Director of Public Prosecutions v Mutta

[2014] VCC 746

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-02030

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASWINDER MUTTA

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 May 2014
CASE MAY BE CITED AS:	DPP v Mutta
MEDIUM NEUTRAL CITATION:	[2014] VCC 746

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes
For the Accused	Mr L. Barker

HER HONOUR:

1Jaswinder Mutta, you have pleaded guilty before me to one charge of indecent assault.  The maximum penalty for that offence is ten years imprisonment.  The facts of the matter were open by the prosecution, and a summary of the prosecution opening was tendered as Exhibit A on the plea.

2In summary, the complainant, KR, caught a taxi driven by you after a night out with friends.  She was effected by alcohol when she entered the taxi, and having vomited in it, she was asked by you to pay for cleaning.  She had insufficient funds in her credit card, however she did manage to pay the fare and you took her home after some discussion about her getting out of the car, and you said you would drive her home.

3You arrived at her address where she went in.  She saw her flatmate and she returned out to the taxi with cleaning implements to clean it, I presume in relation to some sort of arrangement but you were waiting outside.

4As she began to clean it, she was assaulted by you.  You removed her jeans and underwear while holding her down, and during this time, you ejaculated both on her and in the car and you did this while KR was either not consenting or was so effected by alcohol that she was incapable of agreeing to what you were doing.

5This is a serious offence where you took advantage of a vulnerable young woman, who had engaged you in your capacity as a taxi driver and trusted you to take her home safely.  You breached that trust in an appalling manner which has had a devastating effect on her.  A victim impact statement tendered as Exhibit B was read to the court by KR and it provides an insight into the terrible effect sexual assault can have on victims.

6She is clearly an intelligent and articulate young woman who has over the last four years lost her job, given up the prospects of teaching in France, finds herself socially paralysed and has returned to live with her parents.  It is only to be hoped that her obvious strength of character will prevail and allow her to return fully to her own life.

7Tendered as Exhibit C was a victim impact statement read by her mother, MR, which reflects the pain of a parents who observes the suffering of their child when they see them lose all the prospects of the life they have worked hard for and it all just falls away.  I take those victim impact statements into account in sentencing you.

8I now raise matters personal to you.  You have now been in custody for as I understand it, two years, four months and 16 days, having left Australia after being charged with this offending, and in fact offending that was more serious and having you left and went to India, and having surrendered yourself into custody in India pending extradition to Australia.  You spent some time in custody there.  You have virtually been in custody since 5 January 2012 and you currently are still in custody in protection as I understand it at the Melbourne Remand Centre in very difficult conditions because of problems you have had while being in custody.

9You are now aged 27.  You were in Punjab, and you came to Australia as a student on a student visa.  I note that you have returned on a criminal justice visa and you will be deported on completing any sentence imposed on you in this matter.  You are from a poor, but supportive family, and I note that you have no prior or subsequent criminal offending to your name and I take all those matters into account.

10I also take into account the difficulties that you have had in the prison system and the delay that this matter has now been some four years and you have had it hanging over your head, that is a double edged sword and it has also of course been hanging over the head of KR.

11I am also required, and I take all your personal circumstances into account, I also take into account the other matters which I am required to take into account in any sentencing in this state.  Firstly, general deterrence and that is that any sentence I give, must deter others from taking advantage of vulnerable people that they have in their control and care, and sexually assaulting them.

12I further have to take into account - yes specific deterrence, that is that you yourself must be deterred from ever committing any such act again and I do take into account in relation to that the efforts that you have made in prison, and a number of certificates were tendered to me as Exhibit 2.  That illustrates to me that you have the intention of rehabilitating yourself and in fact making the most of the time that you have on your hands in the prison system, and I further consider that the experience that you have had having been extradited, and the time you have spent in the prison system will be a sufficient deterrence for you and that does not figure largely in my sentence.

13I am also required to denounce your conduct, and I do so absolutely.  The community will not tolerate people engaged in services who take advantage of their position to abuse or sexually assault people in their care.  I am also required to impose just punishment in all of the circumstances and I take into account of course all the submissions made in mitigation on your behalf, and also the concessions made by the prosecutor representing the Director of Public Prosecutions, and I have concluded that of course the only appropriate sentence would be a term of imprisonment.  However, in the circumstances of this matter, I have taken the view that the time that you have already spent in custody will be a sufficient period of incarceration.  Could you please stand for me. 

14In relation to Charge 1, I convict you and sentence you to 869 days imprisonment. I declare that 868 pre-sentence detention be declared time served and that that fact be reflected in the records of the court. Pursuant to section 11(1)(b) of the Sentencing Act, I consider that the circumstances of the offence and your personal circumstances, including your pre-sentence detention and imminent deportation, make it appropriate not to fix a non-parole period. That will have the effect that you will be released sometime tomorrow, that will give time for all official matters to be taken care of. You will then be released to go into immigration detention.

15Pursuant to s. 6AAA, I declare that but for your plea of guilty, I would have sentenced you to three years imprisonment and that completes the sentence. There are ancillary orders sought and I make the disposal orders sought by the Crown. I will now sign those orders and hand them down.

16MR BARKER:  Those are consented to Your Honour.

17MS HOLMES:  As Your Honour pleases.

18MR BARKER:  May the prisoner be removed?

19HER HONOUR:  Yes, and you can take the prisoner down, thank you Mr Mutta.  You've understood that?

20OFFENDER:  Yes Your Honour.

21HER HONOUR:  Yes, thank you.  Now that completes the matter and I'll now leave the Bench.

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