Director of Public Prosecutions v Sah

[2023] VCC 1230

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT BENDIGO

CRIMINAL JURISDICTION

CR 22-00795

DIRECTOR OF PUBLIC PROSECUTIONS

v

AJAY SAH

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Bendigo
DATE OF HEARING:	18 July 2023
DATE OF SENTENCE:	18 July 2023
CASE MAY BE CITED AS:	DPP v Sah
MEDIUM NEUTRAL CITATION:	[2023] VCC 1230

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW SENTENCE

Catchwords:  Sentencing – make threat to kill, sexual assault

Legislation Cited: s6AAA of the Sentencing Act 1991, s48(CA) of the Sentencing Act 1991

Cases Cited:

Sentence:Community Correction Order – 18 months, 150 hours unpaid community work, treatment and rehabilitation programs to reduce risk of reoffending, Mens Behaviour Change program, treatment hours to count against unpaid work hours

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions Ms. A. Birkin
For the Accused	Mr M. Habib	Leanne Warren & Associates. Ms. J. Kennedy

HIS HONOUR: 

1Ajay Kumar Sah, you have pleaded guilty to one charge of threat to kill and one charge of sexual assault. 

2The facts of your offending are set out in Exhibit A, the prosecution plea opening.  I was informed by your counsel that I could treat that document as an agreed statement of fact and I incorporate it into these reasons for sentence, and I sentence you on the basis of the facts set out therein.

3Very briefly stated, you married the complainant in this case in June 2002 in Nepal.  You came to Australia in 2008 and your relationship, it would appear, became disharmonious over the ensuing years.

4I want to make it clear that I am sentencing you for the two charges that you pleaded guilty to, not to the general marital discord that can be viewed from your ex-wife's victim impact statement.

5Relevantly, on 22 December 2012 you pushed your then wife against an internal door of the house, put your hands around her throat and threatened to kill her.  You swore at her in Nepalese.

6That led her to be concerned and she packed up and left you for a few days.

7We then jump to the second incident which occurs in February 2016, where you were at home with your wife, your eldest daughter was away, and your youngest daughter was then nearly four years of age.

8You sought to initiate sexual contact with your ex‑wife.  She said no, but you continued to kiss and touch her, and she continually told you to stop.  You pushed your hands onto her vagina over the top of her clothing, pressing against her vagina.  Your nearly four-year-old daughter was telling you to stop because her mother was saying no.

9You were told by your ex-wife that it was a crime, and you should not do it, and you taunted her about going to the police.

10She did go to the police in March of 2016.  However, made a statement that she did not want to proceed with the matter against you at that stage.  Subsequently the matter was revived, and you were interviewed in 2020 and denied the offending.

11The matters I am sentencing you for are two discrete acts: one over 10 years ago, nearly 11 years ago; and the other seven years ago.  Nonetheless they are both serious criminal offences.  The maximum penalties for each demonstrate how seriously Parliament view this offending and in particular, your sexual assault in this case and what you did to her, represents a serious example of the offence of sexual assault.

12Were it not for a number of significant reasons in mitigation, you would be looking at going to gaol.  However, there are a number of factors that I take into account in sentencing you that I reduce that, and I am not going to impose a prison term.

13Firstly, you have no prior convictions and no subsequent convictions.  Although you have only been in Australia since 2008 you have not come into notice of the law and you have had this matter hanging over your head since 2016, when you were aware that your wife made a statement to the police.

14In the course of that time, you have complied with not only behaving as a model citizen, but you have complied with the terms of an intervention order for some three years.  You have not seen your ex-wife and children since early 2016.

15I know a little bit about your background.  You have been employed and the job you now hold as a carer will be lost, I am told, by the plea that you have entered to these two offences.

16You have remarried.  You have a daughter who is six months old, and your wife is here in court supporting you today.

17I take into account the fact that you have pleaded guilty.  Your pleas of guilty have significant utilitarian value.  You have spared the witnesses the need to give evidence at a trial and you have spared the community the time and expense of that criminal trial.

18Those pleas have increased value because of the effect COVID-19 has had upon our criminal justice system and you are entitled to a greater reduction in sentence because of that utility.

19I take into account the delay that I referred to before.  It is now a long while since this offending occurred and it seems to me that you are unlikely to reoffend in the future. 

20I had you assessed for a community corrections order and the author of that report identified that you are at some risk of reoffending in a domestic violence situation and for that reason, it is recommended that you undergo treatment and rehabilitation programs to reduce your risk of reoffending.

21I accept that your prospects are generally good, and I believe it is unlikely that you will appear before a court again.

22Gaol was always the last option however you need to realise that your controlling and violent behaviour to your ex-wife cannot be tolerated.  She provided a victim impact statement which demonstrates that she has been dramatically injured by your conduct. 

23Now it is also clear to me that she is talking about things for which I am not to sentence you.  She is describing a relationship which has left her with depression, anxiety, dislike of men.  She has difficulty trusting people and she cannot understand how you could treat a human being like an object just because she is a woman.

24I have to take the contents of the victim impact statement into account in sentencing you, but again I make it clear that I am only sentencing you for the two crimes to which you have pleaded guilty.

25I have determined that in all the circumstances of this case it is appropriate to impose a conviction for your offending.

26Mr Habib urged me not to do so and initially submitted that it would affect your employment.  Analysis of that proposition demonstrates that even a non‑conviction result would see your employment terminated, so that is not going to be a consequence.  However, losing your job is clearly going to be a factor that will affect you: you have a mortgage, you have a young child; and you will have to find other employment.

27In all the circumstances, appreciating that a conviction is a form of punishment, your offending - particularly as I say your sexual offending - was serious criminal offending and I propose to convict you in relation to both charges.

28The sentence of the court is on both charges, threat to kill and sexual assault, you are convicted and released on a community corrections order for a period of 18 months.  The conditions of that order will be:

a)that you perform 150 hours of unpaid community work over that period;

b)that you undergo treatment and rehabilitation programs to reduce offending, whatever the Department determines is appropriate including, I would ask them to look at, Men's Behaviour Change programs.

c)You will also be under supervision to help you come to grips with this order.

29I will order pursuant to s48(CA) of the Sentencing Act 1991 that up to 50 hours of the programs that you participate in can count against the unpaid community work.

30I indicate pursuant to s6AAA of the Sentencing Act that but for your pleas of guilty to this offending I would have imposed a term of imprisonment of 12 months with a non-parole period of six months.

31Are any other orders required, Mr Cordy?

32MR CORDY:  No, Your Honour.

33HIS HONOUR:  Mr Habib?

34MR HABIB:  No, Your Honour.

35HIS HONOUR:  All right.  Can you have that order prepared please.

36Mr Sah, do you understand what I have just said to you?  And you are prepared to undergo that order?

37OFFENDER:  Yes.

38HIS HONOUR:  You need to understand that if you don't comply with the order, or if you commit any other offences in the future, you will be brought back before me on a breach, and you don't want that to happen.

39All right, you can leave the dock and come and sit behind your counsel if you want to.

40You have got to report to - there's an appointment been made for you at the Coolaroo Community Corrections Centre on the 20th, the day after tomorrow, that will be Thursday at 2 pm.

41MR HABIB:  Your Honour, may I be excused too?

42HIS HONOUR:  Yes, certainly.  Thank you.  We will arrange for everybody to get copies of that, but he has got to go to Building 5, 1640 Pascoe Vale Road, Coolaroo at 2 o'clock the day after tomorrow.

43MR HABIB:  Yes, Your Honour.

44HIS HONOUR:  All right.  I will adjourn now.

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