Director of Public Prosecutions v Singh
[2018] VCC 944
•12 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01717
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SANDEEP SINGH |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2018 | |
DATE OF SENTENCE: | 12 June 2018 | |
CASE MAY BE CITED AS: | DPP v Singh | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 944 | |
REASONS FOR SENTENCE
PSEUDONYMS USED TO PROTECT IDENTITY OF COMPLAINANTS
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Subject: criminal law - sentence
Catchwords: Pleaded guilty to 2 charges of inviting a minor to be concerned in child pornography – 1 charge possessing child pornography – 2 charges sexual penetration of a child under 16 - Offender 27 year old taxi driver – - supplied food, drinks alcohol cannabis, free taxi rides in exchange for sex with one complainant aged 14 - offending over 3 weeks –
Came to Australia for tertiary studies – difficult work history - suffers from depressive disorder and post traumatic disorder - remorse – separation from 5 year old daughter and uncertainty of deportation weighing heavily upon offender.
Sentence – 4 years 11 months imprisonment non-parole period 2 years 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms P. Thorp | OPP |
| For the Accused | Mr B. Newton | Dribben & Brown |
HER HONOUR:
1 Sandeep Singh, you have pleaded guilty to two charges of inviting a minor to be concerned in child pornography, one charge of possessing child pornography, and two charges of sexual penetration of a child under 16.
2
In January and February 2017 you were employed as a taxi driver. On
20 January you collected the complainant Louise Thompson[1] from a house in your taxi which had been booked by her and you drove her to her home. During the trip you told her that she looked 18 years old, to which she replied that she was 14 years old. She told you that she had used cannabis the previous night and you said that you and she should meet later for a cannabis smoking session. You asked for her phone number and she gave you her mobile phone which you then used to call your own phone. The complainant then saved your number in her phone and it was automatically added to her Snapchat list.
[1] A pseudonym
3 At a later time her friends Caitlin Jackson[2] and Courtney Chapman[3] also added you to their Snapchat contacts using the mobile phone number you provided to Louise Thompson. Throughout the period from 20 January to 22 February you maintained contact with the girls via Snapchat, telephone calls and text messages. You told them you were 23 years old, in fact you were 27. You gave them free taxi rides and bought them food, drinks, alcohol and cannabis. On Saturday, 4 February, the three complainants were all at Courtney Chapman’s house in Carrum Downs while her parents were out. During the evening Ms Thompson and Ms Jackson used Snapchat to send messages to you asking you to "bud", a reference to cannabis. You replied that you were not a drug dealer so you would not bring them bud for money, but would so in exchange for sex. You asked them to send you nude photographs of themselves as proof that they would have sex with you. This is the subject of Charge 2, inviting a minor to be concerned in the making of child pornography.
[2] A pseudonym
[3] A pseudonym
4 Ms Jackson agreed to have sex with you in exchange for cannabis and she sent you pictures via Snapchat of her naked breasts as you requested. You took a screen shot of the pictures and saved them on your phone. That is Charge 3, possessing child pornography.
5
You drove to an address and were met there by Ms Jackson and Ms Thompson. This was the first time you had met Ms Jackson. You spoke to the girls and then left to get a pizza and the “bud”. You returned at about 1 am and
Ms Jackson got into the front passenger seat of the car. You drove her to an unknown location in a dark street and parked the car. You placed a container of cannabis on the dashboard. Ms Jackson had brought a knife with her and she placed it on the dashboard saying that she had brought it in case you were a murderer. She told you she did not want to have sex as it would hurt. You said to her, "Trust me, it's small" and you placed her hand on your penis. She then agreed to have sex with you and at your request she reclined her seat all the way back. You kissed her and started touching her vagina and she pushed your hand away. You became angry and said, "Don't stop me, I'm giving you ‘bud’ for this." She removed her pants and underwear and you inserted your finger into her vagina, continuing for about five minutes. That is Charge 4, sexual penetration of a child under 16.
6 You then tried to insert your penis but you were unable to maintain an erection. that is the first part of Charge 5, sexual penetration of a child under 16. Charge 5 is a representative charge covering three instances of sexual penetration on three separate occasions.
7
On 9 February Ms Jackson was at the beach with her friend Amelia Winter[4]. Ms Jackson contacted you and asked you to collect them from the beach in your taxi. You took them to McDonald's and paid for their meal. You then drove them to another McDonald's and during the trip you asked
Ms Winter if she wanted money from your friends in exchange for “performing stuff” which she understood to be a reference to sexual acts with other adults. She declined the offer. Ms Jackson and Ms Thompson asked you to collect them from Ms Winter' house on the evening of 14 February. Earlier that day you had sent them messages saying, "HVD" meaning Happy Valentine's Day.
[4] A pseudonym
8 You then drove Ms Jackson and at her request you dropped her off up the road from her house so you would not know where she lived. Ms Thompson remained in the car and you drove her to a bottle shop. You went in to buy vodka for Ms Thompson and she remained in the car but she rang Ms Jackson and told her she felt "creeped out" and she got out of the car and ran away.
9
On 17 February Ms Jackson arranged for her father to collect her from school and take her home as she was being bullied by other students. Her father dropped her home to her mother's house where no one was there.
Ms Jackson contacted you via Snapchat and offered to have sexual intercourse with you for $50 cash. You offered her $30 and Ms Jackson negotiated the price back up to $50 saying she would have to pay her sister to stay out of the house while you were there. You then agreed to pay $50 for sex with her. You drove to her house and GPS records show you were there for just over half an hour. Ms Jackson took you inside and you kissed her before suggesting you go to the bedroom. You told her to put a towel on the bed, you asked her to undress. She took off her underclothes but left her school dress on as she did not feel comfortable taking it off. Using a condom you had penile vaginal sex with her until you ejaculated and you removed the condom. That is the second part of Charge 5, sexual penetration of a child.
10 You wanted to do it again but the complainant said no, and then agreed as you said the agreement had been to do it two or three times. Using a condom again you then inserted your penis into her vagina and while doing this you choked her for about ten seconds with your hand around her neck. That is the third part of Charge 5, sexual penetration of a child. You paid Ms Jackson $50 before leaving the house.
11 Some time after Courtney Chapman had added your mobile phone number to her Snapchat contact list between 20 January and 3 March 2017, you contacted her and asked her to send you nude photographs of herself but she declined. That is Charge 1, inviting a minor to be concerned in the making of child pornography.
12 Ms Jackson disclosed your offending against her to her friend Amelia Winter immediately after each occasion on 4 and 17 February. She had become increasingly upset at what you had done to her and on 22 February she and Ms Winter rang you and recorded the call. Ms Jackson asked you to bring her "a deck of smokes" or she would tell her school and the police that you had raped her. You replied, "I didn't force you to do anything so don't say anything." You also said, "Caitlin, I want to be with you forever."
13 Ms Jackson disclosed the offending to her father's ex-partner on 22 February 2017, then to her father and mother before the police were notified. You were arrested and interviewed by the police on 3 March 2017. You denied sexually offending against Ms Jackson and much of the surrounding activity and you sought to blame the complainants for what you did.
14 You pleaded guilty at the committal hearing and although none of the witnesses were required to give evidence, they were obliged to come to court in anticipation of the contested hearing. Despite that you are entitled to a discount on your sentence for having avoided a trial and importantly for having spared the complainants and other witnesses from having to give evidence and be cross-examined. By pleading guilty you have facilitated the process of the criminal justice system which is recognised as being deserving of a discount.
15 These are very serious charges for which there are substantial maximum prison sentences. For Charges 1, 2, 4 and 5 the maximum sentence is ten years' imprisonment and for Charge 3, five years.
16 The complainants were young teenagers, all aged 14, who were vulnerable and easily manipulated. The law recognises that at their age they are too young to make reasoned decisions and are thus incapable of giving consent to sexual activity.
17 By contrast you were aged 27. You had a partner and a child and you had some experience of life. Certainly you are immature according to the opinion of Dr Pillay, the psychologist who provided a report to the court.
18 Dr Pillay considers that despite your expression of remorse and empathy for the victims, you demonstrated a childlike attitude in explaining why you offended and that you have a superficial level of insight into your offending behaviour, with a sense of frustration and anger towards the complainants.
19 You have a history of anxiety and depression dating back to your youth in India from where you migrated in 2009. Having completed school in India you came to Sydney to study at tertiary level in computer graphics. Your family paid about $5,000 for your enrolment in a reputable course but after only three months the institution suddenly shut its doors without notice or refund of any money.
20 Meanwhile your brother, with whom you had been living, returned to India leaving you with financial responsibility for the room you were renting. You found full time work and remained in Sydney for several months before coming to Melbourne for cheaper rent and better job opportunities.
21 You found full time work in the caravan construction industry but after ten months in the same job you were seriously assaulted by a fellow employee who fired a nail gun at you and swung a metal tool at you. You raised your hand to protect your head and the tool struck your right hand.
22 Although I have not seen any medical evidence about this, your counsel, Mr Newton, set out the details of the attack and the consequences. It resulted in the bone in your right thumb protruding through the skin with severe bleeding. You were treated at the Epping Hospital and required surgery to set the bone with the insertion of a plate and screw. Your hand was in a cast for about a month but complications occurred and a further plastic casing was required for a further four months. Your parents had to provide financial assistance to you during this time when you were unable to work or even to drive.
23 Your employer told you not to make a WorkCover claim, on an inducement to full time work, and on becoming fit to resume work your employer told you there was no longer any work for you. You then obtained further full time work as a subcontractor with Chubb Security bagging coins and notes for transfer to banks and other institutions. That work lasted for several months until Chubb lost the contract.
24 Meanwhile you had met your present partner. She became pregnant and you began to reside together in the home of her aunt and uncle. Your daughter was born five years ago. You were unemployed for some months and your partner assisted you by paying for you to train as a private security officer. On completion of the course you applied for jobs but were told you were physically too small and slender for security work.
25 Once again your partner assisted and paid for you to enrol in a taxi driving course and in April 2013 you began driving taxis at night. Towards the end of that year you were hailed one night by a man whose companion got into your taxi forcing you to get out and handover your takings for the night and your phone. You managed to escape with the car keys but the men chased you in a different car, smashing into a tree near where you were hiding. The police arrived and the matter was reported but no arrest resulted and you considered the investigation was unsatisfactory. You were too anxious and afraid to continue with night driving and your income suffered considerably as a result.
26 You then began daytime driving with another taxi company and remained there for two and a half years until your arrest in March 2017. A week after you were charged with these offences you were required by the Department of Health and Human Services to leave your home and live separately from your partner and child.
27 The present arrangements are that you live with your partner's aunt and uncle who facilitate daily supervised access for you with your daughter. She lives at a separate house with your partner.
28 After your arrest your taxi driving work was terminated and you hired a van and for some months worked as a subcontracting courier.
29 Earlier I referred to the fact that you suffered from poor mental health as a boy in India. At age 14 you were subjected to sexual abuse from an uncle whilst in his care and you disclosed this but it was not reported to the police. Instead your uncle was beaten by your father, and some weeks later you were admitted to hospital with severe anxiety. Thereafter you received psychiatric treatment with antipsychotic and antidepressant medication.
30 On coming to Australia your only medication was that which your parents apparently brought with them when visiting you. It seems that you resisted seeking mental health treatment for fear of having such a record with associated stigma.
31 Dr Pillay has seen you 15 times since last September at Monash Health. Dr Pillay is of the opinion that you are suffering from a depressive disorder and post traumatic stress disorder and noted the possibility of a personality disorder given what he has described as:
"significant dysfunction in his interpersonal relationships and strong fluctuations associated with this".
32 Your medication was being managed at the Monash Care Centre and Dr Pillay's opinion as to the diagnosis of depression and anxiety is confirmed by consultant psychiatrist, Dr Tatucu, in a brief report dated 30 April 2018.
33 Dr Pillay also noted and I quote:
"It appears that Mr Singh's pre-existing untreated psychological symptoms seem to have been exacerbated by the stress of being involved in a court case and the possibility of deportation from the country."
34 You were admitted to hospital in October last year when your general practitioner called the CAT Team due to your distress and suicidal tendency. This followed an earlier attempt when you took an overdose of sleeping pills. Dr Pillay is of the opinion that your symptoms have somewhat stabilised with medication but at the time of the plea hearing you were still significantly distressed about the prospect of going to prison.
35 Dr Pillay is also of the opinion that your trauma history and personality dysfunction are significant barriers to treatment and are impeding your progress. Although not specifically mentioned in Dr Pillay's report your instructions to your counsel are that separation from your daughter, not just in the short time but in the longer term, and the uncertainty as to your deportation are weighing heavily upon you.
36 They are significant matters which I take into account as being likely to make your time in prison more onerous than for those who do not have such burdens weighing upon them. Together with your somewhat fragile state of mental health and the fact that this is your first time in prison this calls for some leniency.
37 Your partner has written a letter for the court and she has explained that she continues to give you her support and she speaks of your good qualities, including your hard work for the family and your devotion to your daughter. She said that you are extremely remorseful for your actions. Her aunt, with whom you have been living, has also written a letter in which she confirms your partner's observations and says that your behaviour was out of character.
38 Your former employer at the taxi company, Mrs Evans, has written that you were a highly regarded driver, hardworking and professional. Your brother and your friend with whom you previously worked have both written letters expressing similar opinions as to your hard work and selflessness and your remorse. Those matters all point towards you having good prospects for rehabilitation as does the fact that you have no prior convictions.
39 You have also provided a letter to the court today and you express your remorse and acceptance of responsibility for what you did. That is an additional reason why your prospects for rehabilitation are good and I take that into account.
40 These are all important mitigating factors to be taken into account in determining an appropriate sentence. At the same time the offending is very serious, as I said earlier and the complainant has been badly affected by your behaviour.
41 People are entitled to feel safe in a taxi, and the exploitation of a vulnerable young person using such transport deserves strong condemnation by the court and a sentence which reflects that. You knew how old the girls were and you pursued them over several weeks and, in effect, groomed them by buying them food, drinks, alcohol and drugs and giving them free taxi rides. That amounts to predatory behaviour which makes the offending more serious.
42 You knew the girls were avoiding parental supervision and you took advantage of that. You went prepared with condoms for use with Ms Jackson and you used coercion and violence against her on the third occasion as part of Charge 5.
43 I have referred briefly to the impact of the offending upon the complainants. Ms Jackson explained in her victim impact statement that she felt embarrassed and ashamed at what happened and it has caused her mother to reject her. She now lives with her father. She is not going to school and uses illicit substances to manage her thoughts and feelings. She feels angry and alone.
44 Her mother, in a moving statement that she read to the court herself, said that the crimes have destroyed her daughter's ability to function in a healthy normal manner in her daily life and have resulted in a major breakdown in the relationship with her daughter.
45 Ms Jackson's father explained that his daughter had wanted to become a teacher but now has little drive and she has become very negative. Her father's partner spoke of Ms Jackson's mental and emotional stress, and the stress and anxiety within the family which has resulted from your crimes.
46 Ms Jackson's best friend, Courtney Chapman, who was also a complainant, stated in her victim impact statement that she worries about her friend and tries to help her and that she herself is sad, scared and anxious about what happened and tries not to think about it.
47 It is important that others understand that such offending will be punished severely and the community expects this because of the need for young people to be protected.
48 However, it is unlikely that you will offend in this way again and specific deterrence therefore requires less attention in sentencing. Your prospects for rehabilitation appear to be good as I said before, even with the hesitation expressed by Dr Pillay as to your progress towards better mental health.
49 Imprisonment is the only appropriate sentence in this case and I will sentence you to the following terms of imprisonment.
50 Will you stand now please, Mr Singh.
51 For Charges 1 and 2, three years for each charge.
52 For Charge 3, one year.
53 For Charge 4, three years.
54 For Charge 5, three years and six months.
55 The Serious Sex Offender provisions of the Sentencing Act require that having been sentenced to prison for Charges 1 and 2 the other sentences must be served cumulatively unless otherwise directed.
56 The sentence for Charge 5 is the base sentence for the purposes of cumulation. I order that four months of each of the sentences for Charges 1 and 2, three months of the sentence for Charge 3 and six months of the sentence for Charge 4 be served in cumulation upon the base sentence. That results in a total effective sentence of four years and 11 months. I order that you serve a minimum of two years and six months before being eligible for parole.
57 The prosecution seeks an order for forfeiture of items and an order under s.464ZF of the Crimes Act for a forensic sample of saliva to be obtained.
58 Mr Newton, I hadn't made a note of whether that was opposed or unopposed. Do you have any instructions about that?
MR NEWTON: No, may I seek instructions in relation that?
HER HONOUR: Yes, certainly.
MR NEWTON: Yes, Your Honour, my client consents to making that order.
HER HONOUR: Thank you.
59 I make those orders and I must explain that the police have the power to use reasonable force, Mr Singh, to obtain the sample of saliva but I trust that will not be necessary.
60 You have spent 29 days in pre-sentence detention which I declare to be already served and I shall cause that to be noted on the court record.
61 Under s.6AAA of the Sentencing Act if you had pleaded not guilty to these charges on a finding of guilt I would have sentenced you to six years' imprisonment with a non parole period of four years.
62 Pursuant to the Sex Offenders Registration Act you must provide your details to the police each year for the rest of your life. You will be given a form to sign in that regard shortly.
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HER HONOUR: I think my associate has that there, do you? Yes. Mr Newton, would you like to accompany my associate to the dock for that purpose?
MR NEWTON: Yes, certainly. As Your Honour pleases. Are there any other matters, Mr Newton?
MR NEWTON: No Your Honour.
HER HONOUR: Ms Thorp?
MS THORP: No Your Honour.
HER HONOUR: Thank you. Adjourn the court please.
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