Director of Public Prosecutions v Dhankar
[2015] VCC 189
•25 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEEPAK DHANKAR |
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JUDGE: | Her Honour Judge Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 25 February 2015 | |
CASE MAY BE CITED AS: | DPP v Dhankar | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 189 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr R. Hammill | |
| of Public Prosecutions | ||
| For the Accused | Ms J. Dixon QC Ms A. Haban-Beer |
HER HONOUR:
1 Deepak Dhankar, you have pleaded guilty to one charge of procuring sexual penetration by fraud. The maximum penalty for that offence is five years imprisonment.
2 The circumstances of your offending are set out in the Summary of Prosecution Opening upon Plea which was tendered as Exhibit A. In brief, the circumstances were as follows. In October 2012 you were using an internet dating site. Your profile identified you as muscular blonde Caucasian male named Jamie. You and the complainant met online through the internet dating site on 4 October 2012. You exchanged private messages. You also provided personal details about your ages and interests et cetera. You told the complainant your name was Jamie. During the course of your messages you provided her with photographs of another unknown blonde muscular male that you had found on the internet.
3 Over the next few days you exchanged explicit pictures and chatted via texts, instant message, and phone calls about various sexual interests. It was agreed between you that you, known as Jamie, would come to the complainant's house one night and assume a dominant role and she a submissive role. You discussed and agreed on certain sex acts and the use of safe words and limitations. The complainant fully consented to the activities in the belief that they would be performed with Jamie as you were described to her. You insisted that the complainant was to keep her eyes closed at all times and never look at Jamie in her role as a submissive, the complainant consented to doing so.
4 You arrived at the complainant's house as agreed at about 7.45 pm on 7 October 2012. You let yourself into her house via the unlocked front door as agreed. The complainant was naked and face down in her bed under a doona pretending to be asleep. You came into her room and held the back of her neck, telling her to keep her eyes closed and not look at you. She willingly complied. You then touched the complainant sexually, and in the course of sexual activity, digitally penetrated her vagina. After a short period you told the complainant to go to her en suite bathroom and go to the shower cubicle, keeping her eyes closed. She did so. You followed her and instructed the complainant to perform oral sex on you which she did. This act, together with the previous act of digital penetration of the complainant's vagina constitutes the sexual penetration which was obtained by fraud. The fraud was that the complainant consented to these acts at all times in the belief that you were the person Jamie.
5 At this point the complainant's small child stirred. The complainant went to settle the child. As she opened her eyes she saw your hand and immediately realised that you were dark skinned and not the Jamie that she was expecting. The complainant decided to play along with the sexual activity because she was afraid of the consequences if she let on that she was aware you were not Jamie as described. After some further sexual interaction you left.
6 The complainant was angered at the deception and there was an exchange between you of SMS messages and telephone conversations. The complainant confronted you and told you that the police might become involved. You pleaded with her not to go to the police. Later the following day the complainant reported the matter to the police, police organised a telephone contact between you and the complainant. In that conversation you generally apologised for your actions in creating the false profile and pleaded with the complainant not to report the matter to the police and ruin your family.
7 On 11 October 2012 you were interviewed by police. You told the police about creating the fake profile and maintaining the deception. You said to police that the complainant saw that you were a dark skinned man of Indian descent when you entered the house and that there was discussion about this with the complainant agreeing to sexual activity anyway. Given the summary on the basis of which you have pleaded guilty you did not tell the police the whole truth.
8 The prosecution made an application for a forensic sample to be taken from you, the making of that order was not opposed.
9 A Victim Impact Statement from the complainant was tendered as Exhibit B. This statement was read in court. In that statement the complainant describes her feelings of violation and the lasting affect on her of this incident. She says she feels guilt that her "trusting nature was abused in such a way". The victim describes the impact on her confidence and her ongoing anxiety.
10 In sentencing you I have taken into account your personal circumstances. You are now 29 years old. You were born in India. You commenced a relationship in India and married your wife in 2005. You had arrived in Australia as a student in 2003. You have become an Australian citizen. You have worked to establish yourself as a financial advisor. Your counsel said that at the time of your offending you and your wife were having marital difficulties. There were stresses on your family were concerned with the birth of your third child and your wife's ill health. Your counsel said that you were sexually frustrated and decided to seek intimacy online as a form of escapism. Your counsel said that you believed you would get more hits using photos of a Caucasian male. She also said that it was you who had suggested that use of a safe word in your discussions with the complainant.
11 You and your wife are now reconciled, and are working to maintain a positive relationship and support your three children. You have both been attending couples therapy with a psychologist as evidenced by the letter from Psychology Melbourne tendered as Exhibit 5.
12 You have no prior criminal history.
13 Your counsel relied on the contents of a psychological report from Mr Patrick Newton dated 4 February 2015 which was tendered as Exhibit 4. Mr Newton says that at the time of the assessment you did not suffer from any form of mental disorder, and there was no indication that you had suffered any such disorder at the time of your offending. Mr Newton says that you understand the consequences and wrongfulness of your actions and he estimates you to be of high average intelligence. Mr Newton assesses you as being of low risk of reoffending.
14 Mr Newton is concerned that you have some issues associated with sexual abuse of yourself during your childhood, although you had said that this did not cause you any problems. Mr Newton says that you expressed motivation to participate in treatment, Mr Newton says, "participation in appropriate offence specific treatment would be the single most important factor in reducing the risk of recidivism on Mr Dhankar's part, and should take place as soon as practicable". Mr Newton says that if your motivation continues and you participate candidly in treatment given your good family support, your work skills, intelligence, and the absence of behavioural psychological problems, there is a positive outlook for continued good adjustment on your part.
15 Your counsel also relied on a number of positive references which were provided and tendered as Exhibit D.
16 In mitigation of sentence in addition to these matters your counsel relied on your plea of guilty, your remorse, your efforts of rehabilitation, your positive good character, family and community support and your prospects for rehabilitation.
17 Your counsel submitted that a Community Correction Order would be the appropriate sentence.
18 The prosecutor agreed that in these circumstances a Community Correction Order could appropriately meet sentencing requirements with a punitive aspect being reflected in work hours.
19 You have been assessed by a Community Corrections officer and I received a report in respect of your suitability. That report makes various recommendations as to conditions that might be imposed. The report also includes a signed consent from you to the making of the order. That report has been provided to counsel in this matter.
20 Your counsel has provided further submissions in support of you being placed on a Community Correction Order. Those submissions say that you understand there may be an impact on your ability to travel interstate if you are placed on such an order. Those submissions also submit that the high level of publicity which this case has attracted has resulted in public opprobrium and notoriety attaching to you. As a result you have had to resign as licensee in the business which you were operating. You are presently unable to work as a financial advisor. You hope if you are out of custody to be able to get a new license and to maintain your clients, but at present your business has been shut down. Your counsel submits that your loss of employment ought to be taken into account as being punitive in itself.
21 Your counsel also made submissions as to the consequences on your family of your loss of employment, and the potential difficulties you will face in future in working in the financial services industry. Your counsel submits that even if you are able to regain employment, an internet based search of your name would reveal adverse publicity which would have a long lasting impact on your professional reputation.
22 Deepak Dhankar it is a serious matter to obtain access to another person's body by deception. It appears that you chose this extremely selfish, immature and inappropriate way to deal with your frustrations arising from the problems you and your wife were having. You were clearly aware of the importance of physical appearance and physical attributes in connection with internet dating and in the arrangements that you were making with the complainant. You maintained the deception by telling her to keep her eyes closed. You cynically took advantage of the complainant's willingness to allow a person into her home and engage in sexual activity with a person who was a stranger to her except for electronic communications. The wisdom of the complainant's actions must be seriously questioned but that does not diminish your moral culpability for this situation. There is no doubt that this case should serve as a warning to those who engage in internet dating and who arrange to meet up for purposes of sexual activity. I would urge all people of whatever gender or age to be very careful about accepting the truth of online descriptions and to be extremely cautious about allowing a virtual stranger to enter their home.
23 I should add that in this case there was no suggestion that you intended any harm to the complainant. It is clear that you were intending to engage with her in indulging your mutual sexual interests with limitations and that you voluntarily stopped and left.
24 I have taken into account in mitigation that you made an early plea of guilty. Your plea of guilty has saved the trauma, embarrassment and cost of a trial. I accept that you are genuinely remorseful and that your plea of guilty is an expression of your remorse. The matter has been hanging over your head for some period of time. During that period of time you have commenced your rehabilitation. I consider your prospects of future rehabilitation to be vary good given the matters set out in Mr Newton's report, and the continued support of your wife. It appears that you have considerable capabilities and it appears to me likely that you will be able in the future to access some form of employment.
25 I have taken into account that you have already received some punishment in losing your license and that your professional reputation is likely to be diminished into the future because of your actions and the publicity that your actions have attracted.
26 On the basis of Mr Newton's report it appears to me very important that you undertake treatment and counselling in respect of sexual matters. The appropriate program takes some time. It appears to me that a Community Correction Order of some length would allow for this program to be undertaken. Such an order would also allow for supervision of your treatment and rehabilitation. In addition you are able to perform community work which means that you would be putting back into the community, and which would be further punishment.
27 In my view in this case given the publicity that this case has attracted and the effect on you, a Community Correction Order could appropriately meet the sentencing requirements of just punishment, denunciation and general deterrence. I consider that specific deterrence need be given very limited weight in sentencing you, given what has already occurred. I have outlined to your counsel the Community Correction Order that I propose to impose, and I understand that you will consent to such an order being made.
28 I will make the order for a forensic sample to be taken from you. I consider that order to be justified in the circumstances because of the seriousness of your offending, the public interest and that the making of the order was not opposed. I am required to inform you Mr Deepak that when the authorities request the taking of a sample from you, if you do not cooperate they may use reasonable force, and can take the sample by way of a blood sample. I am sure that will not be necessary. I am sure that you will cooperate with them.
29 I have a discretion as to whether to order that your name be placed on a Sex Offender Register. The prosecution does not seek this, and in my view placing you on the Sex Offender Register would not be appropriate given your low risk of any further offending.
30 It is my view that the impact on your family does not amount to exceptional hardship of the type that is required in order to mitigate sentence.
31 On Charge 1 of obtaining sexual penetration by fraud, you are convicted and sentenced to a Community Correction Order. That order will commence today and operate for a period of two years. You are required to attend the Werribee Community Corrections Centre by 4 pm on 27 February 2015.
32 In addition to the core conditions of the Community Correction Order, which had been explained to you, I impose the following special conditions: you are required to do 200 hours of community work over a period of two years; you are to undertake assessment and treatment for mental health issues as directed; you are to undergo an assessment and engagement in offender behaviour programs as directed; you are to undergo supervision by the Office of Community Corrections.
33 I further order that any hours you undertake in respect of the treatment and rehabilitation conditions are to be deducted from the unpaid community work requirement.
34 Do you consent to that order being made?
35 OFFENDER: Yes, Your Honour.
36 HER HONOUR: Thank you. My associate will come, with Ms Dixon, to obtain your signature on the forms.
37 I should also add that but for your plea of guilty, I would have sentenced you to a term of imprisonment of 18 months with a 12 month non-parole period. Thank you. If you’d just take your seat, Ms Ollquist will come with the forms.
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