Director of Public Prosecutions v Rengan

[2020] VCC 652

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-02039

DIRECTOR OF PUBLIC PROSECUTIONS

v

GUNASEKAREN RENGAN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 May 2020
CASE MAY BE CITED AS:	DPP v Rengan
MEDIUM NEUTRAL CITATION:	[2020] VCC 652

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall	Office of Public Prosecutions
For the Accused	Mr G. Tellefson	Martin Irwin & Richards

HER HONOUR: 

1Gunasekaren Rengan, you have pleaded guilty before me to one charge of sexual assault and one charge of rape by compelling penetration.

2The facts underlying your offending are as follows.  You and the two complainants were tenants in a sharehouse in Mildura, which also had four other residents, including the landlord.

3The two complainants in this matter, Cary Jensen[1] and Jordan Marshall[2], were aged 20 and 27 respectively at the time of the offending.  Mr Jensen was on a working holiday visa at the time of the offending.  The two complainants shared a room at the house, sleeping on separate beds, with the distance between them of about 50 to 60 centimetres.  You, Mr Rengan, slept in your own room.

[1]A pseudonym.

[2]A pseudonym.

4A party was held at the house on 6 April 2019 which was attended by you and the residents of the house and about 15 other guests.  You and the complainants began to drink alcohol from about 7 pm.  The complainants went to bed between 2 and 2.30 am on 7 April 2019 and fell asleep.  The door was shut, the light was off.  Mr Jensen was shirtless with shorts and slept under a sleeping bag and a blanket.  Mr Marshall was wearing a shirt, shorts and underwear.

5Another resident, Naiwen Hsu, lived in another room with her boyfriend,
Mr Brambati.  She told police that at 3.47 am, she heard on the chain on the lock of her bedroom door being pulled.

6At about 4 am, Mr Jensen awoke to feeling a hand touching his skin around the groin area.  He hit this hand away and realised it was you, Mr Rengan, who he believed to be the landlord's brother.  He went back to sleep.  About 15 seconds later, he felt your hand on his body again.  These actions underly Charge 1 on the indictment, sexual assault.

7Mr Jensen woke and saw you using your hand to masturbate Mr Marshall and using his mouth to suck on his penis.  You were kneeling on the ground between the two beds with a hand on each of the two complainants.  Mr Marshall told police that while asleep, he felt that someone was sucking his penis, but believed he was dreaming.  He said he heard a male voice saying, 'do you like this?', put his hand near his penis, and felt a head of hair near it.  You then left the room.

8Mr Marshall woke to find his shorts and underwear around his knees, his shirt pulled up at his chest, and his penis being hard and wet.  He pulled up his pants and said he was going back to sleep, but Mr Jensen urged him to call police. He told Mr Marshall what he had seen take place in the bedroom.

9Mr Marshall then called 000.  Police arrived at about 4.41 am and spoke to the complainants and other residents of the house about the incident.

10On 7 April 2019, Mr Jensen told Ms Hsu that he was 80 per cent sure that it was you who had touched him and Mr Marshall.

11On 7 April, at about 5 pm, Ms Hsu spoke to a house resident who had moved in a few days before the party but whose name she did not know.  That resident told Ms Hsu that on the night of 6 April, you had said you were going to sleep in the complainant's bedroom then went in there, but then were seen coming out of the bedroom after a few minutes.  You then sat in the loungeroom.  A few minutes after that, the resident saw the two complainants running out of their bedroom and out the front door of the house. 

12On 7 April, Mr Jensen was asked by police to identify the person who assaulted him from a photo board but could not identify any images of you, and in fact, your photograph was not placed on that photo board.  Later that day, Mr Jensen saw you inside the residence and then told police that you were the offender.  He then identified you from a second photo board in which your photograph was contained.  He said you were absolutely the offender.

13A DNA analysis of a swab taken from Mr Marshall's penile shaft detected possible saliva, and it was found that you were a contributor to the point that it was 100 billion times more likely that it was you than any other person in the community contributing to that DNA sample.  Such a level is generally termed as extremely strong evidence that you had deposited the DNA that was found on his penis.

14You were arrested and participated in a record of interview on 7 April 2019, saying that you were drunk on the night of 6 April 2019 and had no idea when you went to sleep.  You provided no comment to the allegations, but said you had no reason to enter the complainant's room, that you had never had sexual contact before with Mr Marshall, and that Mr Marshall never gave you permission to touch him in any way at all.

15At a committal hearing listed in 2019, both complainants attended but were not required to give evidence, and you elected to proceed by way of a straight hand-up brief and plead not guilty.  The matter was resolved into a plea hearing on 17 December 2019.

16The maximum penalty for rape by compelling sexual penetration is twenty-five years imprisonment. The maximum penalty for sexual assault is 10 years. You have been remanded in custody since your arrest on 7 April 2019. 

17I now turn to your personal circumstances.  You are 42 years of age and an Malaysian national.  You are married with three children.  You told psychologist David Ball - whose report, dated 20 February 2020, was tendered on the plea - that you are one of five children, that you had, it would appear, a happy childhood and that while your parents were not wealthy, your basic needs were met.

18You completed secondary school, then underwent secondary studies and described to Mr Ball a stable employment history in administrative roles in Malaysia.  After the birth of your third child, your family found themselves in difficult financial circumstances as your wife, who had worked as a florist, was unable to maintain paid employment.

19You fell into conversation with an immigration agent who enticed you to travel to Australia, saying you could earn about three times as much by way of income as you were currently earning.  You therefore arrived in Australia, but ended up in Mildura engaged in picking, and found the work to be far less well paid than that promised, at times being paid as little as $10 per hour.

20The visa on which you arrived expired, but you stayed on.  Your counsel explained to me that the grape season was about to commence, that this was an area in which a significant amount of money could be made by pickers, and this would seem to have been a reason for your overstaying your visa.  Additionally, you were still able to send money back to your family, and it would appear this was also a reason for continuing on in your work, underpaid as it was.

21You have been in Australia since May 2017.  You had had continual contact with your family while in Australia, but it would appear that it had been about two years since you had seen them.

22You are a person with no prior convictions and a stable lifestyle, it would seem.

23On being questioned by Mr Ball, you denied ever having any attraction to homosexual activity.  You told him that you essentially drank alcohol only on occasions of celebration, and when doing that, about four cans of beer at a time.  You said you had been drinking alcohol since you were about 23.  Overall, you described minimal patterns of consumption.

24You told Mr Ball, and you have told your counsel, that you have no recollection of the offending.  You did drink, it would seem, an uncharacteristically substantial quantity of alcohol.  You told Mr Ball you were encouraged to keep drinking alcohol well beyond your normal patterns of consumption.  You had a recollection of being ill on three occasions before going to bed.  You told
Mr Ball:

'I cannot believe this happened.  I cannot believe I would do that.'

25Mr Ball said that you were struggling to make any sense of the allegations, as they ran counter to your sexual preference, cultural and religious beliefs. 

26It appears that you have told your counsel, Mr Tellefson, that you have some further memory of the evening.  You said you recalled that one of the victims had been very friendly towards you during the party, that you were drinking with those victims and going outside together to smoke.  You said both you and the victims discussed going out together to find some female company, and believed that your subconscious may have been stimulated by this, and generated a need for sexual gratification.

27Whilst in gaol, you have been employed in the prison's industry area and you have undertaken educational and development programs.

28You are keen to return to Malaysia and to your family.  You continue to be concerned about them, as you were, it would appear, at the time of this offending.  Your wife and children are now financially dependent on her brother, and were, to some extent, at the time of this offending.  And your counsel submitted this may have been a reason why you drank as much alcohol as you did on this evening.

29I have not yet referred to the victim impact statements.  Mr Marshall's victim impact statement was read to the court.  It is clear your offending has caused both your victims great psychological distress.  They are both extremely embarrassed about the offending, which is one of the horrible side effects of such offending.  Neither has felt able to talk to anyone about this.  They remain very distressed.

30Mr Marshall has been unable to continue with his work, and has had to live on his savings.  He has not sought psychological assistance, feeling it might make matters worse.

31I understand that both Mr Jensen and Mr Marshall have been advised about their rights under Victims of Crime, and I very much urge them to take advantage of this in order to obtain some financial recompense and be able to attend counselling which can be provided for them.

32Overall, I am satisfied that the offending in relation to each young man has been extremely psychologically damaging to them, and continues to be damaging.

33This is, of course, extremely serious offending.  It was submitted by the prosecutor that I should regard it as mid-range offending.  Certainly, it is very perplexing offending.  It would appear to be entirely out of character for you, and the only explanation seems to be the amount of alcohol you drank on that night, which was well outside your normal patterns of consumption.  This may provide some sort of explanation in terms of disinhibition, but it is by no means an excuse for the offending.

34I note that you appear to have struggled yourself to come up with some reason for this offending in terms of the explanation you have given to Mr Tellefson, your counsel, and in terms of the way in which you expressed what occurred to Mr Ball.

35I do accept that this is uncharacteristic offending, and indeed, according to the STATIC 2020 profile which was administered by Mr Ball, you appear to be at a low risk of reoffending.  Indeed, the prosecution has conceded that specific deterrence is not a principle to which I need have regard in this sentencing, nor do you present a danger to the community. 

36It was not submitted that I should deal with you in any way other than by a term of imprisonment, and in my view, this is a correct position for your counsel to have taken in the circumstances due to the gravity of this offending. 

37Overall, as I have said, I am dealing with a man who otherwise has been a responsible, hard-working person, notwithstanding that you overstayed your visa.  You have no prior or subsequent offending.  You appear to have done your best whilst in custody away from your family, over whom you hold understandably deep concerns in terms of their welfare.

38I was helpfully provided with a table of similar offending.  The Court of Appeal has made it clear that alcohol consumption and intoxication can only be relied upon as a mitigating factor where the defendant proves that this conduct was out of character, and that alcohol has an unexpected effect.

39Whilst you have not gone to the point of giving evidence in this regard, it does seem on all the material that alcohol has certainly had a large part to play in what I can only regard as uncharacteristic offending.

40Whether I can take it to the point of being mitigatory as opposed to simply explanatory, I am not really sure.  However, on all the material, you appear to be bewildered by your offending, you appear not to understand it, and you do appear to be struggling for an explanation.

41In any event, having regard to your plea of guilty for which you are entitled to a utilitarian value in terms of mitigation, I am prepared also to accept you are remorseful by what you have said to Mr Ball.

42Specific deterrence is not an issue to which I need have regard, nor is protection of the community.  Essentially, the principles governing the sentencing exercise before me are general deterrence and condemnation of your behaviour. 

43In sentencing you, I take into account the mitigatory features present in your case.

44It was submitted by the prosecutor there was an aggravating feature:  that you had offended against persons who were asleep at the time and therefore were unable to defend themselves, or unable to react. 

45I accept that submission but do note on the evidence of the unknown witness that you were in the room with the two complainants only for a short period of time, a matter of minutes, so that this was a very short period offending. 

46I do, however, also take into account as I must the effect upon your victims, which has been grave. 

47In all the circumstances, I therefore sentence you as follows.

48On the charge of sexual assault, you are sentenced to 18 months' imprisonment.

49On the charge of rape, you are sentenced to two years' imprisonment.

50I order that 12 months of the sentence imposed on Charge 1 be served cumulatively to the sentence upon Charge 2, giving a total effective sentence of three years.

51I order that you serve a minimum term of two years before becoming eligible for parole.

52In sentencing you, I also take into account the difficulties of a term of imprisonment upon you, isolated as you are and concerned as you are for the welfare of your family.  Your desire to return back to your country of origin means I do not have to consider the psychological effect of the knowledge that you will be deported to your country, as this appears to be something you would welcome rather than a matter of distress for you.

53Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of five years and ordered that you serve a minimum term of three years and 10 months. 

54Thank you.  Is there anything else I need to attend to?

55MS LENTHALL:  Just declaring the pre-sentence detention, Your Honour,
410 days.

56HER HONOUR:  I declare that 410 days of this sentence have already been served by way of pre-sentence detention.  Thank you. 

57MS LENTHALL:  Nothing further, Your Honour.  Thank you. 

58MR TELLEFSON:  As Your Honour pleases.

59HER HONOUR:  Thank you.  We will stand down to 3 o'clock.  Thank you. 

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