. The total sentence is one of three years’ imprisonment from today’s date. 

“You will be subject to the notification requirements indefinitely. I will also make non-harassment orders in respect of each complainer for a period of five years.”