Director of Public Prosecutions v Gopinath

[2019] VCC 12

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01165

DIRECTOR OF PUBLIC PROSECUTIONS

v

VIKRAM GOPINATH

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 January 2019
CASE MAY BE CITED AS:	DPP v Gopinath
MEDIUM NEUTRAL CITATION:	[2019] VCC

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Siggins
For the Accused	Ms I. Thaufeeq

HIS HONOUR:

1Vikram Gopinath, you pleaded guilty to an attempt to procure a child of 16 or 17 for an act of sexual penetration and to misconduct in public office, being the two charges on the indictment.  The two offences each carry a maximum of ten years' imprisonment.  The circumstances of your offending are summarised in a prosecution opening dated 27 November 2018.  It was tendered and the exhibit will be retained.  It is a detailed summary and for purposes of the sentence I will summarise its contents.

2At the time you were 27 years old and a serving member of the Victoria Police with the rank of senior constable.  The complainant, to whom I shall refer to as N, for purposes of privacy, was 16 years old.  You had met her when she was about 13 years old through your work on occasions when she had to be dealt with by police for street offending and due to her difficult family situation.  She was a ward of the State under the care and supervision of the relevant department, who had lived in residence as appropriate for the supervision of such young persons with carers.

3You knew her background, of the surrounding social context in which she moved, of her difficult family situation and of her status.  This is an aggravating feature of your offending.  Her status should have alerted you, and reasonably so, to her vulnerability and susceptibilities.  Her youth should have caused you to act cautiously when dealing with her.  Your own status and duties as a police officer should have compelled you to act within the parameters of propriety, rigorous decency and unimpeachable conduct.  You failed each of these values.

4On or about December 2016 N attended at the Mildura Police Station where you were working and asked to be given a lift home.  You were on duty and you and another police member agreed to take her home.  While in the car she asked whether you had Facebook and Facebook Messenger and you told her that you did.  After dropping the complainant home she thanked you by sending you a Family Court message.  You and N then began to contact each other on Facebook Messenger.  You also sent her your Snapchat username.

5After a short period of time the messages escalated from normal conversations to sexualised messages.  The complainant told you about her family problems, mental health issues and how she wanted to harm herself from time to time.  You told the complainant that you were always there whenever she needs you, and referred to her as, "hun", or, "babe", from time to time.

6During these exchanges it is clear that for whatever reason you took an active interest in her difficulties and her problems.  Some of her chat messages were about her issues with her mother or friends.  She was seemingly upset, depressed or angry, often angry and insulting and dismissive to you.  You appear to encourage her to not be despondent.  You praised her strength and made yourself available to discuss her problems.  Your concern appears genuine but your involvement even at this stage is clearly misguided.

7N.'s own responses are those of a troubled and immature teenager who by turns is needy and aggressive, vulnerable and grateful for your support.  However, within a short time the messages began to turn to a more intimate and personal nature.  You had long conversations with her in which each discussed your troubled backgrounds.

8These details given by you to N are also I'll-judged and show a failure to appreciate your age difference, your relative status and are of a confidential nature outside the proprieties of your association.  These intimacies soon gave way to your conversations being interspersed with sexualised conversations which escalate over time to explicit talk about sex, peppered with explicit suggestions with invitations on both sides to meet for sexual encounters and fantasizing about these opportunities, the exchange of explicit images as well.

9On 31 December 2016 you sent N photos depicting an image of you in a police shirt and in underwear, getting ready to work, another from the ground up, wearing a police lanyard with a caption, "This is the view you're going to have on your knees, baby".  You also sent a similar one with a caption again suggestive of sexual conduct and other snaps and chat messages, outlined in the summary, that are similar to this nature.

10Between 1 December 2016 and 24 January 2017 you contacted the complainant on 146 separate occasions.  She contacted you on your mobile on 442 separate occasions during this time.  A number of these text messages and phone calls were of a sexual nature.  In addition to this the complainant recorded 87 phone calls on a mobile phone between the two of you.  The content of those phone calls are at times sexual, regularly discussing what sexual activity you would like to engage in with each other and making arrangements to meet, and this was the foundation for Charge 1.  The summary makes reference to some details contained in these calls.

11On 32 December you were performing patrol duties between 6 pm and 2 am in the Mildura area in the company of two senior constables.  During these duties you approached N at Nowingi Place and made arrangements to take her home when you finished your shift.  While on duty a number of times N called you, calls which were unanswered.

12At 4.33 am on 1 January 2017 you called N back and you had a conversation where the following issues were discussed.  You asked why she had called you so many times and said that you weren't sure if it was because she was horny or if she wanted to be picked up or looked after.  N told you that she was really intoxicated and she was in bed.  You urged to get out of bed and said, "It's a perfect night for you to hang out".  You told her that you were not just interested in chatting to her because she's, "fucking hot", and you, "want to fuck her".  It's because they've been through similar stuff.  You told her that you could give her a little kiss after work tonight.  You told the complainant you were not happy with her taking screen shots of the photos you had sent her early in the night and to send you a photo of her tits.  You were horny.  The complainant refused to send you those photos and you asked her to leave the house and meet up with you, encouraging her to jump out the window.  You offered to pick her up, slap her arse, get her horny and drop her home.  Your told her that you were horny now and could make the complainant horny in person.  These conversations continued to become more sexualised with you telling the complainant that she had, "gorgeous eyes and sexy lips".  You would tell her that if things were different you would date her in a heartbeat and that you were thinking of the sex.

13On a date between 1 January 2017 and 18 January 2017 you made arrangements to pick up the complainant from around the corner from her Department of Health and Human Services residence so as not to alert her carers.   You arrived in a ute and drove the complainant to the ski club in Mildura, parked next to the river.  You and N talked outside the vehicle and whilst there you picked her up off the ground and grabbed her bottom and squeezed it.  After about 45 minutes you dropped the complainant off at a friend's house.

14On 18 January 2017 during a phone conversation you stated that you did not realise how tiny she was until you had picked her up.  You told her that you were trying so hard not to squeeze her arse bad and that you wanted to fuck her.

15On 13 January 2017 at 2.30 am you arranged for you and the complainant to meet around the corner from her residence.  You drove the complainant to Apex Park in Mildura and parked your car.  While you were talking she asked for a hug as she was upset.  You leant over and hugged her, kissed her on the cheek and then on her lips.

16At 1.59 am she sent you a text message saying, "I'm glad I kissed you", with a smiley emoji.  I note that these events just described apparently were the only acts of physical contact between you and N, which were alleged.  It is also the case that in some conversations you disavow any intention to participate in any sexual activity, dismissing such talk as humour.  However, much of the other communications are clear, mutual entreaties to sexual contact and intercourse and the plea is an acknowledgment that this was an attempt to procure her for sex.

17On 18 January 2017 as a result of an argument between you and the complainant the complainant threatened to show the photos she had of you to other police members at Mildura.  She sent a text message saying, "You lie about everything.  I'm showing your work these photos.  Get fucked.  You're dead to me, you paedophile cunt.  Maybe I'll tell them how you touched me up".

18Over the course of numerous phone calls and text messages you told the complainant that if she has shown the photos of you to anyone then it is game over for you.  You ask her who she sent them to and the complainant refuses to tell you.

19On 19 January the complainant contacted an off duty senior constable via Facebook messenger and told her that she had found an iPhone5 in the Mildura Mall with photos of you on it.  That officer told the complainant to hand the phone in to the police station.  N forwarded photos to her, told her that she had already sent the photos to other friends.  At approximately 7.30 that police officer contacted you and asked you about the phone and the photos.  You said you had lost your phone a couple of weeks ago and the police officer told you that the complainant had the phone and that you should go and collect it from her.

20Between 19 January and 23 January 2017 the complainant was told by you what to say about the fictitious iPhone 5.  During a call at approximately 3.14 pm you said, "All you've got to say is, 'I found a phone and I found these messages on it.'  That's all you have to say.  'I found his phone with photos on it'".  You also told the complainant to say, "'By the way, I didn't actually get these photos from this copper', just say that".

21At approximately 2.28 pm on 20 January the complainant called you and told you that a friend had put the photos of you on Facebook Eyewatch police page and it was being shared around.  She told you that she did not care if you ended up in trouble and you replied, by saying, "I'm not going to get into shit.  I'm just going to end up killing myself to not be in shit".  You told the complainant you will not put your family or girlfriend through this and you could lose your job or go to gaol or be known as a paedophile.  N apologised and told you that she would get her friend to delete the post.  This conduct amounts to misconduct in public office.  You also told her she had to stick to the explanation that she found the phone in the mall and that is where the photos came from.  She replied that she would tell them she handed the phone back and did not delete the photos.

22Later on 24 January she attended the Mildura Police Station where she disclosed the inappropriate behaviour and messaging between her and you.  She told a constable that she had sent messages to an earlier police officer about how she had found the photos and that she had lied.  She also stated that she had told the story because you had threatened to kill yourself if she did not.

23This conduct in relation to the possession of images from a phone is a factual foundation for the misconduct in public office charge.  Having placed yourself in a difficult predicament you sought to remedy it by persuading N to lie about it, using your position and using the threat of self-harm and potential loss of that very position to enforce that persuasion.  You proceeded to compound your position by lying about it when interviewed by investigating police.

24On 25 January 2017 Detective Sergeant Baird, Detective Sergeant Thompson and Inspector Nolan attended your address and conducted a field interview.  During the interview you said that N had been harassing you and your girlfriend since about Friday on Facebook.  "Now she found I lost my phone for about a period of half an hour about a month ago.  She found it and gave it back to me.  I didn't find out until Friday but - because my missus got a photo, two photos, sent to her on Facebook of me in my uniform, which I sent my missus a year ago".

25You sought to explain your contact with the complainant by saying, "I've kept in communication with her over the course of the month just because she was feeling suicidal and all that sort of stuff so it was a case of me just, you know, having that chat with her.  I did not do any sexual activity with her.  She's 16 years old.  It was never a case of that.  She's fucked in the head as well".  You then added, "I get what you're trying to do but it's fuckin' - this is ridiculous.  Stupid little fuckin' bitch.  I was trying to help her for about a month and a half.  She tried to blackmail me with this shit and I said, 'Whatever.  Just water off a duck's back 'cause I don't care'.  "I've spent one time outside of the job with her, picked her up.  She told me she'd cut herself so I went over there, picked her up.  We went for a drive and I didn't touch her.  I gave her a hug.  I think that's about it".  "She tried to kiss me at one point but I was - sort of pushed her away and made it very clear that I wanted to be her friend, you know, help her through what she was going through."

26Following legal advice you participated in a record of interview.  The allegations were put to you and you made no comments.  You conceded that you knew that you were under arrest and that you knew you were being recorded and you have been then bailed since January 2018.

27The court received a victim impact statement from N.  In it N says she became anxious and worried about her safety and therefore reported it to police.  The matter involving you and the investigation became known in the area and as a result she was abused and confronted about it by others.  She isolated herself and in her own words, "Went off the rails".  She said she took it out on everyone and was very angry.  She says she had many stays at the mental health ward towards the end of 2017 and overdosed and further attempted self-harm as a consequence.  The length of the court process too has been traumatic and undertaken on her own and I take her statement into account in setting sentence.

28I consider your offending serious.  By the time of this offending you had been a police officer for a number of years.  The duties and responsibilities of police officers are onerous.  It is a difficult and challenging job and much is demanded and required in terms of personal integrity and judgment on a daily basis.  However, that burden is directly related to the privilege and power of action and discretion bestowed upon police officers by the rule of law and primarily by the public trust reposed upon them by the community that they serve.

29These are always difficult cases but there are always degrees of misconduct where misconduct seeks to cloak duty and protection, to disguise personal satisfaction and advantage, it is egregious and morally highly culpable.  When it is aggravated by the vulnerability of the victim it is utterly reprehensible.  When it is compounded by lies and untruth it is inexcusable.  When it is then accompanied by a separate criminal case, in this case of a sexual nature, it is deserving of stern punishment.  There can be no doubt that in such a case general deterrence and denunciation of conduct must be primary sentencing considerations.

30I take your personal circumstances into account.  You were born in Chennai in India and migrated to Australia in 1998.  Your father died four years later in 2002.  You live with your mother and have a younger sister.  Your father was sometimes violent and often drunk and your teenage years were marred by that behaviour.  However, by the time he died you had grown closer to him and much admired him.  Your mother has remained single.

31You completed Year 12 at school and then studied social sciences at RMIT but did not complete the course.  You do not have any prior criminal history.  Aged 22, you joined Victoria Police.   You were stationed at Frankston for two years and you were then transferred to Mildura.  You report your time there as being challenging and confronting due to violence and unrest.

32Your partner of seven years lives with you in Mildura.  She arrived in 2015 to join you there.  She is supportive of you.  You were suspended from duties with pay until January 2018.  Thereafter you were suspended without pay.  Although you are still employed by Victoria Police you have been without employment.  You will be dismissed once sentenced.  Up to that point, as you have been employed, you have not received social security benefits.

33Gina Cidoni, a psychologist, prepared a report which was tendered to the court.  It is dated 13 November 2018.  She summarised your background, family history, education, employment and health.  You reported to her seeing a psychologist, Ms Ghafari, in Cranbourne, and had completed six sessions by November 2018 and you confessed to suicidal ideation to her leading up to your court case.  She administered some psychological tests.  Personality assessment indicated a profile of poor judgment, problem with logic and clear thinking and unpredictable behaviour.  You self-blame and express little hope for the future with proneness to act out impulsively, which increases your potential for self-harm.  Your lack of confidence and ruminate excessively with elevated paranoid suspiciousness and antisocial traits.

34The sex offender risk appraisal guide fell in the low risk category.  You suffer severe adjustment disorder situational in nature.  Were you to be gaoled
Ms Cidoni states that in that environment your symptoms would worsen and create a risk to yourself.  You expressed some remorse to her.  You told her you had lost control of yourself.  I take these matters into account in setting an appropriate sentence.

35I take into account your plea of guilty.  I accept that you expressed some regret.  I note, however, that you proffered an explanation to Ms Cidoni as to this offending by way of saying that you were extracting information about, and gaining intelligence about, N's associates.  As this developed you told her you took advantage of N and lost sight of your position and age.  As observed by the Corrections officer who assessed you for a community corrections order in his assessment report and to whom you proffered a similar explanation, this shows limited insight into your offending and no insight as to the impact on the victim.  A reading of the material shows that this explanation is unacceptable and I do not accept it.

36When asked about why you did not discuss the situation with supervisors or superiors you gave unsatisfactory responses and alluded to anxiety contributing to lack of clear thinking and consideration of consequences.  Each of these responses are not, in my view, indicative of remorse.  You did not plead guilty at committal, for which the complainant had to prepare, although she was not cross-examined.  Your plea has facilitated the course of justice and has utilitarian value.  There was a year long delay between arrest and charge during which time I was told there was some confusion about whether the DPP's consent was required to charge you with a misconduct charge.  It was unfortunate and unnecessary delay which should have been avoided.

37Once charged the matter was delayed in effect by the course that you undertook.  I consider I should take the first period into account in amelioration but not the second, which appears to me to be not out of the ordinary and exacerbated by your late plea.  In any event, your ultimate plea will mean a reduced sentence, not of the way that would otherwise have had.

38You have incurred extra curial punishment.  I have mentioned the financial repercussions and the effect of loss of your career.  Future employment may be affected but your employment prospects are not dissimilar to others in your predicament who have gone on to forge a future of employment.  I accept that this offending and its sequelae have had and will have a salutary effect on you and you are probably of good prospects of rehabilitation.  I also accept that your reclusion will be more onerous not only because of your mental status of some fragility, which I will take note in my orders for Corrections, but because of your status as a police officer.  It may be that the regime of incarceration will be more protective and isolated than usual as a result but this remains largely speculative.  I will take into account the potential for this disadvantage.

39I had you assessed for a community corrections order for which you were found suitable.  The ultimate question is whether standing alone such an order is a complete and appropriate disposition which adequately deals with each applicable sentencing principle.  In my view, it is not.  The Crown conceded that a combination sentence is appropriate and I intend to impose one.

40Please stand.  On intend to procure a child ageed 16 or 17 for an act of sexual penetration you are convicted and sentenced to ten months' imprisonment.  On misconduct in public officer you are convicted and sentenced to a community corrections order for two years.

41On this CCO you will attend as directed to supervision, mental health treatment and rehabilitation programs to reduce reoffending and specifically the Sex Offender Program and any other program or treatment and rehabilitation as directed.  I direct that such an order can only be made with your consent and you have indicated that to the assessing officer.  During this two year period you must not offend or commit criminal offences and be of good behaviour.  You must attend the opportunities and obligation at the directions of Corrections.  If you fail to comply and are not of good behaviour you will be breached of this order, be brought back before me and I have power to impose a penalty on the breach and power to resentence you on the two charges before me.

42I order that a biological sample be taken from you for placement on DNA database under s.464ZF.  I should warn you that when an authorised police officer makes a request for the taking of such a biological sample, that if you do not consent then that officer can use reasonable force to obtain a blood sample from you.

43These convictions trigger the provisions of the Sex Offenders Registration Act.  You will be registered and liable to the provisions and obligations under the registration regime for a period of eight years. Are there any other ancillary orders?

44MR SIGGINS:  I believe that encompasses the orders, Your Honour.

45HIS HONOUR:  Thank you.  There needs to be some paperwork that needs to be signed so just take a seat for a moment and I will have those papers prepared in relation to the community corrections order.

46MS THAUFEEQ:  Your Honour, if I may, just in relation to custody management issues his currently on pain killers for the ankle injury.

47HIS HONOUR:  I will make a note in relation to his current status.  He is on crutches and I will append to my order that he should be seen to as quickly as possible by a Correctional person or a nurse.  I will include the ultrasound of his right ankle results to my order so that it is available to the medical authorities who will be looking after him.  Do you have a copy of that particular matter?

48MS THAUFEEQ:  I do, Your Honour.

49HIS HONOUR:  Yes, thank you.  Ms Thaufeeq, I think you should inform
Dr Lateralia the next time that he or she presents a medical certificate to a court it will not be sufficient for that doctor to simply say that a person is medically unfit for his usual occupation/travel due to a medical condition without anything else.

50MS THAUFEEQ:  Yes, Your Honour.

51HIS HONOUR:  Mr Siggins, if you convey to the informant my thanks for conveying Mr Gopinath to court this afternoon.

52MR SIGGINS:  I will, Your Honour.

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