Director of Public Prosecutions v Ratheneswaran

[2014] VCC 2205

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-02218

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANASUTHAN RATHENESWARAN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2014
DATE OF SENTENCE:	18 December 2014
CASE MAY BE CITED AS:	DPP v Ratheneswaran
MEDIUM NEUTRAL CITATION:	[2014] VCC 2205

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Robbery – Four co-accused – Issues of parity – Prisoner suffers from Post-Traumatic Stress Disorder related to early childhood

Sentence:Three years’ imprisonment with a non-parole period of 18 months’ imprisonment – s.6AAA Sentencing Act 1991 indication

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Slim (Plea) Mr M. Pitcher (Sentence)	Solicitor for Public Prosecutions
For the Accused	Mr A. Jackson	Ms Melinda Walker

HER HONOUR:

1Amasuthan Ratheneswaran, you have pleaded guilty to one charge of robbery which has a maximum penalty of 15 years imprisonment.

2This indicates the seriousness with which Parliament regards the offence.

3You recruited 4 males to commit a robbery upon the two owners of a jewellery store in Sydney Road, Brunswick.  On the day before the offending, you had driven your co-offenders to the shop, who pretended to be making genuine enquiries in order for your accomplices to survey the scene.

4On 14 April 2011, the other males committed an armed robbery at the store.  The armed robbery involved serious violence being perpetrated upon the owners and involved the use of a hammer, found at the store, and a Taser. These weapons were used upon the male and female victims, who, as I understand the situation,  were a married couple.  The hammer was one which your co-offenders found at the shop, as I have said, whilst the Taser was brought with your co-offenders. It is not alleged however, that you knew that one of your co-offenders had such a weapon and I sentence you on the basis that you did not know. 

5The shop owners were also tied up with cable ties which the offenders brought with them.

6A large quantity of jewellery, a large amount of cash and valuable coins were stolen as well as a recently purchased iPhone and an order book.  Some of the property was recovered when a back pack containing some items was discarded as the offenders fled the premises.  I was told that the victims suffered a loss of between $70,000 and $80,000 after allowance was made for items recovered in an undamaged state.

7You were interviewed by police on 10 January 2012 and denied any involvement in the offending.  You also denied knowing one of the co-offenders, Kesarapu.  Therefore, you lied to the police.  You admitted knowing the shop owners, saying you had been to the shop many times.

8You anticipated the threat of force or use of force in the commission of this offence but I do not sentence you on the basis that you knew that the offenders would take or use weapons.  I also sentence you on the basis that the assaults committed on the shop owners went far beyond what you and your co-offenders had planned.  However, you did anticipate that cable ties, which had been purchased beforehand, would be used in the course of the offending, to tie up the victims. You waited outside in a car whilst your co-offenders, committed the armed robbery.

9Bearing in mind that I am sentencing you for robbery, your offending as characterised is most serious and calls for a punishment which is just in all of the circumstances. You were the planner of a robbery which escalated into an armed robbery after you dropped off your co-offenders.  It would appear that you were happy for these men to do your dirty work and enjoy in the spoils of their offending.  In saying this, I do not sentence you on the basis that you were party to the armed robbery or to the level of assaults that were inflicted upon the victims.  However, I do sentence you on the basis that you were willing to have the married couple who owned the store subjected to force by four men, which included having them bound with cable ties in order for their property to be taken from them.

10I take into account the impact upon the victims in this matter insofar as that impact could be said to relate to your criminality, as previously described. However, allowing for this, the impact has been profound, as you might expect, and the difficulties of the victims has been ongoing, eating into many aspects of their lives including their ability to work and sleep.  It was not put to me that you were aware that the children of the couple were there when the offending took place, but there was no objection from you in respect of my viewing the victim impact statements of the two children.  Although I cannot find that your part in the offending is aggravated by the fact that the children had to witness the ordeal to which their parents were subjected, I take into account the impact on the children in respect of your offending as their presence amounted to a risk that you were prepared to take when executing your plan to rob the store.

11It is of concern that, like your offending in 2008, you targeted people from your own cultural community. Although, not a prior conviction, in 2008, you and a large group of males targeted and violently attacked a male from the Tamil community for some unknown grievance. On that occasion, you and others followed the victim from a social event. You and your associates were in two or three cars and when the victim and his passenger drove to and parked outside a police station for a time, you and the others waited for him to drive on. When he did, you blocked his car and a savage attack ensued in which you were actively involved. The assault involved the use of weapons, some of which may have been swords or pieces of wood. Although you could not be found to have held a weapon, His Honour, Judge Bourke, who was the sentencing judge, found that you were part of ‘the concerted attack clearly aimed at seriously injuring’ the victim [7]. You were convicted of intentionally causing serious injury and affray at trial in respect of this incident and, on 11 October 2012, you were sentenced to a total effective sentence of three and a half years with a non-parole period of 14 months. On my calculation, you have been in gaol for about 2 ½ years to date, allowing for the 105 days pre-sentence detention declared by His Honour Judge Bourke. His Honour had also adjourned the sentence part-heard after concerns as to your mental well-being were raised. This then led to the application of Verdins principles insofar as the hardships of gaol were concerned because of your mental state at that time.  The non-parole period expired on 27 August 2013 and because you were facing charges in respect of the matters before me, the Parole Board deferred their decision in respect of parole pending the outcome of outstanding matters.  Therefore, you have served about 15 months of the parole period in respect of the head sentence imposed by Judge Bourke, with the head sentence due to expire on 27 December 2015 if required to serve this.  This is yet to be seen, and I cannot speculate in this regard.  However, I have factored into the sentence that I impose that you have spent two and a half years in gaol thus far, and that, because of outstanding matters at the time you became eligible for parole, you lost the opportunity to apply for it, resulting in you serving 15 months of the head sentence imposed by Judge Bourke.  I am most mindful of this situation which is relevant to the application of the principle of totality.

12You have several prior convictions from three court appearances from 2006 to 2009.  All but the 2006 matter are driving offences.  In June 2006 you received a good behaviour bond for an assault with a weapon.  The bond was complied with and therefore dismissed the following year.

13Parity is a consideration in your case, albeit that there are qualitative differences between your situation and that of your co-offenders.  Each of the co-offenders, save for one, was dealt with by Her Honour Judge Lawson:

14Kesarapu pleaded guilty to one charge of armed robbery and two charges of intentionally causing serious injury.  He gave an undertaking to give evidence, which entitled him to a substantial discount in sentence  over and above his plea of guilty. He was sentenced to seven years’ imprisonment with a non-parole period of four years’ imprisonment.

15Selvaratnam pleaded guilty to one charge of armed robbery and two charges of recklessly causing serious injury.  He was sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of three years’ imprisonment. He also gave an undertaking to give evidence.

16Konamala pleaded guilty to one charge of armed robbery and two charges of recklessly causing serious injury, but did not give an undertaking to give evidence. He was sentenced to eight years’ imprisonment with a non-parole period of five years’ imprisonment.

17Mr Kumar absconded overseas and so has not been dealt with.

18On the one hand, each of the co-offenders who have been sentenced, were dealt with for the more serious offence of armed robbery, which has a maximum penalty of 25 years imprisonment, and were additionally dealt with for serious injury charges. The assaults that they perpetrated far exceeded what you contemplated.  On the other hand, they pleaded guilty at an earlier stage than you and two of them gave an undertaking to give evidence.  Also, you were the architect of the plan to rob the victims, albeit that the scope of what you envisaged was far exceeded by what your co-offenders did.  I have borne these differences in mind when having regard to the principle of parity insofar as it could have application in your case.

19I have not factored in the allegation made by one of your co-offenders that you tried to persuade him not to talk to the police.  It seems to me that such conduct, if proven beyond reasonable doubt, would amount to an attempt to pervert the course of justice, which is not the charge before me.  Mr Slim said that the allegation went to the question of remorse but, in the circumstances, I am not prepared to factor it in as going to that matter.  Mr Jackson did not really press the aspect of remorse beyond today referring me to a letter written by you and, at the plea hearing, pointing out that you had appreciated the wrongfulness of your actions which he said you acknowledged had affected others, and feeling sorry for your own predicament and that of your family’s.  I will return to this question of remorse in a moment. 

20I take into account your plea of guilty and the stage of proceedings at which it was made.  You first offered to plead guilty to the offence before me after the trial had commenced, although, no witnesses had been called.  I was informed that the prosecution indicated after the contested committal hearing that they would accept a plea of guilty to robbery and again at the initial directions stage in this Court.  However, you did not accept responsibility for your offending until a rather late stage, when witnesses would have been expecting to give evidence.  Still, in the end, the witnesses were not required to give evidence at trial and the cost and time of running a trial was avoided.  I make some allowance in your favour for this facilitation of justice, although not nearly as great an allowance as I would have done if you had been prepared to plead guilty at an earlier stage, especially at the pre-committal stage.  You are not to be punished for taking the course that you have taken in respect of these proceedings, but it does not say much about you having genuine remorse. 

21I have read a letter from you handed to me after the plea hearing, which has now been tendered, where you express insight and remorse, as well as your concerns for your children's future.  In the end, I allow for some remorse in your case, albeit limited in all the circumstances, other than remorse for your own predicament. 

22I take into account your background, which has been a very sad and difficult one.  Your life has been marred by war, famine, despair and the loss of those close to you in very tragic circumstances.  As a child you endured the civil war in Sri Lanka.  When you were seven years old, you were separated from your parents for two months because of the military conflict. When you were nine years old, your house was bombed and your mother was hospitalised for two months.  When you were 13 you were forced to finish your schooling because of the war.  In that year, a number of relatives died due to shelling, and you became separated from your parents because of a military assault outside your home.  You then stayed with your uncle for about four years, living in basic conditions and helping him with farm work.  You were often without sufficient food.  When 14 you were required by members of the Tamil separatist movement to dig military bunkers in areas where there was conflict with the Sri Lankan army.  In 1997, you were injured by shrapnel.  When you were 16, your uncle paid for a people smuggler to take you and your cousin to Colombo to avoid being recruited by the Separatist forces.  However, you and your cousin were arrested en route and spent two months in gaol, being held in a cell with criminals.

23Your Uncle paid a bribe for your release and you eventually flew to Jakarta, where you hid for a month.  You then boarded a 10 metre boat with 18 other asylum seekers and an Indonesian crew.  You suffered sea sickness and could not eat and had trouble swallowing water.  A few days later, the crew disembarked to another boat, abandoning you and the other asylum seekers.  Hours later the engine of the boat stopped leaving you stranded at sea for the next six days without food and with little to drink.  You all had to bail water to stop the boat from sinking.  You told Mr Coffey psychologist that you and the others were gradually dying of hunger and exhaustion.  On the tenth day at sea, you and others began swimming in open ocean in the hope of finding Christmas Island.  Sadly, many of your number perished including your cousin.  You and four other survivors reached a ship which then took you to Christmas Island where you claimed asylum.  You were taken to Port Hedland where you were detained for a year.  You were then released with a protection visa and ultimately moved to Melbourne, becoming an Australian citizen in 2002.  Eventually you caught up with your sister and parents who you had not seen for many years.

24You have a fairly solid work history, working in factories then running a milk bar until December 2011 when it closed as it was not profitable.

25You have a long term partner who was in Court to support you at the plea hearing.  You and she have two children who are now five and seven years old.  You have them to look to upon your release from gaol as a means of support. 

26I have taken into account the expert reports of Mr Coffey dated 23 July 2012 and 5 October 2012 as well as the report of Professor Carroll dated 7 December 2014. I accept that you suffer from post-traumatic stress disorder because of your tragic past and that the symptoms of the condition have been re-triggered because you have been assaulted on a number of occasions whilst in gaol.  This is especially concerning as you are in protective custody, which is a harsher form of imprisonment in itself.  Remarkably, there is no-one working at the prison where you are currently housed who could provide you with appropriate counselling or professional treatment for your mental health although you are receiving medication for this.  Further, you are isolated in the prison system because of the language barrier and your only contact is from you partner and children when they can manage to visit, as you are a long distance from where they live.  All of these matters will make time in gaol harder for you than for someone without these difficulties, and I make an appropriate allowance in your favour because of these factors.  Further, I allow for the fact that incarceration is likely to cause a further deterioration in your mental health.

27You have been moved from one prison to another on seven occasions, which is also an unsettling situation.

28Before your incarceration you were addressing problems that you had with alcohol and marijuana which was problematic to a lesser extent.  This shows that you have a capacity and a willingness to address any behavioural issues.  I understand that you are determined to reform and to be a responsible father and partner as soon as you are able.

29In view of your offending, your antecedents, your mental health difficulties,  some difficulties with alcohol in the past, but also factoring in your salutary experience of gaol, your work history, family support and determination to lead a productive life for your family, I assess your prospects of rehabilitation as fair.  I place moderate weight on specific deterrence and the need to protect the community, but I must place strong weight on general deterrence so as to deter others from behaving as you have.

30I understand that the granting of parole is not a matter for me, and whether you are released on parole will be a matter for the Parole Board and their judgement as to how you have done whilst in custody.  However, I accept Mr Jackson’s submission that it is in everyone’s interests that you are released into the community with the supervision and professional treatment that a decent period of parole would afford, rather than being released without these things.

31In arriving at an appropriate term, as I have said, I am most mindful of the fact that you have been in gaol for two and a half years.  I have arrived at a sentence which addresses the relevant sentencing principles and the weight which needs to be placed on these including the principle of totality.  If you had not been in gaol for two and a half years already, the sentence which I would impose would have been a good deal greater than it is.

32Please stand up Mr Ratheneswaran. 

33In respect of the charge of robbery, you are convicted and I sentence you to three years imprisonment with a non-parole period of 18 months’ imprisonment, to be served concurrently with the term you are undergoing. 

34If not for your plea of guilty, and assuming the application of totality principle, I would have sentenced you to four and a half years’ imprisonment with a non-parole period of three years’ imprisonment.

35Sit down for a moment, please, sir.  Is there anything arising from those remarks?

36MR PITCHER:  No, Your Honour.

37HER HONOUR:  Thank you.  If you could please remove the prisoner.

38We will now adjourn.

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