Director of Public Prosecutions (Cth) v Singh

[2016] VCC 2036

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

Case No. CR-16-01328

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

VIKRAM SINGH

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2016
DATE OF SENTENCE:	22 December 2016
CASE MAY BE CITED AS:	DPP (Cth) v Singh
MEDIUM NEUTRAL CITATION:	[2016] VCC 2036

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Sentence – use carriage service to procure a person under the age of 16 to engage in sexual activity – covert police operative

Legislation Cited:     Criminal Code (Cth) 1995; Crimes Act 1914; Sentencing Act 1991

Cases Cited:State of Western Australia v Collier [2007] WASCA 250; Director of Public Prosecutions (Cth) v Hizhnikov [2008] VSCA 269; DPP (Cth) v Walls [2014] VSCA 323; R v Fuller [2010] NSWCCA 192; R v Gajjar [2008] VSCA 268; Director of Public Prosecutions (DPP) v Boyles [2016] VSCA 267; Rodriguez v R [2013] VSCA 216; Hasan v R [2010] VSCA 352; Hudson v R [2010] VSCA [32]; Ibbs v The Queen [1987] 163 CLR 447; Guden v R [2010] VSCA 196; Director of Public Prosecutions v Tokava [2006] VSCA 156; R v Dixon (1975) 22 ACTR 13; R v Haydn Frank Merrett & Ors [2007] VSCA 1

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms K. Piechutowska	Solicitor for the Office of the Commonwealth Director of Public Prosecutions
For the Accused	Mr A. McGregor	Dowling McGregor Pty Ltd

HIS HONOUR: 

1In this matter, Mr Vikram Singh pleaded guilty to a charge under Commonwealth indictment, which bears the County Court delineation of CR 16-01328.

2Mr Singh is twenty-five, having been born on the first day of July 1990.  He works for a pizza company and earns good income in that business.

3Mr Singh was represented by Mr Waters and Mr McGregor, his solicitor, appears today.  The learned prosecutor, Ms Piechutowska, appeared on the plea, as she does today.

4The plea of guilty was to one offence, use a carriage service to procure the sender, whom was believed to be under the age of sixteen, to engage in sexual activity.  The offence occurred over the period 9 March 2016 to 31 March 2016, the formal offence being an offence contrary to s474.26(1) of the Commonwealth Code.

5Exhibit A was tendered, which was the prosecution opening, which took the Court through the details of the discussion and communication between the parties. For the purposes of fully understanding this matter, I point out that the communication has been detailed in the opening, in particular from paragraphs [11] through to [25].

6It was a result of those communications that ultimately Mr Singh was intercepted at the Huntingdale Railway Station, after being found in the underpass, and with the intention of completing the arrangements to meet, that he had made with the person who he believed to be a young girl of the age of fourteen.

7An analysis of all those paragraphs demonstrates that the communication involved, and the use of a carriage server, essentially involved Facebook chats, texts and an exchange of photos.  Interestingly enough, and perhaps as an indication of his naivety when compared to other persons who troll the internet committing these crimes, on his profile, that is Facebook profile, he had recorded his actual phone number.

8The photos exchanged are set out in Exhibit B, which were tendered to the Court.  They are certainly not of the usual type of photographs, that I think were described by counsel as "lewd".

9As I say, Mr Singh was arrested on 31 March 2016.  He has been on bail since that time.  The prosecution has sought a forfeiture order in regard to the Samsung iPhone, but I think that is automatically done, Madam Prosecutor, isn't it?

10MS PIECHUTOWSKA:  Yes, Your Honour.

11HIS HONOUR:  Yes.  And importantly, insofar as this sentence is concerned, Mr Singh has no priors whatsoever.

12The seriousness of this offence of course is recognised by, primarily, the penalty imposed by Parliament.  With the introduction of the internet, it was determined by Parliament, and I have read the second reading speeches in regard to this crime, that steps had to be taken to protect young people who are subject to "trolling".  As a result, therefore, the maximum penalty prescribed under the Code is fifteen years imprisonment, indicating the seriousness with which these offences are viewed.

13Exhibit C was tendered, which was the Crown submission on sentence.  The Crown submission was that the only sentence appropriate must involve a period of immediate imprisonment.

14Such submission took me through the various factors relevant, and I thank the prosecutor for that, but in particular, tendered as Exhibit D were the analysis of superior court sentencing decisions, and insofar as the proposition put by the Crown, one only has to go to State of Western Australia v Collier [2007] WASCA 250, where the general proposition relied upon by the prosecutor was stated by the court, that is, the Western Australian Court of Appeal, where it was said that it was important to say, as clearly as one can [43]:

“… that adult persons who make use of the internet to locate, and make contact with, children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment.”

15That principle was further emphasised in Commonwealth Director of Public Prosecutions v Hizhnikov [2008] VSCA 269, which was a decision of the Victorian Court of Appeal, where Court stated [27]:

“… a person who uses the internet in an attempt to procure a child to have sexual contact with him will ordinarily expect to receive a term of immediate imprisonment. This is simply a reflection of the seriousness with which the courts must view such conduct. Deterrence, both general and specific, will be the paramount consideration when sentencing an offender for an offence of this type.”

16It was in that context that there was considerable discussion and analysis during the plea of a number of cases being:  DPP (Cth) v Walls [2014] VSCA 323; R v Fuller [2010] NSWCCA 192; the Victorian Court of Appeal determination in R v Gajjar [2008] VSCA 268; Director of Public Prosecutions (DPP) v Boyles [2016] VSCA 267 and Rodriguez v R [2013] VSCA 216, again a determination of our Court of Appeal.

17In addition sentencing statistics were tendered, Exhibit 3, by the defence in the matter.

18Insofar as the appropriate way to handle the issue of statistics and comparable cases, the Court of Appeal considered this in Hasan v R [2010] VSCA 352, under the heading at paragraph 44 of “Consistency of sentencing.” It is, of course, as they said:

“The first task of the sentencing judge when seeking to ascertain an appropriate sentence in a particular case is to assess the objective gravity of the particular offence. The maximum sentence prescribed by Parliament will give a definitive answer to the question where the most serious example of the offence in question stands in the catalogue of criminal behaviours. An examination of comparable cases will then assist the judge to make an objective assessment of the range of sentences applicable in cases where the gravity of the offence is of a similar nature to the particular offence for which the offender is to be sentenced; but the limitations of this exercise must be borne in mind.”

19And those limitations are, of course, that ultimately this Court must make a determination upon the facts of this case.  As the Court of Appeal said at paragraph [49]: 

“Consistency is to be achieved by the application of the appropriate range, and not from the application of single instances of ‘like’ cases.”

20As was also said by the Court of Appeal in Hudson v The Queen [2010] VSCA 332, [27] to [29]:

“The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender.

…

… .  A general overview of sentences imposed for offences of a similar character will play a part in informing the ‘instinctive reaction’ … .

…

.  In that context it has been said on many occasions that “comparable cases” can only provide limited assistance … .”

21That, of course, is the manner in which I have considered the discussion and the submissions made on the cases.

22The most important repository is the maximum penalty prescribed, no doubt, as I have already said, indicating Parliament's view of the seriousness of the crime.

23The second is the current sentencing practice, which I have referred to.

24And then, of course, an analysis of the actual culpability, and of the prisoner’s antecedents.

25Insofar as such analysis was concerned, it is of interest when one peruses the actual conversations the degree of naivety about them.  I accept, when you analyse them as put by counsel, there is no lewd exchange. 

26I do not know the full reasons, albeit that Mr Singh was on Facebook, and had been, as the chronology shows, for some time, why he was targeted. Nor am I quite certain how.  It is clear that having been targeted, he willingly, over these twenty days, partook in the conversations which led to his arrest at Huntingdale Railway Station.

27Mr Singh discussed with this person, whom he believed to be fourteen years of age, and to whom he had told he was twenty-three, becoming involved in sexual activity.  Again, such discussion demonstrates naivety.  There is an ongoing concern after he concludes, or says words to the effect that, "You are now my girlfriend”, that he does not wish to hurt her.  There is discussion about the types of sexual activity.  He talks about the joy to a man when a woman consents to being involved in fellatio.  There is a fairly concentrated discussion about anal sex.

28However, in terms of when they finally were to meet, there was to be a general sexual experimentation of which such detailed acts would hopefully be a part and, on a number of occasions, Mr Singh is at pains to say that, "I want to make you happy, don’t want to hurt you.”

29In light of the actual conversations, and accepting the learned prosecutor's submission that it was persistent, one has to compare such to the types of conversations, their length and the intensity that this Court regularly deals with.  In summary, it is quite amazing.  In this case, I find, upon experience, that for the type of conversation, the material exchanged and the content of the conversation, this criminality must be classified at low level.   I refer to Ibbs v The Queen [1987] 163 CLR 447, [452], when one is required to assess criminal culpability upon the scale of heinousness.

30That was the classification put by defence counsel, Mr Waters, which I accept.

31Mr Waters submitted that the Court is dealing with a person who is relatively physically diminutive, shy, comes from a sheltered environment and has experienced a limited social life.  I find that all of such is demonstrated in these conversations.

32In particular, tendered in support of the defence submissions, was the report dated 10 October 2016 of Dr Simon Kennedy, a psychologist.  That report provided a lengthy and close analysis of Mr Singh's background.  Mr Singh faithfully, it seems to me, described the offending to the psychologist.  At paragraph [13], Mr Kennedy says this:  "Mr Singh's account is that he understands the implications and the severity of the charges". 

33I am not quite certain about the next paragraph:  "He indicated that he was not certain that the individual was aged below 16 years".  From my observation, there is no doubt that he, at all times, was aware that she was fourteen, albeit a provocateur.  Indeed, he openly says that he was happy and excited to be having sex with a virgin, [25].

34Personality evaluation showed Mr Singh to be of sound personality structure.  He is a person who was assessed to be inherently conservative.  Insofar as his intelligence quotient, he seems to be reasonably intelligent.  Insofar as his social experience, he has quite a limited sexual experience.

35At paragraph [28], Dr Kennedy stated that:

“Historically, he has had a relatively sheltered upbringing associated with his early experiences growing up in a highly cohesive environment in India with strong religious and cultural constraints. His description of his early life would suggest that he was relatively sheltered and naïve in his early experiences.”

36Dr Kennedy further states at paragraph [29]:

“Mr Singh, when evaluated regarding these issues, understands the reason for the criminal offending associated with underage sex. There is no evidence of early physical abuse or domestic violence in his upbringing which is a central factor associated with risk issues as a predictor of sexual offending. In contrast, as indicated, Mr Singh grew up in a highly sheltered and supportive home and village environment. His history would also indicate that there is no evidence of sexual abuse in his family or with him personally.”

37Insofar as assessing Mr Singh’s psychological adjustments, at page11, paragraph [8], Dr Kennedy says this:

"There is some lack of sophistication and there is evidence of naivety and lack of life experience in Mr Singh and as such, self-awareness is a factor although not so much with respect to psychopathology but more general personality and life functioning".

38I must say, my own experience and analysis of the conversation between the parties supports Dr Kennedy's opinion.

39Dr Kennedy assessed issues and risks insofar as further sexual offending, and took the view that the risk of sexual violence based on the assessment was very low.  He finally said this, at [36]:

“To summarise the risk of sexual violence protocol, it was assessed that the risk of future sexual violence is low, due to the lack of maintaining problematic factors in his background. Mr Singh presents without a mental health disorder. In contrast, he presents as well functioning although emotionally immature as would befit his background, which was sheltered. He presents as a young man with genuine understanding and remorse regarding the offending and the inappropriateness of such criminal offending. His future plans are realistic, and involve him returning to India to live in his home village and work in his profession, and marry under a traditional arranged marriage.”

40It should be said that in the time that Mr Singh has been in Australia, he has obtained a Master’s degree, although his employment history has not been consistent with that attainment.

41Insofar as the plea was concerned, defence outline of submissions were tendered as Exhibit 1, and I have already referred to the statistics.

42As I said, and I have already spoken about his personal history.  I accept as a matter of law, whether he is talking to a provocateur or not, that does not in any way reduce the seriousness of the offence.

43There is, however, a point in this case to be made that insofar as the fundamental reason for this legislation, Mr Singh was not a person who, on the material before me, was trolling the internet so he could influence in a sexual manner, young children.  Mr Singh was deliberately targeted.  However I accept totally that he willingly thereafter partook.

44I do not, in any way, conclude that such targeting diminishes Mr Singh’s culpability, because the purpose of this legislation is to protect young children.  There are many, many persons in jail today who have committed such crimes, albeit with a police officer at the other end.

45There is an issue as to the impact of a conviction, and I do take that into account.  Mr Singh is apparently still on a Temporary Graduate visa (subclass 485).  A conviction for this crime makes him liable to cancellation of that visa and deportation, and in accord with the principles in Guden v R [2010] VSCA 196, I do take those matters into account.

46Mr Waters was at pains to put to the Court, that, albeit the general comments as to what is the expected penalty for persons who indulge in this crime, that I have rehearsed, that there are alternatives in the particular circumstances of this case, and at paragraph [8] of his submission, he put the three alternatives, as he saw them.

47In particular, given the matters in mitigation, Mr Waters submitted that pursuant to s17A of the Crimes Act 1914, that this was not a case where the only appropriate sentence is one of immediate imprisonment.

48I must say, I have pondered on this matter for a considerable time.  There is no doubt, given the penalty imposed by Parliament, that we are dealing with a serious offence.  At times I have shown mercy in these cases, where persons have had a psychological or psychiatric makeup that really means culpability must be assessed as particularly low.

49As I have found, there is no doubt in my mind that once approached, not only was Mr Singh aware that he was dealing with a fourteen-year-old child in his conversations, but it could be said he glorified in it.  However, when one closely reads the conversation, despite the sexual activity referred to, the overwhelming conclusion I got is that he is a person, both insofar as experience, and indeed in regard to his own personality, who is particularly immature and naïve.

50As I say, I have assessed the crime as one of low culpability.  The Court is dealing with a person who has no priors whatsoever.

51Rehabilitation is obviously an important factor in sentencing, especially with a relatively young man.  This is a young man who, it might be said, given the strictures of his upbringing, has a very clear future.  It would appear, once Mr Singh finishes his working life in Australia, if he is not deported as a result of this conviction, who will return to India and live the life that would appear to be mapped out for him.

52I accept the evidence of the psychologist, that we are dealing with a person who presents a very low risk of any future criminality, and in particular any sexual criminality.

53When one is dealing with a young person with no priors, the principles of rehabilitation are very important, as was stressed by the learned President of the Court of Criminal Appeal in Victoria, in particular in two cases.  In Director of Public Prosecutions v Tokava [2006] VSCA 156, the offence involved was completely different to what we are dealing with here, however, the general principle stated at paragraph [21] was as follows:

"A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of serious offence, if in the long term the community’s interest will be best served by that course".

54Maxwell P then went on at paragraph [22] to quote from a decision of Fox J in R v Dixon (1975) 22 ACTR 13, where his Honour Fox J said this:

“When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in. His own personality may well be permanently impaired in a serious degree. If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young. His new-found propensities then have to be reckoned with.”

55And at paragraph [24], the learned President said:

“It would be unreal and artificial for sentencing courts to ignore the evidence about the anti-social effects of time spent in gaol.”

56His Honour subsequently considered this issue of rehabilitation, in regard to a relatively young man, in R v Haydn Frank Merrett & Ors [2007] VSCA 1. Again, this was not criminal activity that was relevant to what we are considering, but I refer to such for its general propositions.

57The President, at paragraph [49] said:

“… the sentencing court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this Court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing court does.”

58I must say, those principles have impacted very strongly upon me in trying to effect the balance here, where one is dealing with what is undoubtedly a very serious crime, and for which general propositions apply as to immediate imprisonment, which I have already rehearsed.

59It was in that context, given the submission of Mr Waters, that a report was sought in regard to a community correction order.  That assessment, in fact, took place in this building on 28 October 2016.  It was a positive assessment.

60That report noted that Mr Singh had no prior contact with Corrections Services, was fully employed and would have no difficulties in complying with conditions imposed.  Further, given the nature of the offending, a condition for assessment and participation in the Sex Offender Advice and Treatment Service was recommended. To that end a community correction order of at least eighteen months in duration was recommended.

61I take into account, in that regard, the views of the psychologist.  We obviously do not have a SOATS determination, but I accept, in the circumstances, the opinion of the psychologist.

62The final matter that I bring to bear in this case, not just because of the season, but from my experience, is that mercy always plays a part in a determination, as to sentence.  It seems to me that a person who comes before the Court without any priors whatsoever, albeit having committed a very serious offence, is entitled to seek mercy, as a first time offender.

63The balancing, as I said, has not been easy.  However, I consider that in this instance it is appropriate to accept the submission of Mr Waters that an immediate period of imprisonment not be imposed.  I would hope that it is understood that I do not come to that conclusion lightly.

64Madam Prosecutor, as I understand the position, if I impose a community correction order, is there any restriction on me, from a Commonwealth point of view, with imposing a fine as well?

65MS PIECHUTOWSKA:  Your Honour, if Your Honour gives me a moment to ponder on that question.

66HIS HONOUR:  Yes, just to be sure.

67MS PIECHUTOWSKA:  Yes.

68HIS HONOUR:  Because you see, under the Sentencing Act 1991 here, you can impose a fine at any stage, in addition to any penalty.

69MS PIECHUTOWSKA:  Yes, Your Honour.

70HIS HONOUR:  Which I think is the same in the community correction order, but I just want to be sure.  With a Commonwealth sentence.

71MS PIECHUTOWSKA:  I will just briefly verify.

72HIS HONOUR:  Yes.  I have not got my summary on fines.

73MS PIECHUTOWSKA:  Yes, Your Honour.  There is no ‑ ‑ ‑

74HIS HONOUR:  No restriction.  I thought it was the same.

75MS PIECHUTOWSKA:  Yes.

76HIS HONOUR:  But one is always careful dealing with the Commonwealth.  I say that in the nicest manner.

77MS PIECHUTOWSKA:  Yes, Your Honour.

78HIS HONOUR:  Mr McGregor, you might seek some instructions in this matter.  Your client has indicated by his signature that he knows what a community correction order is, and what is required.

79MR McGREGOR:  Yes, Your Honour.

80HIS HONOUR:  I will order supervision, and I will impose the conditions that are sought.  Despite the comments of the psychologist, I will order that Mr Singh takes an offending behaviour program, to ensure that the insight that he has shown to date is maintained.

81But in addition, I intend to fine Mr Singh the sum of $2,000.  Before I make the order, we should seek from him full understanding that those conditions are meant to apply, and if he comes back before me, given the serious nature of this matter, with any breach whatsoever, then he should understand the likely consequences.

82MR McGREGOR:  Thank you, Your Honour.

83HIS HONOUR:  I am prepared to give him a three-month stay on that fine.

84MR McGREGOR:  Thank you, Your Honour.

85HIS HONOUR:  You can do that now, if you want to talk.  Madam Prosecutor, can I thank you for all those cases and the analysis.

86MS PIECHUTOWSKA:  You're welcome, your Honour.

87HIS HONOUR:  Keeping me up to date.

88MS PIECHUTOWSKA:  Will your Honour make a formal order for forfeiture?  Just pronounced formally?

89HIS HONOUR:  Yes, yes.  Do you need it?

90MS PIECHUTOWSKA:  Just pronounced formally.

91HIS HONOUR:  I thought it as automatic.

92MS PIECHUTOWSKA:  Just a pronouncement on the formulation.

93HIS HONOUR:  I will make the order of forfeiture, as requested.

94MS PIECHUTOWSKA:  Yes, your Honour.

95HIS HONOUR:  The only determination I have to make is the community work, and this is part of the punishment involved in this order, and it seems to me there is no reason why I should not set a period of 250 hours.  I will not set a period of intensity.  So it is necessary for him, given his own full-time work, to fit in those 250 hours of that three years.

96MR McGREGOR:  Thank you, Your Honour.

97HIS HONOUR:  No doubt he will do that with his own supervisor.

98MR McGREGOR:  Thank you, Your Honour.

99HIS HONOUR:  So Madam Associate, there will be the community work of 250 hours, the treatment and rehabilitation as recommended, the supervision, and I think that is it, isn't it?  And the offending behaviour program.  Yes, those four.

100In addition, a fine of $2,000, for which a stay will be granted for three months.  And Mr McGregor, you might explain that I always do my own stays, and if someone comes along to me after three months and they have not paid anything, the likelihood of them getting an extension is not big.

101MR McGREGOR:  Thank you, your Honour.

102HIS HONOUR:  Yes.

103MR McGREGOR:  Would your Honour wish me to attend to that immediately?

104HIS HONOUR:  No, no, you can tell him.

105MR McGREGOR:  Thanks, your Honour.

106HIS HONOUR:  As that is my final sentence for the year, I wish you all well.

107MR McGREGOR:  As your Honour pleases.

108MS PIECHUTOWSKA:  As your Honour pleases.

109HIS HONOUR:  The McInerney wing of the prison will be very full, unfortunately.  The number of people I have put in jail this year is astounding.  We will just get the order signed.

110Mr McGregor, you might explain to your client, I know over eighteen months was recommended, but given the serious nature of this crime, I took the view that a period of community correction of three years was the appropriate disposition.

111MR McGREGOR:  As your Honour pleases.

112HIS HONOUR:  Yes, Mr McGregor.

113MR McGREGOR:  Thank you, Your Honour.

114HIS HONOUR:  I mean, I do not know whether your client's fight is quite over yet, but I think it would be appropriate, if such is necessary, to place before the authorities my comments and my views about your client and their commission of this crime.

115MR McGREGOR:  Thank you very much.

116HIS HONOUR:  I am not too sure whether it will help or not.

117MR McGREGOR:  Thank you, your Honour.

118HIS HONOUR:  Yes.

119MS PIECHUTOWSKA:  As your Honour pleases.

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