Director of Public Prosecutions v Prasad (a pseudonym)
[2022] VCC 2153
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH PRASAD (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 November 2022 |
| DATE OF SENTENCE: | 6 December 2022 |
| CASE MAY BE CITED AS: | DPP v Prasad (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 2153 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Four charges of sexual penetration of a child under 16 – one charge of possession of child abuse material – offender suffers from health condition – deportation of offender likely – youthful offender – standard sentence offence – significant departure from the standard sentence – serious sexual offender provisions engaged – early pleas of guilty – excellent prospects of rehabilitation
Legislation Cited: Migration Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Guden v R [2010] VSCA 196; Loftus v R [2019] VSCA 24; Victorsen v R [2020] VSCA 248; Sims v R [2022] VSCA 114; R v Mills [1998] 4 VR 235; Azzopardi v R (2011) 35 VR 43; Worboyes v R [2021] VSCA 169; DPP v Spottiswood [2020] VSCA 321; Jenkins v R [2021] VSCA 65; Bouris v R [2021] VSCA 65
Sentence:The total effective sentence of 32 months’ imprisonment with a non-parole period of 20 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Champion | Office of Public Prosecutions |
| For the Accused | Mr H. Moodie | James Dowsley & Associates |
HIS HONOUR:
Introduction
1At the outset, Mr Prasad[1], I propose to sentence you to 32 months imprisonment and set a non-parole period of 20 months imprisonment. I will declare your 309 days of pre-sentence detention as time served under my sentences.
[1] A pseudonym
2You have pleaded guilty to:
(a) four charges of sexual penetration of a child under 16; and
(b) a charge of possession of child abuse material.
Circumstances
3The circumstances of each charge is set out in the document entitled 'Summary of Prosecution Opening for Plea', which is Exhibit A. Your counsel agreed with the factual contents of that exhibit.
4The complainant is Lia Koto[2]. You and she have known each other for about three years.
[2] A pseudonym
5During Christmas 2021, you began speaking to the complainant while she was staying at the house you resided in with your cousin, Maria Tamani[3]. You added her to your Facebook and Instagram accounts and began communicating with her regularly. Your communications were flirtatious. You said you were sexually attracted to her. You asked her how old she was and she said 14 years old, and would be 15 in July of 2022. At the time, of your offending, you were 23. You asked her if she wanted to be in a relationship with you and she agreed. You told her to keep your relationship a secret and you began dating. At that stage, your contact with her was through Facebook messenger only.
[3] A pseudonym
6About two weeks later, Ms Tamani became aware of the relationship and confronted both of you about it. Both of you denied a relationship and the complainant blocked you on her social media. Ms Tamani told you the complainant was only 14 and to leave her alone. A short time later, you contacted the complainant through Snapchat and Instagram and your relationship restarted.
7On 29 January 2022, you attended the complainant’s home for a family gathering. You drank alcohol in the garage with other family members while the complainant remained in the house. You sent text messages to her. You and she arranged for you to go inside the house, pretending to go to the toilet. Instead, you kissed and hugged her. This occurred several times throughout the evening. You continued to drink throughout the night. At about 2 am, the complainant went to bed on the bottom bunk in her brother’s bedroom.
Charge 1
8At about 6 am, you entered her bedroom, climbed into her bed and began kissing and hugging her. You pulled your pants down and inserted your penis into her mouth. She performed oral sex on you for about two minutes until she stopped and said 'What are we – what are you doing? This isn’t right'. She was concerned her father or another family member would discover you together.
9Nevertheless, you put your penis back into her mouth again and put your hand behind her head, making her to continue to perform oral sex. After several minutes, you ejaculated inside her mouth. You then left the room. These are the circumstances of Charge 1, a charge of sexual penetration of a child under 16.
10You returned to the bedroom again, ripped a blanket off her and attempted to remove her pants. She stopped you, saying 'What are you doing? This is not right'. You pulled your pants down and lay on the floor. Your penis was erect and you tried to convince her to have sexual intercourse with you. When she refused, you left the room.
Charge 2
11That same morning, while the complainant slept, you entered the bedroom and removed her shorts. She was lying on her back. You inserted your penis into her vagina and had sexual intercourse for a matter of seconds. She told you to stop for you were making too much noise and would wake her brother who was asleep in the top bunk. These are the circumstances which constitute the second charge, a charge of sexual penetration of a child under 16.
Charge 3
12In the afternoon of Sunday, 30 January 2022, you and the complainant were in the rear lounge room of the house. You were cuddling on a couch and you began touching her breasts. You rubbed the complainant’s nipples with your fingers, using your saliva. You then inserted your penis into her vagina while she lay on her back on a couch. You had sexual intercourse for about two minutes before you heard a noise and stopped; you were fearful of being caught by a family member. These are the circumstances constituting Charge 3, a charge of sexual penetration of a child under 16.
Charge 4
13At about 3:00 pm that day, you and the complainant were still in the rear lounge room. You were sleeping on the couch when she decided to cuddle you. You woke up and she pulled her shorts down. You inserted your penis into her vagina while underneath a blanket. A few seconds later, Filipe Tamani[4], your cousin’s husband, entered the lounge room and walked past you and the complainant. He saw the two of you under the blanket and heard sounds sounding like kissing. The complainant quickly got up, pulled her shorts back up and laid down on another couch. Both of you pretended to be asleep when Mr Tamani walked past again. These circumstances constitute Charge 4, a charge of sexual penetration of a child under 16.
[4] A pseudonym
Charge 5
14At about 10.05 pm on 12 January 2022, you were sent a photograph of the complainant through Snapchat. The photograph showed her with her breasts exposed. This constitutes Charge 5, a charge of possession of child abuse material.
Arrest and Interview
15Filipe Tamani told his wife, Maria Tamani, and the complainant’s father, what he had seen. Mr Tamani examined her phone and found messages passing between you and her dating back several weeks. Her father spoke to the complainant and she told him about the sexual intercourse. Mr Tamani heard what she said and confronted you. You admitted to having sexual intercourse with her. The matter was immediately reported to the police.
16The police examined the mobile phones of you and the complainant. They found text messages of a sexualised nature, examples of which are set out in paragraph 40 of Exhibit A.
17On 31 January 2022, you were arrested. When interviewed, you admitted penetrating the complainant. A summary of what you said is set out in paragraphs 48 to 57 of Exhibit A. Although you co-operated with the police, your answers were largely, but not completely candid.
18You were charged that day and remanded in custody, where you have remained. Excluding today, you have spent 309 days in custody.
Victim Impact Statement
19There are no victim impact statements.
Criminal History
20You have no criminal history. Until these offences, you enjoyed good character. Admittedly, the period of your good character is limited given your age but is nonetheless deserving of some minor mitigation of penalty.
Personal Circumstances
21You are now 24.
22You were born in Fiji and grew up in a rural community near Suva. You are an only child. Your family life and your family was supportive.
23You completed Year 12 in Fiji and then studied graphic design at the Fiji National University for two years. While studying, you worked part time as a cleaner.
24In 2019, you travelled to this country on a student visa and started studying plumbing at an Australian TAFE. Financially, you were supported by your parents, who paid your TAFE fees.
25At the time of the offending, you were living in the home of Maria Tamani.
26Unlike many who come before these courts, you have no history of drug use and no issues with alcohol, although you do drink alcohol.
27You have a very limited history of relationships.
Reference Letter
28Your parents, Peter[5] and Sera[6], wrote a letter supporting you. They speak of your stable upbringing in Fiji:
'We brought [Joseph] up to be kind, to care for everyone, to love everyone and to be humble. He grew up with all these virtues and uphold these virtues when he left for his studies. He was a member of our church Youth fellowship when he left us in 2019.
[Joseph] was never at any time in trouble with the police or involve in any illegal activities or drugs in Fiji. He maintained these values when he left for studies. He is someone that we can trust and someone who we can rely on. We were really surprised and shocked that he was involved in such incident after knowing his background and his abilities. But it was so unfortunate that he has committed this crime'.
[5] A pseudonym
[6] A pseudonym
29Your parents describe the circumstances of the offending and the remorse you have described to them:
‘[Joseph] have relayed to us his offence, he was really remorse and sorry for what he has done.’
30Despite the nature of the offending, your parents still support you:
'We have talked with [Joseph] and conveyed to him that we have forgiven him and we have also encourage him to be strong. We are willing to keep on supporting him to complete his education, if given the chance.’
31The letter does not actually say you realise the harm you caused to the complainant.
Health
32Since 2019, just before you travelled here, you began experiencing serious seizures. You have since been diagnosed with epilepsy. Your seizures have continued while you have been in custody.
33On 30 March 2022, you collapsed in the prison yard and struck your head on the ground. You had a thirty second seizure and were unable to squeeze a hand on direction. An ambulance was called but it was delayed. You experienced a further seizure which lasted two minutes before the ambulance arrived. You were taken to hospital.
34Following this, your medication was increased. You have suffered further serious seizures on 8 April, 18 and 24 May 2022. You have lost consciousness during these seizures. Each was accompanied by a physical injury due to your loss of consciousness. There are other symptoms which worry you including the loss of feeling and control in the left-hand side of your body.
35Your counsel submits your seizures have made your time in custody onerous in that you are anxious whenever left unsupervised for you may experience a seizure and may suffer health complications or even die.
36An effect of these seizures has been the need to attend hospital for investigation and treatment. Upon your return to prison, you have spent some time in isolation.
37Following the hearing on 8 November 2022, your counsel provided extracts of your Justice Health records, concerning your further seizures while in custody. Among those records were further reports which show you underwent CT scans at Bendigo Radiology in March and May 2022. You also underwent MRI scans in March 2022. A report from the Neurosurgery Clinic at St Vincent’s Hospital dated 7 June 2022 notes biological malformation of your brain. It was concluded there was no role for neurosurgery at the time and suggested you be reviewed in the Epilepsy Clinic to manage your seizures.
38There is a letter of referral, dated 28 December 2019, from your general practitioner, Sudarma Munathanthiri, to a neurologist, Jayanthe Rupasinghe. Dr Munathananthiri seeks advice about your condition and its management. He notes you reported having about six seizures since August 2019, the last of which rendered you unconscious for four minutes.
39Your ill health renders your time in custody more onerous. The nature and frequency of your seizures understandably causes you to fear the consequences if not treated quickly after their commencement. It does mitigate the sentences but it cannot lead to sentences which are inappropriate in all of the circumstances.
Other conditions in custody
40You have not had any face to face visits during your time in custody. The only contact you have had with anyone outside of prison is by way of monthly telephone calls to your parents in Fiji.
Deportation
41You are not an Australian citizen or a permanent resident. You are a Fijian citizen and are in this country on a student visa. Under the relevant provisions of the Migration Act 1958, my sentences of imprisonment mean your visa is automatically cancelled and, subject to the intervention of the relevant Minister, you will be deported.
42Your counsel referred to a passage from the case of Guden v R[7]. In Loftus v R[8], the court said:
‘The potential for an offender to be deported at the completion of a sentence is relevant to sentencing in two ways. First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. This, in turn, may render the incarceration more difficult. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.’
[7] [2010] VSCA 196 at [25]
[8][2019] VSCA 24 at [79]
43The first factor is present in your case. Your counsel submitted the prospect of deportation was already causing you anxiety. Plainly, you harboured a hope to stay in this country but whether that hope was soundly based one does not know. As to the second, since you are anxious about the prospect of deportation, you must have wished to settle in this country permanently. Certainly, once deported, it is unlikely you will be allowed to return to this country. Given that Fiji and Australia are neighbours, this is a significant restriction. Your studies will need to be undertaken elsewhere.
Discussion
44Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
45Each of those purposes is relevant in your case. My sentences should deter not only you but also others from committing these or similar offences. Plainly, my sentences should denounce your offending and protect the community from you. Rehabilitation is important because of your age and prospects.
46Section 5(2) of the Sentencing Act sets out matters to which regard must be paid, where they are relevant to a particular proceeding.
Maximum penalty
47The maximum penalties for the charges are:
(a) sexual penetration of a child under 16 years – 15 years imprisonment or a fine of 1,800 penalty units; and
(b) possession of child abuse material – 10 years imprisonment or a fine of 1,200 penalty units.
Standard sentence
48The charge of sexual penetration of a child under 16 years is a standard sentence offence. On 1 February 2018, the standard sentence scheme commenced operating. Only a few criminal offences are standard sentence offences for which standard sentences are prescribed. The offence of sexual penetration of a child under 16 is such an offence. The standard sentence for that offence is six years’ imprisonment. What is meant by a standard sentence?
49First, it is the period of imprisonment specified for a particular offence. Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence and is in the middle of the range of seriousness.[9] The objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.[10] Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing.[11]
[9] S 5A(1)(b)
[10] S 5A(3)
[11] S 5B(2)(a)
50In Victorsen v R[12], the court discussed the standard sentence scheme. At paragraph 18, it said:
[12] [2020] VSCA 248
'In Brown, this Court said that a judge
when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
• is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
• does not affect the established ‘instinctive synthesis’ approach to sentencing;
• does not require or permit ‘two-stage sentencing’; and
• does not otherwise affect the matters which the court may, or must, take into account in sentencing.’
Nature and gravity of the offences
51In determining the nature and gravity of the charges of sexual penetration of a child under 16, your counsel submitted I should consider the following:
(a) the four charges of sexual penetration encompass a single course of conduct. That is, I should view the events starting at about 6 am on
29 January 2022 and ending at about 3 pm on the next day as being a single course of conduct over two days rather than, as often is the case, four instances of sexual penetration spread over a longer period. In the circumstances of how and where they were committed, I agree the instances of sexual penetration should be viewed in that way;(b) most of the sexual penetrations were brief, lasting between seconds to two minutes. The event in Charge 1 took more than two minutes. It was broken into two parts: the first took two minutes; and the second, several minutes. I agree the remaining charges involved a few seconds to about two minutes and were indeed brief;
(c) the complainant consented to the penetration, although your counsel noted her consent, by itself, does not mitigate the penalty[13]. Here it is a neutral factor. On the other hand, a lack of consent would increase the seriousness of the offending, but that is not the case here;
(d) the difference in your respective ages was relatively modest: you being 23 and the complainant being14;
(e) she was not in your sole care; and
(f) you are not biologically related. If the relationship was of a certain closeness, then other charges may have been laid. But I can see that if you were biologically related to the complainant, then that would be an aggravating factor. That you are not does not mitigate your offences. It is another neutral factor.
[13]Sims v R [2022] VSCA 114 at [45]
52The offence of sexual penetration of a child under 16 is a very serious offence. So much is evidenced by the maximum penalty of 15 years’ imprisonment. Although the complainant has not made an impact statement, it is reasonable to assume that your offending has affected her psychologically and that effect will not be short-lived. I consider these offences are below the mid-range of objective gravity or seriousness.
53In relation to Charge 5, it is a very lowly instance of the offence. There is only one image. The usual case has many images. It was used by you alone. There is nothing to establish you distributed the image to others or sought to profit from it.
Serious sexual offender provisions
54Charges 1 to 4 are each a 'sexual offence' as defined in s6B of the Sentencing Act. In relation to Charges 3 and 4, you are a 'serious sexual offender'. In sentencing you on those charges, s6D provides the court in determining the length of the sentences:
(a) must regard the protection of the community from the you as the principal purpose for which the sentence is imposed; and
(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.
55Counsel for the Director did not seek a disproportionate sentence and I agree it is unwarranted in your case.
56Finally, s6E provides the sentence on those charges should be served cumulatively on the other sentences unless I otherwise direct. Again, counsel for the Director did not seek full cumulation, but did seek partial cumulation.
Youth
57At 23, at the time of the offending, you were a youthful offender. You are still youthful. Your youth raises the considerations stated in R v Mills[14] and Azzopardi v R[15]. The Director concedes the considerations set out in Mills case apply to you. The principle of those considerations is rehabilitation is usually far more important than general deterrence. Although applicable, those considerations are tempered by the fact of the serious sexual offender provisions to which I have just referred.
[14] [1998] 4 VR 235
[15] (2011) 35 VR 43
Prospects of Rehabilitation
58I accept that you are remorseful for your offending. This derives from what underlies your guilty pleas and your parents’ statement to the effect. For someone who has never been in custody before your remand, the fact of imprisonment should assist in your rehabilitation and, if not, deter you from similar offending in the future. Accordingly, I consider your prospects of rehabilitation are excellent
Guilty pleas
59In relation to the charges, in terms of the timing of your pleas of guilty, they were entered at an early opportunity. They are evidence of your remorse for the offending.
60By pleading guilty to the charges, you have avoided a trial. You have saved the time and expense of a trial. You have allowed other trials to be listed earlier than would otherwise have been the case. You have spared witnesses the burden of giving evidence in a trial. Giving evidence is never easy. This would be especially so for the complainant.
61At the present time, pleas of guilty deserve a greater discount on sentence. Why this is so was explained in the case of Worboyes v R[16], where the court said:
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’
[16][2021] VSCA 169 at [35]
Comparative Cases
62Counsel for the Director drew my attention to three judgments of the Court of Appeal dealing with these and other offences: DPP v Spottiswood[17]; Jenkins v R[18]; and Bouris v R[19]; while your counsel referred to Sims v R[20]. These cases are useful up to a point. In each, the court is dealing with the question of whether the sentences were manifestly inadequate or excessive. It is a question of inadequacy or excess where the line is drawn by the word 'manifestly'.
[17] [2020] VSCA 321
[18] [2021] VSCA 65
[19] [2021] VSCA 65
[20] [2022] VSCA 114.
Sentence
63On Charge 1, I sentence you to 20 months’ imprisonment.
64On Charge 2, I sentence you to 18 months’ imprisonment.
65On Charge 3, I sentence you to 18 months’ imprisonment.
66On Charge 4, I sentence you to 18 months’ imprisonment.
67On Charge 5, I sentence you to seven days’ imprisonment.
68The sentence on Charge 1 is the base sentence. Six months’ imprisonment of the sentences on Charges 2 and 3 will be served cumulatively upon themselves and the base sentence. The other sentences are to be served concurrently. The total effective sentence is 32 months’ imprisonment.
69Bearing in mind, s11A(4) of the Sentencing Act, I will set a non-parole period of 20 months’ imprisonment.
70I declare the 309 days of your pre-sentence detention, excluding today, as time served under these sentences.
71I will cause to be entered in the records of the court the fact that I have sentenced you on Charges 3 and 4 as a serious sex offender.
Standard Sentence
72As can be seen, my sentences on each of the charges of sexual penetration of a child under 16 is well below the standard sentence for the offence. I have arrived at those sentences after considering the objective seriousness of the offences, your personal circumstances, including your health and previous good character, your prospects of rehabilitation, your guilty pleas and the effect upon you of your continued imprisonment and probable deportation.
Sex Offender Registration
73Charges 1 to 4 are Class 1 offences under the Sex Offenders Registration Act 2004 and are registrable offences. As these charges arise from the same incident, they are treated as a single offence. You are a registrable offender and accordingly, you must comply with reporting obligations for the rest of your life.
Disposal Order
74I will make the disposal order as sought.
S 6AAA
75In the absence of your pleas of guilty, I would have sentenced you to a total effective sentence of 42 months’ imprisonment.
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