Director of Public Prosecutions v Patel

[2016] VCC 194

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00410

DIRECTOR OF PUBLIC PROSECUTIONS

v

NIKULKUMAR PATEL

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 April 2016
CASE MAY BE CITED AS:	DPP v Patel
MEDIUM NEUTRAL CITATION:	[2016] VCC 194

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	Mr G. Hayward
For the Accused	Mr S. Tovey

Pages 1 - 7

 

 

HER HONOUR:

1Nikulkumar Patel, you have pleaded guilty to one charge of rape.  The maximum penalty for that offence is 25 years' imprisonment. 

2The circumstances of your offending are set out in a Summary of Prosecution Opening which was tendered as Exhibit A.  In brief, the circumstances are as follows.  On 2 May 2014, the complainant was working for a bank in offices in Spring Street, Melbourne.  She was planning to go to a function that evening.  During the afternoon she left work and had about three glasses of wine at a bar.  She also bought a bottle of vodka which she took back to work and left in an unused office.  After finishing work, she went to the unused office to meditate.  This was a method that she used to deal with her anxiety from which she suffered.  She drank some vodka and then lay on the floor to relax and meditate.  She recalls coming to and finding you having penile-vaginal sex with her.  You ejaculated, and she cannot recall anything else until she came to again and found you had gone.  She rang 000.

3You were working in the building as a cleaner.  You were charged on the basis that you came into the room and saw the victim making noises.  You approached her to see if she was all right.  She was heavily intoxicated and touched your face and your arm.  You then penetrated her.  The victim was not capable of giving consent because of her level of intoxication and you gave no thought as to whether or not she was consenting. 

4Two Victim Impact Statements from the complainant dated 3 July 2014, Exhibit B, and 14 April 2014, Exhibit C, were read by the complainant's sister. 

5In sentencing you, I have taken into account your personal circumstances as outlined by your counsel, and in the report of Mr Jeffrey Cummins, psychologist, dated 15 April 2016, Exhibit 2.

6You are now 28 years old.  You grew up in a stable and supportive family in a village in India.  Your family did not have much money but the situation was stable and your upbringing was unremarkable.  You completed school and obtained tertiary qualifications in India.  You also studied in England.  You married in India in April 2013.  You came to Australia in May 2013 to continue your studies.  Your marriage was a love marriage.  There were difficulties because your wife was from a different caste but your families both ultimately accepted the marriage. 

7You sponsored your wife to come to Australia and she came to join you in Melbourne in December 2013.  In Melbourne, you completed about six months of a Master of Commerce course and about two months of an automotive engineering course.  During your time in Melbourne you have also worked as a cleaner. 

8Your bridging visa was cancelled and you were taken into immigration detention on 22 January 2015.  You were detained initially in Melbourne and then transferred to Christmas Island.  You were in Christmas Island from 29 August 2015 to 15 January 2016, when you were transferred back to Melbourne.  You have signed a form consenting to you deportation, as you have no current visa.

9Your wife remains in Australia on a protection visa due to the potential danger to her of returning to India alone.  You hope that your wife will return to India with you but you are unsure about that or about the future of your relationship.  Your wife has not visited you since you returned from Christmas Island. 

10Mr Cummins says that you suffered no form of mental illness at the time of the offending.  He says you have no drug or alcohol issues.  It is Mr Cummins' opinion that your offending was "opportunistic and situationally motivated".  He assesses your risk of reoffending as low.  He says that it is significant that your wife has full knowledge of your offending, as do your parents and siblings in India.  Mr Cummins says that you have expressed remorse and victim empathy.  He says that you have in part dealt with your situation by deeper involvement in your religion and that you spend many hours a day praying. 
Mr Cummins says when he saw you, you were anxious, agitated and depressed and tearful at times.  It is Mr Cummins' opinion that you are suffering most probably from an adjustment disorder with mixed anxiety and depressed mood.  Mr Cummins' says that if you are given the opportunity to participate in a sex offender treatment program, then you should do so.  You have told Mr Cummins that you are willing to do that.

11You have no prior criminal history. 

12In sentencing submissions, your counsel acknowledged the seriousness of your offending and that a sentence of imprisonment would be inevitable.  Your counsel submitted that in respect of the offending, I should take into account that there was a lack of certain aggravating features, such as accompanying violence or personal abuse.  You counsel said that the offending was of relatively short duration.  Your counsel addressed a number of matters that he relied on in mitigation of sentence.  In respect of your plea of guilty, your counsel said that it was entered after the committal but that it had considerable utilitarian benefit.  Your counsel said that your plea saved the trauma to the complainant of having to give evidence on a trial and was an indication of your genuine remorse. 

13Your counsel submitted that the 15 months that you have spent in immigration detention should be taken into account in a general sense.  He also said that it should be taken in account that you were at Christmas Island during the riots in December 2015, which was a very difficult time.  Your counsel relied on your previous good character and submitted that this offending was out of character and that you had good prospects for rehabilitation.  Your counsel submitted that your anxiety and depression would add to the burden of imprisonment.  He also submitted that I should take into account your prospective deportation as being a loss of opportunity. 

14Your counsel addressed current sentencing practices and provided information in respect of a number of cases.  Your counsel agreed that the cases of Ali v R [2013] VSCA 294, and Hasan v R [2010] VSCA 352, were of particular relevance, those cases had been provided by the prosecutor. The prosecutor in sentencing submissions agreed with much of your counsel's submissions but addressed various aggravating features of your offending, in particular, the fact that you had had unprotected sex and ejaculated.

15Your counsel agreed with the categorisation by your counsel of your offending as being slightly below the mid-range in terms of the objective gravity of the offending. 

16Nikulkumar Patel, rape is a very serious offence.  The maximum penalty is an indication of the seriousness with which Parliament, on behalf of the community, takes this offence.  You came upon the complainant. You realised she was intoxicated. You were in the offices in the evening.  You went into the room where she was. It appears no one else was in that area at the time.  You took advantage of her intoxicated state to have unprotected sex with her.  You told Mr Cummins that you assume you were excited at the idea of having sex with someone other than your wife, who was your only sexual partner to that time.  This is a plausible explanation as to why a man who appears otherwise to have led an honest and moral life allowed his sexual urges to overcome his proper moral judgment. 

17You made a seriously wrong decision which has caused significant harm to the complainant.  She was already somewhat psychologically vulnerable, and this incident has set her back to a considerable degree.  She was raped by a stranger in her workplace, where she ought to have been able to feel secure.  You were only there because of your work, and in offending in this way, you also betrayed the trust of your employers. 

18The complainant's feelings of anxiety and fear for her own safety have been added to by her fears and anxieties as a result of you having unprotected sex and ejaculating.  The consequences for the complainant have been clearly described in her victim impact statements.  It is clear also that her family and friends have suffered as a consequence of your actions. From the Victim Impacts Statements, the complainant is determined to deal with her anxiety.  It appears from her second victim impact statement and the presence of her fiancé in court that she does have a positive future to look forward to.  She is not likely to forget this incident or its consequences but it is to be hoped that with time and support she will be able, to some degree, to put this incident behind her.

19A sentence of imprisonment is clearly warranted for the purposes of denunciation, general deterrence and just punishment.  General deterrence is very important.  The community must understand that no one can have sex with another person without that other person's consent.

20There are a number of matters I have taken into account in mitigation of sentence.  Your plea of guilty was not made early.  It was made after a contested committal when the complainant had been cross-examined.  I note the complainant's submission that there was significant evidence against you but that evidence went to the question of identity rather than the issue of consent.  It is consent which is generally the more complicated issue in this type of case.

21Whilst there was further delay in you indicated your plea of guilty because you were sent to Christmas Island, I consider that your plea of guilty is significant, although you are entitled to a somewhat reduced discount because of the delay and the contested committal.

22I do accept that you are genuinely remorseful, and that the later plea does not take away from that.  I consider that you now understand better the wrongness of your actions.  You have also apologised to the complainant and her family.  Mr Cummins says that you have empathy and understanding for the complainant and her situation, I accept that you are distressed at her suffering, as disclosed in the Victim Impact Statements. 

23You pleaded guilty and are remorseful.  You have empathy.  You have no prior criminal history.  You are generally hardworking.  You have no mental health or drug and alcohol issues.  Your prospects of rehabilitation are good.  Specific deterrence requires less weight in sentencing you.  I accept that to a considerable extent you have learnt your lesson. 

24I have taken into account that your anxiety and depression will make imprisonment more difficult for you.  That is particularly so in view of your isolation from your parents, family and friends in India, and your uncertainty of the situation with your wife.  You are also uncertain as to how her family will react to your situation if you both do return to India. 

25I accept that you will be deported on your release from custody.  From what you have told Mr Cummins, you are looking forward to being reunited with your family and hopefully obtaining their forgiveness and support.  That said, there is some negative impact on you of losing an opportunity of being able to continue studying in Australia with a view to one day being able to settle in Australia.  That hope has certainly been ended by your offending.

26I have taken into account the period of time you have spent in immigration detention resulting in a shorter sentence and a shorter non-parole than I would have otherwise imposed.  Immigration detention involves deprivation of liberty, although the conditions may vary to some degree from the conditions in prison.  The cancellation of your bridging visa and you being taken into immigration detention appears to be directly related to you being charged with this offence.

27I take into account that you were at Christmas Island at the time of the riots, that is a very isolated place to be, particularly in view of the conditions at that time.  This matter has been hanging over your head and not able to be properly discussed with your lawyers, which must have made the situation in Christmas Island even more difficult. 

28In respect of this charge of rape, you are convicted and sentenced to a term of imprisonment of three years, with a non-parole period of 18 months.  But for your plea of guilty, I would have sentenced you to a term of imprisonment of four years with a non-parole period of two years and six months.  I declare that you have served five days of this sentence by way of presentence detention. 

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