Director of Public Prosecutions v Ranwala

[2016] VCC 31

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01005

DIRECTOR OF PUBLIC PROSECUTIONS

v

SERGE RANWALA

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 January 2016
CASE MAY BE CITED AS:	DPP v Ranwala
MEDIUM NEUTRAL CITATION:	[2016] VCC 31

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms K. Ottrey
For the Offender	Mr C.J. Pearson

HIS HONOUR: 

1Serge Ranwala, you can remain seated for the time being.  You have been found guilty by a jury on an indictment containing 11 charges; two of committing an indecent act with a person having a cognitive impairment whilst you were a worker at a Department of Human Services facility; and nine charges of sexual penetration with that same victim, whilst you were a worker at that facility.

2You have no prior convictions.  The offence of committing an act of sexual penetration with a person with a cognitive impairment carries a maximum term of imprisonment of ten years', whilst committing an indecent act in such circumstances, carries a maximum term of imprisonment of five years'.

3The prosecution case was to the effect that whilst you were working at the facility, you committed these acts whilst you were engaged in night duty at the facility.  You invited your victim into the staff quarters where you plied him with methylamphetamine and committed the offences upon him, initially on 19 May of 2014, and into the early hours of 20 May of 2014, and then again on the night of 24 May, and into the early hours of 25 May of 2014.

4That latter offending conduct was effectively continued by your driving him, driving your victim, to your home, on the morning of 25 May of 2014, in circumstances where you knew full well it was contrary to the policy of the Department of Human Services at that facility for members of staff to take residents to their homes.  It was at your home that you committed the offence, the subject of Charge 11.  Again, it involved an act of sexual penetration of the victim, by introducing your penis into his anus.

5I am satisfied beyond reasonable doubt that you deliberately plied your victim with methylamphetamine as part of your modus operandi in engaging with him in these sexual acts.

6You took advantage of a person who was cognitively impaired and, clearly so, having regard to the fact that he had been placed in that facility in the first place.

7This was, on any view, a serious breach of your duty, and the trust that had been placed in you in the role that you had undertaken at that facility.

8Furthermore, although the offences were committed over a relatively short period of time, you had opportunity to reflect between the offending conduct, the subject of charges 1 to 6 inclusive, and the offending conduct that occurred a few days later the subject of charges 7 to 11 inclusive.

9You are not to be penalised for having pleaded not guilty and contested the charges against you.  However, you chose to go into the witness box and attempt to explain away your conduct and deny the allegations against you.

10You showed no remorse, not a skerrick of remorse, and you have still not done so.  You showed no insight into the likely effect of your offending conduct, or compassion for your victim.  He has provided the court with a Victim Impact Statement which in his own particular way of expressing himself, shows that this has had an ongoing adverse effect on him psychologically.  You should have realised the likelihood of that and, no doubt, did realise that.

11There is no doubt that you are a highly intelligent person and one capable of appreciating the seriousness of the conduct in which you engaged.

12Turning to matters personal to you, your counsel provided me with an outline of submissions which is Exhibit 1 on the plea hearing, along with some certificates and references which show that you are a highly intelligent, highly educated person, who is very capable of forging successful careers in different fields and, indeed, you had obtained the qualification necessary to engage in the employment that you were in engaged in at the time of this offending conduct.

13You are 50 years of age now.  You were born in Sri Lanka, where you were fortunate enough to have a good family background and supportive family with two older brothers.  You obtained your secondary and tertiary qualifications, or the first of them, in Sri Lanka, and then you did a Masters Degree in Architecture at the Texas University in the United States of America.

14You have since coming to Australia, completed a Bachelors Degree in Biomedical Science at RMIT University, and also completed pharmacy training programs and, as I have indicated, you hold a Certificate 4 in Disability Services.

15You worked, as I understand it, as an architect in Sri Lanka for a number of years and in Australia you have been in regular employment including, of course, the employment that you were undertaking at the time of the offending conduct.

16You have been married although I am informed and accept that for the last several years you have identified as a homosexual person.  You were engaged in a relatively long term relationship with a man who introduced you to methylamphetamine.

17It is urged upon me that I should regard the methylamphetamine use by you as evidence of context; of course, you denied using it at the time of the offending in the witness box, although you admitted that you had been using it with your previous partner and that you had been introduced to it by him.

18I accept that you were in fact using methylamphetamine at and about the time of the offending conduct.  It seems to me to be plain despite your persistent denials in the witness box on oath, that you were a relatively heavy user of methylamphetamine at the time of the offending conduct.

19Certainly that does provide some context, but it provides no excuse whatsoever.  Indeed, the fact that you plied your victim with methylamphetamine, as I find, in order to better facilitate your offending towards him, aggravates the offending conduct in that respect.

20You certainly have the capacity to lead a decent life, and a life with full employment.  I have been asked to consider ordering that you be the subject of the reporting restrictions imposed by the Sex Offenders Registration Act.  I have a discretion and that discretion can be exercised if I am satisfied beyond reasonable doubt that you continue to pose a risk to the sexual safety of members of the community.

21I have already indicated that you showed no remorse during the course of the trial or, indeed, on my finding since.  You showed no insight into the effects of what you were doing to your victim, and you breached your duty and trust in a reprehensible way.

22I am driven to the conclusion, beyond reasonable doubt, that given similar circumstances that you may well offend again, I am therefore persuaded that I should order that you be the subject of the reporting restrictions imposed by the Sex Offenders Registration Act.

23I will be told what the appropriate time frame for that order must be.  I think I have no discretion as to the time during which those obligations are to operate.

24I am also required to consider the provisions of the Sentencing Act relating to you being a serious sex offender and I note that I must sentence you as a serious sex offender, assuming that I impose terms of imprisonment in relation to charges 1 and 2, in relation to charges 3 to 11 inclusive.

25The prosecution did not seek to persuade me that I should impose a disproportionate sentence, however, and I do not propose to do so.

26Your counsel urged me to treat your offending conduct essentially as two separate incidents, one reflected in charges 1 to 6 inclusive, and the other in charges 7 to 11 inclusive.

27Whilst I am inclined to accept that in broad terms it seems to me that your act in taking your victim to your home and committing the act of sexual penetration, subject of Charge 11, required some further reflection on your part and was an extension, at least, of the offending conduct, the subject of charges 7 to 10 inclusive and I therefore intend to order a degree of cumulation as between charges 1 to 6, and charges 7 to 10, and then separately Charge 11.

28I am required to consider the totality principle and I propose to tailor the sentencing orders that I make, having regard to that principle, and to impose a sentence that is therefore not a crushing sentence, and one which I hope reflects the seriousness of your offending conduct, but also the matters that are put before me on your behalf.

29You have no prior convictions and I have no doubt that in probably every other aspects of your personal life, you have led a blameless and, indeed, an exemplary life.  These offences are almost always committed by persons with no prior convictions.  Otherwise the offenders would not have obtained the employment that would have placed them in that position of trust, in which you found yourself and which, as I found, you exploited, in order to commit these offences.

30Therefore, the lack of prior convictions for cases such as this plays a less significant part in reducing the appropriate sentence for offences of this kind.

31It seems to me that the relatives of the victim and the community as a whole are entitled to look to the courts to impose sentences that have the capacity not just to reflect the seriousness of the offending conduct, to punish you adequately for your offending conduct, but have the capacity to deter others from committing offences of this kind.

32I am required to impose a sentence that promotes your rehabilitation to the extent that I reasonably can.  I have already indicated that I still would regard you as a person capable of committing further offences of this kind if the circumstances offered you the opportunity again; but I nevertheless propose to impose sentences which, consistent with proper consideration of the other sentencing considerations, assists in your rehabilitation.

33I invited submissions as to the current sentencing practices for offences of this kind and I think that all parties, or both parties, were unable to find any or many cases which are capable of reflecting current sentencing practice in this State, however, I was provided with the sentencing remarks of judges of this court in the following cases, Queen v Jo Jo Jose 210 VCC0920, The Director of Public Prosecutions v Neville Pell 2010 VCC0158, The Director of Public Prosecutions v Timothy Charles Hampson 2015 VCC916, and The Director of Public Prosecutions v Craig Handasyde 2015 VCC1305.

34I have read the sentencing remarks of the judges who passed sentences in those cases and have found those remarks helpful in identifying what seems to me to be current sentencing practice in this State.  Every case has to be considered on its own facts and I have endeavoured to do that in your case.

35I am now ready to impose sentence upon you, would you please stand.

36On Charge 1 of committing an indecent act with a person with a cognitive impairment whilst you were a worker at a facility.  I convict you and sentence you to imprisonment for six months'.

37On Charge 2 of committing an act of sexual penetration with your victim in similar circumstances I convict you and sentence you to imprisonment for three years and four months'.

38On Charge 3 of committing an indecent act in those circumstances I convict you and sentence you to imprisonment for a period of six months'.

39On Charge 4 of sexual penetration, I convict you and sentence you to imprisonment for a period of three years' and four months'.

40On Charge 5 of committing an act of sexual penetration, I convict you and sentence you to imprisonment for a period of three years' and four months'.

41On Charge 6 of committing an act of sexual penetration, I convict you and sentence you to imprisonment for a period of three years' and four months'.

42On Charge 7 of committing an act of sexual penetration, I convict you and sentence you to imprisonment for a period of three years' and four months'.

43On Charge 8 of sexual penetration, I convict you and sentence you to imprisonment for three years' and four months'.

44On Charge 9 of sexual penetration, I convict you and sentence you to imprisonment for three years' and four months'.

45On Charge 10 of sexual penetration, I convict you and sentence you to imprisonment for a period of three years' and four months'.

46On Charge 11 of sexual penetration, I convict you and sentence you to imprisonment for a period of three years' and four months'.

47Charge 2 is to be regarded as the base sentence and I order that 12 months of the sentence on Charge 7 and four months of the sentence on Charge 11 be served cumulatively with one another and on the sentence imposed on Charge 2, making a total effective sentence of four years' and eight months', and I order that you serve a period of three years before you become eligible for parole.

48Counsel, what is the current pre-sentence detention?

49MR PEARSON:  104 days, Your Honour.

50HIS HONOUR:  I declare pre-sentence detention of 104 days as time to be reckoned as served on the sentences that I have just imposed and deducted administratively from the time you will actually have to serve.

51I order that that fact be noted in the records of the court.

52I also note that you have been sentenced as a serious sex offender in relation to charges 3 to 11 inclusive. 

53What is the period of registration under the Sex Offenders Registration Act?

54MS OTTREY:  Your Honour, the period is life and Your Honour has no discretion.

55HIS HONOUR:  Life.  So I have no discretion in that, do I?

56MS OTTREY:  That's correct, Your Honour.

57HIS HONOUR:  Yes.  I order that you be the subject of the reporting restrictions under the Sex Offenders Registration Act for life.  You will be provided with a  document which sets out your obligations under that Act.

58I make the order for disposal of a mobile phone in accordance with the draft with which I have been supplied, and I order that you provide a forensic sample by providing a scraping from the inside of your mouth.  You will be asked to provide that sample whilst you are serving your sentence, and the authorised officer who makes that request, will be authorised to accept the scraping from the inside of your mouth.

59If, however, you fail or refuse when he requests that sample, to provide the sample by a scraping from the inside of your mouth, he or she will be authorised to take blood from you and may use reasonable force to obtain that sample.  I am sure you will not put the officer to that trouble.

60Are there any other orders, counsel, I need make?

61MR PEARSON:  No, Your Honour.

62MS OTTREY:  There's no other orders, Your Honour.

63HIS HONOUR:  Take a seat for the moment, Mr Ranwala.

64My associate is just going to provide you with the document to which I referred setting out the obligations under the Sex Offenders Registration Act.      

65Any other matters counsel?

66MR PEARSON:  No, Your Honour.

67MS OTTREY:  No, Your Honour.

68HIS HONOUR:  Yes, thank you.

69(Offender removed.)

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