Director of Public Prosecutions v Pillai, Arunkumar
[2013] VCC 284
•19 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.CR-12-00198
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARUNKUMAR PILLAI |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATES OF TRIAL: DATE OF PLEA | 20 -23, 26 -30 November 3 December 2013 5 March 2013 | |
DATE OF SENTENCE: | 19 March 2013 | |
CASE MAY BE CITED AS: | DPP v Pillai, Arunkumar | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 284 | |
REASONS FOR SENTENCE
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Catchwords:
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| APPEARANCES: AT SENTENCE | Counsel | Solicitors |
| For the Crown | Ms B. Moleta | OPP |
| For the Accused | Mr P. Dwyer | Patrick Dwyer |
HER HONOUR:
1 Arunkumar Pillai, you have been found guilty by a jury of three charges of indecent assault and two charges of rape against one complainant. You were acquitted of a charge of indecently assaulting another woman.
2 The offences occurred on 14 September 2011 at the premises of your grocery shop in Fairfield. That morning the complainant went to the store, and while she was searching the shelves you approached her and engaged her in conversation about food allergies. You told her you knew how to perform Ayurvedic massage. You asked her to lift her shirt up, and with her consent you touched her abdomen and hip area as preparation for the massage. She agreed to return later to the shop for an initial consultation, which she did, and you then asked her to sign a consent form. You closed and locked the door of the shop. You massaged her head and face first, and then you persuaded her against her wishes to remove all her clothing. You told her that you needed her to do so because you needed to see her body for the purposes of the massage.
3 She said in evidence that she submitted because she believed the process would be of some benefit to her since she had had other alternative natural healing processes before with massage and acupuncture. You did not explain what you were going to do or what parts of her body you would be touching, but you stood in front of her and prayed over her in a foreign language.
4 After telling her to lie on her back you then massaged various parts of her body, in the course of which you touched and stroked her vagina, that is Charge 2, rubbed her breasts and stroked her vagina a second time, that is Charge 3, pinched and twisted her nipples, that is Charge 5. You inserted your finger into her vagina on two occasions during the massage, those are Charges 4 and 6. These are very serious offences for which the maximum penalties are very long prison terms; 25 years for rape and ten years for indecent assault.
5 The complainant provided a victim impact statement in which she described having been badly affected psychologically. Incidents of experiences since the offending that would otherwise be innocuous have triggered feelings of fear and distrust and have caused her to turn away from people. She left Australia and returned to her homeland to be with her family there, and had to forego work opportunities she may have had here. She has had to delay plans to further her professional career as a musician. She said although fortunately she is well on the way to recovery she doubts that she will ever be as trusting as she used to be. She wonders why you chose to use the opportunity to defile her as you did. Clearly that is a disturbing report and it gives some indication of how criminal acts of this type affect people profoundly.
6 It was put by Mr Kilduff on your behalf that what occurred was not the result of detailed planning, but rather it arose from the conversation you had with the complainant in the shop. Clearly there was some planning, if not initially, then later when you arranged for her to return and even altered the appointed time.
7 You come before the court as a man of previously good character never having been in trouble before. You come from a good family who live in Kerala in India where you were born and educated. You have a Bachelor of Arts degree in history from Mahatma Gandhi University in Kerala and a Bachelor of Business Administration from Madras University. You also have a Masters Degree of Business Administration in marketing and finance from Narayana College in Kerala.
8 You supported yourself while studying by tutoring in history and accounting. After qualifying you worked in India as a branch manager for a large company and resigned just before coming to Australia in May 2010. Here you have completed a personal carer's course and a related course and you commenced a CPA course in February 2011. After working for several months at a 7-Eleven store you opened up your own grocery store trading as A1 Spices using joint savings of yourself and your wife of $150,000, together with money borrowed from friends.
9 When you were arrested and remanded in custody you lost this business and you were unable to sit your exams. I understand you have repaid the debt to your friends and you have lost all your savings. You are married to a woman you met in Kerala who is a nurse and is the mother of your two year old child. She is working double shifts to pay the rent and is suffering hardship.
10 You are very close to your family in India and you help support your wife's sister who is a student in Singapore. Your wife visits you in prison weekly, but you are finding the experience of prison a shock and traumatic. Mr Cummins, the clinical and forensic psychologist whom you consulted for the purpose of an assessment and report is of the opinion that your mental health may deteriorate during your incarceration. He reports that you are pessimistic about the future.
11 Although you maintain your innocence, in hindsight you wish you had not got involved as you did and that you had someone else present or had supervision. You have consented to taking part in a sex offenders program in prison, and insofar as that may suggest some degree of remorse on your part I take it into account without placing a great deal of weight upon it.
12 You have been assessed as being at a low to moderate risk of reoffending, which is an indication of your reasonable prospects for rehabilitation. Mr Kilduff submitted on your behalf that although the complainant was vulnerable you do not pose a risk to other members of the community. Your concession that you should have proceeded in a different manner suggests some degree of insight and the experience of prison together with the losses you have suffered and the hardship to your family may in combination reduce the risk.
13 The prosecution's submission as to sentence was for a head sentence of between five and six years with a non-parole period of between three and four years. This was put on the basis of the seriousness of the offending, the absence of remorse and the vulnerability of the complainant at the time as a woman seeking treatment for long standing health issues. It was further said by the prosecution that there was a degree of planning and that the locking of the door of the shop was further evidence of this.
14 Certainly the offences are very serious and the particular circumstances are also serious. The complainant trusted you as a knowledgeable person equipped to provide the specialised treatment you spoke to her about, and of which she had enough knowledge herself to believe you were credible. The importance of general deterrence must be acknowledged in the light of those circumstances. Those who exploit vulnerable people in such a serious way deserve a sentence of imprisonment which reflects that criminality.
15 That being said your own need for specific deterrence is considerably reduced by what I have already noted as to your personal circumstances. The sentence I impose has to be carefully constructed to reflect those circumstances, and the prospect which is a reasonable one, that once released you will be a contributing member of society with proper insight into appropriate behaviour.
16 I take into account that all the offences occurred on the one occasion and within a short space of time, and that is reflected in the orders for concurrency and some degree of cumulation.
17 I sentence you to the following terms of imprisonment:
18 For each of Charges 2, 3 and 5, the charges of indecent assault, 9 months;
19 For each of Charges 4 and 6, the charges of rape, 3 years.
20 The sentence for Charge 4 will be the base sentence for the purposes of cumulation. Twelve months of the sentence for Charge 6 and three months of the sentence for Charge 3 are to be served in cumulation upon the base sentence. That results in a total effective sentence of 4 years and 3 months. I order that you serve a minimum period of 2 years before being eligible for parole. I note that under the Sentencing Act I sentence you as a serious sexual offender for Charges 4, 5 and 6 having sentenced you to prison for Charges 2 and 3 and I shall cause that to be noted on the court record.
21 You have spent 106 days in presentence detention, not including today, which time is to be reckoned as already served and I shall cause that also to be noted on the court record.
22 The prosecution seeks an order under the Sex Offenders Registration Act of 2004 that you report your details to the police every year for 15 years. This is discretionary in your case and I can only make the order if I am satisfied beyond reasonable doubt that you pose a risk to members of the community. Having considered matters including your previous good character, your willingness to participate in sex offender treatment and your other personal circumstances I am not satisfied that you do pose such a risk. Accordingly I will not make the order.
23 The prosecution also seeks an order for the retention of the forensic sample obtained previously, and through your counsel you have consented to that and I make that order.
PRISONER REMOVED
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