Director of Public Prosecutions v Ramlagun
[2014] VCC 270
•11 March 2014
| Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-13-00585
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMAN RAMLAGUN |
---
| JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 11 March 2014 |
| CASE MAY BE CITED AS: | DPP v Ramlagun |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 270 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | |
| For the Accused | Mr A. Halphen |
HIS HONOUR:
1Aman Ramlagun, you were found guilty by a jury verdict of three charges, being two charges of indecent assault and one of rape.
2On 9 August 2012, in the early evening, you went to the complainant's house. I shall refer to her as "M" for reasons of privacy and anonymity. She was home with her two-year-old son and had invited you to come over to discuss a matter concerning her partner which you and she had been discussing for some time prior. Her partner was in gaol at that time, and in the week leading up to these events you and she had been discussing his alleged infidelity, a matter you had raised with her previously. In fact, you did not know anything about such a matter. The complainant was naturally anxious but suspicious of your assertions and questioned you often and assiduously about the subject on a number of occasions.
3She secretly recorded on a microcassette your conversation with her upon your arrival, but because of the limited timeframe available on the tape, nothing of the subsequent events covering the offending was recorded. However, she made this recording in order to enable her , it would appear, to discuss your allegations with her partner and she said as much during a call with her partner in which she complained of your behaviour immediately after the offending.
4It was the Crown case that you had fabricated the infidelity of M's partner and continued to lie to her about it as part of your planning to take advantage of her vulnerability and her upset and anger at that state of affairs. I am not persuaded that such an argument was necessary for the Crown to prove its case and, in fact, in my view, that reasoning about your motivational planning is speculative at best and I need not make any findings about it.
5It is clear from the evidence of Sue Scarfo, now Sandonato, who is now your girlfriend, that you and her had hatched a plan to tell M that M could call Sue, who would then fake her identity and confirm the infidelity, by lying to M. Whether this was done as part of the confabulation to deceive M or whether it was done to dissuade M from continuing to ask you questions, which was the explanation which you gave to the jury and which I do not accept, and probably the jury did not accept, it adds nothing to the events which followed. It is true that on one view this scheme of telling M lies about her partner and inveigling Sue in helping you with it by further lies, could be seen to be an elaborate plan to render her susceptible and vulnerable to advances, but I am unpersuaded that on the evidence I can make any such adverse finding. In any event, I reiterate that it is unnecessary for me to do so.
After you gave M the name and other details of the woman M's partner was supposedly having an illicit sexual affair with, and whilst smoking a cigarette with her in the back yard, she told you she could be pregnant. You both walked back into the house near the front door. You asked her to show you her belly. Then you suddenly pushed her against the wall and started kissing her on the neck. You were telling her that you wanted her. She kept asking you to stop. You then grabbed both her arms and held her arms by the wrist with one hand above her head and you kissed her left breast, which you had exposed, and that was Count 1.
7You then put your hand down her pants, she tried to push you away, but you put your hands down her underwear and penetrated her vagina with a finger or fingers. She was telling you to stop and finally she managed to push you away. By this time she was screaming. You then pushed her into her son's room. In that room there was a cot. Her son had been in the lounge room, and as you went into his room, you shut the door behind you, leaving the boy in the hallway. She could hear him calling from outside the door. Once inside, you pushed her towards the cot, bent her over, pulled her pants down and pulled her closer to you. She felt your penis on her back and her bottom. She turned and saw your exposed penis. She kept screaming for you to stop and kept saying words to the effect of "What are you doing? You are his friend", referring to her partner, "and you have a girlfriend." Her son was banging on the door. You said little and left straightaway. As you were leaving you again asserted you would get evidence of M's partner's infidelity and you added that she should give you sex for that service.
8She made immediate complaints to her partner, who called her, as was his routine from prison, a few minutes later, and then she complained to others and finally to the police that evening.
9When you were interviewed on 16 August, you denied any improper sexual contact. When she was examined, DNA traces were located on swabs taken from M, and you admitted during the trial that the DNA traces originated from you. They were found on her neck and her breast and related to saliva traces found on her at those places.
10Sexual offences of this type are abhorrent to the community and to the law. You had known the complainant for about two years and she considered you her friend, and her partner had entrusted you to look after her during his absence. You betrayed that trust and that friendship in a most egregious manner. Your offences were committed in proximity to a young child and in the complainant's home. It was submitted that these offences were somewhat less serious because of the lack of age disparity between you and M and the lack of physical injuries for an event of limited duration. I disagree with this assessment. The complainant is a small woman, while you are a tall, heavyset body builder. You used your strength to immobilise her. While you inflicted no physical injuries, you used preponderant strength to impose yourself upon her and, to my mind, such force is tantamount to physical coercion and violence. The events may have lasted only some few minutes, but they would have been frightening and very upsetting for her. She described being forcefully pushed and strongly held. It was submitted the offending was spontaneous.
11As I have previously explained, I accept that I should take the view that it was not planned. However, even a spontaneous attack of this kind has little mitigatory effect because of that description. It simply lacks the aggravation of planned premeditation. It remains, however, a fundamentally violent and intrusive offence which is in serious breach of bodily integrity of another person in that person's home and in proximity to a young child. In my view, it falls in the low-middle range of such offences.
12No victim impact statement was received in this matter, but pursuant to the description which I have just given, I can draw reasonable inferences that the impact upon the victim was traumatising, frightening and may have long lasting effects.
13Rape, in particular, but also indecent assaults, are intolerable conducts which must be denounced by the court. There is, of necessity, a large component of this sentence which is motivated by the need for general and personal deterrence. Other likeminded individuals who take sexual advantage of vulnerable persons must be deterred, as must you be deterred in the future by the punishment meted out to you for this offence, to discourage you from such behaviour in the future and to extract the measure of retribution for the offence you have brought upon the complainant.
14I must, of course, take your personal circumstances into account, and I do.
15You were born in 1982 in Port Louis, Mauritius. You are now 31 years old, the third eldest of six. Your father was a man beset by alcohol and drug abuse and your family suffered socially and financially as a result. As the children married, you all lived together with, at one time or another, some 20 people living in the one home. You were a successful bodybuilder. You found employment, undertook night school and cared for your siblings in assistance of your mother, which is to your credit. You won many titles for your bodybuilding. You married very young, at 18, and at 21 a son was born to you.
16Your mother, in 2009, when you were about 26 years old or so, took out a mortgage and purchased for you flight tickets to Australia in order to provide you with an opportunity to live and work in this country, by which she foresaw that you could better provide for your family and for her family in Mauritius. Your son remained in Mauritius.
17You found work soon upon arrival in a fabric factory and then as a renovator. In 2010, however, you were diagnosed with a prolapsed disc in your spine. You were off work for 12 months. You eventually received a lump sum payment of some $100,000 in October 2012, a portion of which you repaid to WorkCover and partly to legal fees. With the balance, you bought a car for Sue Sandonato, as she is now known. You came to Australia with your young wife, but that relationship broke down.
18Your one item of prior criminal history of unlawful assault relates to this break-up. You had a verbal altercation in public with your ex wife and then you proceeded to strike her head with a slap and then, when a person intervened on her behalf, you punched him and wrestled him before leaving.
19In April 2011 you were convicted and fined $500 and ordered to complete a men's behaviour change program, which you apparently completed.
20Due to your injury, I was told that your mood was affected by the lack of work and opportunity for productivity. However, on your personal side you entered into a relationship which lasted until you were arrested. Thereafter you have taken up with Sue Sandonato, whom you met while at the gym.
21
I received letters of support from her and her mother, as well as her children, who have apparently bonded with you in recent times. They both speak of you in glowing terms as a person who was not selfish, but generous and gentle. You apparently kept in contact with your son in the past and this will be more difficult in the period to come, and I take that into account. You apparently enjoy
Ms Sandonato and her mother's current support and this will impact positively on your time in detention as well as your prospects for the future.
22During your plea, the matter of your potential deportation was raised. That is, it was said that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, which may lead to your deportation. There was no evidence proffered to that argument and it remains no more before me than a speculative possibility.
23I, of course, cannot speculate in the absence of sufficient evidence as to a mere future possibility. However, I consider that I can take into account the prospect of deportation as a factor which may bear on the impact which the sentence of imprisonment will have on you, both during its currency and upon your release. The fact that you will serve in all likelihood your term of imprisonment in expectation of being deported following your release may well mean that the burden of incarceration will be greater for you than for someone who faces no such risk. Therefore, I take into account this hardship. Despite your prior involving domestic violence, you have no prior history in Mauritius, and I find that your prospects of rehabilitation are probably good.
24This morning I heard some evidence and argument that your incarceration will impact on a large number of people in your family in Mauritius because you will no longer be in a position to continue to contribute funds to the household in which many of your family live, including a number of children and your own son. It was said that these circumstances, though falling short of exceptional, demonstrate that I should take into account the fact that this knowledgeable impacts upon your incarceration, that is, the knowledge that, because of it, you will not be able to continue to abide by the commitment that you made to support them as you did in the past. I note, however, that following your recompense for your injury in the two years that followed a substantial payout, you devoted that money to other purposes in part. So, though I find that this matter does not constitute exceptional circumstance, I take into account the fact that your understanding, knowledge and perception of the impact on your commitment to assist your family will be significantly diminished for a period of time. That will render your incarceration more difficult to some extent. As I have said during the course of the plea, that must, in some respects, be balanced by the knowledge that that effect is merely a consequence of your behaviour.
25
I take this matter into account in setting a more moderate
non-parole period than I would otherwise would have set. I note that because of the nature of the charges, you fall to be sentenced as a serious sexual offender as for Charge 3. However, I do not intend to set a sentence beyond what is appropriate in the circumstances.
26The temporal proximity of these offences persuades me that there should be a significant amount of concurrency in determining a period of incarceration reflective of the course of conduct undertaken. Though very small levels of cumulation are appropriate, to recognise the distinct features of the individual offences, the essential unity of conduct will be reflected in concurrency.
27You have never been to gaol before, and this experience of reclusion will hopefully suffice to deter you in the future and to provide an incentive to rehabilitate.
28I will order that a forensic sample of your biological material be retained for placement in a DNA database due to the seriousness of the offences and because I consider this to be in the public interest.
29You have served 22 days, excluding today, of pre-sentence detention, which I will have noted and recorded in the records of the court.
30On Count 1 of indecent assault, you are convicted and sentenced to three months' imprisonment.
31On Count 3 of indecent assault, you are convicted and sentenced to three months' imprisonment.
32On rape, you are convicted and sentenced to three years and four months.
33I order that one month on Count 1 and one month on Count 3 be cumulative on Count 2, making a total of three and a half years. I fix a non-parole period of two years and four months.
34MR HALPHEN: As Your Honour pleases.
35MR ROPER: As Your Honour pleases.
36HIS HONOUR: You can remove Mr Ramlagun. I have signed the retention order.
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