Director of Public Prosecutions v Rana
[2013] VCC 2017
•6 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00563
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NITIN SINGH RANA |
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JUDGE: | Her Honour Judge Wilmoth | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 29 November 2013 | |
DATE OF SENTENCE: | 6 December 2013 | |
CASE MAY BE CITED AS: | DPP v. Rana | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2017 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sentence following trial
Catchwords: Pleaded Not Guilty to 3 x rape - found guilty by jury – offender was taxi driver aged 30 - victim was passenger aged 17 in drunk and vulnerable state. Offender is of Indian birth with no family or friends in Australia – isolated in custody – mental health issues – no prior convictions, well educated, good work history.- Adjustment Disorder - Verdins principles apply.
Sentence: Total effective sentence 6 years, non parole period 4 years
NB A PSEUDONYM HAS BEEN USED IN PLACE OF THE COMPLAINANT’S NAME IN THESE SENTENCING REMARKS
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Sleeth | |
| For the Accused at trial at sentence | Ms J. Condon Mr J. Behan |
HER HONOUR:
1 Mr Rana, you can remain seated for the moment. I will ask you to stand later. Nitin Singh Rana, you have been found guilty by a jury of three charges of rape which occurred in a taxi driven by you in the early hours of Sunday 4 November 2012.
2 The complainant, Gabrielle Ross, was a 17‑year‑old girl who had been drinking heavily during the previous evening and continuing into the early hours. She had arrived alone at a suburban railway station and found that the last train had gone. She had no money and no way of getting home. She met two people she described as junkies who asked her for a cigarette and in return she was given two tablets she believed were Valium. She took those with the vodka she still had left in a bottle she had been drinking from throughout the night.
3 She became very depressed and decided to end her life by consuming two months' worth of antidepressant tablets washed down with vodka. After making the attempt she made her way to Whitehorse Road where she was observed by a group of four people who were waiting for a taxi. Ms Ross was seen falling twice, once as she crossed the road, and again on the footpath near a bank ATM. The four people went to help her and tried to establish who she was and how she was to get home. After they had helped her to her feet they hailed a taxi which was driven by you.
4 In approaching the group you had driven the wrong way up the service road so that when you stopped near them the driver's door was adjacent to them on the footpath. With your window wound down you spoke with the people who were still trying to ascertain the complainant's address. Eventually, after quite some time, they found her address on a card in her bag and told you the address, the location of which you ascertained in your GPS. One of the group gave you $50 to pay for the fare to take her home. She was helped to get into the back of the taxi where she lay slumped on the seat and the person who helped her had been unable to put her seatbelt on.
5 Soon afterwards at some unknown point Ms Ross moved to the front passenger seat and the images from the security cameras in the taxi show her slumped there. You stopped at some point and helped her to sit properly and put her seatbelt on properly. You then began to kiss her and then removed some of her clothing.
6 The footage does not show how the complainant moved to the back seat but she is seen there with you, her clothing removed. Despite her telling you not to, you penetrated her vagina with your finger, then your penis and then forced her to have oral sex. These comprise the three charges of rape. You then returned to the driver's seat and the complainant can then be seen taking a long time to dress herself, during which time you threw some of her clothes from the front seat into the back.
7 After stopping at a service station in an attempt to buy water you drove her home. Her mother let her into the house. But it was not until she awoke next morning that she rang the on-call nurse asking for advice as to whether to call an ambulance, and told the nurse, in response to a question, that she had been sexually assaulted. Soon afterwards she told her mother whilst being driven to hospital.
8 You were arrested and remanded in custody on 6 November 2012 and have remained in custody since then, a total of 395 days, not including today. This has been your first experience of being in custody and I shall return to that matter later in these sentencing remarks.
9 You are a 30‑year‑old single man who came to Australia in 2008 in order to pursue higher education in the field of management. You had completed high school in Hyderabad where your family lived and went on to university where you completed a Bachelors Degree in commerce. You worked for several multinational companies in India before coming to Australia. Here you completed a diploma course in hospitality and management but in order to support yourself you drove taxis, intending to save money and return to India to live.
10 You come from a very well-regarded, middle class family with your parents, two brothers and sister-in-law all having completed tertiary education. You have no previous convictions. Your family and two friends, one of whom lives in Melbourne, have written letters to the court expressing their faith in you as a good person, well brought up and respectful of women. Your parents have described their suffering over your imprisonment and conviction and have pointed out the dire effects your criminal conviction will have on your career prospects.
11 The charges are very serious indeed and in this case there are some aggravating features. Ms Ross was a child and at the time she was struggling with personal issues and had consumed a large amount of both medication and alcohol. She was very drunk and this could be seen from her condition and behaviour, before and at the time of getting into your taxi. It is clear from the verdict that the jury accepted that you knew what her condition was.
12 She has provided a victim impact statement in which she describes worsened depression and anxiety and the difficulties in getting on with her life. She found the trial very harrowing and it caused her to be physically ill. It occurred during her VCE year 12 and she missed a lot of school. She found it difficult to concentrate and complete her work and she fears that her marks may not be enough to qualify for university.
13 The principle of general deterrence requires the sentence imposed on you to be of such severity as to deter others from this type of serious offending. The public is entitled to expect to be safe in taxis, parents should be able to trust that their teenage children will be safe in taxis. This girl's safety was entrusted to you when the people who helped her gave you the money for her fare to take her safely home. Instead you violated that trust when you raped her. You knew that her condition was such that she could not sit up straight in her seat or even fasten her seatbelt and you had to do that for her.
14 The prosecution has submitted that the appropriate range of sentence should be between seven and nine years for the head sentence and a nonparole period of between five and seven years. Ms Condon, who appeared on your behalf, has urged me to apply the decision in the case of Verdins in relation to limbs 5 and 6 of that decision. This is on the basis that the adjustment disorder diagnosed by the psychologist, Mr Matthew Barth, may mean prison will be more burdensome for you than for a prisoner not suffering that disorder and that there is a serious risk that imprisonment will have a significant adverse effect on your mental health. Ms Condon submitted that I should accept these as mitigating factors. Certainly a just punishment should take those factors into account, whether or not the Verdins' principles are found to apply.
15 Mr Barth saw you at the Metropolitan Remand Centre on 14 November for an extended consultation spanning two hours. He noted depressive symptoms with what he described as "noteworthy anxiety-related symptoms". Mr Barth considered you had little ability to cope with emotional distress effectively and you have resisted taking medication preferring prayer and meditation. He said your symptoms are sufficiently severe to warrant a diagnosis of adjustment disorder with mixed anxiety and depressed mood. His opinion is that without the provision of psychological and/or psychiatric intervention you are at risk of developing a more serious mood disturbance while in custody. He said because of this and in the context of isolation from your family you will continue to be a particularly vulnerable prisoner. That isolation is, in your case, a mitigating factor.
16 Ms Sleeth, for the prosecution, submitted that limb 6 of Verdins does not apply because the effect of imprisonment on your mental health is not spelt out in the psychological report. She further submitted that limb 5 may not apply because the mental health impairment must be exceptional rather than mere reactive depression which seems to be what Mr Barth has diagnosed. The recent decision of the Court of Appeal in the case of O'Toole dealt with a sentence in which the sentencing judge declined to take into account the Verdins' principles in a case where the symptoms there were those commonly seen in prisoners. That is very similar to your case except that your social isolation must be taken into account as well.
17 It has also being held that it does not matter that an offender's mental impairment arose as a reaction to the discovery of the offender's crimes or to the prospect of incarceration. If that condition is likely to be aggravated by the experience of imprisonment, the judge may reduce the offender's sentence. However, the weight to be given to this sentencing consideration may be reduced where the condition arises as a consequence of the offending conduct.
18 I have reached the conclusion that the state of your mental health, combined with your social isolation will indeed result in prison being more burdensome for you than for others who do not experience those conditions. You are also at risk of that condition worsening in custody.
19 I conclude that on balance the two limbs of Verdins do apply but even if I am wrong about that, the factors I have identified are mitigating factors. Accordingly, there should be some moderation of the sentence, both the head sentence and the nonparole period. The lower end of the range submitted by the prosecution should be reduced slightly to take account of this moderation.
20 Will you stand now please, Mr Rana. Accordingly, I sentence you to five years' imprisonment for each charge. The sentence for Charge 1 is the base sentence for the purposes of cumulation. I order that six months of each of the other sentences be served in cumulation upon the base sentence resulting in a total effective sentence of six years. I order that you serve four years imprisonment before being eligible for parole.
21 Despite the fact that all the offending occurred on the one occasion some cumulation is warranted, partly because of the repeated offending against this vulnerable girl within a short period of time but also because you are to be sentenced as a serious sex offender for Charge 3. I shall note that fact on the court record. I also take into account the need for moderation in accordance with the principle of totality and proportionality to avoid the sentence being a crushing one.
22 You will also be required under the Sex Offenders Registration Act to report your details to the police each year for 15 years, should you remain in Australia after your release. That prospect was not aired during the plea hearing but I understand that you were on a temporary resident visa which expired on 13 September.
23 As I said earlier, you have been in custody for 395 days of pre-sentence detention which does not include today. That period of time is to be reckoned as already served and I shall cause that to be noted on the court record.
24 The prosecution seeks an order for the retention of the forensic sample obtained earlier and I did not obtain from Ms Condon what your client's instructions about that were, Mr Behan.
25 MR BEHAN: Yes, Your Honour.
26 HER HONOUR: Do you know what they area?
27 MR BEHAN: If I may just approach Mr Rana.
28 HER HONOUR: Certainly.
29 MR BEHAN: Thank you, Your Honour. The application is not consented to.
30 (Discussion ensued)
31 HER HONOUR: I note that the application for that retention order is opposed but given the seriousness of the charges I will be making the order.
32 MR BEHAN: As Your Honour pleases.
33 HER HONOUR: Mr Behan, my associate will approach Mr Rana to ask him to sign the sex offenders register.
34 HER HONOUR: Are there any other matters, Ms Sleeth?
35 MS SLEETH: No, Your Honour.
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