Director of Public Prosecutions v Kaur (a pseudonym)

[2018] VCC 1569

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-18-00849

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALISTAIR KAUR (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	19 September 2018
DATE OF SENTENCE:	21 September 2018
CASE MAY BE CITED AS:	DPP v Kaur (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1569

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of guilty – common law assault – rape – make threat to kill – offending against partner and children – family violence – domestic violence – gross breach of trust – alcohol abuse – mild intellectual disability – longstanding depression – excellent work record – good prospects of rehabilitation – general deterrence – denunciation – totality

Legislation Cited:     Crimes Act 1958; Sentencing Act 1991

Cases Cited:R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; Pasinis v R [2014] VSCA 97

Sentence:Total effective sentence of eight years and nine months’ imprisonment with a non-parole period of five years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D Guesdon	Solicitor for Public Prosecutions
For the Accused	Mr N Goodfellow (Plea) Mr C Tom (Sentence)	Victoria Legal Aid

HIS HONOUR:

1Alistair Kaur,[1] you have pleaded guilty to two charges of rape, one charge of common law assault and one charge of making a threat to kill.  All four charges are offences of family violence, the victims being your partner in Charges 1, 2 and 3 and she and your children in Charge 4. 

[1] ‘Alistair Kaur’ is a pseudonym.

2The maximum penalty for rape is a term of imprisonment of 25 years, for common law assault, a term of imprisonment of five years, and for making a threat to kill, a term of imprisonment of ten years.

3In brief the circumstances of your offending were as follows. 

4In April 2017, you, your partner and members of your family went away on a camping trip.  You spent the evening getting drunk with your family and when you came to bed, you woke your partner up demanding that she come with you to the campsite toilets to have sex with you.  She refused.  In response, you grabbed her arm and pulled it behind her back causing her considerable pain.  You then pushed her face into the mattress of the bed, all the while demanding that she follow you to the toilet block.  In fear of further hurt, she agreed to accompany you.  Once out of the tent, she ran from you and took refuge in the family car.  These are the facts underpinning Charge 1.

5On an occasion in May 2017, your partner was asleep in bed when you came into the room and stood next to her.  You had been drinking alcohol and were drunk.  You placed your erect penis into her face, demanding that she suck it.  When she refused you told her, "Do as you are told".  Thus, in fear, she complied with your request and performed oral sex upon you.  She was crying and dry retching.  She got back into bed, you got on top of her and penetrated her vagina with your penis until ejaculation.  Your partner was still crying.  These two acts of penetration underlie Charge 2, a rolled up charge of rape.

6On the evening of 10 August 2017, your partner and your children were all at the family home.  You were out in your shed drinking alcohol with your brother and a friend.  You became heavily intoxicated.  Your partner had fallen asleep in your eldest child’s bedroom.  At about 1.00 am, you woke her up so that she could return to your bedroom.  Once in the room, you stripped naked and demanded that your victim suck your penis, saying "Suck it or you'd want to be dead".  You then grabbed your victim by the hair, forcing her head onto your penis.  In fear she submitted to your demands and performed oral sex on you.  After a while you withdrew your penis, removed your victim's clothing, lay on top of her and inserted your penis into her vagina, biting her twice to the neck causing significant bruising.  After approximately ten minutes you withdrew your penis.  These facts underpin Charge 3, a rolled up count of rape.

7You again demanded that your victim suck on your penis.  She refused, at which point you made her turn around, you pushed her face down onto the bed and attempted anal penetration with your penis.  Your partner struggled to prevent this and eventually she broke free and ran to your eldest child’s bedroom.  I make clear this attempted anal rape is mere context for what happened next.

8As a result of the noise that was being made, all three of your children woke up.  At first you attempted to calm the situation.  However, when your partner told the children that they were leaving the house, you began firstly to threaten to kill yourself and then threatened to kill your partner.  This was in front of your three children who, not surprisingly, became deeply upset.  You left the house and walked to the garage where you kept seven registered firearms and ammunition in a gun safe.  You returned to the house demanding to know where the keys to the gun safe were located.  You were, at the same time, shouting at your partner, and you threatened her and your three children, saying "I'm going to shoot you all".  At this point your children were screaming and crying.  Your partner managed to phone emergency services whilst she and the three children tried to barricade themselves inside one of bedrooms.  All the while you continued to shout, demanding the keys to the gun safe.

9Your partner, at this point, feared not only for herself but for the lives of the three children.  She managed to direct the children outside the house into the car and made her escape.  Even as she did so, you attempted to block the driveway and prevent them from leaving.  Your partner drove to the local police station with the children.  These are the facts underpinning Charge 4.

10Police arrived shortly thereafter.  You were arrested and your firearms were seized by police.  You participated in a record of interview.  That interview makes it clear that you had great difficulty recalling events.  You thought the police had attended because you had threatened your partner, and threatened to kill yourself, not because of any sexual offending. 

11As to Charge 1 you admitted, "Getting bloody agitated there, to wanting sex in the caravan.  She won't have sex in the caravan so, yeah, I can't remember that".  You agreed that you had used a fair bit of force on that occasion. 

12As to Charges 2, 3 and 4, you asserted that your partner was enjoying the sex but then agreed that that was an assumption you were making and that due to your level of intoxication you did not know if she was enjoying sex or not.  You variously remembered hassling your partner for sex.  You accepted you might have forced her head onto your penis, that she stormed out of the room and that all the kids were upset and that you then “lost it.”  You maintained your partner was enjoying the sex and she had orgasmed, and that it was only when you tried to put your penis into her anus that she did not like it and ran out.  You denied rape but agreed that if your partner declined your sexual advances when you had been drinking, it would put her in a state of fear.  You accepted that there had been times when you would get drunk and nagged her for sex and that it would “probably come across as aggressive”.  Finally, you accepted that you had a drinking problem, that it had gotten worse and that it had ruined your family.

13Your partner and two of your children provided victim impact statements.  Your partner stated:

"The attack in the early hours of August has changed every aspect of my life forever.  Nothing could prepare me for the magnitude of the horror the four of us felt.  The fear of that final attack was more than I thought possible.  I truly feared for my life and that of my children.  The assault to me was hideous and as the attack increased in violence I knew somehow we needed to flee to safety".

14She details the psychological impact on each of your three children, their nightmares, their depression, their acting out as well as her own difficulties in now being a single parent attempting to create a safe environment for her children.  She concludes, "The effects of that night are never far from us". 

15One of your children tells of how she has suffered from anxiety and also has had lots of trouble with sleep and became very paranoid, constantly making sure the house doors were locked.  She panics whenever she sees a person that looks like her dad.  She panics when she sees a car that looks similar to her dad's.  As a result she has been to "heaps of counselling sessions".

16Another child writes of being petrified.

"… not knowing what dad was going to do to us.  I was scared that we were all going to be shot.  I was so scared.  I will never forget that night, holding my sister's hand, crying and listening to my brother's screaming.  I also won't forget when we were trying to leave and dad was banging the car window." 

17She concludes, "I am most worried about that in the future dad will want to see us but I don't want to". 

18No-one can be in doubt as to the traumatic impact of your offending upon your children and upon your partner.  Your family, who were entitled to love, respect and care instead were subjected by you to the gross breach of trust that family violence represents. 

19I turn now to your personal circumstances. 

20You were born in 1977 and are currently 41 years of age and you were 40 at the time of this offending.  You have no prior or pending criminal matters. 

21You were raised in Melbourne by your mum and dad, the eldest of four children.  You have maintained a close, supportive relationship with your family.  At around the age of ten years, you were the victim of a particular form of offending by a female cousin and around the age of twelve, you were again assaulted by one of your father's friends.  This offending had not been reported to the police and it is only in recent months that you sought counselling to help deal with the trauma from these incidents.

22Your family relocated when you were about 15 and you completed Year 10.  You struggled at school and you were essentially illiterate; your learning difficulties were not identified during the course of your school years.  You excelled at sport and you aspired to play professionally in the Australian Football League but unfortunately an injury to your hand on the sports field put paid to this dream.  This, I am told, left you devastated.

23Although you are functionally illiterate, you have had an excellent work record.  Leaving school you commenced work on the production line at a factory.  This work suited you in that it was repetitive, manual labour.  You managed to complete an apprenticeship as a fitter and turner, although you have never worked in this field.  Thereafter it seems that your brother came to the rescue by finding you employment alongside him at various companies.  Throughout those employments you and your brother worked closely together, and you felt that your brother protected you, preventing your limitations from being known to the outside world.  This led to chronic anxiety on your part.  You were employed at the time of this offending.

24You have been in a relationship with your partner, the victim, for around 20 years.  She has been the only significant relationship in your life and you have three children who, along with your partner, were the victims of Charge 4.

25Over the 12 months prior to this offending, it seems that your relationship with your partner was placed under a great deal of stress.  In 2017 your brother lost his job at your work and that had a great impact upon you and your sense of security.  In addition to the financial insecurity around the prospect of job losses in general was your own sense that with your brother gone, you had lost your protector and that you were liable to be exposed as a fraud at any point and that only increased your anxiety and your low self-esteem.

26You also felt a high degree of financial pressure.  You had bought a new family home and yours was the only income coming in.  Financial worries were also exacerbating your longstanding depressive symptoms.  Tragically for you and your family, rather than downsize, rather than discuss your problems with your partner and the mother of your children, rather than seeking professional help, you turned to alcohol.  At the time of this offending your drinking was out of control and you were increasingly isolated, cutting yourself off from social contacts, damaging your relationship with your family and leading directly, as your counsel accepted, to this offending.

27Tendered on the plea as Exhibit 6 was a report from Dr Nina Zimmerman, consultant psychiatrist, dated 8 July 2018.  Exhibit 7 was a report from Carla Lechner, clinical psychologist, dated 5 June 2018. 

28Your reported history was consistent with the submissions of your learned counsel.  You told Ms Lechner that your partner “wanted a four bedroom place to be bought, a new property and that put a lot of pressure on me.  I did it for her and the kids", referring to buying the home, "and my depression and anxiety got worse and my drinking increased".

29Ms Lechner found that you were cognitively limited and this was confirmed through psychometric testing where your result was a full scale IQ of 59, which placed you in the mildly intellectually disabled range.  Approximately 99.7 per cent of the adult population performed better than you. 

30Ms Lechner notes that you were finding it hard to come to terms with the loss of your family, with the loss of your home and your job.  You find it genuinely difficult to reflect on the impact that your behaviour has on both yourself and on others, and you are often regretful after the event.  You are able to identify some triggers to your negative thinking and feelings but you tend either to minimise them or deny them, or block out those feelings with alcohol abuse. 

31As to the risk assessment, Ms Lechner's clinical opinion was that you were a moderate to low risk of future sexual offending.  This opinion was based both on the administration of actuarial tools and her clinical judgment.  You spoke frankly to Ms Lechner of your high sex drive.  You said, "If I didn't get sex, I'd crack the shits".  Ms Lechner found strong themes of you feeling both humiliated and angry in "his account of the sexual relationship with his partner".

32Ms Lechner cast your offending as "power reassurance sex offending". 
That concept describes a person who commits a sexual offence “in an effort to resolve disturbing doubts about his own sexual adequacy and his own masculinity.  Such an offender wants to place a woman in a helpless, controlled position in which she cannot refuse or reject him thereby shoring up his own failing sense of worth and adequacy.”

33In addition, you appear to have felt humiliated by your partner's reported baiting you over your premature ejaculation.  You felt entitled to sexual relations with your partner whenever you wanted it, openly admitting that you "would crack the shits" if she refused.  In short, you viewed your partner not as an equal but rather as an object whose sole role was to fulfil your needs, and to make you feel good about yourself.

34You fulfil the criteria of a diagnosis of Major Depressive Disorder and that was an opinion of Ms Lechner's with which Dr Zimmerman agrees.  Whilst
Ms Lechner accepts that your depression is partly reactive to your current situation and to the prospect of custody, she is clear that your history indicates that you have suffered from a low mood for many years. I accept that you depression has been chronic.  Ms Lechner also identifies your chronically low self-esteem, your poor communication and assertiveness skills and a strong fear of rejection, conflict and disapproval.  That all stems from your sense of being a fraud in relation to your illiteracy and work skills. 

35Ms Lechner identifies the need for intervention to assist you with mood anger and stress management, though all tailored to your own particular level of cognitive functioning. 

36Ms Guesdon, on behalf of the prosecution, accepted that in the light of your diagnosis of Major Depressive Disorder, your suicidal ideation and your continued vulnerability, principles 5 and 6 of R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 are engaged.

37Ms Guesdon accepted that this was an early plea, although not one entered at the earliest opportunity, the matter having resolved at the committal hearing in April 2018 prior to any evidence being called. 

38She accepted that you had made apparently good progress towards your rehabilitation, engaging as you have done in every available program to try and address the underlying causes of your offending. 

39She accepted that there was an absence of aggravating features in Charge 2 and 3, the rape charges, but she noted that those two charges were rolled up charges.

40Nonetheless, Ms Guesdon submitted, rightly in my view, that this was serious offending requiring significant punishment.  She correctly identified this offending as incidences of family violence which involves a fundamental breach of trust. 

41Ms Guesdon pointed to the four different victims in Charge 4, your threat to kill directed at not only your partner but also at your children, though, of course, Charge 4 identifies your partner as the person to whom the threats were made.

42She submitted correctly that general deterrence and denunciation must be the primary sentencing considerations and that there was a need for specific deterrence.  She submitted there should be some cumulation in sentences subject to the principle of totality. 

43Counsel of your behalf, Mr Goodfellow, accepted from the outset that this was very serious offending where general deterrence and denunciation loom large as sentencing considerations. 

44He submitted that the community did not need protection from you given the situational nature and circumstances of your offending and he submitted the need for specific deterrence was reduced in light of the steps you had taken towards rehabilitation. 

45In his able submissions, he sought to focus upon the man that you are now. 
He accepted on your behalf that you had irreparably damaged your relationship with your partner and that you had caused long term damage to your children and that you are keenly aware that the responsibility for the broken relationship lies solely with you.

46He urged upon me your plea, which brings with it the benefit of saving to the community the time, the cost and the trauma of a trial.  I accept that submission. 

47He submitted that your plea was an indication of your remorse.  I accept that you are truly sorry for what you have done and that if you could change things, you would. 

48Mr Goodfellow realistically conceded that the direct and driving cause of your offending was your alcohol abuse against the background of your inability to deal with the stressors in your life.  He sensibly did not persist with any submission that your intellectual disability engaged principles 1, 2, 3 and 4 of R v Verdins; R v Buckley; R v Vo [2007] VSCA 102.

49Since your release on bail, you have been on the disability support pension and you have focused upon programs to assist in your rehabilitation and treatment.  Exhibit 8 on the plea was a final progress report from the Court's Integrated Services Program (CISP), which contained a complete and comprehensive review of the steps you have taken post-arrest towards your rehabilitation.

50Exhibit 10 was a bundle of correspondence from each of your alcohol counsellor, the facilitator of the men's behaviour change program that you attended, your GP, your clinician from the local Community Mental Health Service and the coordinator of your positive lifestyle program. 

51Further documentation was provided as Exhibit 11 referring to your participation in a program for local fathers, where positive communication and anger management strategies are discussed in an informal setting.  The facilitator of that program provided a separate letter detailing your engagement.  It is clear, and I accept, that since your arrest you have done everything that you can to maintain change and engage with treatment.

52Mr Goodfellow took me through the steps you have taken towards your rehabilitation as identified in all of that above material.  He reiterated, if such were needed, that the programs in which you have engaged were centred upon you accepting responsibility for your actions and the notion that if you wish to change, you are the person who must make the steps.  I accept that you are willing and open to engagement in alcohol counselling, men's behaviour change, your mental health and the local fathers’ program.  An indication of your growing awareness and insight was your presentation at hospital for admission in light of your self-reported deteriorating mental health.  The discharge summary for this submission was Exhibit 9 on the plea.  Mr Goodfellow submitted that in view of the huge steps that you had made,
I could be confident as to your prospects for rehabilitation. 

53Mr Goodfellow pointed to the ongoing support of your parents and your siblings, some of whom were at court on the plea and are again here today.  He recommended this to me as a protective factor. 

54Mr Goodfellow describes you as fearful of custody where you will be without the therapeutic programs that have helped you and sustained you over the past year. 

55As to totality of the sentence, Mr Goodfellow submitted that a significant degree of concurrency was just and appropriate looking at your criminality and your offending as a whole.

56Mr Kaur, you have pleaded guilty to serious offending.  Rape is a more serious offence as is made clear from the maximum penalty of 25 years imposed by Parliament.  Rape has absolutely nothing to do with desire.  It has absolutely nothing to do with sexual attraction.  Rape, quite simply, is a crime of invasive violence.  It is a crime that uses the physical expressions of intimacy to exert power, control and dominance.  When it is used against an intimate partner, it is a betrayal of a loving relationship and it constitutes family violence.

57Your three children awoke in the middle of the night to the sounds of their parents' struggle and they witnessed their father demanding the keys to the gun safe threatening to kill himself, threatening to kill their mother and, finally, threatening to kill them.  This occurred in the family home, a place where they were entitled to feel safe.  Instead they were compelled to barricade themselves in a bedroom to avoid your wrath and they were in fear for their lives.  Your partner believed that in your rage you were capable of carrying out your threats.  Your actions on that night terrified your children and has left them with lasting trauma. 

58I accept that your intellectual disability prevented you from developing appropriate coping mechanisms to deal with the stresses of your life and that you had turned to alcohol as a coping strategy, but it must have been clear to you that your drinking had become problematic.  Indeed, in your record of interview, you accepted that when you drank, you became a different person.  In your record of interview, you accepted that your partner was scared of you.  You accepted that she was indeed scared that you might kill her.  She had been telling you for some time before this offending to stop your drinking.  She had been telling you had a problem and she had been begging you to do something about it.  You chose to ignore her pleas to get help for your depression and for your drinking.  As you admitted candidly in your interview, your attitude was "she'll be right" and with that attitude you carried on abusing alcohol. 

59A direct consequence of your continued abuse of alcohol and your failure to get any help was this offending for which you fall to be sentenced today.  It is offending which occurred in the context of your alcoholic blackouts and in which, it seems to me, you were driven by a complete sense of sexual entitlement and rage.  In my view, it is that deliberate failure which identifies your moral culpability for this offending.

60In sentencing you, I must have regard to a range of different factors.  I must give effect to the principle of general deterrence, that is, to send a message from this court to anyone else contemplating behaving as you did that if they do so, they will be punished and punished severely.  I must have regard to specific deterrence, that is, sending a message to you so as to prevent you from ever repeating such offending.  In my view, the need for specific deterrence and for community protection is diminished by virtue of the steps that you have taken, but it is not eliminated.  I must also express the community's denunciation of your conduct, that is to say, we as a community will not tolerate this.  I have taken into account the effect of your crimes upon your victims.  I must have regard to current sentencing practices.  I must have regard to the statutory maximum penalties for the offences for which you have pleaded guilty.  In short, I must try to balance your personal circumstances, as I find them to be, with the gravity of your offending, as I find it to be.

61Clearly principles of general deterrence and denunciation are the primary sentencing considerations in this case.  In Pasinis v R [2014] VSCA 97, the Court of Appeal of this state emphasised the importance of general deterrence in sentencing for family violence offences. The court stated:

"The key to protection lies in deterring the violent conduct by sending an unequivocal message to would be perpetrators of domestic violence that if they offend they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm".

62I give full effect to all of the mitigatory factors to which I have been referred by the able submissions of your counsel.  For the avoidance of doubt I have particular regard to your plea of guilty, which although not entered at the earliest opportunity, nonetheless saved the community the time and expense of a trial, and far more importantly, has saved your partner and your children from the trauma of having to give evidence.  This entitles you, in my view, to a significant benefit. 

63I have regard to the clear potential for imprisonment to have an adverse effect upon your mental health and to the fact that prison will be more burdensome for you in light of your Major Depressive Disorder. 

64I have regard to your prospects of rehabilitation of which, in my view, one can be optimistic, provided of course that you manage to stay alcohol free.  You are going to have to stay alcohol free for the rest of your life. 

65I have regard to your proven engagement with all of the programs under the CISP program which actions I view as a real indication of your remorse.

66I also have particular regard to your mild intellectual disability and the vulnerabilities that that creates.

67Nonetheless, Mr Kaur, your offending is such that it must, in my view, be met by a substantial term of imprisonment. 

68If you would please stand, Mr Kaur.

69On Charge 1, common law assault, you are sentenced to a term of imprisonment of six months. 

70On Charge 2, rape, you are sentenced to a term of imprisonment of five years and six months.

71On Charge 3, rape, you are sentenced to a term of imprisonment of six years and six months.

72On Charge 4, making threats to kill, you are sentenced to a term of imprisonment of 18 months.

73I order that three months of the sentence on Charge 1, 12 months of the sentence on Charge 2 and 12 months of the sentence on Charge 4 run cumulative to each other and cumulative to the sentence imposed on Charge 3. 

74This makes a total effective sentence of eight years and nine months’ imprisonment. 

75I fix a non-parole period of five years and six months. 

76Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty, you would have been sentenced to a total effective sentence of 11 years and six months with a non-parole period of nine years.

77I have fixed a shorter than normal non-parole period so that should you get parole, you would be supported back in the community and be able to continue on the good work that you have done.  Can I say I have also tried not to impose a sentence that you find to be crushing but as I hope I have explained to you, this is serious offending and it has to be marked as such.

78Pursuant to s.18(4) of the Sentencing Act I declare that you have served
24 days of the sentence I have passed upon you and I direct that this be entered into the records of the Court. 

79I will make the forensic sample order that is being sought by the prosecution pursuant to s.464ZF(2) of the Crimes Act.  Mr Kaur, I am making an order allowing the police to take a DNA sample from you.  That is usually done by a buccal swab, so it is a Q-tip in the mouth to get a sample of saliva.  If you refuse to allow the police officer to take the sample, officers are entitled to use such force as is reasonably necessary so that they can take the sample from you.

80I just wish to say to you that it is a tragedy that you did not seek help with your drinking beforehand.  But you have an opportunity with time to, if not change the past, certainly to put it to bed and to lead a different life.  This court certainly hopes that you are able to do that. 

81Now, Mr Tom, in terms of custody management issues, I have noted
Mr Kaur’s longstanding Major Depressive Disorder, his mental health concerns, suicidal ideation, his mild intellectual disability, first time in custody.

82MR TOM:  Yes, Your Honour.

83HIS HONOUR:  Do you have a list of medications that he's currently on?

84MR TOM:  The scripts have actually been provided to the custody officers and he has received that medication.

85HIS HONOUR:  All right.  So the prescription drugs that he's currently or the medication that he's currently prescribed, the names of them, are with Corrections at this point?

86MR TOM:  That's correct, Your Honour.

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