Director of Public Prosecutions v Sankhon
[2016] VCC 1186
•2 August 2016
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00445
Indictment No. F139109062
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KARAMO SANKHON |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 18 July 2016 | |
DATE OF SENTENCE: | 2 August 2016 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Sankhon | |
| MEDIUM NEUTRAL CITATION: [First Revision 22 November 2017] | [2016] VCC 1186 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – sexual penetration of a child under 16 – plea of guilty
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Migration Act 1958 (Cth), s501(3A)(a)(ii)
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Cordy | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr S Tovey | Stary Norton Halphen |
HIS HONOUR:
1 Karamo Sankhon, you have pleaded guilty to one charge of sexual penetration of a child under sixteen which offence carries a maximum period of imprisonment of ten years.
2 The circumstances of your offending are set out in the Prosecution Opening in this instance and are not in dispute.
3 You are presently 26 years old your date of birth being 4 September 1989.
4 At the time of your offending you were 23 years old and your victim was fourteen-years-old. You met her on Facebook through a mutual friend who was fifteen-years-old.
5 In the course of a Facebook conversation you advised your victim that you were going to go to Bendigo “to go clubbing,” your victim asked you to drive her to Bendigo as well and you agreed to do so. In the course of this conversation, your victim made known to you that she was 14 years old.
6 As a result of the conversation, you drove to your victim’s house at approximately 6.30pm on 27 July 2013 and collected her. Instead of driving to Bendigo, you suggested to your victim that she should accompany you to your home in Wesley Hill. Your victim agreed, and when you arrived at your house you provided your victim with two or three drinks of Vodka and Coke and then sat with your victim on a couch in the lounge room watching music videos.
7 The offending, the subject of this charge, is set out in the Prosecution Summary, in respect of which there is no dispute, from which I quote.
“At one point the accused got up whilst the complainant continued to watch the television, when he returned he sat next to her and he had pulled his penis out of his pants. The accused placed his penis into the complainant’s mouth.
The accused pushed the complainant’s head and mouth onto his penis. The complainant was trying to push him away. The accused said ‘suck it baby’ and then ejaculated in the complainant’s mouth. The complainant spat the semen onto the carpet.”
8 On 4 August 2013, your victim disclosed your offending to her father. A report was made to the police however you were not interviewed by the police until 14 September 2014. In the course of that interview you told the police that no person other than your wife had performed oral sex upon you and that you had no memory of your victim, taking the girl back to your house and having her perform oral sex on you, or speaking to the complainant online, or picking the complainant up and driving her to your house.
9 Your victim has provided a statement as to the effect of your offending upon her. In that statement she says, notwithstanding the years which have passed since this offending, she continues to struggle in trusting people. She comments that she no longer gives people the benefit of the doubt, because she realises that even the nicest of people can hide the darkest of intentions.
10 Your personal history is as follows. You were born in Guinea.
· Your childhood and family life were uneventful. Having finished high school, you travelled to Cyprus, where you studied English for the purpose of gaining admission to an international university. You attended university in Malaysia, where you studied business marketing. It was in Kuala Lumpur that you commenced your relationship with your wife, from whom you are now separated. You cemented your relationship with your future wife by meetings with her in Malaysia, Thailand and eventually Australia. You obtained a Diploma of Business Marketing from the Westminster International College and came to Australia, where you were granted a temporary visa, and then a bridging visa. You are currently awaiting the outcome of an application by you for permanent residency.
· In Australia, you lived with your future wife, from whom you are now estranged, and her family in Castlemaine. You married shortly after the birth of your son in early 2013.
· At the time of your offending you were twenty-three years old married, but separated and the father of a young child.
· Since May 2013, you have been employed as a computer operator. You have an interest in martial arts and you are a member of a local martial arts group. You were described by the leader of that group as being regarded as a good role model, teacher and instructor.
· Although you separated from your wife in 2015, you continue to co-parent your son, and to financially support both your wife and your son notwithstanding the breakdown of your relationship. Your wife attended your plea hearing and obviously supports you.
11 You have tendered letters of reference from:
· your supervisor at work who describes you as a smart, young, dedicated volunteer, who is a responsible member of the community and for whom the offence of sexual penetration “will have a negative impact upon his future”;
· A fellow worker describes you as a man dedicated to his family and work, as being highly remorseful, and as being the only “earning member in his family”.
12 It is conceded by the prosecution:
· that the timing of your plea is of high value and it is deserving of the full benefit which should be applied to a plea, in that it spared your victim the need to give any evidence as to this offending.
· that in sentencing you, I should sentence you as a relatively youthful first-time offender; and
· that I should take into account the delay which has occurred in the processing of this offence, which was not fully investigated until after an incident of further offending by you was reported.
13 In sentencing you I accept that I should give due weight to the each of the above matters.
14 Your plea of guilty has saved the community the very significant time and court expenses associated with a committal or a trial and most importantly the pressure caused to witnesses particularly your victim by a requirement to give evidence. Your early plea is also an indication of your remorse. Each of these factors entitle you to a significant discount in the sentence which I would have imposed if you had not pleaded guilty.
15 On 15 April 2016 you appeared in the Bendigo Magistrates’ Court where you entered pleas of guilty to:
· one charge of indecent assault and
· one charge of harassing a witness.
16 In respect of those charges, you were placed on a community correction order for twelve months, with conditions that you be supervised by the Secretary, that you undertake eighty hours of unpaid community work and that you undergo offending behaviour programs and rehabilitation as directed.
17 A progress report as to that order dated 5 July 2016, states that you have, to date, completed sixty-nine-hours-and-forty-minutes of the work component of that order, that you have accrued three absences from community work, explained by sleeping in on 28 May 2016, supporting documentation explaining an absence on 2 July 2016 and a failure to provide an explanation for your absence on 25 June 2016. The report concludes with a statement that you continue to meet your supervision requirements to a satisfactory standard, having accrued one unacceptable absence to date, and that you appear to understand the requirements of your community correction order and to have engaged to a satisfactory standard in all of your order conditions to date.
18 Although you have, to date, complied with the provisions of your community correction order and it is put on your behalf that this compliance demonstrates that you are a very good candidate to be successfully rehabilitated, given your subsequent offending, in this instance, when considered in the context of:
· the relatively short time during which your community correction order has been in operation;
· the timing of the trial date which had been fixed in this matter which was to take place some four months after the commencement of that order;
I am satisfied that I should be cautious as to your prospects for rehabilitation.
19 While I give weight to the delay which has been associated with the prosecution of this matter, I take into account that the sexual offences to which you pleaded guilty and were convicted in the Magistrates’ Court occurred in September 2014 and that in those circumstances it could hardly be said that you have spent the intervening time feeling remorse for your offending and waiting to be called to account with respect to that offending.
20 I take into account, however, and give appropriate weight in the sentencing process required of me to the delay in this instance, particularly that which has arisen since you were interviewed by the police with respect to this offending in September 2014.
21 I accept that I am to sentence you as a first-time offender who was relatively youthful at the time of his offending and that accordingly rehabilitation must be given appropriate priority in the hierarchy of sentencing factors which I should apply in this instance.
22 It was put on your behalf that by reason of the fact that you are living in Australia on the basis of a temporary visa while your application for permanent residency is processed, the operation of the Migration Act 1958 dictates that if you are sentenced to a period of imprisonment in respect of this offending your visa must be cancelled and that it follows that you will be deported, with the result that you will be separated from your son and lose the secure employment you have established in Australia.
23 Whilst I am satisfied that according to the provisions of the Migration Act, in the event that I impose a sentence of imprisonment on you, the Minister must cancel your current visa; It is clear, having regard to the decisions of the Court of Appeal in Konamala v R [2016] VSCA 48 and Schneider v R [2016] VSCA 76, in Da Costa Junior v R [2016] VSCA 49 that upon the cancellation of your visa, the Minister retains a discretion to revoke that decision if “there is another reason why the original decision should be revoked”.
24 In these circumstances, I am satisfied that in assessing the impact of the imposition of a period of imprisonment upon you with respect to this offending, I should adopt the approach described by the Court of Appeal in Da Costa Junior[1], in which the Court commented:
“After all, the Court’s assessment of the risk of deportation, and its likely impact on the offender, is of necessity imprecise. It will be, at best, a matter of impression. It is unrealistic to think that the assessment could ever be as finely calibrated as to factor in the distinction relied on here.”[2]
[1]Nei Lima Da Costa Junior v R [2016] VSCA 49.
[2]In that instance, the Court was clearly referring to the effect of the change in the legislation which existed at the time of the your offending, in which you were at risk of deportation because of the undoubted power of the Minister to cancel the visa on character grounds and the current position, to which I have referred above, which came into effect after your offending.
25 I take into account in sentencing you that you face the risk of deportation should I sentence you to a period of imprisonment and that it is likely that the existence of that risk will weigh heavily upon you. Equally it is not to be forgotten that at the time at which you offended you were aware that your entitlement to remain permanently in Australia had not been determined and this did not influence you not to offend in respect of this charge or for that matter to re-offend.
26 In my opinion, it is appropriate to describe your behaviour involved in this offending as being predatory. I make that statement given both the disparity between your age and that of your victim and the difference in your respective life experiences;
· Your offending was visited upon a child of 14;
· There was a very significant disparity in the life experience between yourself and your victim in the context of which you as a relatively mature twenty-three-year-old, being a married man who possessed considerable life experience given your history of education, travel and employment, struck up a conversation on Facebook with a fourteen-year-old and then took advantage of that situation to commit this offence.
27 I am satisfied that the moral culpability associated with your offending in this instance should be categorised as being relatively high given;
· The self-gratification involved in your offending which you undertook without thought for the consequences of that activity upon your young victim;
· The conduct involved in your offending which involved you acting upon your victim’s innocent request for a lift to Bendigo but instead driving her to your home, where you plied her with alcohol, sexually penetrated her and persisted in that penetration as your victim tried to push you away.
28 In sentencing you I am satisfied that I should accord significant weight to the obligation which I have:
· to denounce the behaviour involved in your offending
· to impose a punishment which is just in all the circumstances;
· to make a statement to the community that offending of this type will never be tolerated, and will almost invariably attract a custodial sentence.
In my opinion each of these factors remain very important sentencing factors in this instance.
29 In making the statement I do so giving due consideration to the consideration to the weight which should be accorded to your relative youth and your rehabilitation in this instance.
30 It is put on your behalf that a community correction which does not contain an aspect of imprisonment is an appropriate sentence in this instance.
31 For the purpose of allowing a consideration of all potential sentencing options your suitability for the imposition of community correction order has been on your behalf undertaken and you have been assessed as being suitable for the imposition of such an order.
32 In urging the position on your behalf that a community correction order should be imposed in this instance, Mr Tovey points to the fact that:
· you are a relatively youthful offender,
· you have not offended since September 2014,
· you have pleaded guilty with respect to the offending,
· you have complied with your current community correction order,
· you have made known your offending to members of your workplace which suggests you have taken responsibly for that offending.
33 It was further asserted, albeit mistakenly for the reasons which I have referred earlier, that I should sentence you on the basis that the imposition of a sentence of imprisonment would inevitably result in your deportation.
34 Mr Tovey submitted that it was possible to construct a community correction order with conditions such as to meet the general deterrence, punishment and denunciation aspects which arise in association with this offending.
35 Contrary to that submission, I am satisfied that the serious nature of your offending upon a young girl in the circumstances in which I have referred, when considered in the context of the disparity between the age, life experience and power between you and your victim are such that the imposition of a period of imprisonment must be imposed in this instance.
36 In fixing the term of that imprisonment, I am satisfied that I must do so giving due weight to your relative youth and prospects of rehabilitation, the lack of any prior conviction and the hardship which a sentence will impose upon you, not only by reason of the fact that it represents your first period of imprisonment, but also that it exposes you to the risk of deportation.
37 Taking all these matters into account, I am satisfied that it is appropriate to impose the following sentence of imprisonment with respect to this offence.
38 With respect to the charge of sexual penetration of a child under sixteen, you are convicted and sentenced to 2 years imprisonment, in respect of which I fix a minimum period of imprisonment of 12 months.
39 In fixing this relatively low minimum period of imprisonment. I have taken into account the matters in your favour to which I have referred previously in my sentencing comments.
40 But for your plea of guilty in this instance I would have imposed a period of imprisonment of 4 years with a minimum period to serve of 3 years
41 By reason of your conviction, you are appropriately categorised under the Sex Offenders Registration Act 2004 as a registrable offender for a period of life. You must report your personal details to the Chief Commissioner of Police, annually, upon your release from custody during that period. Details in writing of your reporting conditions will be served upon you shortly. I will ask your counsel to attend to an acknowledgement of that notice and have you sign it.
42 I also make the order sought with respect to a forensic sample in this instance. You may take a seat Mr Sankhon. I will just make available the sample order that I have prepared and also the reporting order. It is the correct sample order.
43 MR CAMERON: That's correct Your Honour, yes.
44 HIS HONOUR: Mr Sankhon, I'm required under the Act to inform you that if at the time of the request for a forensic sample which involves the taking of a mouth scraping under the supervision of an authorised member of the police you refuse to comply with that process, appropriate force can be applied to the taking of a blood sample. The process of the taking of a mouth scraping is a relatively non-invasive process and one that is not associated with any pain.
45 Is there anything else that I need to attend to Mr Cordy in the sentencing process?
46 MR CORDY: No, Your Honour, that appears to cover it all, if Your Honour pleases.
47 HIS HONOUR: We will now adjourn.
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