Director of Public Prosecutions v Keerthi (a pseudonym)
[2017] VCC 140
•23 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ISAT KEERTHI (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2017 | |
DATE OF SENTENCE: | 23 February 2017 | |
CASE MAY BE CITED AS: | DPP v Keerthi (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 140 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentencing – rape – immediate custodial sentence imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Henderson | John Cain, Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R. Wilcox | Samuel Sleigh & Associates |
HER HONOUR:
1 Isat Keerthi,[1] you have pleaded guilty to one charge of rape.
[1] Isat Keerthi is a pseudonym.
2 This is a serious offence and that is reflected in the maximum penalty prescribed by Parliament, namely, 25 years’ imprisonment.
3 You were aged 48 at the time of the offending and you are now aged 51. You are a person who comes before the court with no prior criminal history and there are no subsequent matters pending.
4 The victim in this matter is a young man, Joel Sinclair.[2] Mr Sinclair is currently aged 20. At the time of the offending he was aged 18. He had recently completed his secondary schooling and had planned to travel to Australia with a school friend on a gap year. It was intended they would spend about six months travelling between Australia and New Zealand.
[2] Joel Sinclair is a pseudonym.
5 He travelled from Wales to Australia arriving sometime in October 2014 and at the beginning of November 2014, he placed an advertisement on a community website and online classified service known as “Gumtree”, which read as follows:
“British male backpacker in search of casual, temporary work.”
6 On 3 November 2014, you responded to the advertisement via email telling the recipient that you were “Keers”, age 28, and that you were looking for somebody to do some painting and general gardening work. You suggested that he call your mobile number and you told him that he would need to be honest and that you were happy to give him free accommodation.
7 The victim then telephoned you to discuss the details of the proposed employment. He responded to your email of 4 November 2014, confirming that it was really good to speak to you about the job offer and it sounded like a great job for him. He had a few questions, namely, were there any other workers and were they staying at your home also? He also asked you about your address and whether it was possible for you to send an image of the property to him so that he could have an idea about what he would be working on. He said if he were to go ahead with the job he would like to take up the accommodation offer as travel would be difficult and costly from where he was currently staying. You then suggested meeting up to discuss it further and the conditions, and you suggested either St Kilda or the CBD.
8 Later that day, you responded to the email thanking Mr Sinclair for his reply and setting out the requirements for the work. You said the painting involved painting the whole fence around the house, gutters and eaves, and a bit of gardening work. You confirmed that there was no one else who would be staying at your place. You said that you were very clean and you would like anyone who stayed at your house to be clean and honest. You told him you would be happy to pay him $500 per week. You also said that you had many German guys staying and doing things, and they were all clean and honest, and that you had one of them coming back in December. You suggested another meeting the following day at 6.00 pm in the city at the corner of Flinders and Elizabeth Streets, and you asked that he send his mobile number to you again as you had lost it.
9 On the following day, namely, 5 November 2014, Mr Sinclair met you at a restaurant called Pepperoni’s. You introduced yourself as “Isat”, told him some basic things about your personal background, including that you were aged 28 (whereas you were in fact aged 48). You then proceeded to have a conversation with him for about 90 minutes. You then went to Nando’s where you continued to speak and eat for about 90 minutes. During the time, it was agreed that he would inspect your premises before commencing work and an arrangement was made for you to meet up again with him on 7 November 2014 to travel to your home in Essendon.
10 On that date, you met as arranged at about 6.00 pm at Pepperoni’s. There was a further conversation with him about other backpackers who had previously worked and stayed with you at your home. You showed him some digital photographs of those people and you told him parents of those backpackers had also stayed with you at your home. You then caught a train from Flinders Street Station to Glenbervie Railway Station.
11 You walked to your premises in Essendon, where you showed Mr Sinclair around, watched some telly and spoke with him for some time. You gave him a drink of Bacardi rum mixed with Coca Cola and two shots of spirits. At about 7.30 pm, you both walked to the nearby pizzeria and had some dinner and during that time, you purchased two or three drinks of Bacardi rum mixed with Coca Cola for Mr Sinclair. Following dinner, he told you that he needed to catch a tram home before they stopped operating. You reassured him that he could stay the night at your place.
12 He did not want to particularly stay the night, but agreed to do so, as he was shortly going to be working at your home, in any event, you impressed him as a nice genuine man.
13 You and he then took a taxi to Mawal in Lygon Street, where you purchased more alcoholic drinks with double shots of spirits for Mr Sinclair. He described himself as feeling pretty drunk by about 2.00 am on Saturday 8 November 2014. You then both took a taxi back to your home in Essendon and retired to separate bedrooms. He stripped down to his boxer shorts and went to sleep at about 2.45 am.
14 At some stage, he awoke finding his boxer shorts had been completely removed and you were kneeling on the bed fellating his penis. He pretended to be asleep and nudged you and pulled the doona around himself, causing you to stop. You then moved to another bed in the room where you had fallen asleep. He waited about 10 minutes, gathered up his belongings, dressed and left your premises.
15 At about 6.20 am, whilst making his way to Glenbervie Railway Station, you telephoned him, but he did not answer. At 6.32 am, you telephoned again, he answered that call but hung up without saying anything. At 6.34 am, you sent a text to him which read, “Hey why did you leave?” And at 6.36 am, you telephoned him again but he did not answer and, ultimately, he turned off his mobile telephone and caught a train.
16 When he arrived home, he telephoned police, who attended and took him to Monash Medical Centre for forensic examination. He was examined at about 12.20 pm and swabs of his penile shaft and penile glans were taken. A subsequent analysis of the swabs taken revealed extremely strong support for you being a contributor to the DNA profile therein.
17 On Tuesday, 11 November 2014, you presented at Fawkner Police Station where you participated in a record of interview. During the interview you confirmed the general background and context to the meeting Mr Sinclair at Pepperoni’s in the city to discuss some work prospects. You confirmed you had met him in the city and then gone out for dinner in Essendon and then later on to Mawal in Carlton. You said you left that restaurant in Carlton at about 1.00 or 1.30 am on the Saturday morning and could not get into any bars because you were drunk. You then caught a taxi back to your home. You said that you told Mr Sinclair where he could sleep. You told police you went to the toilet for some time, where you vomited, and then you went to bed. You said that you became aware of him leaving your home about 6.30 am, and that you did send him a text message. You totally denied any wrongdoing and said you never went into his room and you denied fellating him.
18 Ultimately, your matter was resolved at committal hearing that listed for 3 August 2016. This was prior to any witnesses giving evidence and the Crown concedes that the plea was entered at an early opportunity.
19 The victim in this matter, Mr Sinclair, has been adversely effected as a consequence of the offending. He confirmed that he had left the United Kingdom with a school friend to travel to work in Australia and New Zealand on a six month working holiday, and that by your actions his plans were severely disrupted.
20 Following the police investigations, he flew back to the United Kingdom. He was an emotionally shaken man. He returned a few weeks later, supported by his father and brother, but was unable to feel safe and had difficulty engaging with people and, ultimately, cut short his trip. The offending has affected his confidence and impacted on his ability to concentrate on his studies. He has found it very hard to deal with his experience and to forget what has happened. He says, “I fear it may always cast a shadow over my life”. There is no doubt, Mr Keerthi, by reason of your actions, they have had a very traumatic effect on the young victim.
21 Your offending is an abuse of the trust and relationship that you had built up with this young, naïve man over the days leading up to the offending. There was a considerable age gap between yourself and the victim. Your actions were brazen and you preyed on vulnerable, young, naïve traveller whom you violated and exploited for your own sexual gratification. Notwithstanding the offence occurred in the context of alcohol having been consumed over that evening, I am not satisfied that your level of intoxication was such that you did not know what you were doing was wrong. I consider your moral culpability to be high. The act involved was of relatively short duration, but nonetheless it involved intimate violation of the complainant and such act calls for denunciation. I have had regard to the fact that you did desist from fellating him further once he became aware of your presence and pushed you away. I have also had regard to the fact that there is the absence of usual aggravating features that sometimes are found in these sorts of offences, namely, violence or threats of violence.
22 In sentencing you, I must emphasis both general and specific deterrence.
23 I must impose just punishment.
24 Mr Wilcox, on your behalf, in the plea in mitigation submitted, having regard to a combination of factors, that the court ought to consider a non-custodial order, namely, a lengthy Community Correction Order with the provision that you undergo psychiatric treatment. As discussed during the plea hearing, I consider that such an option is not suitable, having regard to the serious nature of your offending, involving as it does an older man exploiting a young, vulnerable traveller, who has suffered greatly as a consequence.
25 I have had regard to the factors put on your behalf. In particular, I have had regard to your plea of guilty and accept that there is utility in your plea. By your plea, you have spared the State the unnecessary expense associated with a trial and importantly, you spared the victim the further trauma of having to come to court to give evidence at the trial, which in the context of this case, is quite important having regard to the his relatively young age and difficulties he has experienced since this offending.
26 Overall, I was not able to find any real expressions of remorse for your behaviour. When confronted by police, you denied involvement in the offending and it was not until the matter was listed for committal hearing, shortly prior to the victim being required to give his evidence (which I noted was from an overseas location where he had travelled a great distance to attend), it was only then that you indicated that you would plead guilty. Through your counsel, you have not sought to explain your behaviour.
27 I consider that your prospects for rehabilitation are guarded given your denial of involvement, although there is some optimism now given that through your plea you now accept that what you did was wrong, and you have taken responsibility for your crime.
28 I have had regard to the reports received from Dr Tina Thomas, treating psychiatrist, Waratah Clinic, Inner West Mental Health Service, Royal Melbourne Hospital. Her report is dated 2 November 2016. She confirms you have been treated in the community by that service since July 2016 with a provisional diagnosis of major depressive episode. On assessing you, there have been noted some discrepancies between reported severity of depressive symptoms and your apparent level of functioning (your preference to continue your normal activities such as going to work and socialise was noted), which is not usually seen in a major depressive episode but can be seen in a mild depressive episode.
29 Dr Thomas noted reported symptoms over the past three months, included low mood, hopelessness, thoughts of suicide, anxious thoughts and poor appetite. You denied any substance abuse and you denied any forensic history when assessed.
30 She said, in her report, there appears to have been a marked lack of transparency around your current forensic issues and homosexuality, consistent with likely anxious and avoidant psychological defences and in the context of your cultural background. She states that you refused multiple offers of admission to a psychiatric inpatient unit for further assessment and treatment. She says it has been difficult to assess your current difficulties. However, the possibility of malingering was considered along with a situational crisis, although the situation was unclear.
31 You have been prescribed antidepressant medication, Venlafaxine, which was increased eventually to 225 milligrams with the addition of Quetiapine, 250 milligrams, nightly on 8 July 2016 with no subjective subsequent improvement in your symptoms. Her input has been around ongoing assessment of your mental state and risk, and prescribing you antidepressant medications.
32 It was not until 20 October 2016 that your current legal issues came to her attention, which she says provided further insight into your difficulties. She opines that you appear to be in crisis with depressive symptoms as you struggle to come to terms with your offence and its implications as the court date approached. She noted some suicidal ideation on 26 October 2016. She recommended that it was in the interests of your mental health to minimise the duration of uncertainty and proceed as quickly as possible with your remaining court proceedings, so that you may process your current situation. She considered that your risk of self-harm and suicide were increased at that time, and advised that you ought have access to psychiatric care for ongoing assessment and management of risk in relation to deliberate self-harm or suicide, particularly if you are incarcerated. She recommended, in the medium to long-term, that you would benefit from psychotherapy.
33 Dr Lester Walton, consultant psychiatrist, has seen you twice on 21 June 2016 and 27 October 2016 for the purposes of providing medico-legal reports. Initially, you denied involvement in any offending when seen by him. You told him you were intoxicated and, whilst you were aware of the DNA evidence which implicated you, you were at a loss to explain that and you had difficulty that you may have engaged in the offending and that you had amnesia for it.
34 He noted your background history of depression related to some treatment you received for an injury to the right middle finger that required surgery some 10 years ago, and said at that time, you had psychological treatment for about a year and there were two suicide attempts by way of drug overdose for which you were treated at the Royal Melbourne Hospital.
35 You told Dr Walton that over the last two or three years you had experienced worsening depression, that your father had been unwell for some 18 months, and then he died a few years ago. At around the same time, a maternal aunt to whom you were emotionally close, also died. He noted, not unsurprisingly, you had become even more depressed in the aftermath of being charged with this offending.
36 He noted at the time of the first assessment on 14 June 2016, you had been commenced on an antidepressant, namely, Effexor XR, and that you had seen by the community psychiatric team on the day before his assessment and that was principally in relation to a suicide risk where hospitalisation had been recommended. He also noted you were to be seen by the Waratah Clinic.
37 As best he could, at that time, he considered you were likely clinically depressed. His opinion was that you were suffering from a chronic major depressive disorder. Whilst he could not state that it was unequivocally established, he said that there was some indication that your mental disturbance was approaching psychotic proportions and that you remained acutely suicidal.
38 As discussed with your counsel during the plea hearing, I do not accept that expressed opinion about the possibility of psychosis or major depressive illness, particularly having regard to Dr Thomas’ clinical assessment and treatment and I prefer her expressed opinion.
39 Dr Walton further reviewed you on 27 October 2016, and on that occasion you repeated you had no recollection of the alleged offending. You were initially reluctant to accept that it had occurred but, particularly in the face of the DNA evidence, you acknowledged your wrongdoing and said you intended to plead guilty.
40 He confirmed that you are continuing to being treated with antidepressants, that you had reached a point of suicidal despair, that there had been another suicide attempt by way of drug overdose, for which you had been hospitalised a few days, and that you were still seeing the Waratah Clinic twice weekly. He noted increased anxiety in the context of the court date approaching.
41 His view was that, at the time of the offending, the amount of alcohol you consumed was to the point of intoxication that was exceptional. He repeated his diagnosis of chronic major depressive disorder aggravated in recent years by the death of your father and cherished aunt. He considered close psychiatric supervision to be appropriate. He was unable to state that Verdins’ considerations would be triggered by your chronic depression relevant to the offending. He did, however, express a view that any incarceration would be more onerous than for most others because of your ongoing depression. He said that your suicide risk is sufficiently high that prison authorities ought be alerted.
42 I have had regard to your personal history and background. I note that you were born in Sri Lanka and were raised in Kandy. Your family is a well-known family actively involved in politics, particularly your father who was a government minister, such that it was considered for your own safety that you ought migrate to Australia, which you did some years ago, and I am told you are now an Australian Citizen. You completed Year 12 in Sri Lanka and then obtained some hospitality qualifications. A younger brother still lives in Sri Lanka and he manages a tea plantation. Your mother is alive but in poor health. When you were aged 28 you migrated to Australia. You are a single man, you were living at your mother’s unit in Essendon throughout the time since you have been in Australia, and in the past, she would travel to Australia for three months of each year and then return to Sri Lanka, although ill-health has prevented her from doing that for some time.
43 You have a small social circle of friends who support you. They are described as close family friends and they are aware of your current circumstances.
44 You undertook a hotel and food management course at William Angliss College when you came to Australia in order to meet Australian standards. You successfully completed the course and you have been usefully fully employed in the hospitality industry for many years, working at various locations, and you were in fulltime employment as a manager at local delicatessen in Essendon at the time of your incarceration.
45 You have always worked in managerial positions.
46 In the past, you have had relationships with women but they have ended – one, because of pressure brought by your lady friend’s brothers, and the other because your fiancée from Sri Lanka expressed a desire not to live in Australia.
47 Overall, I have had regard to your plea of guilty, stage at which it was entered, at an early time. I consider that your plea of guilty has facilitated justice and I have discounted your sentence accordingly. I have also had regard to your otherwise previous good character. I have had regard to the fact that you are a man of some 51 years and you have never offended before, and never been before the courts before. However, having regard to the gravity of the offending and the impact upon the young, vulnerable person, Mr Sinclair, I consider that no other punishment other than a term of imprisonment to be immediately served is warranted. I have had regard to the fact that because of your current psychiatric state, jail will be more onerous for you and there is a prospect that it may mean that your condition will deteriorate, and I have moderated your sentence accordingly
48 I have concerns about your prospects of rehabilitation. I am guarded about those, but as I said before, you now accept responsibility for your wrongdoing. You must openly acknowledge the offending and its effect on the victim and undergo treatment, which is recommended either in prison or upon your release, so that the risk of further offending can be ameliorated. At this stage I am unable to make any findings in respect to the risk of reoffending, but I consider without treatment it does remain a very real risk.
49 Rape is one of the most serious criminal acts on the criminal calendar and that is represented by the high maximum penalty of 25 years’ imprisonment. This example of rape is serious involving, as it did, a young, vulnerable and naïve man who trusted you and whose trust was abused by you.
50 In sentencing you, there is a real need to emphasise general deterrence to send a message to the community that such behaviour will not be tolerated, and specific deterrence is also important to deter you from offending in a like manner in the future. Could you please stand now, Mr Keerthi?
51 The formal court orders are –:
52 In respect of the one charge of rape, you will be convicted and sentenced to four years’ imprisonment and I fix a non-parole period of two years.
53 I make the following declaration pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a sentence of five and a half years’ to serve three years and three months.
54 I make the following declaration of pre-sentence detention. I declare that you have spent six days in custody and direct that that be entered into the records of the court.
55 In do not believe that there was any other ancillary orders sought.
56 MS DUNBAR: Nothing further, your Honour.
57 HER HONOUR: All right. I have already made available to the corrections authorities all the relevant material concerning Mr Keerthi’s current psychiatric circumstances, and they were provided at the time he was recepted into ‑ ‑ ‑
58 MR WILCOX: Thank you, your Honour.
59 HER HONOUR: ‑ ‑ ‑ remand. All right. So that completes that matter. Mr Keerthi can be taken downstairs.
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