Director of Public Prosecutions v Dingadarar

[2021] VCC 534

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

CR-19-00441

Indictment No. J12271168

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHANAPRABU DINGADARAR

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2021
DATE OF SENTENCE:	9 April 2021
CASE MAY BE CITED AS:	DPP v Dingadarar
MEDIUM NEUTRAL CITATION:	[2021] VCC 534

REASONS FOR SENTENCE

‑‑‑

Subject:  CRIMINAL LAW

Catchwords:  Common law assault

Sentence:  1 year and 6 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Solicitor for the Office of Public Prosecutions
For the Accused	Mr S. Kennedy	Emma Turnbull Lawyers

1HER HONOUR:  Mohanaprabu Dingadarar, on 4 March 2021, you were found guilty by a jury of a charge of common law assault.  The maximum penalty applicable to that offence is five years' imprisonment.

2On 27 July 2017, at around 3 am, you rang a brothel called Dandy Bells to book an appointment with a sex worker.  You arrived at the brothel at around 3.15 am.  You were taken to meet the complainant in this matter, with whom you had previously had an appointment at the same brothel.  You both went upstairs and the appointment, which was to last for 45 minutes, commenced.

3The complainant recognised you from the earlier booking.  She set her timer to go off around five minutes before the end of the 45 minute appointment.  During the appointment with the complainant, you were unable to achieve orgasm and were apparently frustrated or upset about the requirement to wear a condom.

4After the timer went off, the complainant told you that she would give you five more minutes.  You then sexually penetrated her and in the course of doing so, or at around that time, you punched her to the face four or five times.  The complainant called out to her manager for assistance.  The manager came upstairs and observed you in the room with the complainant.  The complainant was holding a tissue to her nose.

5An altercation followed between you, the complainant, the manager of the brothel and another worker at the brothel.  Some of this was able to be seen on CCTV footage which was tendered in the course of the trial.  The evidence of the complainant was that she was bleeding from the nose due to your punches and that she cleaned up her face and held a tissue to her nose.  The other worker at the brothel observed blood on the complainant's nose. 

6Your defence, which the jury must have rejected, was that any injury to the complainant's face occurred during the tussle on the landing or in the bathroom on the landing.  The complainant visited a doctor later that day.  The doctor who examined her observed that there was swelling and tenderness over the bridge of the nose and there was no active bleeding within the nose.  There was tenderness over the lower eye socket areas on both sides, swelling on her chin and bruising to the left side of that swelling.  There were other abrasions and injuries which were not related to the punching. 

7Photos were tendered in the trial showing bruising on the front of the complainant's face consistent with the blows that she described you having inflicted upon her.

Gravity of the offending

8At the time of the offending, the complainant was working as a sex worker.  You punched her repeatedly in the course of her employment while, either at the time you were penetrating her sexually or close to that time.  It appears that your motivation for assaulting her was your frustration at having been required to wear a condom or perhaps for having been unable to reach orgasm. 

9Any person, in the course of their employment, is entitled not to be assaulted, and to carry out their work safe from harm.  The complainant was vulnerable when you assaulted her.  I note that the jury were not able to reach a verdict on Charge 1. The explanation for this may be that there was evidence supporting the complainant's account of having been punched, but in respect to the rape charge, the evidence of the manager of the brothel did not support her account and indeed undermined it.

10The complainant has provided a victim impact statement regarding the effect of the offending upon her.  Whilst I accept that some of the effects of the offending upon her must relate to her belief that she was sexually assaulted by you, nevertheless the effects of the incident were significant.  She experienced fear when seeing or dealing with people who resembled your physical appearance or your background.  She found it difficult to find new work. 

11She is now doing better and the gravity of her response is decreasing.  Whilst it is difficult to disentangle how much of a reaction is due to the assault and how much to the alleged rape, I accept that your offending had a significant affect upon her, although that is now lessening.

Personal circumstances 

12At the time of the offending you were 26 and you are now 29 or close to 30.  You are an asylum seeker having come to Australia in 2012 with your brother from Sri Lanka.  You left Sri Lanka due to the traumatic experiences you were undergoing there, having been required to fight in the civil war when you were around 18.  I was told that you saw close friends and family die.  Your father died in the war.

13I accept that your experience in Sri Lanka must have been traumatic, forcing you to take the serious step of leaving your home and seeking asylum in Australia.  When you came to Australia, you found work and were able to establish a life.  You worked for some time on building and construction sites and in the year or so before this offending, set up your own business in cleaning and landscaping.  I accept that you had a good work history.

14Your current situation is that you have no visa and upon your release from custody will be taken into immigration detention.  I was told that you still intend to apply for asylum in Australia.  Your criminal record, including this matter, will be something that will cause you difficulties in making that application, and I take into account that this sentence, as with any other sentences you have received, will cause you distress and concern about your prospects of getting asylum in Australia.

15I was told that whilst in custody your mental health deteriorated and that you were seeing a psychologist monthly which was of some benefit to you.  In the community, I was told, you had a difficulty with alcohol, frequently drinking to excess and often consuming more than one drink at a time.  It is not clear to me how much of that alcohol had to do with the offending on this occasion.

Criminal history

16You have a relevant criminal history.  On 15 March 2017, you were found guilty of summary assault and fined, without conviction, $1,000.  The conduct founding that offence occurred on 15 October 2016 at a brothel.  You were unhappy with your appointment having been shortened.  You swore at the staff at the brothel, punched a wall, kicked a door in, and then punched the receptionist in the arm and pushed her.

17I note that I was told about a subsequent finding of guilt in respect to using a carriage service to harass your ex-partner and also the matters for which you were sentenced for eight months in 2018.

18In sentencing you, I must take into account a number of sentencing principles.  One of those is general deterrence.  Assaults upon women, assaults upon people in their workplace, are to be denounced and the sentence I impose is intended to, not only denounce your conduct and amount to just punishment, but to act as a deterrence to others.  This is particularly the case where, as here, a complainant is vulnerable by the reason of the nature of her work. 

19I also take into account specific deterrence, that is whether you should be deterred from committing further offences.  It was submitted on your behalf that given the passage of time between your prior conviction, subsequent convictions and now, I should give little weight to those matters.  It was submitted that your time on remand for these matters has had a significant deterrent effect upon you.  I do think that you need to be deterred from committing further offending, and I take that into account in imposing the sentence.

20You have spent, as I calculate it, two years four months and 28 days on remand for this matter.  During that time last year your experience of remand was made worse by the restrictions imposed by Corrections due to the COVID-19 pandemic. 

21Taking into account the gravity of the offending, your personal circumstances, and the many sentencing principles and requirements, the sentence that I impose upon you, upon the charge of common law assault is one year and six months, and in view of your circumstances and the fact that you have served more than that time on remand, I will not impose a non-parole period and I declare that you have served already 548 days as pre-sentence detention.

22Now, I have declared that amount which is less than the actual pre-sentence detention because by my calculations one year and six months from today amounts to 548 days. 

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