Director of Public Prosecutions v Madhanthadi
[2012] VCC 1364
•12 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01559
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| SHRAVAN MADHANTHADI |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 September 2012 | |
CASE MAY BE CITED AS: | DPP v. Madhanthadi | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1364 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Coghlan | |
| For the Accused | Mr J. Desmond |
HER HONOUR:
1 Shravan Madhanthadi, you have pleaded guilty before me to two charges of indecent assault. The facts underlying your offending are as follows.
2
The victim in this matter, M G, went to a pub in Geelong on
4 December 2010to meet a friend, where she had a number of drinks, leaving at about 3 am, and became separated from the friend she was with. She was walking home through a mall when she saw the co-accused, Mr Sohal, who had been thrown out of a nightclub for being drunk. He was sitting in a gutter and she went up and enquired if he was all right. She and Mr Sohal moved to a bench, where they sat talking, and after about five minutes you came out of the nightclub where you had been drinking with Mr Sohal and sat on the other side of Ms G. Ms G said this made her feel a bit nervous, but both you and Mr Sohal appeared to be friends and you and Mr Sohal sometimes spoke to each other in another language.
3
At some stage Ms G said she needed a drink of water, and one of the two of you said there was water in the car, at which stage she noticed a white ute behind her on the road. She got in the back seat of the car and the
co-accused, Mr Sohal, got in after her. You waited a short period of time before getting into the car, in the backseat on the other side of Ms G. As soon as you got in, you tried to kiss Ms G. She tried to push you away but you grabbed the back of her neck and pushed her face towards you. Those actions comprise Charge 1 on the indictment, indecent assault.
4 You then touched her breasts over her top with your hand, that action comprising Charge 2 on the indictment, indecent assault.
5
While this was happening, Mr Sohal was grabbing at Ms G breasts and put his hand through a rip in her jeans, got his hand inside her underpants and penetrated her vagina with his finger. Ms G tried to say no, but did not want to open her mouth as you still had your mouth on hers and continued to hold her head and touched her breasts. Ms G struggled and moved around, and at some stage you pulled your head back from her face and
Ms G then tried to reach for the door handle across Sohal, saying, "No" and "Let me out." Sohal grabbed her arm, still having one hand in her pants, but did not have his finger at that point in her vagina. He then reintroduced his finger into her vagina. You had hold of Ms G head at this stage and were trying to kiss her, and this is an uncharged act.
6 Ms G was trying to push past you both, was saying no, and then managed to get out of the car. She saw a taxi nearby and the taxi driver saw she was crying, upset and shaking and took her to the police station.
7 Eventually the car used by the two of you was seized by police and a palm print which was matched to you was found on a whiskey bottle.
8 You were arrested and interviewed on January 6, 2011. You admitted in the record of interview to being out in Geelong on that night, that you had met a girl who was with Sohal, that you sat on the bench talking and you may have touched her by sitting on the bench by touching her shoulder or hand and possibly her hair. You told police that Ms G asked for some water and then went to the car and that Sohal got in first. You said you got in the back because you were too drunk, told police that all you did was talk for three or four minutes before she left the car, and initially denied doing anything in the back of the car. You then admitted trying to kiss her on the ear, but denied you had your hand on the back of her head or kissed her mouth.
9 The interview was a long one. You eventually made what could be said to be partial admissions, saying you may have had your hand on her thigh at some stage, agreeing that she was a bit upset, that you had been trying to kiss her maybe on the lips, although you denied forcibly kissing her and could not remember touching her breasts. You told police that on the night you were "over-intoxicated."
10 Following negotiations between prosecution and defence, at which stage you were charged on an accomplice basis with rape, the matter was settled and you pleaded guilty to the two charges of indecent assault in late May 2012.
11 The victim impact statement by Ms G is distressing reading. She has been utterly traumatised by the assault you and Mr Sohal unleashed upon her that night. She suffers depression and fear, she has difficulty with her studies where previously she had been a very competent student. She is having enormous difficulties with her studies. She does not go out as much. She is fearful in company. Her relationships with her friends have been very much affected. She suffers ongoing depression and she receives constant counselling. You have caused very great damage to this young woman who became involved in this night simply because she was concerned about your friend Mr Sohal and was being kind to him, and that is something that you need to remember.
12 I now turn to your personal circumstances. You are 32 years old and have no prior convictions. You grew up in India, the only son of your parents, you have two older sisters, and your counsel informed me that you grew up in a loving and supportive, although strict family. You are very close to your family, it seems. You continue to ring your parents most days, and I received an impressive letter from your sister, who is now married and living in Texas in America. She described you as a thoughtful and caring young man, and said she believed that this offending, which had clearly shocked her, was very much out of character.
13 You came to Australia in 2009, when you were aged 29. By that stage you had completed secondary school in India. You had completed a three year computing course and had worked in marketing, mainly in the telecommunications industry in India. You began studying a pastry course in Australia, which you did not like, and then transferred to an auto mechanic course at the Menzies Institute of Technology in Melbourne, of which you had completed about a year at the time of this offending. You enjoyed this course, but following your arrest and charging for very serious offences, you became depressed and were unable to continue those studies.
14 Whilst in Melbourne, you were, at the time of this offending, sharing a house with Mr Sohal. I received a report from psychologist, Patrick Newton, dated 27 August 2012 in which he notes that you have always been a moderate drinker, and it would appear that on this night you and Mr Sohal went to Geelong, attended a nightclub and you drank a large amount of alcohol, something in excess of a dozen pots of beer, and I accept that you were extremely drunk at the time of this offending. For the past two years you have been living in a house with a young couple, and I received a reference from Guru Simran Kaur, who is one of the residents of your house, who describes you as essentially a fairly quiet living and responsible young man who drinks very little. It appears that you have made - indeed, you told Mr Newton this - quite some adjustments to your drinking patterns, which in any event I am satisfied were fairly modest before the offending, and there is no indication that you have offended in any way since.
15
Both your sister and Ms Kaur described your reaction to this offending as one of deep shame, and indeed, that was an emotion you expressed to
Mr Newton, who considered your reaction to be a genuine one.
16 You came to Australia on a student visa, which has subsequently been cancelled as a result of your non-attendance at your course and it is your hope to resume your studies. You have appealed he decision to cancel your student visa and you are currently on a bridging visa. Your counsel informed me that it does not appear the prospects of you retaining that student visa are particularly bright, but should I impose a sentence upon you, it is likely you will be able to stay in Australia on a Criminal Justice visa, so that may enable you to pick up your studies again.
17 Your offending, Mr Madhanthadi, was of course extremely serious and has had long-term consequences upon this young woman, whose life has been affected negatively in almost every aspect. She presents in her victim impact statement as a very unhappy young woman who is still struggling with the effects of what you did to her with Mr Sohal, and it is likely that she will continue to experience those emotional struggles for many years to come. Nevertheless, I do accept that this offending by you was out of character. There is no indication that you have ever offended before. You seem to be someone who has led an entirely law-abiding life.
18 Since dropping out of your course, you have undertaken a number of casual jobs, mainly involving installation of insulation, but have not worked since November 2011, which I note, according to Mr Newton, is a matter of some frustration to you. It was Mr Newton's view, after administering a number of tests in this regard, that you were a low risk of re-offending, and indeed that would appear to accord with the way you have always lived your life, and I accept that that is so and that I do not need to have regard to protection of the community in sentencing you, nor do I need to have regard to specific deterrence, that is, a criminal sanction that is aimed at making sure you never offend in this way again.
19 In all the circumstances I am satisfied that I can deal with you by way of a sentence of imprisonment which, however, will be wholly suspended, and I note there was no disagreement with this course from the prosecution.
20 I, therefore, sentence you as follows:
21 On Charge 1, you are sentenced to nine months' imprisonment.
22 On Charge 2, you are sentenced to nine months' imprisonment, and I order that three months of the sentence imposed on Charge 2 be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of 12 months.
23 I order that this sentence be wholly suspended for a period of two years.
24 What that means, Mr Madhanthadi, is that if you commit any offence punishable by imprisonment in the next two years, you will be brought back before me and I will re-sentence you on these two charges.
25
The law makes it very clear that a person who breaches the suspended sentence will be made to serve that suspended sentence, that is, the
12 months, unless there are exceptional circumstances surrounding any
re-offending. So that means if you do offend in the next two years, it is almost certain you will be going to gaol for at least 12 months. I am confident, however, that will not be the case, and I am also satisfied that you have done your own prospects and life in Australia a great deal of damage as a result of you behaving in that crude drunken way you did on December 4, 2010.
26
In sentencing you, I take into account your plea of guilty, which I regard as a genuine expression of remorse, your previous good character, the fact that you were heavily intoxicated, so that I accept that what you did was out of character, and the fact that I regard you as being a very low risk of
re-offending in the future.
27 Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to an effective term of 18 months' imprisonment and ordered that you serve a minimum term of 12 months.
28 All right, are we done? That's everything. Thank you. I will return this. That goes back to the defence. Thank you very much. Yes, all right. Thank you.
29 Mr Madhanthadi can come out of the dock. Thank you.
30 I thank counsel for their assistance.
31 Yes, you can come out of the dock, sir.
32 Thank you, Madam Interpreter. Counsel are excused from the Bar table.
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