Director of Public Prosecutions v Patel

[2024] VCC 1472

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01437

DIRECTOR OF PUBLIC PROSECUTIONS

v

KASHYAP PATEL

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JUDGE:	His Honour Judge Rozen
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2024
DATE OF SENTENCE:	16 September 2024
CASE MAY BE CITED AS:	DPP v PATEL
MEDIUM NEUTRAL CITATION:	[2024] VCC 1472

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Guilty Plea – Sentence indication - Sexual offending against child under 16 – Grooming – Transmitting indecent communications – Sexual assault – Delay – Extensive efforts at rehabilitation – Stable family life and employment – Limited but developing insight – Combination sentence.

Legislation Cited:      Crimes Act 1958 (Vic); Criminal Code Act 1995 (Cth); Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004(Vic).

Cases Cited:Meadows v The Queen [2017] VSCA 290; Brown v The Queen [2019] VSCA 286; DPP (Cth) v Singh [2017] VSCA 146; R v Gajjar [2008] VSCA 268

Sentence: 9 months’ imprisonment - 2 year CCO - S 6AAA declaration – 14 months’ imprisonment - 2 year CCO.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Chrisanthi Paganis	Director of Public Prosecutions Victoria
For the Accused	Ms Amelia J Beech	Gallant Law

HIS HONOUR:

1Kashyap Patel, you have pleaded guilty to:

(a)   One charge of grooming a child under 16 years of age;[1]

(b)   One charge of transmitting indecent communication to a person under 16 years of age;[2] and

(c)   One charge of sexual assault of a child under 16 years of age.[3]

[1] Crimes Act 1958 (Vic) s 49M (‘Crimes Act’).

[2] Criminal Code Act 1995 (Cth) s 474.27A.

[3] Crimes Act (n 1) s 49D(1).

2Each offence attracts a maximum sentence of 10 years’ imprisonment. In addition, the sexual assault charge has a standard sentence of 4 years.

3The sentences I impose today follows a sentence indication that I gave on 15 April 2024, which you have accepted. Your guilty pleas were made at the first available opportunity.[4]

[4] Criminal Procedure Act 2009 (Vic) s 209.

Factual Background

4The agreed factual basis is in the Summary of Prosecution Opening dated 11 September 2023.[5] In all of the offending, the complainant is Camille Morrow.[6] Camille had recently turned 15 when the offending took place.

[5] Exhibit P1.

[6] A pseudonym.

5In broad summary, you introduced yourself as ‘Luke’ to Ms Morrow on an anonymous chatting application called Antiland. She told you that she was 15 years of age and studying at school.

6You told Ms Morrow that you were looking to meet someone for casual sexual intercourse.

7Between 4 February 2021 and 21 February 2021, you:

(a)   Asked Ms Morrow to meet you after school for sex and told her that you would bring protection;

(b)   Asked Ms Morrow to send you sexually explicit photos of herself;

(c)   Received from Ms Morrow 3 photos of herself, including one in which her breasts and vagina were visible having told her that you could use the photos to obtain contacts for her escorting;

(d)   Told Ms Morrow that you wanted to masturbate in front of her and encouraged her to do the same;

(e)   Were told by Ms Morrow that she was not interested;

(f)    Asked Ms Morrow if she wanted to work as an escort in brothels, and told her that she could make a lot of money if she was prepared to do so and swallow semen;

(g)   Told Ms Morrow that you could mentor her; and

(h)   Organised a meeting with Ms Morrow so that the two of you could have sex after school including instructing her how to dress to facilitate this occurring in your car (Charge 1).

8On a date during that period, you sent Ms Morrow a photo of your erect penis (Charge 2).

9On 18 February 2021, after the COVID 19 lockdown concluded at 1.00 am, Ms Morrow agreed to meet you after you said you would supply her with cigarettes. You picked her up in your car near her parents’ house in Brighton East. Ms Morrow got into your car at your direction.

10You drove for a short distance before stopping in Were Street, Brighton and started to converse with Ms Morrow after giving her a cigarette.

11You touched her on the arms and upper thigh in a sexual manner (Charge 3).

12You then said that you were not sure if you wanted to have sex with her as she seemed like a nice girl. She said she wanted to be friends.

13After talking for a while you dropped Ms Morrow at home and said you wanted to meet again.

14Shortly after she returned home, Ms Morrow told her father about her interactions with you. Mr Morrow reported this to the police and the matter was investigated. Ms Morrow made a Visual Audio Recorded Statement.

Arrest and interview

15The police executed a search warrant at your home on 19 May 2021 and seized your mobile phone and storage devices. You were arrested and participated in a recorded interview.

16In the interview, you claimed that you met Ms Morrow on Antiland and that she said she was 18 or 19 and wanted a vape in exchange for sex. You told police that Ms Morrow wanted to do escorting.

Objective gravity and moral culpability

17Charge 1 is serious offending. There are a number of factors present that make it so:

(a)   The age of your victim who had just turned fifteen;

(b)   The age gap between the two of you which was 25 years;

(c)   Using a false name suggested a degree of planning by you;

(d)   The sending and requesting of indecent images (although I note that the sending of the photo by you is the subject of a separate charge and you cannot be punished twice for that);

(e)   The particularly depraved suggestions you made, including suggesting that this 15 year old school girl may be interested in working in a brothel and that you could facilitate that; and

(f)    The arranging of a meeting and following through with the meeting to have sex with Ms Morrow.

18Mitigating matters sometimes seen in such cases, such as you being young or suffering from an intellectual disability are wholly absent.

19The use of highly sexualised language in the communications makes the grooming offence more serious. As the Court of Appeal has explained, ‘… the objective of procuring the victim’s participation in sexual activity is advanced by the use of explicit images and/or language’.[7] This is directly relevant to your moral culpability.

[7] Meadowsv The Queen [2017] VSCA 290, 15 [45]-[46] (‘Meadows’).

20This is at least a mid-range case of grooming.

21Charge 2 – sending a photo of your penis to a 15 year old girl is offensive and inexplicable.

22It is a low to mid-range instance as it occurred on one day and involved one communication.

23Charge 3 – while the assault appears quite innocuous compared to many sexual assaults, especially in this court, the setting (in your car at 1.00 am) increases the seriousness. It is a low to mid-range example.

24Overall, I consider your moral culpability for this offending as high. As a 40 year old man, you must have been very aware of how wrong your behaviour was.

25No reliance was placed by your counsel on the cases of Verdins or Bugmy to reduce your moral culpability.

Victim Impact

26The court is required under both Commonwealth and State sentencing regimes to assess the impact of your offending on any victims. In such cases, the victims are both primary (Camille) and secondary (her parents).

27The Prosecution submissions dated 15 April 2024 submit that although there is no victim impact statement from Camille, I can take into account that the offending has likely impacted her.[8]

[8] Director of Public Prosecutions (Vic), ‘Outline of Prosecution Submissions for Sentence Indication’, Submissions in DDP v PATEL, Kashyap, CR-23-01437, 15 April 2024, 3 [24].

28I accept that submission.

Personal circumstances and matters in mitigation

29You were born in India and migrated to Australia with your parents as a young man aged 23.

30You are married with 2 children – a son and a daughter.

31You hold down a responsible job with a bank in its dispute resolutions department.

32You have no prior convictions and there is nothing subsequent alleged.

33You are a man of otherwise good character as set out in the 3 character references filed with the court each of which I have read:

(a)   Preet Singh, who has known you for 13 years;

(b)   Dinesh Gourisetty, a good friend of 4 years; and

(c)   Your older brother Siddarth.

34Your wife of 17 years, Mrs Deepa Borsadia, has written to the court explaining  your extreme sorrow and the impact of your offending on your family. She considers your grooming to have been ‘a one-off event’ and she does not believe it will occur again.

35Your plea of guilty is significant. It is evidence of your acceptance of responsibility and some evidence of remorse. It was made at a relatively early stage of the proceedings and has a significant utilitarian benefit as it saves Ms Morrow and other witnesses the ordeal of giving evidence at your trial.

36I accept you are genuinely remorseful.

37You have made extensive efforts at rehabilitation. I will return to this later in these reasons.

38Delay is a significant consideration. Your offending took place in February 2021, three and a half years ago. You pleaded not guilty and were committed for trial in the Magistrates’ Court on 21 August 2023. A further year has now passed.

39There has been a lengthy delay in the finalisation of your case caused in part by the impact of the pandemic. Until you sought a sentence indication in November 2023, the case had been progressing to a trial.

40This delay is a relevant consideration in mitigation in two senses – the time during which you have had the case hanging over your head and the efforts you have made in relation to your rehabilitation. There has also been no further offending. The delay mitigates the sentence in these circumstances.

Psychological Evidence

41Reliance is placed by your lawyers on the report of psychologist, Mr Peter Hanley dated 12 April 2024.

42You have been treated by Mr Hanley in the Sex Offenders Treatment Program (SOTP) since June 2023 after being referred by your lawyers. You have attended 24 sessions.

43Mr Hanley was asked how effective the treatment has been and he responded that it was not entirely clear to what extent your ‘offence narrative represents an attempt to deny intent’. Mr Hanley considers that ‘a comprehensive forensic assessment would be required to properly evaluate those issues’.[9] He was, at that time ‘very guarded’ about your progress although he acknowledged that you were developing ‘a more realistic perception of the alleged offending situation from the complainant’s perspective’.[10]

[9] Psychological Report of Mr Patel written by Dr Peter Handley dated 12 April 2024 including Addendum Letter dated 28 August 2024, 5 [22][b] (‘Exhibit D1’).

[10] See Ibid.

44The answers to these questions are highly relevant to your risk of re-offending and therefore the extent to which specific deterrence and community protection apply as sentencing purposes.

45Your sentencing hearing was adjourned part heard so that the court could follow up on Mr Hanley’s recommendation that a comprehensive forensic assessment of you be conducted, to assist the court to evaluate the effectiveness of the treatment you have been receiving and to make an informed assessment of your prospects of rehabilitation.

46Pursuant to s 8A of the Sentencing Act1991 (Vic), you were referred by the court to Forensicare for psychological evaluation. You attended an in-person interview with a highly experienced forensic psychologist, Dr Sakdalan on 2 July 2024. Dr Sakdalan also read Mr Hanley’s report of 12 April 2024 and spoke to your wife. Dr Sakdalan’s report dated 24 July 2024 is before the court.[11]

[11] Forensicare Psychology Court Report written by Dr Joseph Sakdalan dated 24 July 2024 (‘Exhibit P2’).

47You explained the circumstances surrounding the offending to Dr Sakdalan. You told him that you assumed you were talking to an adult and did not take seriously the victim’s statement that she was 15 years’ old.[12] You said you only realised that you were chatting to a girl when she told you she was in Grade 10 and talked about her studies and school life.[13]

[12] Ibid 5 [35].

[13] Ibid 5 [36].

48However, it is apparent from the screen shots of your Whats App conversations that you were informed by Ms Morrow that she was 15 and in year 10 at school. The first conversations that you had concerned her schoolwork. One of your first questions was: ‘what’s your favourite subject at school?’.[14]

[14] Depositions, Exhibit 2 – 10 x Digital Images of WhatsApp Conversation between Mr Patel and Ms Morrow, 97.

49I accept your counsel’s submission that the conversation only moved to the Whats App platform after your initial chat on Antiland and the court does not have the transcript of that initial conversation. I accept that you may not have appreciated Ms Morrow’s age during that first period.

50You told Dr Sakdalan that it was only recently that you have realised the impact of your offending on your victim. Until recently, you had tended to minimise or blame Ms Morrow for your offending. You explained that this changed approximately five weeks before you saw Dr Sakdalan ‘when [you] engaged in victim empathy work’ with your therapist.[15] You stated that this session ‘had a huge impact on [you]’ and you ‘became emotionally distressed and guilty about [your] offending against the victim’.[16]

[15] Exhibit P2 (n 11) 6 [38].

[16] See ibid.

51You told Dr Sakdalan that you intend to write a letter to or make reparations to the victim and her family for the harm you had caused her.[17] On 29 August 2024, your lawyers provided to the court a letter signed by you addressed to ‘Dear Camille’ in which you apologise about:

(a)   ‘The indecent chat took place between both of us

(b)   Exchanging personal images

(c)   To meet you in person in my car in February 2021’.[18]

[17] Ibid 6 [39].

[18] Apology Letter to Victim written by Kashyap Patel dated 29 August 2024 (‘Exhibit D6’).

52You conclude the letter as follows:

‘I have been waiting for a very long time to apologise to you and your family from the bottom of my heart. I would really appreciate it if you and your family could please forgive me about this would really mean everything to me [sic.].’[19]

[19] See ibid.

53I note that there is no evidence that the letter has been provided to Ms Morrow. Your counsel has explained in court that the letter may be provided in due course to the informant to see if Ms Morrow and her family are willing to receive it.

54Turning to the central question of treatment responsivity, Dr Sakdalan notes Mr Hanley’s reservations and concludes that during his interview with you ‘there seemed to be a significant shift regarding Mr Patel accepting culpability and taking responsibility for his actions, which is a good prognostic indicator of improved insight and treatment responsiveness, provided he could sustain this change process’.[20]

[20] Exhibit P2 (n 11) [65].

55The court has also received an updated report dated 28 August 2024 from Mr Hanley.[21] In it, Mr Hanley confirms that you continue to participate in the SOTP and have now completed 24 sessions at your own expense.

[21] Exhibit D1 (n 9) 1.

56Mr Hanley reports that you have shown ‘good insight into the severity of [your] actions and their impact on the victim’.[22] Mr Hanley considers that you seem motivated to continue with the treatment.

[22] Ibid, Addendum Report 1 [2].

57Finally, the assessment report prepared by Corrections Victoria records that you demonstrated an understanding of how your offending behaviours would have made Ms Morrow feel. You stated that you feel sorry for her.[23]

[23] Community Correction Order Assessment Outcome Report by Corrections Victoria dated 2 September 2024, 2 (‘Exhibit P3’).

58It is to your credit that you have participated over many months in the SOTP and it is pleasing to see the progress that you have made.

59However, despite the more fulsome acceptance of responsibility for your offending as recorded in the report by Dr Sakdalan, and your ongoing participation in the SOTP, I consider that you are still somewhat in denial about the real motivation for your offending.

60I note that you told Ms Morrow that you had previously organised to have sexual intercourse with a 13 year old. This may or may not be true of course but it does provide some insight into your thinking.

61Further, the conversations about Ms Morrow’s schooling, the offer by you to mentor her and the references to her parents in the conversations suggest to me that you were aware that you were chatting to a 15 year old girl. Ms Morrow made no effort to disguise this and your claim that you thought she was not telling the truth is difficult to accept.

62On the question of future risk, Dr Sakdalan reports you to be in the moderate to low risk category.[24]

[24] Exhibit P2 (n 11) 8 [55].

63The best I can do is to express the view that, despite your participation in the SOTP program, and despite the recent progress you have made in developing insight, your prospects of rehabilitation are only reasonable. On the positive side, you have a stable family life, no history of alcohol or drug addiction and stable employment.

64Both community protection and specific deterrence must therefore have a role to play in the sentencing synthesis.

Statutory sentencing provisions

65As noted, the maximum sentence that may be imposed on each charge is imprisonment for 10 years. These are serious offences designed to protect children from sexual predators.

66It is well established that in cases such as the present, the paramount sentencing consideration is general deterrence. This will generally mean that a sentencing court will give less weight to prior good character and a lack of prior convictions than may otherwise be the case.[25]

[25] R vGajjar [2008] VSCA 268, 6 [27].

67As noted, other important sentencing considerations in this case are specific deterrence, community protection, denunciation and just punishment.

68As noted earlier, charge 3 carries a ‘standard sentence’ of 4 years’ imprisonment.

69The ‘standard sentence’ is the appropriate sentence for the middle range of seriousness taking into account only the objective factors affecting the relative seriousness of the offence.[26] This is but one of a number of considerations to which the court must have regard along with the maximum penalty of 10 years and all other relevant considerations.[27] A court must explain how the sentence it imposes in such a case relates to the standard sentence.[28]

[26] Sentence Act 1991 (Vic) s 5A(1)(b) (‘Sentencing Act‘).

[27] Brown v The Queen [2019] VSCA 286.

[28] Sentencing Act (n 26) s 5B(5).

70In your case I have imposed a sentence on Charge 3 which is less than the standard sentence, having regard to my assessment of the objective seriousness of your offending, your plea of guilty, your efforts at rehabilitation, the delay and the other applicable matters of mitigation.

Current sentencing practices

71In DPP (Cth) vSingh,[29] the Court of Appeal stated that in relation to offending such as yours, that:

[t]he authorities are clear that the offence usually merits a term of immediate imprisonment. Lesser sentencing dispositions should be very rare. While there are a number of instances of noncustodial sentences having been upheld after appeal, several of them turned on features peculiar to Crown appeals. None of them should be seen as anything other than exceptional.

[29] [2017] VSCA 146, 23 [64] (‘Singh’).

72The Court in that case described the non-custodial sentence which had been imposed for a charge of procuring contrary to s 474.26(1) of the Criminal Code1995 (Cth) as ‘remarkably lenient’ although it was not disturbed. I note that in Singh there was no exchange of pornographic materials and the offender was young and naïve.

73In the case of Meadows, the offender had pleaded guilty to a Commonwealth charge of grooming and a State charge of knowingly possessing child pornography.[30]

[30] Meadows (n 7).

74The Court of Appeal upheld a sentence of 12 months imprisonment on the Commonwealth charge with 3 months to serve and the remaining 9 months the subject of a Recognisance Release Order. The Court also upheld a CCO on the State charge.

75The facts were that the 38 year old offender, who had a mild brain injury, participated in 4 online conversations with a female who he believed was a 12 year old girl but was in fact an undercover police operative.

76He discussed having sex and requested ‘sexy photos’. A number of the aggravating features in your case were absent in Meadows. For example, there was no intent in that case to engage in sexual physical activity.

77The Court of Appeal held that the sentence was well open to the sentencing Judge.

Consideration

78Having regard to the objective gravity and giving appropriate weight to the matters of mitigation set out in your counsel’s able submissions and expanded upon in court, I cannot accede to Ms Beech’s submission that a sentence that allows you to remain in the community is an appropriate outcome. The offending is more serious than that in Meadows, for example.

79I reject the submission at [30] of your counsel’s written submissions that your subjective characteristics (good character, references, early plea) separate you from the average offender. To the contrary, my experience and my reading of the authorities lead me to the view that these are relatively common characteristics for offenders in cases of this sort.

80On balance, I consider that your offending is too serious for a straight CCO. I accept the prosecution submission that a combination sentence is the appropriate disposition. The punitive component of the sentence will be effected by the term of imprisonment; the CCO will be rehabilitative.

81You have been assessed as suitable for a CCO.[31] Corrections recommend that the order should have a duration of at least 18 months due to the nature of the offending and the availability of offence related programs. Corrections recommend that I attach conditions seeking to promote your mental health and to reduce your risk of re-offending. In relation to the latter, it was recommended that the court not specify a program so that you can be assessed for one that is appropriate.

[31] Exhibit P3 (n 23).

82I direct that these reasons and the report of Mr Hanley and Dr Sakdalan be provided to Corrections Victoria to assist in this assessment.

83It is clearly desirable that you continue with the SOTP. This will maximise protection of the community by reducing your already moderate to low risk of re-offending. I will make it a condition of the Order that I impose that you do so.

84I need to explain to you the purpose and effect of the proposed order; the consequences that may follow if you breach the order; and the manner in which the proposed order can be varied.[32]

[32] Sentencing Act s 95.

85I can’t make the order unless you consent to me doing so,[33] so please listen carefully.

[33] Ibid s 37(c).

86There is a number of standard terms that apply to this Order:

(i) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.

(ii) You must comply with any obligations or requirements prescribed by the regulations.

(iii) You must report to and receive visits from the Secretary or their delegate during the period of the order.

(iv) You must report to the Werribee Community Correction Centre within two clear working days after the order comes into force, that is, within two clear working days of the date upon which you are released from custody.

(v) You must notify the Secretary or their delegate of any change of address or employment within two clear working days after the change.

(vi) You must not leave Victoria except with the permission of the Secretary or their delegate either generally or in relation to a particular case.

(vii) You must comply with any direction given by the Secretary or their delegate that is necessary for the Secretary or their delegate to give to ensure you comply with the order.

87In addition to these general conditions, which apply to every Community Correction Order, I will impose the following special conditions on the Order:

(i) You are to be supervised, monitored and managed as directed by the Secretary; 

(ii) You must undergo treatment and rehabilitation as directed in relation to your mental health; and

(iii) You must undergo treatment and rehabilitation as directed in a program or programs that address factors related to your offending behaviour.

88Do you understand? Do you agree to me making the CCO?

89The orders I make are:

(a)   On charge 1 grooming a child under 16 years of age and charge 3, sexual assault, you are convicted and sentenced to an aggregate term of imprisonment of 9 months.

(b)   On charge 2, transmitting an indecent communication to a child under 16, you are convicted and sentenced to a Community Correction Order of 2 years’ duration commencing upon your release from custody.

90Pursuant to s 6AAA of the Sentencing Act, I indicate that, but for your plea of guilty, I would have sentenced you to 14 months’ imprisonment to be followed by a Community Correction Order of 2 years’ duration.

91Finally, each of the offences of which you have been found guilty is a registerable Class 2 offence under s 7(3) of the Sex Offenders Registration Act 2004(Vic). As a registerable offender, you are required to report under that Act for the remainder of your life. You will be given a written notice setting out your reporting obligations and the consequences for you if you fail to comply with those obligations.

92The notice contains important information and you should seek advice about it.