Director of Public Prosecutions v Kumar

[2014] VCC 2097

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

AT GEELONG
CRIMINAL JURISDICTION

CR-14-01855

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW ANVIL KUMAR

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	17 November 2014
DATE OF SENTENCE:	20 November 2014
CASE MAY BE CITED AS:	DPP v Kumar
MEDIUM NEUTRAL CITATION:	[2014] VCC 2097

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson	Office of Public Prosecutions
For the Offender	Mr M. Vines	Michael Brugman Lawyers

HIS HONOUR:

1Andrew Kumar, on Christmas Day 2013 you were at a party in East Geelong.  So, too, was a young female who had recently moved from New Zealand to Geelong.  You, yourself, were not long in Australia from New Zealand.

2The woman drank far too much and had to be assisted to a taxi.  You went with her in the taxi and engaged in sexual activity.  The taxi driver put you both out in a park in Corio.  Further sexual activity then took place.  You then left the park leaving the young woman on her own. 

3She woke the next morning disoriented and was assisted by a passer-by and ultimately went to the police alleging she had been sexually assaulted.

4What you did was to leave the park and immediately ring a friend, a Dale Jakupek, who lived nearby.  You went to his house and met Jakupek and his girlfriend, Tori Coster.  You told Jakupek you had been out drinking and had, "Fucked up".

5You told Jakupek and Coster you would mention their names to the police.  This, of course, was well before you knew that the police would be involved at all.  You were specific with what you told Jakupek and Coster to tell the police.  You told them to say you had called them and asked them to meet you at the Corio Reserve and that they had gone there and seen you with a woman.  Further, that the woman was wanting to come with you and was arguing with you, and aggressive to you and your friends.  Finally, that you called a taxi for her and left her there waiting for the taxi.  All this was false and you knew it.

6As it turned out the police did become involved and contacted you advising you they were investigating a complaint of sexual assault.  You provided details of Jakupek and Coster, indicating to the police, that these two would verify your false story.  They did as you asked, first, verbally, and then in Jakupek's case, in a signed statement on 2 January 2014.  Coster was to sign a statement on 17 February 2014 but she cracked and told the truth revealing your role in this serious deception.

7Jakupek was interviewed about his false statement and confessed explaining your role in having him lie to the police.  I note that he was charged with perjury and was dealt with a magistrate who imposed a substantial fine.

8On 12 May 2014 you were interviewed about this false story.  You again lied, twisting the story further, saying that Jakupek and Coster had recently fallen out with you and they were lying to harm you and that they should be charged. 

9The Director of Public Prosecutions decided not to proceed with the allegations of sexual assaults. 

10In the end, you have pleaded guilty to an attempt to pervert the course of justice.  This is a serious crime as it attacks a foundational elements of our civil society, that is, our system of justice.  Parliament has recognised this by fixing a maximum term of 25 years imprisonment. 

11Having said that, I am mindful of the need to apply caution in respect of this offence and its high maximum term, as explained by Justice Eames and Justice Callaway, in the case of R v Aiden and Kirsch.

12In assessing the gravity of your offence I take into account the circumstances of the course of justice you sought to derail.  The allegation you feared were allegations of sexual assault.  These crimes are difficult for all involved.  Usually there is one principle witness, the complaint, who says that she was raped or sexual assaulted. 

13Her credit and reliability is often vigorously challenged.  Intoxication is often raised as diminishing credit and/or reliability.  If an accused adds to this prospect by recruiting other witnesses in creating a false scenario, whereby the complainant is wanting to go with the accused and is aggressive, then this is a serious undermining of the course of justice involved in sexual assaults.

14As the Court of Appeal set out in Joseveski, albeit in relation to a different sort of crime:

"Getting others to verify a false exculpatory story to mislead the police is a serious example of attempting to pervert the course of justice".

15Tognolini v The Queen was a case involving the accused prevailing on witnesses in a sexual assault case to provide false affidavits.  This saw a sentence of six years imposed by the sentencing judge which was reduced in appeal to four years.  The accused in that case had prior criminal convictions and his sentence was part of a larger sentence for other substantive offences. 

16In that case a table was set out of sentences for this offence of attempting to pervert the course of justice and the table reveals that sentences of imprisonment are imposed for accused without any prior criminal history. 

17You, Mr Kumar, at the age of 28 have a significant criminal history in New Zealand.  It arises from the age of 18.  You have served terms of imprisonment for crimes of violence.  You have had numerous Community-based Orders but have breached some, especially, in the latter part of 2012 and 13.  Indeed, your last offence, was committed almost to the day one year earlier, being on 24 December 2012, and you were given ten months imprisonment for that offence. 

18Your past criminal history reflects badly on your overall prospects for permanent reform.  That means I must give weight to deterrence to you.  That said, I was told and read a letter from your father, about your better qualities.  You obviously have a supportive family who are concerned about you.  You have a daughter in New Zealand and a relationship with a woman living here in Geelong.  The two of you have a one year old child.  Your partner is a child care worker and remains supportive of you.

19She has put up with a lot of late because I was told that in October 2013 you were involved in a serious crime which saw you sentenced by a magistrate in August 2014 to six months imprisonment.  The particular offence involved a violent assault and theft of your victim's car.  The whole episode involved drugs. 

20You did all of that sentence and were released on bail but only for a few days.  Your bail was revoked upon your arraignment before me last week. 

21I have taken into account, in a global sense, the whole time that you have spent in custody, albeit, there is only a small amount that can be attributed to pre-sentence detention for this crime.

22You have prospects for employment with a friend, Mr Duyar, who operates an aluminium door and window systems company.  That positive matter is in your favour.  I was told work is available for you now.  Whether it is later on remains unclear but it seems Mr Duyar sees you as a good prospect for the future. 

23Your plea of guilty came at the resolution of your other matters on 31 October 2014.  Your sentence will reflect the benefit accorded to those who plead guilty.  Though this is not an early plea, the issues were so connected with the substantive allegations, that your benefit for a plea of guilty will be treated like those who plead guilty when an indictment finally crystallises. 

24The key sentencing considerations are just punishment, denunciation and especially deterrence including deterrence to you.  Courts must maintain the firm message that, if you try to pervert justice, deceive or influence others to lie to assist in exonerating you, then stern punishment, most commonly involving gaol, will follow.

25Your rehabilitation is not overlooked, but it must yield to the other sentencing considerations in this case, as a consequence of what you did and your past history of breaking the law. 

26Your counsel submitted that a fine should be imposed, or at worst, a Community Corrections Order would be an appropriate disposition.  I did not have you assessed for a Community Corrections Order as all that I would have contemplated was unpaid work. 

27The prosecution argued that only a period of gaol was appropriate and the sentencing option of a Community Corrections Order would not be appropriate.

28In the end, the system of justice does require protection.  In my view, albeit a sentence of imprisonment is the punishment of last resort, I consider it is the only just and appropriate punishment for what you did, taking into account all your circumstances and all things for and against you. 

29I do not consider a Community Corrections Order is sufficient to meet the serious nature of the crime, much less a fine and a CCO does not meet all sentencing considerations as I have perceived them and hope have articulated. 

30I do not consider there needs to be added to you supervision after you are released, by a Community Corrections Order being imposed as well as a term of imprisonment, as is now allowed by our legislation.  You will have the potential for parole and if you are granted parole, supervision will occur in the community. 

31Doing the best I can, Mr Kumar, and can you please stand. 

32For committing the crime of attempting to pervert the course of justice you are sentenced to a term of imprisonment of 20 months. 

33I fix a minimum term, before you are eligible for parole, of ten months. 

34You have already served four days of pre-sentence detention which I reckon as part of the sentence I have just imposed.  I will ensure that this declaration is entered into the records of the court so there can be no doubt in the minds of the Corrections staff that you have already served four days of the sentence I have just imposed. 

35Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of 28 months with a minimum term of 18. 

36Are there any further orders?

37MR GIBSON:  Is it three days?  I thought it was, Your Honour.

38HIS HONOUR:  I am sorry, three days.  Pre-sentence will be entered into the records of the court and it will be ‑ ‑ ‑

39MR GIBSON:  If Your Honour pleases, there are no other orders, Your Honour.

40HIS HONOUR:  No other orders, thank you.  I thank counsel for their assistance in this matter. 

41Mr Kumar, as I explained to you on the last occasion, this court is not set up such that you can interact with those that care for you and have come to see you.  That can occur at other places and at other times and the Correction staff have to remove you now.  Thank you.

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