Director of Public Prosecutions v Krishna (a pseudonym)

[2017] VCC 369

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PRADEEP KRISHNA (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	28-30 March 2017
DATE OF SENTENCE:	4 April 2017
CASE MAY BE CITED AS:	DPP v Krishna (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 369

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – procure sexual penetration of a child under 16 – s 58(1) Crimes Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr A. Malik	Victoria Legal Aid
For the Director of Public Prosecutions	Mr R. Hammill (Plea) Mr N. Donaghy (Sentence)	John Cain, Solicitor for the Director of Public Prosecutions

Pages 1 - 6

 

 

HER HONOUR:

1Pradeep Krishna,[1] you have pleaded guilty before me to one charge of procuring sexual penetration of a child under 16 contrary to s.58(1) of the Crimes Act 1958 Victoria.  That is a serious charge and that is reflected in the maximum penalty prescribed by Parliament, and that is ten years' imprisonment.

[1] Pradeep Krishna is a pseudonym.

2You have no prior criminal history, nor any subsequent matters.

3As a consequence of a conviction being recorded for this offence you are required, pursuant to the Sex Offenders Registration Act 2004, to be registered for a minimum of eight years; the offence being a Class 2 offence.  This is mandatory, and therefore you will be provided with a notice setting out the requirements set out in the Sex Offenders Registration Act2004 at the end of these sentencing remarks.

4I will now sentence you on the basis of the opening that was read at the plea hearing, which is marked as an exhibit.

5Essentially the offending involves you taking a young man - who I will describe by the pseudonym "Ajit Amardeep"[2] – to an area in Mount Cottrell, Victoria, where he had sex with another young woman; Mere Waimarie,[3] with whom you had had a relationship.

[2] Ajit Amardeep is a pseudonym.

[3] Mere Waimarie is a pseudonym.

6The background to the matter is that you had known Ajit for some time.  He is the younger brother of "Gurdeep Amardeep".[4]  You became formally engaged to Gurdeep on 1 Mach 2014.

[4] Gurdeep Amardeep is a pseudonym.

7You were 26 at the time of the offending.  You were born in India and migrated to Australia in 2008, where you have remained continuously since that time.  Initially you studied and then later you took up employment in Werribee in a butcher shop, and that employment is continuing.

8Ajit resided with his parents and sisters at the family home.  You were living at the family home, having formed a friendship with the family, and then later you formed an intimate relationship with the older sister, Gurdeep, to whom you became engaged.

9At the time of the offending the complainant said nothing about the events to anyone.  You had a falling out with the complainant's family around 15 August 2014 over an unrelated matter; as a consequence of which you left the family home.

10Subsequently, on Sunday 5 October 2014 the complainant told his mother about these events and she immediately contacted the police.

11On Monday 6 October 2014 a Video Audio Recorded Evidence statement (VARE) was taken from the complainant.  As a result of the allegations he made you were interviewed and arrested.

12During the course of the record of interview you agreed with the broad detail of the relationship you shared with Ajit’s family and agreed that the complainant and Waimarie had sex in your car, and that you facilitated this sexual activity by contacting the woman and arranging the meeting between her and the complainant at the reserve in Mount Cottrell.

13Insofar as this matter is concerned it is important to set out the chronology.  The parties participated in plea discussions prior to committal mention in October 2016.  At around that time you indicated your willingness to plead to this charge and the matter was to be the subject of a contest in relation to factual matters only.  That did not proceed, and for reasons that are known to your legal advisors, you were advised not to enter a plea in respect to the charge. The matter then proceeded by way of a contested matter.  A Special Hearing was conducted in this court on 28 March 2017, and ultimately the matter resolved prior to a jury being empanelled on 29 March 2017.

14Notwithstanding the commencement of the trial and Special Hearing the plea of guilty is accepted as an early plea by the prosecution.

15Mr Krishna, this offence is predicated on the presumption of harm that is involved whenever a child under the age of 16 is procured for the purposes of sex.  In this instance I have taken into account the matters referred to by Ajit in his Victim Impact Statement declared on 29 March 2017, which sets out, in detail, the impact of your offending upon him, and it has been profound.  He has asked that the details not be read aloud, and I do not propose to repeat the detail other than to say that I have had regard to the contents of the Victim Impact Statement.  The parties have all been provided with the Victim Impact Statement and it is an exhibit.

16Your motivation was to facilitate Ajit having sexual intercourse.  He was aged 13 and such motivation is not acceptable and needs to be rejected by the court. Your actions must be formally denounced.

17Ultimately, however, I have decided that a Community Correction Order is the most appropriate disposition in all the circumstances of your case.

18You have had an unremarkable family history.  You were born in India and come from a good family who are supportive of you and have assisted you over the years in attaining your education, and generally have supported you.  There is no history of any drug or alcohol abuse, or any mental health issues.

19You are aged 29 and you were aged 27 at the time of the offending.  You are a person who comes before the court with no prior criminal history, and I have taken into account your previous good character.  That is also reflected in the letters of reference that were provided by Anthony Burdett,[5] dated 29 March 2017, and Claire Terry,[6] dated 30 March 2017.

[5] Anthony Burdett is a pseudonym.

[6] Claire Terry is a pseudonym.

20You are a person who has a strong work history who has good prospects of rehabilitation.

21I have had regard to your guilty plea and I have noted that it is accepted by the prosecution that it was entered at an early stage, and therefore the discount for your plea of guilty applies.  Ironically, you did offer to plead guilty to this charge in 2016, but due to legal advice the matter did not proceed.  I accept that the plea of guilty shows some remorse on your behalf and you are now aware of the consequences of your actions.

22I have had regard to your co-operation with the authorities.  You made admissions to the circumstances of the offending and the offence to which you pleaded guilty in the record of interview.

23I have had regard to the considerable delay in these proceedings; all of which was outside your control.

24As I stated earlier, the complainant's Video Audio Recorded Evidence statement was taken on 6 October 2014.  The record of interview was not conducted until 13 January 2015, and charges were not laid formally until
15 June 2016.  The prosecution have confirmed that the delay was primarily due to the ill health of the informant.

25The effect of the delay upon you has been significant.  You have had this hanging over your head for some considerable time.  There is evidence that you have suffered from depression with a degree of suicidal ideation and that you lost your way, to some extent.  You have, nonetheless, continued to work, and you have been able to develop a new relationship with Ms Terry and her family.

26I have had regard to the significant disruption that may occur as a consequence of your conviction.  You came to Australia as a 19 year old and you have lived here continuously over the last decade.  You have completed a Diploma of Community Welfare and previously had applied for permanent residency.  You are currently on a Bridging Visa whilst this matter has been awaiting determination.

27It is accepted by reason of this conviction there is a prospect that you will face deportation, and that factor will cause you some degree of anxiety.  It will also mean the end of your relationship with Ms Terry and her four children, with whom you have developed a positive relationship and have provided valuable support.  You have been together since September 2014, so the fact that she remains in Australia and you have to return to India, is going to mean that that relationship will now cease; and that, too, will have consequences on you personally.

28Overall, I have had regard to that combination of factors and I have come to the conclusion that a Community Correction Order is appropriate and can reflect the need for denunciation and just punishment, and can achieve deterrence.  I have had regard to the guideline decision of Boulton v The Queen[7] - known as Boulton - and I have, in particular, had regard to the comments made by the Court of Appeal in that case, where they confirmed that the availability of Community Correction Orders has dramatically changed the sentencing landscape in this State,[8] and sentencing courts “can now choose a sentencing disposition which enables all the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment), which is skewed towards retribution and deterrence”.[9]

[7] [2014] VSCA 342.

[8] Ibid [113].

[9] Ibid [4].

29It is accepted in the guideline decision of Boulton that a Community Correction Order can be punitive,[10] achieve deterrence,[11] and “may be suitable even in cases of relatively serious offences; and they include some forms of sexual offences involving minors which might previously have attracted a medium term of imprisonment”.[12]

[10] Ibid [85]-[102].

[11] Ibid [123]-[130].

[12] Ibid [131].

30I am satisfied, overall – having regard to all the circumstances of this particular matter – that it has been a difficult situation for you.  You have learnt a salutary lesson following your apprehension and being charged and the experience that you have gone through with the legal process.

31I consider that the likelihood of
re-offending is negligible, and therefore, the need for specific deterrence can be moderated.

32Nonetheless, there is a need to emphasise general deterrence, and that is reflected in the nature of the Community Correction Order that I am about to impose, so as to dissuade others who might be like-minded to not offend in this manner.

33Mr Krishna, you will be convicted and placed on a Community Correction Order for a period of two years, commencing from today's date, subject to the usual mandatory terms that apply to all Community Correction Orders with the special conditions you do 100 hours unpaid community work over that two years and also undertake any programs or courses that you are directed to by the regional manager.

34I have had regard to the advice given to me by your counsel, Mr Malik, that you understand the effect and conditions of such an order and you consent to it being made. I will sign that order and shortly, I will ask my associate to attend upon you to obtain your signature.

35The only other thing I need to do is to make the declaration under the Sex Offenders Registration Act 2004. Procuring sexual penetration of a child is a Class 2 offence pursuant to Schedule 2 of that Act. You have pleaded guilty to a single Class 2 offence, and pursuant to s.6(1) of the Act upon being sentenced you automatically become a registrable offender, and pursuant to s.11(1) of that Act you must comply with the reporting conditions under Part 3 of the Act, and the period of reporting is eight years pursuant to s.34(1)(a) of that Act.

36I think that covers everything. I'll just get you, Mr Malik, to accompany my associate and just obtain the acknowledgement under the Sex Offenders Registration Act legislation, and also ask Mr Krishna to sign the Community Correction Order.  Once that's done we'll get a copy for you and then Mr Krishna will be free to go.

37All done?  All right, I'll leave the Bench and my associate will provide copies of the relevant documentation to the parties.  Thank you for your assistance, Mr Malik.

38MR MALIK:  Thank you, Your Honour.

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