Director of Public Prosecutions v Nelluri

[2017] VCC 1087

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01176

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINOD NELLURI

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2017
DATE OF SENTENCE:	9 August 2017
CASE MAY BE CITED AS:	DPP v Nelluri
MEDIUM NEUTRAL CITATION:	[2017] VCC 1087

REASONS FOR SENTENCE
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Subject:    Assault with intent to commit a sexual offence
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E Carins	OPP
For the Accused	Ms M. O'Brien	Lethbridges

HER HONOUR:

1Vinod Nelluri, you have pleaded guilty to one count of assault with intent to commit a sexual offence.  The maximum penalty for this offence is 15 years.

2On the night of Friday 15 July 2016, Kavita Sharma,[1] who was then aged 25, drove to Melbourne Central shopping centre and parked in the car park.

[1] Kavita Sharma is a pseudonym

3At about 7.45 pm you and your friend arrived at the Melbourne Central train station.  You soon, thereafter, went to the Asian Beer Café.  You had with you a red and black backpack.

4At approximately 8.05 pm, Ms Sharma met three friends at the Asian Beer Café.  She stayed there for a while then moved onto the Melbourne Central Lion Hotel at about 10.15.

5At about 12.30 am on Saturday 16 July, Ms Sharma left the Lion Hotel with her friend to get some takeaway food in North Melbourne.  She was later dropped off at La Trobe Street, outside Melbourne Central, at approximately 1.10 am so she could return to her car.

6As Ms Sharma walked across La Trobe Street, you and five friends walked down the steps of Melbourne Central onto La Trobe street.  You were walking a few steps behind Ms Sharma.  Ms Sharma turned left towards her car and you continued walking with your friends along La Trobe Street.

7You then turned around and walked the ramp at Melbourne Central car park without telling your friends.  They soon realised you were not with them and called you, unsuccessfully, several times on your mobile phone.

8At 1.29 am Ms Sharma called her friend, Mr Fhanindher Reddy Komma Redey, to arrange for him to pick her up her up at her car.  As she was standing behind her car speaking to Mr Redey, you approached her and interrupted the phone call.  You began speaking to Ms Sharma in Telegu, your native language.  You told her you had missed your friends and that you did not know where to go.  She told you her friend was coming to pick her up and offered to drive you to find your friends.  She then finished her phone call to Mr Redey.

9Ms Sharma opened the backdoor and leant inside to place her belongings in the car, as she did this you pushed her in the back, forcing her into the back seat.  You also got in the back seat and Ms Sharma panicked and began shouting.  You then slapped her face a number of times. Ms Sharma attempted to get out of her car but you shut the door and slapped her again, before telling her not to open the door or to yell or you would kill her.

10She was scared and pleaded with you not to do anything to her.  You told her you would finish it fast and go as her friends were coming anytime.  You started to kiss and hug her and again, told her if she shouted you would kill her.

11You then forcibly removed Ms Sharma top and bra, before touching her breasts.  She tried to push you away but she was overpowered.  You then pulled off her leggings and underwear, causing her to be completely naked.  You then took off your shirt and pulled your jeans down to your ankles, exposing your penis.

12At approximately 1.43 am, Mr Redey walked down the ramp into the car park and phoned Ms Sharma in an attempt to locate her.  As the phone call rang out he saw her car in the parking bay.  Ms Sharma saw him and started banging on the windows of her car, motioning with her hands for help.  Mr Redey opened the rear driver's side door, slapped you across the face and told you to, "Fuck off".  You grabbed your hooded jumper and walked off.  You soon returned to get your backpack that you had left in the car and then walked off again.

13Police were able to identify you from evidence obtained, including a combination of CCTV footage, data from mobile phones and the Melbourne Central Myki machine.  These placed you in the vicinity and at the scene at relevant times.

14Police went to your home on 23 July and located the backpack depicted on CCTV, your phone and Myki card.  You were interviewed and made admissions to kissing and hugging Ms Sharma in her car, though, you maintained that sexual activity between you was instigated by her and was consensual.

15I received a victim impact statement from Ms Sharma, the contents of which were read in court.  I take the admissible portions of the statement into account.  In that document Ms Sharma eloquently sets out the effect of your offending on her.  She states:

"I have no words to express how much pain this has caused.  I am a completely different person now.  I am scared, frustrated and irritated all the time.  I do not remember the last time I have laughed happily".

16Later in the statement she says:

"For something that I have not committed any mistake, I am facing issues which I feel I am not deserved to.  I am trying to be as strong as I can but this has affected me in a huge way and will continue affecting me my entire life".

17Your offending has affected her sleeping, health, employment and economic security, social life and most significantly her confidence and personal sense of security in conducting ordinary daily activities.  All aspects of her life have been affected.

18You are currently aged 24 and were at the time of this offending living in Springvale.  You came to this country on a student visa, studying for a Masters of Commerce at Charles Sturt University, Melbourne.

19You were born and grew up in India and you are an Indian national.  You are from a small town called Kodhev, your parents are rice growers there.  You have one sister who is 12 years older than you.  You had a simple and happy childhood.  You assisted your father with work at home whilst you were at school.  Your schooling was disrupted through this work and also because you had to travel quite a distance to get to school.

20When you finished school you lived with your sister in Hyderabad and studied commerce.  In 2015 your father mortgaged his property to fund you studying accountancy in Australia.

21You spoke limited English when you arrived here and lived with a group of other males in Springvale.  You worked in a food factory in Noble Park to support yourself.  As a consequence of this offending and your incarceration your family has lost a significant amount of money.  I was informed that your parents are very angry and disappointed in you.

22As to this offending, I was informed that you had had only very limited contact with women in social terms throughout your life, with no previous intimate or personal relationships.  I was informed that you were not used to going out or consuming alcohol when you came to Melbourne and you were very inexperienced in going to clubs, as you did this night.  This naivety and immaturity, it was submitted, was apparent in your record of interview.

23You are very isolated in custody, having only phone contact with your family in India.  This is difficult to arrange and expensive.  Additionally, there has been issues in gaol which has required you to be placed in protective custody for the last ten months.  I accept that you face the prospect of deportation at the end of your sentence.  All of these matters make your period in custody more burdensome.

24I take into account your plea of guilty.  Although it was not at the first opportunity, I accept that some delays were not attributable to you, given the unavailability of interpreters and your change of solicitors.  Your plea has mean that Ms Sharma has not been required to give evidence and go through the trauma of these events again.  Additionally, there is a significant utilitarian benefit in the plea, saving the community the cost and inconvenience of a trial.

25I received references from a person who worked with you, your sister and a cousin.  These are, collectively, Exhibit 1 and I take all that material into account.  Each of them indicates that you are both hardworking and trustworthy.  Additionally, you sister refers to the significant burden on your parents, given your circumstances and also to your remorse.  I accept your plea is also indicative of remorse.

26You have no prior convictions.  The prosecution did not challenge the defence submission on your behalf that your rehabilitation prospects were fair and I accept that submission.

27As was conceded by your counsel, this was a serious example of this offence.  The gravity and objective seriousness cannot be disputed; (1) Your victim was unknown to you; (2)  It occurred in the middle of the night in a relatively secluded area and your victim was vulnerable; (3) The effect on your victim has been significant; Your offending was opportunistic; and (5) You took advantage of the good nature of your victim to engage with her.

28Your counsel properly conceded that the only appropriate disposition was a term of imprisonment.  Sentencing principles of just punishment, denunciation and general deterrence are important sentencing considerations.  I also take into accounts specific deterrence, though given your lack of prior history this should be attributed less weight.  These matters must be balanced with the matters in your favour, including your personal circumstances and your plea.

29Mr Nelluri, could you stand up please

30OFFENDER:  Yes - yep.

31HER HONOUR:  In respect of the offence before me you are convicted and sentenced to a period of imprisonment of 5 years with a non-parole period of three years.  Presentence detention 381 days?

32COUNSEL:  Yes, Your Honour.

33HER HONOUR:  Yes, I declare presentence detention of 382 days.  I understand there's automatic retention for the forensic sample.

34COUNSEL:  That's correct, Your Honour.

35HER HONOUR:  So there's no other orders?

36COUNSEL:  No, Your Honour.

37HER HONOUR: Pursuant to s.6AAA of the Sentencing Act, if you had no pleaded guilty to this matter I would have imposed a sentence of seven years' imprisonment, with a minimum of five years.  Thank you, I'll just stand down.

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