Director of Public Prosecutions v Patil (a Pseudonym)
[2019] VCC 1674
•15 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 18-00497
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAYADEV PATIL (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 7 - 23 August 2019 | |
DATE OF SENTENCE: | 15 October 2019 | |
CASE MAY BE CITED AS: | DPP v Patil (a Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC | |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Trial by jury – Marital Rape – Convicted of Rape (10 charges), Threat to Kill (1 charge), Common Law Assault (2 charges), Assault with Intent to Commit Sexual Offence (1 charge) |
| Legislation Cited: | Crimes Act1958; Sentencing Act 1991 |
| Cases Cited: | Johns (a Pseudonym) v The Queen [2016] VSCA 97; Gordon v The Queen [2013] VSCA 343 |
| Sentence: | Convicted and sentenced to 9 years and 7 months’ imprisonment with a minimum term to be served before being eligible for parole of 6 years and 7 months. |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. McKenry (Trial) Ms S. MacDougall (Plea & Sentence) | Office of Public Prosecutions |
| For the Accused | Mr D. Cronin (Trial & Plea) Mr Y. Kordos (Sentence) | Berger Kordos Lawyers |
HIS HONOUR:
1
Mr Jayadev Patil[1] was born in India on the second day of January 1982. He came to Australia in 2008. He married the complainant on
23 February 2015. In this trial Mr McKenry appeared for the Director, Mr Cronin for Mr Patil. At the time of the marriage the prisoner was aged 33, he is now aged 37. The complainant was 29, she is now aged 33. The offending, as found by way of the jury determination, occurred from 10 March 2015 through to 11 August 2015.
[1] Jayadev Patil is a pseudonym.
2 The marriage was arranged, the complainant had never met Mr Patil personally until the day before. The organisation of such, was conducted by her elder sister. The complainant had been to Australia the year before, and consented to such arrangement to be conducted through an Indian marriage site which operates in Victoria, and indeed as I understand, in Australia.
3
The allegations as to this criminality were first made in Alice Springs after the complainant left the matrimonial home on 1 September 2015. A formal statement was made in the Alice Springs Police Station on
16 September 2015, and then a further statement to the Victorian Police Force on 19 December 2015. Mr Patil was first confronted with the allegations in 2016, when a record of interview was conducted on 7 June 2016. Mr Patil denied all wrongdoing.
4 When the trial began on the seventh day of August 2019, Mr Patil maintained his innocence, pleading not guilty to all 20 charges. On 23 August 2019, the jury returned verdicts of guilty on 10 counts of rape being Charges 3, 5, 6, 8, 11, 12, 13, 14, 17 and 20, on one count of threat to kill being Charge 7, two counts of assault, being Charges 16 and 19, and one count of assault with intent to commit a sexual offence being Charge 18.
5 Mr Patil was found not guilty on three charges of rape, Charges 1, 2 and 4. The jury could not reach a verdict in regard to two further charges of rape, being Charges 9 and 10. On the day that the plea was conducted, 30 September 2019, the prosecution filed a notice of discontinuance as to Charges 9 and 10, therefore clearing the indictment.
6 As I said, the trial began on 7 August with the complainant giving evidence over six days. Such evidence was interrupted, due to the need for her to rest owing to the emotional requirements of giving evidence, in regard to matters private to her, and distress about giving such evidence. At one stage she could not continue due to a medical condition. Her evidence essentially was that from the first night, the prisoner was rough with her, assaulted her, dominated and demeaned her, and had intercourse with her against her will.
7
As I have said, the jury found Mr Patil not guilty as to the allegations of rape concerning the day after the wedding that is, 24 February 2015, Charges 1
and 2.
8 Charge 3, of which he was found guilty, was a rape in the matrimonial apartment after both of them had returned from taking her mother to the airport. Mr Patil is alleged to have overborne her resistance after beating her up and telling her 'Obey and don't answer back.' The circumstances which occurred in that bedroom were enough to bring her sister and her friend, who were staying at the premises, to the door of the bedroom to enquire, if everything was okay. The complainant replied, 'yes it was all okay.'
9 The jury recorded a verdict of not guilty to the allegation of rape on 15 March 2015 (Charge 4).
10 As to Charges 5, 6, 7 and 8, all occurred on 3 April 2015 when the complainant returned from India, where she had been to attend her brother's wedding. On return to the matrimonial flat she was allegedly raped orally (5), and then by penile penetration (6), in circumstances which she said, came about because her husband had expressed his rage at her allegedly returning late from India. He slapped her and threatened her, threatening the lives of both her brother and her niece. Later in the day he threatened to kill her (Charge 7). That night he again forcefully raped her (8), after she refused his request for intercourse because of what he had done that morning. She was begging him to, 'have mercy on me' as he raped her by penile penetration, in multiple positions.
11 As I have said, no verdicts were delivered in regard to the rapes, Charges 9 and 10, and a notice of discontinuance was filed.
12 Charge 11 involves a penile rape on 12 May 2015 after the prisoner beat the complainant by hitting her with his fist, slapping her and telling her he would show her, 'what a man is,' as she continued to resist him.
13 Charge 12 occurred on 18 May 2015 after the complainant returned from staying at her friends place, as she had been kicked out of the matrimonial apartment by the prisoner. This penile rape occurred against her will, despite her verbal and physical resistance.
14 Charges 13 and 14 were respectively oral and penile rapes which occurred on 2 June 2015, and came about when she refused to submit to a new sexual position that he had demanded. As a result, and against her will, he moved his penis in and out of her mouth (13), then penetrated her digitally, which is uncharged, and then raped her by penile penetration (14).
15 The jury found the prisoner not guilty in regard to Charge 15.
16 Charge 16 was a charge of common law assault, the evidence of the complainant was that her husband urinated on her, following what she said were daily arguments. The prisoner did this to her after telling her 'I will show you what you are worth.'
17 Charge 17 was a further charge of penile rape which occurred on 20 June 2015, after an argument following a meal with the prisoner's family. She was accused by the prisoner, 'Of having no respect for his family.' At that time he again urinated on her, for which he was not charged.
18
Charge 18, pursuant to s.42(1) of the Crimes Act, occurred on
8 August 2015, a charge of the application of force with intent to take part in a sexual act without consent. When staying as a guest at a friend's place, he assaulted her by use of force, pushing her onto the bed and forcibly taking her leggings off. Charge 19 occurred on the same occasion and was an assault by biting her neck.
19 Charge 20 was a further charge of penile rape which occurred on the eleventh day of August 2015, he beat her up, bit her and raped her, overcoming both her verbal and physical resistance. Apparently that day he was particularly upset because she had 'told everyone he had been beating her up.' Eventually that night he kicked her out of the apartment whilst she was naked for 45 minutes after the rape had occurred. Importantly, the complainant told the jury such rapes were not unusual, 'he used to do that to me every day.' However the police asked her to particularise, hence the charged events.
20 Insofar as these crimes are concerned, the complainant said she never reported the crimes to the police while she was living with her husband, due to a mixture of fear; fear of being deported back to India, and there being killed by his family, being scared and ashamed of her failure in marriage given her culture, and her fear of being ashamed before her friends and family. Clearly by their considered verdicts, the jury accepted the complainant's evidence. As I say she was tested in cross-examination, not unfairly, for a lengthy period in circumstances where she was often emotional and requiring explanation of questions by either counsel, the interpreter or myself. Indeed, as I have said, for a period being medically unfit to continue with her evidence.
21 As to the victim impact statement, such was tendered as Exhibit A on the plea. There are certain things in that statement that cannot be taken into account which relate to alleged burnings and scarring of her body, and I do not take them into account. Clearly due to the totality of the criminality committed upon her by her husband, she has suffered from emotional impairment, she suffers anxiety, shame and lack of trust. As to the charge of assault by urinating on her, and the additional uncharged occasion of urination, she still has additional upset because she continues to relive those acts. As a result of the totality of this criminality she needs counselling, she is isolated and has panic attacks. Worst of all, unfortunately it would appear that due to these crimes which were committed upon her by the prisoner, she has become estranged from her own family. She says she is particularly lonely. It is important to make the point that there was presented before the Court, no evidence of any physical injury or ongoing impairment. Such complaints, made in the victim impact statement, all seem to me, totally consistent with the complainant having been subjected to such criminality over the period of five months by her husband during their marriage.
22 At the plea on 30 September 2019, Ms MacDougall appeared for the Director, as she does today. The complainant utilised the remote room to observe the plea and again, does that today. The instructions conveyed to the Court were that the Director did not seek a disproportionate sentence, that the appropriate sentence was an immediate gaol sentence with parole. The appropriateness of such sentence was accepted by Mr Cronin, on behalf of the prisoner.
23 What was stark at the plea hearing was the difference in the manner in which Mr Patil had apparently conducted himself in his employment and socially. Nine character references were tendered, all offered very strong support of him as a person. I refer in particular to the reference of his employer of 10 years, Mr Anthony Penzone, such is suffice to demonstrate the point I am making (Exhibit 1). He provides this character reference for his good friend Mr Patil who he's known for nearly 10 years. What in particular impressed him about Mr Patil was that he was:
'Honest, always on time and spoke to all that worked with him with the utmost respect. In the time with me in his employment he became more than a worker, he became part of the family. He had an appeal that one, which is hard to explain but made him feel as if I'd known him all his life.'
24 He said further that,
'Jayadev had worked with me in five of my businesses over nine to 10 years and in that time I must have had over 200 staff pass through the doors, a great number of them women. Never has any staff member ever mentioned that Jayadev had ever made them feel uneasy or done anything untoward. I have always found Jayadev to be kind, genuine, honest and caring and will continue to support him. And he will always be welcome in this house.'
25 What was therefore stark in the plea hearing was the difference in the manner in which Mr Patil had apparently conducted himself, as I say, in his employment and socially. I should add that each of the other references were wholesome in their praise of Mr Patil. Hence the issue for this Court is to try to align such references with the harsh and brutal husband, evidenced by the facts before this Court and the verdict recorded. Such of course is impossible.
26 I was referred to [37] of Johns (a Pseudonym) v The Queen [2016] VSCA 97, by counsel in the plea:
'The prisoner treated the complainant as his property, not as an equal nor as a person worthy of respect.'
The Court of Appeal went on to say:
…'that such is abhorrent and cannot be tolerated.'
27 Mr Cronin did not seek to gainsay the jury verdicts, but as to the facts, personal to Mr Patil, stressed the following:
(1), That it was his first time in gaol. That such was having an understandable impact upon him, in particular because he was there without the capacity to be visited by his family.
(2), Because of these convictions, and their seriousness, the reality is that when the prisoner is eligible for parole, he will thereafter be certainly deported back to India, given his visa status. Such clearly puts paid to 11 years of hard work, as demonstrated by the references, where Mr Patil has positioned himself, seeking to stay in Australia and providing himself with means to support his family in Australia and India.
(3), Mr Cronin stressed that Mr Patil had no priors.
(4), He stressed the strong personal support by way of character testimonials to which I have referred.
(5), Further Mr Cronin expressed the need for this Court to take into account the delay that Mr Patil has endured. Such I accept is a powerful factor. There has been a delay of four years from the time these crimes occurred. There is no explanation before the Court as to that delay. However, of course, assembling witnesses in the circumstances of this case, must have been a factor. Also then getting the time to allocate in this Court, considering our heavy listing issues, a trial which lasted 13 days. I accept that as a result of such delay, these allegations have hung over him and despite that, he has continued to work, earned the high plaudits that I have referred to, and has not further offended.
(6), It was further put there was a need for concurrency in regard to Counts 5, 6, 7, 8, 13, 14, 18 and 19. I accept that, albeit the serious sexual offender provisions.
(7), Mr Cronin further put that during the time that the prisoner has been on remand he has suffered, particularly because he has been unable to attend services for his father and mother, both who died during that period. As I said it is his first time in custody, he has served now, as agreed by counsel, 53 days by way of pre-sentence detention. And I accept as Mr Cronin says, that service of such would be confronting.
28 On the basis of the jury findings, clearly the prisoner has an issue as to how he acted within his marriage, and how he treated his wife, compared to how he acted in public. Whether there were cultural factors at the back of such, I am unsure. Of course such are, irrelevant. No culture condones rape or violence against women. Although my enquires as to current Indian law is that a conviction of rape within marriage, is still not possible, pursuant to s.375 of the Indian Penal Code. There are two exceptions, if a rape takes place during a judicial separation or the wife is under the age of 11 years.
29 This Court is bound by the laws of Victoria, in this instance, s.38(1) of the Crimes Act. Legal responsibility for rape in a marital relationship in this State dates from provisions inserted in the Crimes Act by Parliament in 1985, to abrogate what Parliament then described as, 'obsolete rules of law.'
30 Doing as best I can to be merciful to Mr Patil and taking into account all factors and cases that have been referred to me by counsel, I sentence Mr Patil as follows. Mr Patil if you'd be good enough to stand up please:-
In regard to Charge 3, a period of imprisonment of six years. In regard to Charge 5 a period of imprisonment of six years. In regard to Charge 6, a period of imprisonment of 6 years. In regard to Charge 7, a period of imprisonment of 18 months. In regard to Charge 8, a period of imprisonment of six years. In regard to Charge 11, a period of imprisonment of six years. In regard to
Charge 12, a period of imprisonment of six years. In regard to Charge 13, a period of imprisonment of six years. In regard to Charge 14, a period of imprisonment of six years. In regard to Charge 16, a period of imprisonment of nine months. In regard to Charge 17, a period of imprisonment of seven years. In regard to Charge 18, a period of imprisonment of seven months. In regard to Charge 19, a period of imprisonment of four months. And in regard to the last charge of rape, Charge 20, a period of imprisonment of six years.
31 Parliament's desire in regard to serious sexual offences, which apply here from Charge 6, and include by definition Charges 7 and 18, is that there be full cumulation. Also as to such sentences for serious sexual offences, the primary consideration which must be adopted by this Court is the protection of the public. Given the particular circumstances of the case, the Director has not called for an inordinate sentence. Given the crimes and their circumstances, pursuant to my obligation under the Act, I find no risk to the public posed by Mr Patil. Given the principles set out in the legislation, and the tension referred to by Redlich J in Gordon v The Queen [2013] VSCA 343, [74]. I have complied with the wishes of Parliament as best I can, however, the principle of totality must be taken into account.
32 I have determined therefore that the base sentence should be the sentence in regard to Charge 17, being a period of seven years. I order that three months of each of the sentences in regard to Charges 3, 5, 6, 8, 11, 12, 13, 14 and 20, being the remaining rape charges, be served cumulatively upon each other and upon the base sentence, making a total cumulative sentence of 27 months. In regard to the two assault charges, I order that two months of Charges 7 and 16 be served cumulatively with each other and Charge 17. That makes a total aggregate sentence of nine years and seven months.
33 Pursuant to s.11 I order that the non-parole period which must be served by Mr Patil before being eligible for parole is six years and seven months. Pursuant to s.18 I declare that the 53 days served to date is declared as service of this sentence, and such declaration be recorded in the records of this Court.
34
I do not, in the circumstances, intend to accede to the request for a s.465ZF certification. I declare that Mr Patil has been sentenced as a serious sexual offender in regard to Charges 6, 8, 11, 12, 13, 14, 20, 7 and 18.
Mr Patil to make that clear to you, for the totality of your criminality I sentence you to an aggregate sentence of nine years and seven months imprisonment. Before you will be eligible for parole, you must serve six years and seven months in prison.
35 HIS HONOUR: Mr Kordos is there any matters that I need to clarify?
36 MR KORDOS: No Your Honour.
37 HIS HONOUR: Ms MacDougall?
38 MS MacDOUGALL: No Your Honour, thank you.
39 HIS HONOUR: In the circumstances therefore, Mr Patil I can only wish you well. The prisoner can be taken away.
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