Director of Public Prosecutions v Kannan
[2023] VCC 1165
•7 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Suitable for Publication |
Case No. CR-21-02334
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KUMUTHINI KANNAN |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 June 2023 | |
DATE OF SENTENCE: | 7 July 2023 | |
CASE MAY BE CITED AS: | DPP v Kannan | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1165 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Sentence – one charge of attempt to pervert the course of justice - plea of guilty; serving an eight year sentence.
Legislation Cited: Crimes Act1914 (Cth)
Cases Cited:Commonwealth DPP v Kannan and Kannan [2021] VSC 439; Worboyes v The Queen [2021] VSCA 169.
Sentence: Two years six months imprisonment to commence eighteen months prior to the expiration of existing head sentence; new total effective sentence of nine years; new single non-parole period is four years and six months imprisonment; 729 days of pre-sentence detention reckoned as served; if not for the plea of guilty a sentence of three years imprisonment would have been ordered.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K. Breckweg (at plea) | Commonwealth Director of Public Prosecutions |
| Ms G. Mattea (at sentence) | ||
| For the Accused | Mr J. Connolly | Slink and Keating |
HER HONOUR:
Introduction
1Kumuthini Kannan, you have pleaded guilty to an indictment containing one charge of attempt to pervert the course of justice, contrary to the Crimes Act 1914 (Cth), which carries a maximum penalty of 10 years’ imprisonment.
2The circumstances in which you came to commit those offences are set out in the sentencing indication submissions dated 22 May 2023 (Exhibit A). I have also received the Summary of Prosecution Opening for Trial dated 23 June 2022 (Exhibit B). As context to your offending and personal circumstances, I have had careful regard to the reasons for sentence of His Honour Justice Champion of the Supreme Court of Victoria in Commonwealth DPP v Kannan and Kannan [2021] VSC 439, which for the sake of completeness I will now receive and mark as Exhibit C in this matter.
3In addition to the matters developed in oral argument, your counsel relied on an Outline of Submissions on Sentence Indication dated 22 May 2023 (Exhibit 1), a medical report of Dr A Kiriakova GP dated 7 June 2021 (Exhibit 2), a psychological report by Mr Cummins dated 17 June 2021 (Exhibit 3), a forensic psychiatric report of Dr Rajan Darjee dated 10 June 2021 (Exhibit 4), a psychiatric report by Dr D Devasagayam dated 6 May 2021 (Exhibit 5), and a bundle of character references (Exhibit 6).
4I have had careful regard to all exhibited documents, as well as to the matters addressed in the oral plea in mitigation of penalty.
Circumstances of the offending
5By way of background to your offending, commencing in February 2020 you faced trial in the Supreme Court of Victoria for slavery offences said to have been committed by yourself and your husband, Kandasamy Kannan, against the complainant in this proceeding, Rajalakshmi Natarajan. Those allegations involved evidence that between 5 July 2007 and 30 July 2015, the two of you intentionally possessed Mrs Natarajan as a slave, and intentionally exercised over her any of the powers attaching to the right of ownership. The allegations before me involve your unsuccessful attempt to deter her from giving evidence in that proceeding.
6The complainant in each matter, Mrs Natarajan, is a female Indian national. She was at the time of trial 67 years old. She was hospitalised in October 2015, and from that time was cared for in an aged-care facility in the eastern suburbs of Melbourne.
7The evidence in that trial indicated that Mrs Natarajan did not complete her first year of primary level education, and left school at around age six, and by about twelve years of age she worked in fields looking after farm animals, and later she helped workers with menial tasks on building sites and cooking. She was illiterate in language and numeracy. She married and had four children, but her husband died early, and she was forced to raise and care for her children on her own. She travelled to Australia on a number of occasions with the objective of earning income for herself and her family.
8Relevant to your Supreme Court proceedings, she arrived in Australia on 5 July 2007, and on her arrival at Melbourne Airport I understand that she was met by your husband and was conveyed to your home in Glen Waverley, where she lived until paramedics transported her to the Box Hill Hospital on 30 July 2015. A month or so after her arrival, her entry visa expired and she lived unlawfully in Australia. By the time she was taken to hospital on 30 July 2015, she had become reduced to a dangerous state of health. When paramedics arrived at your house on that day, she was found lying on a bathroom floor, barely conscious, and in a pool of urine.
9Mrs Natarajan gave initial evidence to police investigators implicating you and your husband in the offences charged in the Supreme Court by way of six recorded VARE interviews, then at committal proceedings, and then in the Supreme Court of Victoria with evidence-in-chief, further evidence-in-chief, cross-examination, and re‑examination, over 11 days. You and your husband were convicted by the jury empanelled in that case, after a trial lasting 49 sitting days, and you were sentenced to a total effective sentence of eight years’ imprisonment with four years’ non-parole period.
10As part of the chronology of that trial, the complainant was scheduled to commence watching the VARE recordings on 17 February 2020 as part of the process of her giving evidence in your Supreme Court trial.
11I now turn to the offending before me. On the evening before Mrs Natarajan was scheduled to view those recordings, ie 16 February 2020, at about 8.03pm, you made a telephone call to the Aged Care Facility where Mrs Natarajan lived. The Manager picked up the phone, and asked who you would like to speak to. You replied, “Natarajan;” she asked, “who are you?” and you falsely replied that you were the interpreter for the following day. The Manager passed the phone to Mrs Natarajan.
12You then spoke to her for approximately an hour in Tamil. During the conversation, you did not disclose who you were, apparently continuing to assume the guise of an interpreter. You repeatedly told her that she should not give evidence in court, including using words to the following effect:
i.She must not repeat what she stated in the hospital (being the place she was first identified as a victim of slavery).
ii. Her son-in-law Jawahar Krishnan did not die of a heart attack, but of suicide;
iii. She should “…think of me as a mother, do as I say, trust me...don’t repeat what you said earlier”;
iv. You told her you came to the hospital and listened to what she said there, and she should not keep repeating or saying things that she already said;
v. The police won’t help her, don’t obey them, don’t listen;
vi. If she listened to the police, she would never be able to leave this country, she would be here until she perished, until she died;
vii. “Kumuthini” [ie referring to yourself in the third person] showed you videos of her where she was in the house [happy and treated well]. She did not have a passport of this land. She was like an orphan here;
viii. “Kumuthini” [again referring to yourself in the third person] took her to Sydney for a function. Had the police ever done anything like this for her? She wouldn’t get anything here. She would never see your daughter. These people will not do anything for her;
ix. She may think she would leave here with money, but she won’t. Police can’t help her;
x. Police and the lawyers won’t help her. They are in it only for the money and to make names for themselves;
xi. They are not her brothers and sisters. When the trial ends, they won’t care about her. The court will not believe what she says;
xii. Don’t repeat what she is saying. If she did, she will lose everything;
xiii. You had been working for the court for 14 years. You were not going to say who you were;
xiv. You would be there at court. Don’t say anything. She will not provide your testimony in the Court, or they will never send her back [to India]. She will rot in this country;
xv. When she goes to Court, say nothing. Say she doesn’t remember. Tell the judge she is suffering from mental illness. The judge may do something for her if she fell at his feet;
xvi. You were in the hospital. She said things wrong in the hospital. You checked the notes and she said things wrong. There was a bald man, an interpreter, who was there. He got throat cancer and died;
xvii. You knew that she was going to meet with the lawyers to watch some videos tomorrow. You might be there, next to her, and you won’t say anything. You might be with her when she was driven there; and
xviii. You knew she sent money back home every year for the Tamil festivals.
13Whilst she did not recognise the voice of the caller to be you during the call, she later formed the belief that it was you.
14Following the conversation, the following day, the complainant told police that she had received the telephone call the previous night, and told them that following the phone call she was “screaming, crying and did not sleep at all that night”.
15As part of the police investigation into this allegation, CCTV footage from the Forest Hill Chase Shopping Centre at 7.47pm on 16 February 2020 was retrieved. You are shown on video entering the shopping centre, and between 8.03pm and 8.57pm you are seen standing in front of a public payphone. Shortly afterwards, you are seen exiting the shopping centre.
16On 20 February 2020, Australian Federal Police executed a search warrant at your home, and, shortly after the search commenced, you arrived at the premises wearing the same red, white, and black-patterned top blouse that you were wearing in the CCTV footage. A pair of blue and white trouser pants resembling the pants that you were wearing in the CCTV footage was also located in the master bedroom.
17In the course of the search, you admitted to police that you attended Forest Hill Chase Shopping Centre on the night of 16 February 2020; however, you told them that you returned home, as it was closed.
Effect on the victim
18I have summarised Mrs Natarajan’s account to police as to her distress as a result of your long conversation with her. Your conduct was strongly designed to deter her from giving evidence in court against you; however, it did not achieve that. It is to the complainant’s enormous credit that despite her advanced age, her exceptionally vulnerable background, her long period of social vulnerability whilst you enslaved her, leading to her eventual neglect and physical decline necessitating her care in an aged-care facility, as I have summarised, that she showed the fortitude to give evidence, which is of course her absolute right.
19Your criminality is not confined to the complainant as a target, but also the engagement of the criminal justice system against you. By contacting the principal witness in your very serious Supreme Court criminal proceedings, you were endeavouring to defeat the adjudication of your guilt. As I have said, you failed in your endeavours despite your attempt to manipulate your tragic and vulnerable victim.
Plea of guilty and timing
20The matter proceeded in the indictable stream in the Magistrates Court, and you were committed to stand trial on this charge in this Court in October or November of 2021. The matter was managed to trial readiness and was listed for trial with a scheduled commencement date of 13 June 2023.
21On 23 May 2023, I provided an indication as to the likely sentence that would be imposed if you pleaded guilty to the proceeding charge. You accepted this indication, and shortly prior to the scheduled trial date the hearing was vacated.
22This is a late plea of guilty; however, you have saved the witnesses the stress and inconvenience of needing to testify, which is also of benefit and convenience to the justice system. I take the utilitarian benefit of your plea into account in mitigation of sentence. This is of special importance and significance in the current era where the effects of the COVID‑19 pandemic continue to linger upon the listing of trials[1]. You have not expressed any remorse or contrition for your offending, but I extend leniency nonetheless for your acceptance of wrongdoing in the plea.
[1] See Worboyes v The Queen [2021] VSCA 169 at [39].
Personal circumstances
23I have had the benefit of a number of reports detailing your history and personal circumstances, which were summarised effectively by Champion J in his Honour’s reasons for sentence in your slavery charges.
24You are now 55 years of age, and were 52 at the time of your offending. You are the youngest of four children born to your parents. Your father is deceased; and your mother is now 92, living in Melbourne, but from whom you are largely estranged. Your father was a very organised and strict man, and you were closer to your mother than you were to him.
25You were raised in Sri Lanka, and you had a happy childhood until conflict beset your country. The civil war in Sri Lanka resulted in you and your family being forced from your home to a refugee camp in Colombo for a period of months; which you found, understandably, to be unsettling and frightening.
26You arrived in Australia with your family on a humanitarian visa in 1984, when you were aged 17. You passed Year 12 at a high school in Melbourne, then you completed one year of Applied Science at the Caulfield Institute of Technology, and you then studied part-time a degree of Occupational Health and Safety at Victoria University.
27During this period of part-time study, you also worked for Community Aid Abroad. After you finished your degree, you worked full-time at City West Water for 12 months.
28You married, and you and your husband moved to Canberra, and you worked for the Department of Immigration for six months, and then moved on to other employers.
29After 18 months, you returned to Melbourne, and returned to work with City West Water; then you engaged in charity work until your first child was born in 2000.
30In 2002, you started full-time work at an ANZ Bank call centre, and this employment continued until 2016 when details of your Supreme Court case were published in the media.
31You have three children, all of whom have been diagnosed with autism spectrum disorder. Your eldest daughter is now 21, and has been diagnosed with mild high-functioning autism. She has undertaken a degree course in Actuarial Studies in New Zealand. You are also the parent of 18-year-old twins, a boy and a girl. Your younger daughter meets the DSM‑5 criteria for autism spectrum disorder at Level 2 severity, and is medicated on the mood-stabiliser Sertraline, and your son has been diagnosed with mild to moderate high-functioning autism.
32I have the benefit of a letter from your elder daughter, who describes you favourably. She and your twins have suffered as a result of your criminal behaviour, in that you initially failed to organise proper care for them, as you apparently did not anticipate guilty verdicts in the Supreme Court. This daughter was negligently and wrongly identified as you in an online news article related to your offending in the Supreme Court, and overall your children are left isolated as a result of your offending.
33It was submitted on your behalf that the adverse and deleterious consequences of your custody upon your children constituted extracurial punishment which should be taken into account in mitigation of that sentence. His Honour Champion J concluded that you and your husband had suffered and would continue to suffer a degree of extracurial punishment as a result of the circumstances relating to your children, which represented an exceptional degree of hardship on you both. His Honour ultimately concluded that exceptional circumstances had been made out, and that your children would suffer particular hardship, given that both parents would be imprisoned. It was also his Honour’s conclusion that you would find imprisonment more burdensome as a result of your anxiety and emotional hardship associated to the hardship occasioned to your children, which his Honour took into account in assessing the appropriate sentences to be served.
34Your offending in this case, does not involve or implicate your husband. Nonetheless, the reasoning process identified by his Honour must apply to the circumstances of this case as well, and I moderate sentence on this basis just as his Honour did.
35I understand that you have had vulnerability in your physical health, including a frozen shoulder in 2007, a bulging disc in your spine in 2008, a whiplash injury from a car accident in 2009, and back pain and shoulder pain from a subsequent car accident in 2017. Since 2018 you have received treatment for severe left shoulder pain and have been referred to a neurosurgeon for further treatment. There have also been gynaecological issues, for which you have received surgical treatment.
36You have also shown symptoms of depression and instability in your mood, and in 2018 you took an overdose and were admitted to Box Hill Hospital under the care of a CAT team and were started on the anti-depressant Cymbalta, and you have reported experiencing depression in the years since, and have been on and off anti-depressants over that period.
37Dr Darjee diagnoses you as suffering from a moderate to severe major depressive disorder with moderate to severe anxious distress, with your symptoms more severe and exacerbated since your arrest on the slavery charges.
38Dr Devasagayam has noted that in mid-2020 you were diagnosed with having major depression with mood-congruent psychotic symptoms and residual deficits in attention, concentration, and derealisation in unfamiliar settings.
39Mr Cummins has diagnosed you with a major depressive disorder. Like Champion J, I accept that Verdins factors 5 and 6 apply to you, in that you will continue to find a sentence of imprisonment more burdensome due to the existence of your mental condition, the sentence will weigh more heavily on you than it would on a person in normal health, and there is a serious risk of imprisonment having a significant adverse effect on your mental health. I take these factors into account in mitigation of your sentence.
40I note that at the time of your offending, albeit that you were facing very serious charges of which you were convicted and sentenced to a long period of imprisonment, you were of good character, which I also take into account in mitigation of sentence.
Objective gravity of your offending; moral culpability
41I accept without any hesitation the prosecution characterisation of your offending as objectively serious. Charges of this nature are inherently serious, as they strike at the very heart of the justice system. The gravity of your offending lies not in whether a perversion of justice actually occurred; it is your engagement in the conduct which had the tendency to divert the course of justice from its natural path. Your complainant was elderly and physically unwell. She spoke no English and she was illiterate. She had been through a terrible ordeal at your hands for many, many years. She was isolated and had very little support, which was known to you, and which you exploited with your comments during the conversation emphasising her isolation and urging her not to trust the authorities who were helping her through her ordeal.
42She was to be a witness against you in your very serious criminal trial, and you invaded her time and her privacy on the evening before she was to watch her VAREs, in persistent, sustained, and repetitive efforts over the course of an hour-long conversation to try to persuade her not to give that evidence to your enormous benefit. You emphasised that if she gave evidence there would be various adverse consequences for her. Your offending was gratuitous, serious, and ultimately unsuccessful.
43I accept your counsel’s contentions that, unlike in other similar cases, you made no direct threats to her, instead your threats emphasised her isolation in a foreign country, and you tried to engender fear in her that those around were not to be trusted. Your attempts were in vain, and I now sentence you to further imprisonment for your behaviour.
Sentencing principles; current sentencing practices; sentencing submissions
44I must take into account the purposes for which sentence must be imposed, including the need for general deterrence, and also in my view the need to specifically deter you from other similar behaviour. I am prepared to infer that your prospects for rehabilitation are good, given your lack of prior criminal history, and the fact that the long sentence imposed in your offences in the Supreme Court is, no doubt, of significant salutary effect upon you. I intend to impose an individual sentence, and set a new minimum period for your offending overall which facilitates this process. The sentence that I will impose will punish you and denounce your behaviour, and provide for community protection.
45I have had the benefit of a table of comparative sentences helpfully provided by the learned prosecutor in this case, although it can be noted, as urged by her, that none are close in similarity to your offending, and also the maximum penalty of the charge that you face has doubled since 2013. I do take into account those cases as providing guidance as to the identification and application of relevant sentencing principles, and allowing for discernible sentencing practices and possibly a range of sentences against which to examine a proposed sentence. Whilst I intend to impose an individual and proportionate sentence on your indictable offending, I am acutely mindful of the totality principles of sentencing, having regard to the fact that, as I have said a number of times, you are now serving a long sentence in relation to your Supreme Court offending.
46I was urged by your counsel initially not to interfere with your existing earliest release date. I am unable to accede to this submission in the proper exercise of my sentencing discretion.
Sentence
47On the charge of attempting to pervert the course of justice, you are convicted and sentenced to two years and six months’ imprisonment. This sentence will commence 18 months prior to the expiration of the existing head sentence of eight years’ imprisonment, with the effect being that the new head sentence will extend the existing head sentence by one year, ie the new total effective sentence is a total of nine years.
48I must fix a new single non-parole period in respect of all federal sentences that you are to serve or complete, which I now set as four years and six months’ imprisonment.
49I further declare the period that the prisoner has been in custody, namely 729 day/s, be reckoned as a period of imprisonment already served under this sentence, which will be deduced administratively.
50Were it not for your plea of guilty in this case, had you pleaded not guilty but been found guilty following trial (including of course the cross examination of Mrs Natarajan) I would have imposed a sentence of three years’ imprisonment.
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