Director of Public Prosecutions v Narang (a pseudonym)

[2021] VCC 1188

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAMAL BNARANG[1]

[1] A pseudonym

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2021
DATE OF SENTENCE:	20 August 2021
CASE MAY BE CITED AS:	DPP v Narang (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1188

REASONS FOR SENTENCE

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Subject:

Catchwords:  Plea – sexual assault of a child, rolled up charges, offences all committed on one occasion, committed during yoga class, breach of trust, brazen offending in presence of mother of victim. No priors, delay, son with autism – increased burden of prison – standard sentence.

Legislation Cited:

Cases Cited:

Sentence:4 years imprisonment. Non-parole period 19 months. Sex Offenders Registration – 8 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Luke	Mr Alexander Lew
For the Accused	Mr A. Trood	Ms Kartya Gracer (Galbally and O’Bryan Lawyers)

HIS HONOUR: 

1Kamal NARANG, you have pleaded to two charges of sexual assault of a child under the age of 16.  The first charge on the indictment is a rolled-up charge comprising three occasions while the second charge is a rolled-up charge comprising two such occasions.

2The circumstances of your offending were outlined in a prosecution document which was tendered upon your plea and contained agreed sets of facts.  I shall refer to this as I summarise the nature of your offending.

3The complainant was 15 years old at the time of the offending and I shall refer to her as Maya CHOURDARY[2].  She lived with her mother, Rachana NIBHANUPUDI[3].  Rachana NIBHANUPUDI first met you when she enquired about a attending a yoga class taken by you at an address in the same suburb where both Rachana NIBHANUPUDI and Maya CHOURDARY lived.

[2] A pseudonym

[3] A pseudonym

4In July 2018, Rachana NIBHANUPUDI attended her first class.  This was in your home where you lived with your wife and two children and from which you ran the yoga classes.  On 30 July 2018, Maya CHOURDARY attended her first class with Rachana NIBHANUPUDI her mother. You explained to Maya CHOURDARY and Rachana NIBHANUPUDI what was involved and the benefits of yoga which Maya CHOURDARY accepted.

5The next day on 31 July in the early hours of the morning, both Maya CHOURDARY and Rachana NIBHANUPUDI attended a yoga class at your home.  The two of them were on separate parallel mats, about a metre away from each other.  During the class, Maya CHOURDARY told you that she was struggling to breathe and felt congested because she had a cold. 
You told Maya CHOURDARY’s mother to do a number of different positions while you purportedly assisted Maya CHOURDARY with her breathing.  You positioned yourself opposite Maya CHOURDARY with both of you having crossed your legs.  You placed her legs on top of yours and your face was very close to hers.  This made her feel uncomfortable.

6You then lifted up her T-shirt slightly and placed your hands around her stomach before moving them up under her bra.  You grabbed her breasts with both hands and touched them for about a minute.  Charge 1.

7You then moved your hands inside her underwear and started touching her on the vagina on the flesh for about a minute, Charge 2.

8You removed your hand from her underwear and licked your finger.  You then placed your hands up inside her T-shirt, inside her bra again and felt her breasts again, part of Charge 1.

9After that, you removed your hands from her bra and attempted to kiss the complainant, but she pulled away from you.  You changed position and grabbed her by the wrist and moved her hands towards your penis.  You said to her, 'Come on, touch it.'  Maya CHOURDARY said no and then you asked her 'You aren't comfortable?'  To which she replied 'No.'

10You moved behind Maya CHOURDARY and told the mother Rachana NIBHANUPUDI that you were helping Maya CHOURDARY with her breathing.  You sat behind her.  While in this position, you placed your left arm around your waist with your left hand on her stomach.  You pulled the waistband of what Maya CHOURDARY was wearing around her waist and put your hand inside her underwear again on her skin, touching her around the vagina.  Part of Charge 2.

11You removed your hand from inside her underwear and gain licked your hand.  You then put your hand up again under her shirt, inside her bra and rubbed her breasts and nipples, part of Charge 1.

12Before the end of the class, you told her ‘Maya CHOURDARY, you are feeling a bit tense.  We will continue this another time.'  Both Rachana NIBHANUPUDI and Maya CHOURDARY went home.  Maya CHOURDARY did not shower and kept her bra on as she prepared to go to school, she replaced her underwear when she changed into her school uniform.

13While she was at school that day, Maya CHOURDARY spoke to a friend, Kelly DEAN[4], disclosed to her that something had happened that morning.  Then later in the morning, she spoke to another school friend, Parvati MISHRA[5], and told her she had been sexually assaulted by you.  She was crying when she did so and was taken to the school counsellor, Tamara WILKINSON[6], by her friend, Parvati MISHRA.  The victim then complained to both Tamara WILKINSON and Parvati MISHRA together about what you had done to her during the yoga class.

[4] A pseudonym

[5] A pseudonym

[6] A pseudonym

14On 14 July 2019, Parvati MISHRA went to the Westgate SOCIT office and made a statement to police.  Maya CHOURDARY had said to Parvati MISHRA that she had frozen when you were touching her inappropriately and she could not yell for help.  Two detectives went to Maya CHOURDARY's school to investigate and Maya CHOURDARY told them about what you had done.  From her home, they collected a pair of yoga pants, a blue T-shirt, a bra, a yoga mat and they took a swab of her breast.

15The two detectives were not the first police to come to the school.  In July 2018, two constables of police who were on divisional van duties or patrol duties had gone to Maya CHOURDARY's school after being notified of a sexual assault there at the school.  They notified other police from the SOCIT Unit and handed the matter over to them when they attended.

16When they attended, the officers spoke to Tamara WILKINSON and then to Maya CHOURDARY and took her home.  As I said, they seized from her the items outlined before.

17On 31 July 2018, police arrested you in your car near your home.  Back at your house, they executed a search warrant and seized a number of items. 
You were then interviewed.  You made no admissions.  The breast swab which was originally taken in 2018 was examined in April 2019 by a forensic scientist and when subjected to DNA analysis, a mixed profile was obtained with a likelihood 36,000 times greater if you were one of the two contributors.

18Charges were issued in August 2019, with the first committal mention in October 2019.

19A victim impact statement was prepared by Maya CHOURDARY's mother.  She wrote of her stress in supporting her daughter's plight of anxiety which incurred also financial stress as a consequence as well as interfering with Maya CHOURDARY's education.  She writes that her daughter has not been the same since these events.  She has not been able to focus on her studies, has lost trust and self-confidence.  The process has been highly deleterious and painful for both.  Maya CHOURDARY is said to be fearful in building relationships and she has had to seek psychological assistance.  She has experienced a traumatic period of stress in which she is reminded of the incidents and has lost sleep and serenity.

20I take her statement into account and I take the impact upon both the mother and the daughter into account.  This is an important consideration in the synthesis of matters which are of fundamental importance in dealing with crimes and its consequences, particularly those of this nature.

21The reaction and long-term effect of your offending should not be under estimated because your abuse was of a single incident of repeated abuse of relative short duration.  The violation of a child's physical integrity by an adult is not just shameful and abhorrent to the community and offensive to its values but leaves long lasting damage and trauma which persists, and which blights lives for years and touches every aspect from health to education to relationships and loss of trust.  These impacts are seen every day in these type of offences by the court and the community rightly looks to the court to punish justly and denounce loudly such vile conduct and deter those who are like minded to offend against children in this way. 

22This offence is particular egregious as it was committed in a brazen matter in the presence of the child's mother under the pretence of a health practice in the manner which was facilitated by the trust reposed in you by both as a teacher and practitioner, which you breached, and this aggravates your offending.

23In my view, your moral culpability is high and your conduct reprehensible as motivated by self-gratification extracted by bare faced manipulation.

24I take your plea into account.  There are a number of aspects which are important in this context.  I accept it has a utilitarian value of having avoided a criminal trial.  It is an indication that you accept responsibility.  By doing so, you have facilitated the course of justice.  It is of itself some evidence of remorse.  Remorse is difficult to evaluate, particularly as it specifically refers to an insight or understanding on the impact of the victim.  I am unable to make such an assessment on the material before me, except that no doubt you now regret your conduct.

25Your plea was offered in February 2020 after three committal mentions on the basis somewhat similar to what your plea was before this court on this indictment.  That offer was rejected at the time.  It proposed a sexual assault on the basis of a rolled-up charge involving touching the breast and the stomach.  Thereafter more delays followed administratively after the adjournment of the committal mention in late 2019 and early 2020.  Then the matter was again impacted by the pandemic situation of 2020 but remained on foot as a trial, went through a s198A hearing, subpoena applications, ground rules hearing, special hearing, and an arraignment in January 2021 where you pleaded not guilty.

26In February, your plea offer was made and later accepted.  It is unfortunate that the process was marred by delays and by unsuccessful negotiations.  
In practical terms, you were willing to plead guilty to similar charges but of course that did not quite encompass your criminality in total as reflected by the current plea.

27I was given no explanation as to why it took the time that it took from interview to charge and that is a further delay that I take into account, but I cannot consider your plea to be an early plea under the circumstances.

28Nevertheless, you will be given credit for your plea and it will reduce your sentence.  The plea is also valuable as it is made in a time of pandemic in which over 18 months or so, it has rendered the delivery of outcomes by the criminal justice system very difficult.  It is a plea which, in view of the seriousness of the offences would inevitably have exposed you to incarceration at a time also when the prospects of reclusion are made worse and more burdensome than usual by the pandemic.  It has and will impact by way of lockdowns, much time in closed confinement, restricted services, unavailable work and programs and generally harsher conditions with a threat of a contagion also present.

29I take these significant matters into account.  I also add to this the delay that occurred at the start of the process, as I say, in relation to the charging.

30There were delays in the service of evidentiary material and those delays have contributed to this matter hanging over your head.  I note in passing also over the victim and her mother.  In your case, it has contributed to situational anxiety and depression.  I take these delays particularly in setting the non-parole period.

31I take your personal circumstances into account.  You are 47 years of age. 
You have no prior convictions and nothing in pending.  You were born in India, one of seven children.  Two of your sisters live in America, but the rest of your family is in India.  You completed a Bachelor of Science and post-graduate diplomas in computer applications and international business as well as an MBA in systems and marketing.

32You married in 2004 and have two children aged nine and 15.  Aged 32 in 2005, you came to Australia with your wife who is a doctor and received an accreditation in Australia.  You moved from Sydney to Melbourne in 2006. 
Over the past 18 years, you have had employment in IT and business intelligence involving workplace systems and analysis for corporations. 

33As the owner of your own company, the contract work is often subject to criminal checks.  I was told a recent work contract was cancelled upon disclosure of your guilty plea.  This may continue into the future and is an extra curial punishment which is likely to continue from time to time and I take this into account as a matter that may continue to impact your future viability in relation to work and your expertise.

34In 2015, you decided to run yoga classes which followed upon your longstanding personal practice.  However, since these events in 2018, you have not held a yoga class and do not intend to do so in the future.

35A significant matter which I take into account is the added burden of imprisonment in circumstances in which your nine-year-old son has been diagnosed with Autism Spectrum Disorder.  He has been so diagnosed since 2017 and both your absence and the impact on your relationship are matters which add to onus of reclusion upon you.  Your son is currently in the care of a psychologist to deal with social difficulties, peer interactions and social communication.  I take this added factor into account as your absence will not only impact your son, but naturally upon you.

36Your counsel relied on a number of reports during your plea which pertained to your son's condition.  The first was dated 1 February 2017 from Georgina Psomiadis, a clinical psychologist.  This is a very comprehensive report and I have little doubt your absence in his life will be a significant matter which will increase your burden given that despite the assessment relating to four years ago, he continues to need your support.

37This impact is confirmed in a brief letter from Amanjit Kaur, a psychologist at Psych 4 Kids dated July 2021, which confirms your son's attendance to appointments with a psychologist since February 2021, accompanied generally by you.

38This morning, I received further material in relation to this aspect.  A letter from psychologist Kaur mentioned earlier indicated that both your children are receiving psychological assistance and struggling to adjust to your absence. 
I have no doubt they will struggle with your imprisonment.

39Your wife, Dr Lakshmi NARANG[7], has also written a letter dated 19 August in relation to the difficulties she's experiencing managing the children, difficulties in managing which undoubtedly will fall primarily upon her, particularly related to your son's behaviour.

[7] A pseudonym

40I have taken the serious considerations into account again particularly in setting a non-parole period longer than I would otherwise.

41I take into account that through several Indian community organisations, you have raised funds for various charities, and they have been active for good causes in the community.  Those activities are often accompanied or in the context of festivals or activities and you have not only helped to coordinate them and organise the events but have performed yourself as a singer.  These efforts have raised funds for charities and community groups since 2009.

42Another aspect of your community work is your mentoring of a student, one per year from 2008 to 2020 for The Smith Family.  On a weekly basis, you have assisted students with your industry experience in a mentoring role.

43I have read a number of letters of appreciation which attest to your participation.  This is to your credit and I will take your efforts into account.  I also note a short letter from Dr Iqbal which is dated 10 July 2021, and which attests that you have been a patient at the Westgate Medical Centre since 2011 and confirms that you have been suffering from anxiety and depression for which you have consulted a psychologist on and off since 2015.  The offences took place in July 2018.

44I note as of February 2018, this offence of sexual assault of a child under 16 is a standard sentence offence with an associated standard sentence.  It was conceded by your counsel upon your plea that an objective analysis of the offending would enable without demur the offending to be classified in the medium to high range of offending.  I agree with this proposition fairly made for the reasons outlined in my reasons above.

45The two charges are further rolled up charges, that is a collection of identifiable charges bundled together in a single charge.  This was with your agreement.  This simplifies the sentencing task and allows the court to deal with the multiple instances in question to be dealt with in a single sentence for each charge.

46I have considered the standard sentence.  As with the maximum this is a guidepost in the context of the instinctive synthesis of a sentencing exercise.  There were no comparator cases brought to my attention, but I have sought some guidance from cases in order to take into consideration what current sentencing practices before this scheme were although the legislation directs me to comparator cases since the legislation as come into being.

47I have used those cases as a mere yardstick with which to calibrate the sentences that I impose upon you whilst taking into consideration the standard sentence.

48On your plea, it was put that a combination sentence could be imposed to satisfy the need for further supervision.  It was not argued with any great vehemence.  I agree with the contention that both specific deterrence, community protection will be adequately dealt with in significant moderation by the sentence I impose.

49Both of those sentencing principles appear to me to not require great weight to be assigned to them.  I also accept that your prospects for rehabilitation are reasonable.  However, I do not accept that a combination sentence is appropriate in my view.  The contention not only runs face first into the standard sentence provisions, but the community corrections order would have, in my view, little work to do in view of what I have just indicated and is not an appropriate vehicle for denunciation, just punishment and general deterrence.

50The sentence which I will impose will bring you under the requirements of the Sex Offender Registration Act 2014 and the obligations which such registration brings to bear upon you.  They are many and they are onerous.  You will be registered for a period of eight years.  I will sign an order for the disposal of the clothing seized.

51On Charge 1, you are convicted and sentenced to four years' imprisonment.  On Charge 2, you are convicted and sentenced to four years' imprisonment.  The periods will be wholly concurrent.  I fix a non-parole period of 19 months before you are eligible for parole. 

52How many days of pre-sentence detention, Mr Trood?

53MR TROOD:  It is 36 and that is excluding today.  So, going into custody on the day of the plea up until yesterday is 36 days, Your Honour.

54HIS HONOUR:  Thank you, Mr Trood.  I will declare that you have served
36 days by way of pre-sentence detention and I will note that for the records of the court.

55But for your plea, I would have sentenced you to five years with a non-parole period of three years.  Are there any other orders that I need to make Mr Luke?

56MR LUKE:  No, Your Honour.

57HIS HONOUR:  Mr Trood, is the effects of the sentence clear to you?

58MR TROOD:  Yes, thank you, Your Honour.

59HIS HONOUR:  I note that because we have that opportunity, I do not know whether you want to speak to your client.  I can certainly make sure that everybody else is out of link or in the lobby somewhere so that you can have a conversation with your client, if you wish.

60MR TROOD:  I'd be grateful for the opportunity, Your Honour.

61HIS HONOUR:  Yes, thank you, Mr Trood.  We'll adjourn sine die.

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