Director of Public Prosecutions v Mahesh (a pseudonym)

[2019] VCC 959

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

AT MILDURA
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

IMMANUEL MAHESH (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Mildura
DATE OF HEARING:	26 June 2019
DATE OF SENTENCE:	26 June 2019
CASE MAY BE CITED AS:	DPP v Mahesh (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 959

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE

Catchwords: Early Plea – Stalking – Sexual assault – cultivation of a narcotic plant – possession of a drug of dependence – possession of child abuse material – attempted intimidation or reprisal – serious offending – breach of trust – serious sex offender - good prospects of rehabilitation

Legislation Cited: Sentencing Act 1991; Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981.

Cases Cited: Director of Public Prosecutions v Jackson Lade (a pseudonym) [2017] VSCA 264; considered.

Sentence: Total Effective Sentence: 2 years and 5 months imprisonment, Non-Parole period: 19 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr G. Davis	Hilton-Wood Solicitors

To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses

HIS HONOUR:

1Mr Mahesh[1], you have pleaded guilty to one count of stalking, three counts of sexual assault, one count of cultivating a narcotic plant, two counts of possession of a drug of dependence, one count of possession of child abuse material, one count of attempted intimidation or reprisal following involvement in a criminal proceeding and two uplifted summary charges, one of possession of a Schedule 4 poison and one of possession of a prohibited weapon, being a Taser.

[1] A pseudonym

2The maximum penalties for each of those offences are set out in the prosecution opening and I incorporate them by reference.  The circumstances of the offending were set out in the prosecution opening which was read in open court this morning and which I incorporate by reference.

3In brief outline, you were a methylamphetamine addict and you came into contact with the complainant in circumstances where she was also a user of that drug.  You were providing her with methylamphetamine and at some stage the two of you got closer in that you were imbibing the drug together.

4It was in that context commencing in early 2018 that she had moved out of her family home into her own unit. You began coming to her place to provide her with the drug and to smoke it with her.  She became uncomfortable with you attending her premises but you continued to do that, arriving uninvited on multiple occasions.

5It was in the period commencing from about mid-April 2018 until 2 June last year that when you were attending her premises often she was intoxicated with amphetamine and you proceeded to video her without her knowledge.  The attending at her premises uninvited and taking videos of her without her knowledge, constitutes the charge of stalking.

6Over the relevant period of the offence you in fact had taken nine videos of her, mainly when she was asleep, including one where the two of you were smoking ice together.  That constitutes Charge 1, stalking[2].

[2] Stalking contrary to s 21A of the Crimes Act 1958

7Charge 2 is a charge of sexual assault and it involves circumstances where in the early hours of the morning of 25 April you were at her unit and you used the camera to film her when she was asleep, with her underpants and legs exposed. You then zoomed in on her underpants. This was in the film which is all recovered from the phone that was seized from your property later. Then when she was lying on the bed on her back with her underpants exposed, you proceeded to sit next to her and stroke her groin. She immediately responded by rolling over to stop you and then you touched her on the buttocks. Those two touches constitute the first charge of sexual assault, Charge 2.[3]

[3] Sexual assault contrary to s 40 of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016

8The next charge, Charge 3 was about a month later, 23 May. In the early hours of the morning, she was asleep on her front with her buttocks partially exposed. You were filming yourself pulling her pants down to expose her buttocks, and you filmed a 17 second video there with her buttocks exposed while she continued to sleep. That constitutes Charge 3, sexual assault.[4]  The final sexual assault charge involved events on 1 and 2 June when the complainant, who at that stage with the assistance of her mother was about to go into rehabilitation, to get herself off the methylamphetamine.

[4] Ibid

9You had been smoking it with her the night before on 1 June and then at 5.36 am the next morning, 2 June, you recorded nearly a 20 minute video of her asleep in her room on her back wearing a top and pants with a dressing gown.

10You were wearing a long sleeved shirt and underpants and got on top of her, wrapped her arms around her body and proceeded to grind your groin against her.  She then resisted you, pushed you off and said, 'I thought you'd gone ages ago'.

11This event of you grinding your body against her when she was asleep, she was then screaming, this constitutes the third count of sexual assault, Charge 4. She did not see you again.

12The police later raided your house and found a great collection of items usually associated with drug addiction and drug trafficking, including a number of mobile phones and a number of different types of drugs, methylamphetamine, and cannabis. A number of cannabis plants were being cultivated, both in one room and outside.  That constitutes Charge 5.[5]  Cannabis found in a dry state, constitutes Charge 6[6], and methylamphetamine, some of it packaged up into zip lock bags, making up an amount of some 7.19 grams.  That constitutes Charge 7.[7]

[5] contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981

[6] Possession of a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[7] Ibid

13When the police seized your phone they then found amongst thousands of photos five child abuse images which were classified under the relevant ‘Classification Scheme’ for child pornography or child abuse material.  That constitutes Charge 8.[8]

[8] Possession of child abuse material contrary to s 51G(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016

14Charge 9 involved an event about a month after you had been charged, where you arranged or procured a friend of yours to seek to contact the complainant at her workplace. The complainant was able to record some sort of phone call or a pretext call to get an admission that, that event occurred.  So that is Charge 9, which constituted an attempt to contact her in order to put pressure on her to drop the charges or drop a charge.

15The two summary charges involves the finding of a taser in your property in one of the rooms in the house.  That is the second summary charge.[9] The finding of two lots of prescription medicine which you were not entitled to, constitutes the first summary charge.[10]

[9] S5AA Control of Weapons Act 1990 (Vic)

[10] S36B Drugs, Poisons and Controlled Substances Act 1981

Seriousness of the offending.

16Your counsel did not dispute that this was serious offending.  The offending arose out of your addiction to methylamphetamine.  This led to you meeting the complainant and then supplying her, also a methylamphetamine addict, with that drug.

17It was in those circumstances that you became involved with her and that led to you stalking her by way of accessing her property on a number of occasions and videoing her while she was either unaware of your presence or so intoxicated by the drug to be unaware of your actions.

18Over the period of the offending you took a total of nine separate videos.  The circumstances in which you accessed her property remain unclear.  It is clear however that the complainant was under the influence of drugs or even asleep during a number of the videos.

19Further, on the complainant's account, at no stage did she give you carte blanche access to her property. This makes the circumstances of you accessing her property, on occasions offering her methylamphetamine and videoing her, a particularly nasty form of stalking.

20It was in the circumstances of her helplessness in the face of her addiction that you committed the three sexual offences against her.  In relation to Count 2 she had been asleep, after you had been videoing her you moved to sit on the bed and began to stroke her groin.

21She responded by rolling over as I have indicated to stop and you then touched her buttocks.  It is clear from the prosecution summary that she was not consenting to your conduct, nor it appears was she capable of doing that. She indicates in her statement that at no stage did she intend to have any form of sexual relationship with you.

22In relation to Charge 3, about a month later, she was asleep face down and you proceeded to film yourself pulling her pants down and exposing more of her buttocks. You then proceeded to further record her.

23The final count, Count 4, again you found her asleep. You had earlier been discussing the fact that she was about to go into rehab and you had been smoking methylamphetamine together. It was some hours later that you proceeded to wrap your arms around her and began grinding your groin against her.  She awoke and pushed you off.  Her reaction indicates fully that she was in no way in a position to consent to that conduct.

24This was a particularly serious example of sexual assault in that you must be taken to have been aware that the complainant was asleep, after earlier ingesting methylamphetamine in your presence. You took advantage of her, a vulnerable person, and abused her trust.

25In relation to all the three sexual assaults she was a vulnerable person and there was an abuse of trust in relation to each of the counts.  Overall Counts 1 to 4 could be seen as something of a course of conduct involving your exploitation of her vulnerability and drug addiction for your own gratification.

26Turning to the other charges, the charge of cultivating cannabis is at a lower level of seriousness with a relatively small number of plants and a very unsophisticated setup.  Similarly the amount of cannabis possessed is relatively low.  In relation to the methylamphetamine, while the amount is low, it is clear that you were set up for trafficking that drug.  It is common ground that the methylamphetamine and cannabis was for the purposes of trafficking.

27In relation to the possession of child pornography and child abuse material offence, it was accepted by the prosecution that this was a low number of images, at a lower level of seriousness.  I have not found it necessary to view the material and I am content to rely on the relevant classification for the purposes of sentencing you.

28In relation to the charge of possession of unauthorised poisons, I accept the submission of your counsel that this was prescribed medication and thus is at a lower level of seriousness.

29The offence of attempted intimidation of a person in a criminal proceeding is serious as it strikes at the heart of the criminal justice system.  Although the offence could not in fact have been achieved, there were two attempts by you to have another person contact the complainant.

30Your counsel gave an explanation for your actions. While the explanation has some cogency, the fact that you were not prepared to allow the processes of the criminal justice system to proceed, and unsuccessfully on two occasions sought to contact via an intermediary the complainant, shows that this was a significant attempt on your part.

Victim impact statements. 

31I am required to take into account the victim impact statements.  The complainant indicates that your offending has had a major impact on her.  She could not continue working and she has lost her house.  She feels angry, blames herself and has trouble trusting people.  For a young person this is a very significant impact.

32She had to go into rehab and your offending has had a major toll on her family. She has lost a lot of her social life.  While some of the matters referred to in her statement may be related to her drug addiction, I am satisfied that your offending has had a significant impact on her and that is a matter that must be taken into account.

33The complainant’s mother also submitted a victim impact statement.  She indicates that she has been significantly impacted by your offending and the impact of it on her daughter. She is on medication and felt that she has failed as a parent, as she noticed her daughter struggling with her addiction and the impact of your offending.

34Again I must take into account the impact of your offending on the complainant’s mother and it goes to emphasise the seriousness of your offending.

Matters in mitigation. 

35Your counsel put a number of matters in mitigation which I take into account.  First, you have pleaded guilty to all the charges and the prosecution accepts that this was at an early stage.  It has obviated the need for any committal proceeding or exposing the complainant to cross-examination.

36So you have accepted responsibility for your conduct and facilitated the course of justice.  Although there is no direct evidence of the matter, I am prepared to accept you are remorseful in relation to the sexual offences and I take that into account.

37Your personal circumstances were outlined on the plea and I incorporate them by reference.  You came to Australia from Malaysia in 2017 hoping to establish a new life with your wife.  You come from a middle-class family in Malaysia and have tertiary qualifications in robotics from Deakin University, a diploma from Lancaster University and a certificate from an institute in Malaysia.

38You are the oldest of five siblings, with your other siblings in tertiary education in Malaysia.  You were able to utilise your own tertiary qualifications to work in the oil industry in Malaysia but unfortunately you lost your job in 2014 during an economic crisis there.  You then came to Australia and you have been in Mildura since 2018. You established a small labour hire business for people working in the fruit industry.

39You began using ice before arriving in Australia and obviously continued that in Australia.  A major matter on the plea is that your wife has a nine-month-old child.  You are not in a position to provide her with any support  She is on some form of bridging visa and is effectively living on charity.

40This is a matter weighing heavily on you, and I have taken into account. I have also taken into account a letter that I have received from your wife.  Your family in Malaysia is unaware of your forensic predicaments, you are likely to be disowned by them when they find out about it and you return to Malaysia.  This will obviously increase the burden on you of imprisonment.

41You expect that you will be deported upon completion of your sentence.  You will thus be unable to establish your life in Australia and support your wife and child.  This will make imprisonment more burdensome for you and I take this into account.

42I also take into account that you will be somewhat isolated in prison without any family support here in Australia.  Given your lack of prior convictions, your tertiary qualifications and work history I would regard your prospects overall of rehabilitation as good and I take them into account.

Sentencing issues. 

43The learned Crown prosecutor noted that this was serious sexual offending and it had escalated.  Further, although the stalking conduct was somewhat bizarre, it is not surprising that it would have an impact on the complainant once she became aware of your videoing of her.

44You are to be sentenced as a serious sexual offender[11] in relation to any sentences of imprisonment after two relevant counts, and the court when doing so must give primary weight to protection of the community and impose a cumulative sentence unless otherwise ordered.

[11] Section 6B of the Sentencing Act 1991

45I was referred to the case of Lade [12] by the learned Crown prosecutor as having some possible relevance as well as to the sentencing snapshot for sexual assaults.  Each case must be determined on its own merits but I have had regard to the sentences imposed in Lade and also the sentencing snapshot.

[12]Director of Public Prosecutions v Jackson Lade (a pseudonym) [2017] VSCA 264

Purposes of sentencing. 

46The basic purposes for which a court may impose a sentence of imprisonment are, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances, and those of the victim, if any.

47I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

48In this case considerations of general deterrence and denunciation are important.  The sentence of the court must denounce your conduct in taking advantage of a vulnerable complainant who you would have been aware was either a sleep or intoxicated by drugs.  Your conduct overall was absolutely outrageous and must be utterly condemned.

49The courts must by their sentences protect vulnerable women and you have breached the trust of this vulnerable and drug addicted woman.  Personal deterrence is also of some relevance, although lesser relevance given your lack of prior convictions.

50Rehabilitation is relevant and I have regarded your prospects of rehabilitation as good.  After I have considered all the individual sentences I must step back and have regard to considerations of totality, although it is important to note that considerations of totality must give weight to the sentencing purposes in relation to sentencing you as a serious sex offender.

51Could you please stand?  On the charge of stalking you are sentenced to six months' imprisonment.  On Charge 2, sexual assault, you are sentenced to eight months' imprisonment.  On Charge 3, sexual assault, you are sentenced to eight months' imprisonment.  On Charge 4, sexual assault, you are sentenced to 18 months' imprisonment.  That is the base sentence.

52On Charge 5 of cultivating cannabis you are sentenced to six months' imprisonment.  On Charge 6 of possession of cannabis you are sentenced to one month imprisonment.  On Charge 7, possession of methylamphetamine, you are sentenced to six months' imprisonment.  On Charge 8, possession of child abuse material, you are sentenced to seven days' imprisonment. In sentencing you on Charges 4 and 8 I have sentenced you as a serious sex offender and have ordered for this to be entered into the of the Court.

53On Charge 9 of attempted intimidation or reprisals relating to a criminal proceeding you are sentenced to six months' imprisonment.  On the summary charge of possession of a scheduled poison you are fined $300.  On the second summary charge of possession of a prohibited weapon or prohibited item, the taser, you are sentenced to seven days' imprisonment.

54I order that two months of the sentence on Charge 1, two months of the sentence on Charge 2, two months of the sentence on Charge 3, one month of the sentence on Charge 5, two months of the sentence on Charge 7, two months of the sentence on Charge 9 be served cumulatively on each other and on the sentence imposed on Charge 4.

55Otherwise the sentences are concurrent which makes a total effective sentence of two years and five months' imprisonment and I set a non-parole period of 19 months. I declare pre-sentence detention of 299 days.

56I declare had you not pleaded guilty I would have imposed a total effective sentence of three years' imprisonment with a two year non-parole period.  The prosecution have sought a forensic sample.  I must advise you that the authorities have the right to use reasonable force to obtain a mouth swab sample from you and I make the order given the seriousness of the offending.

57HIS HONOUR:  The prosecution have also sought that the various items seized from your property be disposed of and I have made those orders.  Any other matters I have not addressed, Mr O'Doherty?

58MR O'DOHERTY:  No, Your Honour.

59HIS HONOUR:  I thank you for your assistance, Mr Davis.  I will adjourn the court.

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