Director of Public Prosecutions v Patel

[2022] VCC 2214

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00196

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEYUR PATEL

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2022
DATE OF SENTENCE:	13 December 2022
CASE MAY BE CITED AS:	DPP v Patel
MEDIUM NEUTRAL CITATION:	[2022] VCC 2214

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	Office of Public Prosecutions
For the Accused	Mr M. Page	Leanne Warren & Associates

HIS HONOUR: 

1Mr Keyur Patel, after a short trial at which you gave evidence in your own defence, on 19 September 2022 you were found guilty of two charges of sexual assault and one charge of rape with the offences having occurred on 23 November 2018.  You were found not guilty of a charge of sexual assault that was alleged to have occurred on 22 November 2018. I am required to sentence you consistently with the jury verdicts. The maximum penalties are set out in the prosecution plea opening, which I incorporate by reference.

Circumstances of the offences

2At the time of the offending you were employed by a labour supply agency as the manager cleaning services. The agency provided staff for housekeeping at major city hotels. You were aged 34 at the time. The complainant was aged 24 at the time and in August 2018 had arrived from India on a Student Visa. Under the terms of her Visa she was only allowed to work for 20 hours per week. She had commenced employment with your employer at a major CBD hotel on 30 October.

3On 22 November there was a meeting between you, the complainant and the human resources officer in relation to the complainant's standard of work and the fact that she had worked more than 20 hours in the previous week. She gave evidence that subsequent to that meeting, in an exchange with you in a hotel room, you had become over-familiar with her. You were charged with an offence of sexual assault arising out of that exchange but were found not guilty. You are entitled to the full benefit of that acquittal.

4The following day, Friday 23 November at around 12.30 pm the complainant had almost finished her work when she was directed by you to undertake a clean at a particular room 309. Earlier that day you had advised that the room was not to be cleaned and left for the following day but there was a change of arrangements. You advised her that you would attend at the room a short time later.

5She went to the room and was undertaking the cleaning. She contacted you seeking advice as to the location of the vacuum cleaner. You advised her that you would be coming to the room in 10 minutes.

6She was in the bathroom mopping the floor when you entered the room and double locked the door. She moved out of the bathroom and was standing just outside the bathroom door. She had a mop in her hand which you took from her and threw to the floor. You grabbed her hand and pulled her into the bathroom. She resisted saying 'Don't hold my hand'. You stated that it is normal 'Nothing will happen. Keep calm'.

7She pushed you in the stomach to push you away. You then stated 'I have helped you clean the rooms, so now you have to give me something'.  You were only standing a few centimetres from her. You said to her 'Don't worry I will not have sex with you because I have no condoms on me. Let me do whatever I want, or you will have some problems.' She believed she was going to be raped by you.  

8The complainant sought to break free and leave the bathroom but was pulled back by you. You grabbed her by the arms holding them against her so she could not move and forcibly kissed her.  She kept trying to move her head to prevent you kissing her again. These events amount to the charge of sexual assault. (Charge 2)

9You then pushed her into the bedroom where she fell on the bed. You then proceeded to unzip your pants. She stood up but you pushed her back towards the bed and grabbed her hands and used your body to lean on her. You used your free hand to open her belt and pants. You tried to slip your hand under her bra but ended up touching her breasts over the bra but ended up touching her breasts over the bra. At that point she told you that she was having her period and she was a virgin and you said 'Don't worry I will not break your virginity I don't have a condom'.

10The complainant stated that her father was a lawyer in India and asked you to leave. You told her to calm down.

11You undid her pants and tried to pull down her underwear but could not. You then put your hand into her pants before penetrating her vagina with your finger. She tightened her legs and then you withdrew your finger and she saw blood on it. She tried to walk away and you pushed her on the shoulder, ultimately leaving a bloodstain.

12At that point you held her down and tried to kiss her, but she moved her head away. She felt you vibrating as you were masturbating and then felt wetness on her body. You then stood up and went to the bathroom. She stood up and did up her clothes.

13She told you she would lodge a complaint and you replied that she was a servant and nothing will happen. The complainant was told not to show her face or tell anybody. The complainant was told to change the bedsheet as there was a stain on it.

14The complainant completed her duties and then left. She later told the person she was living with that she had been sexually assaulted at work and a few days later went to a local medical clinic.

15She then on 29 November attended at the police station and reported the matter. She retained her clothing from that day. DNA testing later found your DNA on her shirt.

16You were arrested on 30 November and gave a record of interview during which you denied there was any intentional physical contact.  Subsequently your solicitors advised the police that in fact there had been consensual sexual activity.

17In the course of the trial you gave evidence that there was consensual sexual conduct between the two of you on that day. Your account was that you had raised issues as to her performance. The complainant was thankful to you for helping to improve her position. She then hugged you in the bathroom and then the complainant is alleged to have proceeded to initiate sexual activity. You denied any penetration. You asserted that she attempted to masturbate you.

18The jury must be taken to have rejected beyond reasonable doubt your sworn evidence that there was a consensual sexual engagement between the two of you on that day.

Subsequent events

19You were with charged on 11 February 2019. You were committed for trial on 3 February 2021.  The trial commenced on 7 September 2022.

20You were remanded on 19 September 2022 and have been in custody since that time. The matter was the subject of a plea on 7 December.

Victim impact statement

21The complainant has filed a victim impact statement indicating that your offending has had a very significant impact on her. At the time of the offences she had only recently arrived in Australia to advance her education and had very few friends. She had to work for financial reasons and had to undertake a bridging English course and was enjoying that.

22She was about to commence a Masters program and had just obtained the position with the labour hire agency.

23As a result of the offending she stated that she had begun 'hating herself, lost confidence to call or share something and face the fear of unknown people around her'. She is only now getting her life back on track. She believes her mental trauma might affect others and she distances herself.

24The offending impacted on her physically. She started sleeping for long periods and changed her diet and felt depressed. She has been diagnosed with a medical condition caused by stress. She had to change her occupation to working as an Uber driver within the limits of her Visa.

25She lost her scholarship and had to pay more fees. She needed counselling. She worked picking fruit after completing her studies and had difficulty getting employment, as she wanted to work only with female workers. She has recently been able to obtain a position as a production operator but believes that her career trajectory has been affected.

26Her social life has been impacted. She feels that she has lost a golden period of her life for the last four years.

27It is clear from the victim impact statement that your conduct has had a major impact on the complainant which has not yet abated must be taken into account in assessing the seriousness of the offending.

Overall assessment of seriousness and moral culpability

28The offence of rape can be committed in a wide variety of circumstances and with a variety of consequences.

29Here, the prosecution argued that relevant to the seriousness of the offence was that the complainant was a virgin, and that she was having her period, and that the penetration was particularly invasive.

30Your counsel disputed the latter two matters. I regard both them as relevant to the seriousness of the offence.

31From the moment you approached her outside the bathroom she was making it plain that she was not prepared to consent to any form of sexual activity with you. In the course of her protestations she had adverted to the fact that her father was a lawyer in India. She also stated that she was having her period. She also stated that she was a virgin.

32All those matters were rejected by you and in a high-handed manner you stated to her that you were not going to have intercourse because you did not have any condoms with you. At the end of the event, you told her not to make a complaint as she was only a student and would not be believed.

33Your high-handed conduct in proceeding with pushing her onto the bed, forcibly seeking to undress her, including groping her breast, opening up her pants and then notwithstanding her protestations, physical and verbal, seeking to digitally penetrate her, albeit for only a short time, shows that there was a forcible violation of her by you who was in a position of authority over her, with the offences occurring in her workplace.

34Whilst there was no risk of pregnancy or sexually transmitted diseases, your conduct was a forceful violation of her bodily integrity and a breach of trust.

35Adding to this was your conduct after the rape in lying on top of her masturbating, and then ejaculating on her stomach, those events constituting Charge 4.

Offence seriousness and moral culpability

36There was a clear power imbalance between you and the complainant. You were taller than her and a decade older. You were her supervisor and she had been the subject of a disciplinary episode the day before. You knew that she was an overseas student on a Visa who needed to work to support herself. She was clearly in a vulnerable position vis-a-vis you.

37There was some premeditation to your offending in that, contrary to the hotel cleaning policy and to your statement in the record of interview and in your sworn evidence, when you entered the room you locked the door. From the time you approached her the complainant resisted you physically and verbally.

38There was an arrogance about your conduct as you proceeded to forcibly kiss her and then sexually penetrate her while explaining that your conduct would not amount to her losing her virginity.

39In the context of her cultural position this high-handed and arrogant conduct on your behalf showing a clear sense of entitlement notwithstanding her protestations. Her entreaties that she was having her period and was a virgin fell on deaf ears. You digitally penetrated her and she struggled and you had been forced to withdraw your finger. You were then on top of her and proceeded to masturbate, leading to you ejaculating on her stomach. For a sexually inexperienced young woman this was very demeaning behaviour.

40Overall, as submitted by the learned prosecutor, the offending here on an objective basis was at least in a mid-range of seriousness.

Matters in mitigation

41Turning to matters in mitigation, your counsel focussed on your prior good character, your prospects for rehabilitation and hardship in custody.

42Your personal circumstances are set out in your counsel's submission and in the report of Carla Lechner, clinical psychologist. I incorporate them by reference.

43You are currently aged 38. You are married and have two sons. You were born in India and are the oldest of three children. Your father had to live in another State and you had a difficult and poverty stricken upbringing with your mother.

44You managed to complete your high school and went to university to study accounting. You did not complete the degree as your final year coincided with your father's return to the family home and his tragic death.

45You had to join the workforce to support the family and gained employment as an accountant and share broker. You then began taking English classes to obtain a Student Visa to Australia. During the classes you met your wife.

46You came to Australia in 2007 aged 23 and completed a three-year accounting degree at Federation University in Ballarat. You were working part-time during the degree and worked in a number of hotels and continued in that field rather than as an accountant and had a management position at the time of this offending. You have a brother living in the South Eastern suburbs.

47After you were charged with this offending you lost your job in the hotel industry but then worked in a number of factories until being remanded.

48Since you have been remanded your sons are unaware of your current status. You have supplied a reference from your wife and from your sister-in-law who both testify to your good character and strong family values and they will continue to support you.

Report of Ms Lechner

49Your counsel relied on a report from Ms Lechner. She indicates that you do not present with any underlying psychological or psychiatric disorders. Further she is of the view that using the well-known risk assessments of Static–99 and RSVP, you are of a low risk of further reoffending.

50She is of the view that you require education that focuses on lack of consent and impulse inhibition. She notes that you did evidence some victim empathy however you maintain your denial of the offending.

51The examiner opined that you are capable of reflective and consequential thinking, were suffering from mild psychological distress and depression which is a reaction to your imprisonment. She noted that you have good employment prospects and a good employment history and have good family support and no substance abuse issues.

52Your counsel in his submissions submitted that you have learnt a lesson from this offending, it is very much out of character, and given your age, family support and lack of prior convictions you are unlikely to be before a court again. Thus, he submitted, considerations of specific deterrence have less salience here.

53He further submitted that you have strong family support as evidenced from the two references filed, and also a reference from your local general practitioner who has been treating you for some years. Further, you have a good employment record and all these matters bode well for your rehabilitation.

54In the period that you have been on remand it has been more burdensome as you have been unable to see your children. Further, you have however used the period to undertake some courses that were available in the prison system. You are to be commended for that.

55In view of your lack of prior convictions and low risk of reoffending your counsel submitted that a longer than usual parole eligibility period should be considered.

Sentencing submissions

56The learned prosecutor noted that the offence of rape is a serious offence. It carries a standard sentence of 10 years' imprisonment. As explained by the Court of Appeal in Shrestha v The Queen [2017] VSCA 364 the fact that it involved digital penetration rather than penile does not mean that the offence is to be treated as less serious. The offending here involved the complainant being forcibly held down and prevented from moving or getting away.

57The learned prosecutor referred to the cases of DPP v Beck [2021 VSCA 88, Lockyer v The Queen [2020] VSCA 321 and Saab v The Queen [2022] VSCA 116 as providing a possible indications of current sentencing practices following the introduction of the standard sentence, noting however that any particular sentence does not constitute a precedent and it was difficult to find cases where there was a power imbalance involved in the offending. I have considered each of those cases as illuminating current sentencing practices for a crime that can be committed in a wide variety of circumstances.

58Your counsel emphasised your lack of prior convictions and good prospects of rehabilitation as well as the burden of imprisonment where you will be separated from your children and also in the current Covid environment.

59I also take into account in your favour the period of delay. It is now over four years since the index offending and the resolution of matters in the criminal justice system has been delayed due to Covid. You have had this matter hanging over your head since you were charged. The fact that you have not reoffended is a matter in your favour and you are now four years older than when the offences occurred.

Purpose of Sentencing

60The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any. 

61I am required to balance the interests of the community in denouncing criminal conduct and the interests of the community in seeking to ensure that, as far as possible, offenders are reintegrated and rehabilitated into society.

62In sentencing for the crime of rape denunciation is a very important sentencing consideration. As was said in the case of DPP v Mokhtari [2020] VSCA 161, at [25]:

‘The very act of rape is inherently serious, simply by virtue of the invasion of the victim's bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.’

63Here the sentence of the court must denounce your conduct as well as send a signal that those persons in positions of power in a work environment are not entitled to use their positions or physical strength for their sexual gratification.

64The seriousness of the offending here calls for a significant sentence given the maximum penalty and the standard sentence, and your high moral culpability.

65I must also take into account matters in mitigation, and I accept the submission of your counsel that considerations of specific deterrence have less salience given your prior good record, your age, family support, the period of delay and your low risk of reoffending.  In Mokhtari the Court went on, at [67:

‘It must be understood that with the standard sentencing regime, so recently introduced, does not in any way diminish the importance of giving proper weight to relevant mitigating factors. These include the personal circumstances of the offender, his or her prospects of rehabilitation and, where appropriate, the need to give due weight to a plea of guilty (particularly if coupled with remorse).’

66In sentencing you I am required to apply the provisions of s5(2) of the Sentencing Act 1991. This requires the synthesis of a number of incommensurables.

67Relevantly here, I must take into account the maximum penalty, the standard sentence as a legislative guidepost, current sentencing practices, the nature, gravity and circumstances of the offending, the impact on the complainant and your personal circumstances.

68Where the charge involves a standard sentence I am required to explain the basis upon which the sentence actually imposed differs from the standard sentence. The non-parole period must be not less than 60 per cent of the head sentence, except in special circumstances.

69In sentencing on Charge 4, in the event of sentences of imprisonment are imposed on Charges 2 and 3, then you are to be sentenced as a serious sexual offender on Charge 4. There is a presumption of cumulation, unless the court otherwise orders.

70I have taken into account all the submissions made on your behalf and also taken into account that sentences of imprisonment in the post-Covid environment will be somewhat more burdensome than in the past.

71The offending here involved in the three charges can be said to be a single transaction. This is relevant to the issue of cumulation and in those circumstances in sentencing on Charge 4 less than full cumulation is appropriate.

72In sentencing I have also had regard to considerations of totality and principles of parsimony.

73The sentence that I will impose on the charge of rape is less than the standard sentence having regard to the matters in mitigation that I have discussed earlier.

74As a consequence of your convictions you will be required to go on the Sex Offenders Register and the relevant paperwork will be sent to the prison for your signature.  Could you please stand. The sentence of the court is as follows.

Sentence

75On Charge 2 – indecent assault – six months' imprisonment.

76On Charge 3 – rape – 7 and a half years' imprisonment.

77On Charge 4 – indecent assault – two years' imprisonment.

78The base sentence is Charge 3. The sentence on Charge 2 is to be concurrent.

79I order that eight months of the sentence on Charge 4 be served cumulatively on the base sentence, making a total effective sentence of eight years and two months imprisonment.

80I order that you must serve five years imprisonment before being eligible for parole.

81I declare that I have sentenced you as a serious sex offender on Charge 4 and order that it be entered in the records of the court.

82I declare that you have served 85 days presentence detention, excluding today, and order that it be deducted administratively.

83Are there any other matters, Mr Prosecutor?

84MR COUTER:  No matters, Your Honour.

85HIS HONOUR:  Ms Stanley?

86MS STANLEY:  No, Your Honour.

87HIS HONOUR:  So to explain the sentence to you, Mr Patel, I have sentenced you to seven and a half years on the main charge.  I have sentenced you to six months concurrent on the first charge of sexual assault.  I have sentenced you to two years' imprisonment on the Charge 4, sexual assault and I have ordered that eight months of that sentence be served cumulatively on the seven and a half years' imprisonment, making a total effective sentence of eight years and two months.  I have ordered that you be eligible for parole after you have served five years imprisonment.

88I have declared that I have sentenced you as a serious sex offender on Charge 4 and ordered that it be entered in the records, and that you have served 85 days pre-sentence detention.

89I want to thank counsel for their assistance in the trial and on the plea.

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