Director of Public Prosecutions v Singh
[2024] VCC 415
•10 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01303
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BALJINDER SINGH |
---
JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2024 | |
DATE OF SENTENCE: | 10 April 2024 | |
CASE MAY BE CITED AS: | DPP v Singh | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 415 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law – Sentence
Catchwords: Two rolled-up charges of sexual assault of a child under 16 – All the offending occurred over some minutes on a single occasion – Victim 14-year-old child in residential care – Accused aged 30 at the time, now 31– No criminal history – Early guilty pleas – Some admissions made in record of interview – Lack of insight into offending – Limited remorse – Prior good character and positive educational and work history – Deportation – Recent drug dependency –– Mandatory registration under the Sex Offenders Registration Act 2004 – Good prospects of rehabilitation.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited:R v Jones [2004] VSCA 68.
Sentence: Total effective sentence of 3 years and 3 months’ imprisonment with a non-parole period of 2 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Kats | Office of Public Prosecutions |
| For the Accused | Ms M Brown | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Baljinder Singh, you have pleaded guilty on indictment to two rolled-up charges of sexual assault of a child under the age of 16, contrary to s 49D of the Crimes Act 1958.
2Sexual assault of a child under 16 carries a maximum penalty of 10 years’ imprisonment. It is an offence to which the standard sentencing regime applies. The standard sentence is 4 years’ imprisonment.
Circumstances of the Offending
3The circumstances of your offending are set out in an agreed summary of prosecution opening for plea dated 13 November 2023.[1]
[1]Exhibit A.
4At the time of the offending, you were 30 years of age and your victim, Heidi Pierce,[2] was 14.
[2] A pseudonym.
5You met Heidi on around 9 February 2023 at a bus stop near Keilor East.[3]
[3] ROI Q&A 36.
6You communicated with each other by exchanging SMS[4] messages, phone calls and snapchat messages.
[4] Short message service.
7On the evening of 13 February 2023, Protective Services Officer (“PSO”) Sergeant Taliana observed Heidi with two empty bottles of alcohol at the front of Footscray Railway Station.
8Shortly after, in the early hours of 14 February 2023, Sergeant Taliana and PSO Amrit Pal Dandiwal observed Heidi enter a vehicle driven by you on Irving Street, Footscray.
9Sergeant Taliana asked you what you were doing. You said you had come to pick up Heidi. During this conversation, Heidi became annoyed and attempted to exit your vehicle, but you grabbed her by her right arm. She eventually managed to leave the vehicle and told you to pick her up later.
10Sergeant Taliana then cautioned you and read you your rights before asking whether you had purchased any alcohol for Heidi. You admitted purchasing two vodka cruiser bottles for her earlier in the evening from a bottle shop in Footscray. As a result, Sergeant Taliana informed you that you would be receiving an infringement notice for supplying alcohol to a minor. Relevantly, she told you that Heidi was 14 years of age.
11She also told you to block the victim’s number on your mobile phone and stop interacting with her. You said that you were unaware Heidi was 14 until this moment.
12At around 12:52 am on 14 February 2023, you utilised Safari to search the following terms: “supplying alch” and “supplying alcohol to a minor fine”.[5]
[5] As evidenced by the internet search history on the accused’s mobile phone.
13On 25 February 2023 at around 12.25am, Heidi left her residential care address and walked to Fullarton Road, Keilor Park where you pulled up next to her in your vehicle.
14You asked her where she was going. She told you she was walking around because she couldn’t get to Footscray. You offered to take her and she entered your vehicle.
15At approximately 1:09 am, you took her to a McDonalds drive-through in Laverton North and ordered food.
16You continued to drive her around the Altona and Williamstown area and occasionally stopped and talked. Whilst your vehicle was stationary behind a bush, you asked Heidi if she wanted to be your girlfriend and come to New Zealand with you.
17You then took Heidi to a place between Altona and Williamstown which was unknown to her. You started kissing her on her lips, neck and mouth while she sat in the front passenger seat. She told you that she felt uncomfortable. You then placed your hands under her top and bra and began lifting her top up and kissed her breasts. You then told her to take off her tracksuit pants, and you tried to pull them off yourself. As you grabbed her tracksuit pants and began pulling them down, you put your tongue in her mouth (Charge 1 – rolled up).
18You then put your hand under her underwear, and with your fingers touched and rubbed her vagina. She was feeling uncomfortable. You continued to touch and rub her vagina for approximately three minutes at the same time you kissed her stomach and breasts.[6]
[6]No penetration is alleged.
19Having removed her tracksuit pants and underwear and lifted her top and bra, you manoeuvred yourself on top of her whilst she remained in the front passenger seat. You removed your jeans and underwear and placed your penis onto her vagina so that it was touching and rubbing her vagina.[7]
[7]Again, no penetration is alleged.
20Heidi covered her vagina and told you to stop. However, you remained silent, pushed her hands away and said you would “be done soon” and would then drive her to Footscray. You sat on top of her for approximately four to five minutes with your penis on her vagina and you were not wearing a condom (Rolled-up Charge 2). You then left the vehicle to urinate.
21Whilst you were outside the vehicle, Heidi called her residential care worker and spoke to him for approximately one minute. She was crying, upset and distressed. She was asked what happened and where she was. She said she did not know and ended the call.
22You then drove her back to Footscray and dropped her off on Barkly Street.
23At approximately 4:18 am, Heidi called the Department of Families Fairness and Housing Child Protection Afterhours and spoke to Advanced Child Protection Practitioner Monika Pieczonka. She disclosed to her that she went in a car with a guy. Ms Pieczonka informed Heidi she would call her carers, and someone would call her back. Heidi then walked to the Footscray Railway Station where she fell asleep.
24Soon after waking up, Heidi called the Footscray Police Station and spoke to First Constable Mitchell Florence whom she advised that Triple 000 had asked her to call.
25At the time, Heidi was listed as a missing person and First Constable Florence persuaded her to attend the Footscray Police Station.
26At 6:30am, she attended the Footscray Police Station where she presented well. She did not disclose any information regarding the sexual assault. She said she was fine, her physical health appeared okay, and she left.
27At 7:02am, Heidi called the Department of Families Fairness and Housing Child Protection Afterhours and again spoke to Ms Pieczonka. She informed her that a male offered her a lift and that she spent three hours with him. Ms Pieczonka queried whether anything sexual happened to which she said that it did and that it was by force. She said that it was her fault because if she did not get into the car with you it would not have happened, and that she should not have run away from her placement.
28You and Heidi continued to communicate via messages but did not meet again.[8]
[8]As confirmed by Mr Kats during the plea hearing.
29A number of days later, on 6 March 2023 at 4:07 am, Heidi sent you a SMS message stating “I’m actually 14 and not 16”. You responded, “This is something vry serious”. She said “I don’t think it matters. I’m very mature tho. I understand if u don’t wanna hangout anymore that’s ok.”
30After a short SMS conversation, you said, “Just ask u one thing. I jv had too many betrayls nd bckstabs on me. jst don’t get me in any trouble u ask wht u want u ll get it. For sure. But just b quiet n low.” [9]
[9]As typed.
31A search warrant was executed at your home address on 7 March 2023 where you were present and arrested. Your mobile phone was seized. By this time, you had blocked the victim’s mobile number.
32You were cautioned, read your rights, and remained with Senior Constable Carney during the search. He asked you if you had any questions. You stated that you were not with the girl and hadn’t seen her. You said that you stopped seeing her when she told you she was under 18 years of age.
33You were conveyed to Werribee Police Station where you were interviewed.
34You informed the police that you first met the victim “like almost a month ago” at a bus stop near Keilor East. You said the victim asked if she could ride in his car and that’s how you met.
35Throughout the interview you demonstrated a limited level of insight and you appeared to blame the victim.
36You stated that you dropped her off at Footscray multiple times when she asked to be dropped off or picked up. You described your relationship with the victim as initially being like friends or first cousins.
37You stated you were with the victim on 25 February 2023, where you went to McDonalds and drove around the Altona and Williamstown area. You admitted to kissing her on the lips and said that she asked you to kiss her on the breasts and you complied.
38In relation to anything else occurring after kissing the victim on the breasts, you said:
To be honest, I feel embarrassed, like I, I was so excited, that I released myself over there only, so I had no interest in continuing. You know, so that’s why we left. Like automatically, like we would never get to the point to have sex, I get to excited I use, its already, I wasn’t good enough at that time”.[10]
[10] ROI Q&A 204–211.
39You stated that when you met her she had told you she was 18. When asked about your interaction with the PSOs on 14 February 2023, you appeared to accept that you were told she was 14.
40Towards the end of the interview, you admitted touching the victim’s vagina. You also consented to providing a DNA profile sample.
41DNA attributable to you was found on the inside front part of the victim’s underwear that she wore on the night in question.
Victim impact
42A brief victim impact statement declared by the victim on 20 March 2024 was read out on the plea.[11]
[11] Exhibit B.
43As a result of your offending, she has felt worthless and is struggling with anxiety and trusting people. She is fearful of going near the location of the offending. She has difficulty sleeping and experiences bad dreams. She says that she will never forget the night in question because of what you did to her.
44I hope it is now plain to you how your offending has impacted a vulnerable child victim.
Personal circumstances
45I have had regard to your background set out in your counsel’s written submissions. Your sister, Ms Kaur, gave evidence on your plea and also highlighted aspects of your background.
46You are now 31 years old and have no criminal history.
47Your counsel described you as an intelligent, educated person who has spent most of his adult life, either studying or working.
48You were born in Kharar, India in 1993. You describe your parents’ relationship as loving and your childhood as a happy one.
49You have an older sister who lives and works in Melbourne whilst caring for her son as a single mother.
50Your parents live in India and until very recently, were unaware of these charges. Your mother has now flown to Australia and is present in court today.[12]
[12]As is your sister who was also present at the plea hearing.
51You feel that your parents (perhaps subconsciously) exerted pressure on you and your sister to succeed as a result of ongoing financial stressors in the family home.
52You completed High School in India. You did not excel academically and experienced significant bullying during your earlier school years for being of smaller physical stature.
53Following High School, you completed a Bachelor of Commerce at Punjab University.
54At the age of 23, you travelled to New Zealand and completed a post-graduate Diploma in International Business in Auckland. Thereafter, you worked full-time as a co-ordinator for an electronics import business.
55In 2020 you returned to India to visit your family. You were unable to return to New Zealand due to the Covid-19 outbreak and the fact that non-citizens were not permitted to enter the country.
56While you had always planned to return to New Zealand, in 2022, you came to Australia on a visitors’ visa to support your sister as a result of her marriage breakdown, and to help care for her son, who is now aged four. Prior to your remand, you had been living with your sister.
57At the time of your offending, you were halfway through a commercial cookery course. You had been working at McDonalds and as an Uber Eats driver.
58Around the age of 29, you were introduced to heroin by a friend at a party. You acknowledge you are addicted to heroin.
59In her evidence, your sister, Ms Kaur, confirmed that she worked part-time in the aged care sector and cared for her son as a single mother. She got married and came to live in Australia in 2019. She described a close relationship with you, involving regular online contact when you lived in New Zealand. She stated that you wanted to live your life in New Zealand where you were happy and enjoyed your work. She stated that you are a caring brother and son.
60She noticed a change in you when you returned to India, and were unable, because of the pandemic, to return to New Zealand. When she spoke to you on the phone you appeared to have become reserved. Ms Kaur gave birth to her son in 2020. She endured a difficult marriage breakdown and you came to Australia to support her. She stated that you enjoyed a loving relationship with your nephew.
61Ms Kaur stated that she tried to speak to you about the criminal charges, but both her and you were not comfortable speaking about them.
Defence submissions
62On your behalf, Ms Morgan conceded that the offending was serious.
63In mitigation, Ms Morgan relied on your pleas of guilty entered at an early stage. Pleas of guilty in a case involving a young and vulnerable victim are always significant. By pleading guilty, you have not only saved court time and expense, but importantly, avoided your victim from experiencing further trauma by being cross-examined and reminded of the incident that has had a deep impact upon her. By pleading guilty, you have taken responsibility for your actions and facilitated the course of justice.
64While you are entitled to a significant credit for the utilitarian benefit of your pleas, I find that any genuine remorse is limited. Your police interview demonstrated a degree of co-operation. In particular, you accepted the offending subject of charge 1. However, the overall tenor of the interview demonstrated limited insight and involved blaming your victim for your predicament. However, in light of your pleas, I am prepared to accept some limited remorse on your part.
65Ms Morgan highlighted the fact that you are not an Australian citizen and therefore face the prospect of deportation upon release. I accept that the prospect of deportation will make your time in prison more onerous. In terms of deportation constituting an additional extra-curial punishment as a result of you losing the opportunity to settle permanently in Australia, I note that you only arrived here in 2022 and never intended to remain. However, in light of your close relationship with your sister and nephew who remain living in Australia, I will give some extremely limited effect to your potential deportation constituting additional punishment.
66Ms Morgan submitted that you are a man of prior good character without any prior convictions. She described your offending as an aberration, and that otherwise, you are an intelligent and educated person. You are a caring son and brother who came to Australia to support your sister at a particularly difficult time in her life.
67I also take into account that this is your first experience of custody and that in itself will have a greater impact, certainly as far as specific deterrence is concerned.
Prosecution submissions
68On behalf of the prosecution, Mr Kats relying upon written submissions,[13] highlighted the serious nature of the offending involving a young and vulnerable victim. It was submitted that a term of imprisonment with a non-parole period was the only available disposition in order to do justice to all relevant sentencing purposes, in particular, general deterrence and denunciation. Ms Morgan conceded that to be the only available disposition.
[13]Exhibit C.
Objective gravity and sentencing purposes
69Any sexual offending against a child is serious. The maximum term of imprisonment and the fact that Parliament has chosen to legislate standard sentences in respect of the offences you fall to be sentenced for, underline the serious nature of such offending.
70You sexually abused a young and vulnerable girl. From the text message communications, you were plainly aware of her vulnerabilities. She had told you she had self-harmed and wanted someone she could talk to and trust. You were a mature adult aged 30, and she was only 14. There was a clear imbalance in power. You were much older, intelligent, had money and access to a car. Despite what your victim may have told you, the warning by the PSO on 14 February 2023, that your victim was 14 years old was clear and unequivocal. The fact that you were being issued with an infringement notice for supplying alcohol to a minor should have reinforced that fact. It should have led you to immediately cease contact with the victim. However, you persisted in meeting her culminating in the offending. As your counsel stated you are the architect of your own misery.
71Both charges are rolled up and you are to be sentenced for the totality of the offending represented by the charges.[14] However, I bear in mind that both charges relate to offending that occurred over a number of minutes on the one occasion.
[14]R v Jones [2004] VSCA 68 at [13].
72In particular, I regard charge 2 as a serious example of the offence of sexual assault of a child under 16. The offending was committed by you after she had told you she felt uncomfortable. You touched and rubbed her vagina with your fingers and then having placed yourself on her, touched and rubbed your penis on her vagina. You were not wearing a condom. This offending conduct was not fleeting but lasted in total around seven minutes. You continued despite her protest by words and actions. She told you to ‘stop’ and covered her vagina. However, you ignored her, pushing her hands away and saying ‘it’ll be done soon’.
73The offending occurred after a number of meetings and communication via text messages. The offending involved at least a degree of pre-planning.[15] You admitted as much in your police interview, saying:
See, I accept - accept - I accept one thing that day. This was something which was pre-planned, like, you know. Pre-planned, like, we both knew this is coming, that this was gunna come this time…[16]
[15]I agree with the defence submission that [12](a)(i) and (ii) do not suggest pre-planning as at that time you believed she was over 16.
[16]Police interview answer 658. See also answers 848 and 880.
74Following the incident, you sent the victim a message on 6 March 2023 effectively telling her not to report you to the police and offering her inducements.
75The law presumes that your young victim will suffer ongoing harm as a result of the offending. Here, your victim has provided a statement outlining the detrimental impact upon her as a result of the offending.
76I am prepared to accept that you met your victim and communicated with her in circumstances where you initially believed she was an adult. That of course changed on 13 February 2023, when you were alerted to her age in no uncertain terms by Sergeant Taliana. You nevertheless continued to maintain contact.
77Ms Morgan submitted that the impact of the pandemic and the inability to resume your life in New Zealand where you were happily employed and had formed a healthy social circle, had a significant and detrimental impact upon you. From being a productive and contributing member of the community in New Zealand, you were stuck in India. Ms Kaur confirmed in evidence that she noticed the change in you. Having arrived in Australia, you were socially isolated and lacked the same sense of purpose you enjoyed in New Zealand. You were desperately lonely and were introduced to heroin and became quickly addicted to it. That loneliness led you to communicate and spend time with the victim.
78This background provides some context to the offending but does not in any way excuse it. In light of this background, I am prepared to accept that your offending was not predatory in nature.
79However, your moral culpability must be assessed as high.
80In sentencing you, I must justly punish you and express the condemnation of the court and on behalf of our society. Any sentence must give prominence to sending out a message to others who may be inclined to offend in similar circumstances against a minor. To some extent you must also be deterred. While your rehabilitation remains important, the punitive aspects must remain at the forefront.
81Whilst I have no psychological assessment before me, given your good character, early pleas of guilty and the fact this will be your first experience of incarceration, I am prepared to accept that you have good prospects of rehabilitation. However, that finding is subject to you abstaining from illicit substance use.
Standard sentencing
82Sentencing requires taking into account many different matters. The standard sentence is one such factor and no more. The sentence specified as the standard sentence is, ‘the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness’.[17]
[17]Sentencing Act 1991, s 5A(b).
83The standard sentencing regime does not interfere with the instinctive synthesis approach the Court must carry out which involves distilling all relevant factors to arrive at the appropriate sentence.
84The Court must only have regard to sentences imposed in cases where the standard sentence regime applied. Current sentencing practices are not determinative; they are no more or less important than any of the other factors which the Court is required to consider. Each case ultimately turns on its own particular facts and circumstances.[18]
[18]I have had regard to the cases referred to by Ms Morgan and Mr Kats in their written submissions (exhibits 1 and C).
85The sentence on charges 1 and 2 will be lower than the standard sentence having taken into account the objective gravity of the offending as articulated earlier in these reasons and your personal circumstances, including your positive background, pleas of guilty and the fact of deportation.
Sentencing
86Having taken into account all relevant circumstances and factors, Mr Singh, you are sentenced as follows. Please can you stand up:
· On Charge 1, sexual assault of a child under 16, you are convicted and sentenced to 18 months’ imprisonment.
· On Charge 2, sexual assault of a child under 16, you are convicted and sentenced to 3 years’ imprisonment.
87The sentence on Charge 2 will be the base sentence. I direct that 3 months of the sentence on Charge 1 be served cumulatively upon the base sentence on Charge 2. This makes a total effective sentence of 3 years and 3 months’ imprisonment.
88I direct that you serve a non-parole period of 2 years’ imprisonment.[19]
[19]Sentencing Act 1991 s 11A(4)(c), requires the court to fix a non-parole period of at least 60 per cent of the head sentence.
Pre-sentence detention
89Pursuant to s 18 of the Sentencing Act 1991, the period of 21 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
90Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty to Charges 1 and 2 and been convicted of them, you would have been sentenced to a term of 4 years and 6 months’ imprisonment with a non-parole period of 3 years’ imprisonment.
Sex Offender Registration
91Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, registration is mandatory in relation to these offences and the reporting period is 8 years.[20] Upon your release from prison, you must report your personal details to Victoria Police and continue to comply with the reporting obligations. It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations. My associate will now provide you with a document to acknowledge the reporting requirements.
[20]The period of 15 years specified in [53] of exhibit A is incorrect.
Disposal order
92I grant the disposal order sought by the prosecution.
93Mr Kats, anything arising?
94Mr Kats: No, as your Honour pleases.
95Ms Brown?
96Ms Brown: No, your Honour.
0