Director of Public Prosecutions v Banga

[2020] VCC 679

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-02005

DIRECTOR OF PUBLIC PROSECUTIONS

v

DASHMEET BANGA

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2020
DATE OF SENTENCE:	22 May 2020
CASE MAY BE CITED AS:	DPP v Banga
MEDIUM NEUTRAL CITATION:	[2020] VCC 679

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sprague	Office of Public Prosecutions
For the Accused	Mr J. Miller	Balmer and Associates

HER HONOUR:

1Dashmeet Banga, you have pleaded guilty before me to one charge of perjury.  The facts underlying your offending are as follows.

2On 17 June 2018 you arranged to stay at Bella Apartments in City Road, Southbank, with your girlfriend, Melody Sutton[1] and her friend, Ruby Smith[2]  Also present was your friend, Pranay Korpal[3].  You all planned to go to Crown Casino that night and arrived at the Bella Apartments at about 6 pm.

[1]A pseudonym.

[2]A pseudonym.

[3]A pseudonym.

3Soon after you and Mr Korpal started to drink beer while Ms Smith and
Ms Sutton drank wine, and over the evening you all drank more and ordered food before getting ready to go out.  At one point when you were out on the balcony and during the evening alcohol caused Ms Smith to cry.  This is apparently a common effect that she has when she has been drinking.

4Later in the evening, about 11 pm, Ms Smith was not feeling well and began to vomit and decided not to go out.  She was in her - - -

5MS SMITH:  I am sorry, Judge, could I please say something?

6HER HONOUR:  Yes, sure.

7MS SMITH:  So I probably only had about two drinks and I later found out that I was actually drugged, so that was probably what made me like feel sick.  So was not throwing up because I was drunk.

8HER HONOUR:  All right.  Can I say - and thank you for letting me know about that.  I am - I cannot - that is not something that I can take into account,
Ms Smith, because it is not included in the summary, and certainly Mr Banga is not charged in relation to any drugging of you.

9MS SMITH:  Yes.

10HER HONOUR:  Does that make sense to you?  It just sounds as if you are being undercut in every way but do you understand what I am saying?

11MS SMITH:  Yes, I understand.

12HER HONOUR:  But I understand why you are saying this too, because it is your view, but I will - what I will do, I will put it this way.  Later in the evening at 11 pm Ms Smith was not feeling well and started vomiting and decided not to go out.  She apparently only had a couple of drinks of alcohol but later believed some drug had been administered to her.  It is not alleged that you were responsible for this.

13Ms Smith, is that a more sort of satisfactory summary for you, Ms Smith?  Hello?  I am sorry, we cannot hear anything at this end.

14MS SMITH:  Can you hear me now?

15HER HONOUR:  Yes, I can, thank you.

16MS SMITH:  Sorry, I was muted.  Yes, that is more satisfactory.

17HER HONOUR:  Thank you, Ms Smith.  Originally Ms Smith was in her bedroom in the apartment with Ms Sutton, who then left the room to go to bed in another bedroom with you, leaving Ms Smith by herself.  Mr Korpal was supposed to sleep on the couch in the lounge area.  A short time later Mr Korpal went into Ms Smith's bedroom and held a plastic bag for her into which she vomited.  Ms Smith then laid down and alleges that Mr Korpal then pulled down her pants and underwear and penetrated her vagina with his finger and then penis.  During this Ms Smith was saying, 'No', and, 'Stop', and trying to turn away and push
Mr Korpal off.  Ms Smith also yelled out to Ms Sutton and was eventually able to roll out of the bed and leave the room, past Mr Korpal, who tried to block the door.  Ms Smith then went into Ms Sutton's bedroom and told Ms Sutton and you that Mr Korpal had raped her.  She was crying and not wearing any pants or underwear.

18Ms Sutton left the room as she thought that you were going to vomit and you then spoke to Ms Smith.  You told Ms Smith that she must be drinking as Mr Korpal was a good guy and that Mr Korpal had his pants on so he could not have done anything.

19By this stage it was about 1.40 am.  Ms Smith went into the shower and Ms Sutton spoke to her there and Ms Smith repeated her allegations of rape.  Subsequently Ms Smith's boyfriend and Ms Smith's mother attended.  Her boyfriend, Noah Hancock[4], attended the apartment to pick her up and they went to the Melbourne West police station.

[4]A pseudonym.

20You then spoke to Mr Korpal and told him to leave and go to his car outside and not to come back.  Police attended at the apartments at about 5.10 am and spoke with you and Ms Sutton.  From about 5.06 am you and Mr Korpal exchanged several text messages, you telling Mr Korpal that you would handle the police and advising him of what to say if police spoke to him.  In those messages you said, 'I will handle the cop'.

21You said, 'I will handle the cop'.  You texted, 'Do not come inside'.  He said, 'Do not come out from the car even once'.  You told Mr Korpal to tell police, 'You need to say she had a mental breakdown around 11, was standing with me outside, smoking, and was talking about doing suicide'.  This is apparently referring to a time when Ms Smith was standing on the balcony and saying how easy it would be to fall if the rails were short.  You also texted, 'Just remember if they ask you when Dashie asked you to leave, where did you go, just say I was in the car but I told Dashie that I am at home, safe'.  You need to say that you lied to me'.  This was, of course, because you had already told police that Mr Korpal had gone home.

22You then made a signed statement to police, which was signed just before
6 am, during which you acknowledge the truth of the statement and that a person making a false statement in the circumstances was liable to the penalties of perjury.  In that statement you said that after Ms Smith alleged that Mr Korpal had raped her, that you yourself had spoken to Mr Korpal about the allegation and Mr Korpal said he did nothing wrong and that you then told him to leave.  In the statement you said that after Ms Smith and her boyfriend left, that you texted Mr Korpal and asked if he was at home, safe, and he said, 'Yes'.  The crux of the allegation is that you knew this was not true as you were aware that Mr Korpal was in his car outside and that you had instructed him to stay there.

23It was noted in the prosecution opening that your conduct did materially damage the apprehension of Mr Korpal and he would otherwise have been arrested at the time.  However, it is not alleged that your conduct materially alleged the prosecution conviction or punishment of Mr Korpal.

24On 3 October 2018, that is about three and a half months later, you attended the Melbourne West police station for interview by appointment and during that interview you made the following admission.  You made admissions in relation to staying at the apartment, that you had paid for it, that you had asked Mr Korpal to stay with Ms Smith when she was unwell to ensure she did not vomit on the floor, that Ms Smith had come into the bedroom that you were sharing with Ms Sutton, saying that Mr Korpal had raped her and that she was crying, that in a matter of seconds Mr Korpal had come out fully clothed from the bedroom.  You said that you had asked Ms Smith to tell the full story of what happened and that Ms Smith continuously stated that Pranay, that is Mr Korpal had raped her.  You said that you told Korpal to leave and go home but that he left and stayed in his car and then later came back out to the apartment.  You said you found out later that he had stayed in his car.  You said that you may have had further communications with Mr Korpal that night but you could not remember, which is clearly not true, given the text messages that you had with him.  You admitted making a statement to police but said you did not read the jurat properly.  You admitted not sending a text message to Korpal, asking if he got home, safe.  This was because you had got stressed.  You said you asked Korpal about what happened and if he had done anything and Korpal had said he had not.  You said again you could not be sure if there were further messages between yourself and Korpal and then the text messages were put to you.

25You said that the message, 'I'll handle the cops', meant that you would just talk to police.  You were unsure why Korpal would tell you to delete the chat, which apparently he did.  You agreed you asked Korpal about the allegation of fingering in the text message.  You admitted to lying in your statement to police and you apologised for lying.

26You said the first thing police asked when they arrived was, 'Where is Pranay?', and it just came out of your mouth to say, 'He's at home'.  When the allegation was put to you about assisting Korpal you said Korpal was stressed out at what was going to happen, that he does not speak English well and that is why you said you would speak to the police first.  You said you had also told Korpal you would need to talk to police later.  You said you were not trying to hide Korpal from the police.  You admitted that at no point did you tell police Korpal was in the car.

27This matter was settled at an early stage at committal mention on
4 October 2019 and you were committed by way of straight hand-up brief and entered a plea of guilty to the charge on the indictment.  That means you have entered the plea at the earliest opportunity.  The maximum penalty for the charge of perjury is a term of imprisonment of 15 years.

28I now turn to your personal circumstances.  You are 26 years of age and you have no prior convictions.  You were born in Delhi.  You have a younger sister who lives with your parents in India and you have a strong relationship with your family, speaking to them every day.  You played a great deal of sport when you were growing up and you came to Australia in June 2014 to get a better education and develop your independence and see the world outside India, you never having previously left there.

29You completed a Bachelor of Accounting at Holmsglen Institute in Chadstone between 2014 and 2017.  You completed a professional year program at the Australian Technical and Management College, completing this in November of 2019.  You have applied for a Masters in Business Administration and Professional Accounting at Holmes Institute in the city.  It is your ambition to become a chartered accountant.  You are currently on a bridging visa until a decision is made on the student visa, which you applied for in November.

30You are in a tenuous situation because a term of imprisonment of 12 months or more would mean you would automatically fail the character test under the Migration Act.  However it is a situation, as I understand it, and as it was expressed to me, where the prosecution are not seeking a term of imprisonment in response to your offending, I will deal with this later in my sentencing remarks.

31In India you were employed with your father in the family business in the commercial building industry, assisting with client management and State inspections.  Since moving to Melbourne you have worked at McDonald's Restaurant, which work you started within months of moving here, and essentially working part time during study semesters and full time during the vacation.  You have worked there full time since finishing your Bachelor's degree and you have been put into various training leadership and management roles at McDonald's.  You have managed a large number of employees and your current title is as a department manager, which involves overseeing stock and inventory at McDonald's in Elsternwick.

32It appears you have no drug, alcohol or mental health difficulties.  Your client has mentioned in the written submissions that you have felt depressed and anxious in the lead-up to the finalisation of this matter, and you attended upon a psychologist in January 2019.

33Since this offending you had no further contact with those people involved, essentially that being Mr Korpal, who I understand has breached his bail by leaving the country so that the prosecution for rape against him can no longer proceed.  You have apparently provided police with all the details you could for Mr Korpal when you were requested to do so on 20 August 2018.  You are ordinarily of a law abiding character and you are aware of the very serious effect that a conviction in this matter could have upon you.  It is your aim, I understand from your counsel, to go back to part time work at the McDonald's outlet that you are currently employed at, and then seeking work in the accountancy section of the McDonald's headquarters.

34Of course you understand, Mr Banga, that if you wish to be a chartered accountant or even an accountant there are ethics that apply, a standard of ethics and a code of ethics that apply to your entrée into that profession.  I made the comment to you during the plea hearing that I regard your actions on that night as personally disgraceful.  All too often persons who are the victim of sexual assault, and in this case it would seem serious sexual assault, are disbelieved, particularly by friends of the perpetrators who could not believe their good mate could do such a thing, and that is what you have done despite, it would appear, the very distressed appearance by a Ms Smith in your room in the state of clothing she was in.

35Your counsel submitted to me that you more or less panicked once you had told police that Mr Korpal had gone home but I am satisfied you knew perfectly well what the allegations were and I am satisfied you did what you could to assist your friend at the time via the text messages that you sent him.  Ultimately, fortunately for you, the prosecution have conceded that the perjury that you committed at 6 am on the morning of this alleged sexual offending, and I say alleged only because it has not been proven, but at the end of this very distressing incident, falls at the lower end of the scale in terms of seriousness insofar as scenarios underlying perjury charges are concerned.  It is not submitted that you should be dealt with by way of a term of imprisonment.  It was the prosecution's submission that I should deal with you by way of a community corrections order.

36Due to the COVID-19 restrictions essentially I have decided not to take this course.  It is not submitted that you are in need of any assistance with drug or alcohol abuse or with mental health difficulties.  The only special condition that I would impose would be work hours which could not be enforced at this time.  Due to the restrictions there are no work programs operating.  Essentially, if I placed you on a community corrections order nothing would happen to you by way of a punitive nature quite possibly.  In all the circumstances I would not see it necessary to place you on a community corrections order of more than 12 months and I could not be confident that matters had so resolved within the community that the restrictions would be eliminated and you have to undertake the work hours.  I have therefore decided to deal with you by way of a fine.

37Perjury is always a very serious crime.  It seems to me it is most important that whilst you are not somebody who presents a danger to the community,  I am satisfied you have good prospects of rehabilitation.  I am satisfied you were remorseful for your offending.  I am satisfied that specific deterrence and protection of the community do not play a part in the principles I must apply in this sentencing exercise.  Nevertheless, it is my view that there should be a level of personal punishment in relation to this matter as a means of expressing the court's disapproval of your actions.

38You are therefore fined $5000 for this offending and I will give you four months to pay.

39Now, it was submitted to me, understandably by the prosecution, that I should attach a conviction to this fine and, indeed, initially that was very much my intention.  I note, however, that you are seeking to undertake an MBA, you are a relatively young man, you have no prior convictions, you have done nothing since, you are ordinarily a person of good character.  Whilst I in no way, as I believe I have made clear, excuse your actions, which I regard as quite morally appalling on that evening, I am aware, I do accept, that there was some pressures to this situation and that you reacted to it and that once you had told police that Mr Korpal had gone home, you then felt obliged to continue that lie to police.

40I do not say that is entirely the reason but I accept that it is partially the reason.  Somewhat reluctantly, taking into account all these matters and the other mitigatory factors that I have outlined, I am not going to attach a conviction to that fine, but only because of what I regard as the extra curial punishment this could wreak on your career long term.

41Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of three months and then ordered you be released on a community corrections order.

42All right, and I am now essentially functus officio, so what I say now is not coming as a legal basis to you, Mr Banga.  I know I have spoken to you several times during this hearing, you really need to reflect on what you did that night, all right?

43OFFENDER:  Yes, Your Honour.

44HER HONOUR:  For a young woman to be in the distress that Ms Smith was, and for you to react in that way is something you really need to think about.

45OFFENDER:  Yes, Your Honour.

46HER HONOUR:  And, you know, your friend, your great mate, is showing his true colours by not staying here to face the music.  I think you can draw your own conclusions why he has not done that, all right?

47OFFENDER:  Yes, Your Honour.  I'm sorry for all of this, Your Honour.

48HER HONOUR:  The main concern you need to have is the damage you may - the further damage you may have done to Ms Smith.  As I said, you have got a 17 year old - imagine if she was in the situation that Ms Smith was in, how would you feel if, you know, some bloke like you did what you did?  How would you feel about that man?

49OFFENDER:  Sorry.

50HER HONOUR:  You tell me.  How would you feel about that man?

51OFFENDER:  I'd feel very bad, Your Honour.  I think I would be very devastated, yes.

52HER HONOUR:  Yes.  You can imagine no doubt.

53OFFENDER:  I can imagine, yes, I - - -

54HER HONOUR:  You know, and you are the boyfriend - did that cause - is your relationship ongoing with Ms Sutton?

55OFFENDER:  No, Your Honour, no.

56HER HONOUR:  No.  I will bet she broke up with you because of it.  I am not surprised.  Just appalling behaviour and so, as I said, this is not part of my role as a judge and it is not part of my sentencing remarks but you need to be very ashamed of yourself, sir.

57Very well, thank you very much.  Is there any questions that you need to ask, Ms Smith?

58MS SMITH:  Thank you, Judge.

59HER HONOUR:  All right.  All the best to you, Ms Smith.  Thank you.  Very well, we will adjourn to - I thank counsel for their assistance in this matter.

60MR MILLER:  Thank you, Your Honour.

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