Director of Public Prosecutions v Singh

[2017] VCC 1915

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00701

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAI SINGH

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	15 December 2017
DATE OF SENTENCE:	15 December 2017
CASE MAY BE CITED AS:	DPP v Singh
MEDIUM NEUTRAL CITATION:	[2017] VCC 1915

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Stylianou
For the Accused	Ms R. Sleeth

©The Crown in right of the State of Victoria.

This work is copyright. No part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission of the Authorised Officer.

HER HONOUR:

1Jai Singh, you have pleaded guilty to one charge of sexual penetration of a child under 16.  The facts relating to your offending are as follows.

2The offending occurred in 2011 between 1 February and 28 March, at which time you were 21 years old.  You are now 27.  The complainant was 15 years of age at the time.  She is now 22.

3The two of you were in a relationship between July 2010 and March 2011, the sexual activity being confined to between, as I have said, February and March of 2011.  The two of you met through mutual friends in June 2010, and a few days after meeting, there was a discussion as to the complainant's age, you saying you thought she was 18.  She told you that she was 15, and you said you did not care about the age difference.  The complainant in fact at that time was only 14 years old.

4The two of you became friends, and began a relationship in about July 2010.  The complainant had her 15th birthday on 29 July 2010.  At the time the relationship began, the complainant was living with her mother in Hoppers Crossing, and you were living with your sister.  In August 2010, your sister returned to live in Perth, and you moved in with the complainant and her family, sharing the complainant's bedroom with the knowledge and assent of her mother.  The mother, however, was apparently under the apprehension that although you were not engaging in sexual relations you were not sleeping in the same bed.

5At the end of February 2011, after increasing hostility between yourself and the complainant's mother, you moved in with friends at Tarneit.  A few days later, the complainant and her mother had an argument, resulting in her running away from home and moving in with you, the two of you again sharing a bedroom.

6You and the complainant lived together for about five weeks before the relationship started to break down, and the complainant returned to live with her mother at Hoppers Crossing.  A few days before you moved out of the Hoppers Crossing address, the two of you had sexual intercourse for the first time in the complainant's bedroom.  This incident underlies Charge 1 on the indictment, which was the first of two occasions represented by that charge.  Neither of you used any form of contraception, you telling the complainant that you could not wear a condom as they "cut me open". 

7Ultimately the complainant became pregnant as a result of having sexual intercourse with you on that first occasion.  The two of you continued to have sexual intercourse whilst living at the Tarneit address.  These are the acts of sexual intercourse which are laid as uncharged acts.  You last had sexual intercourse in the week leading up to the complainant returning to live with her mother, which is the second occasion underlying the charge on the indictment.  The complainant was not sure how many times she had sex with you, and could not particularise any further occasions.

8In early April of 2011, the complainant began to suspect she may be pregnant and told her mother.  Ultimately the pregnancy was confirmed, and in late April the complainant had a termination at the Royal Women's Hospital. 

9She conducted a VARE with police, reporting the matter in May of 2011, saying that she had reported it because her mother thought it was best to have you charged so it did not happen to anyone else.  You returned to Western Australia in 2011, and did not return until late 2016/early 2017.  There is no suggestion that you left because of the complainant made to police, or that you became aware of it until your return to Melbourne.

10On 17 January 2017, you attended the Footscray Police Station by appointment, and a record of interview was conducted.  During the course of the interview, you admitted that you and the complainant were in a relationship for about six months, agreed that it had involved sexual activity, agreed you had not used contraception, and that the complainant was 15 throughout the relationship.  You provided a DNA sample, which was tested against the product of conception, essentially confirming that the pregnancy to the complainant had been caused by you.

11The matter proceeded by way of an early guilty plea, and no witnesses were called or cross-examined in the course of these proceedings.  The maximum penalty for sexual penetration of a child under 16 years is ten years' imprisonment.

12I now turn to the victim impact statement, which was filed by the complainant.  It is clear, which is often the case, as I remarked during the plea, where a female complainant engages in underage sexual activity, that that relationship and that activity have had a long-term effect upon her.  She essentially has had difficulty forming other relationships following the termination of the relationship with you.  She commented that, as again is often the case with young teenage girls having a sexual relationship with an older person, that she often felt that she was behaving in a way which she did not particularly want to, but which was done to please you, and this has had ongoing effects on her self-esteem and her confidence in entering into other relationships.

13She stated that this relationship and its ending, and undergoing a termination when only 15, affected her capacity to socialise, saying that she really did not have any friends, and stated "I ended up in some very dark places over the years".

14She believes that she has made some strides in her life, stating "I am proud of the person that I have become today.  I am strong and independent.  I no longer feel that I have to do something that makes me uncomfortable just to make someone else happy".

15Ordinarily in cases such as this, the court is required to consider a term of imprisonment as the only appropriate option open to it.  Part of this is because this particular charge is designed to protect vulnerable young girls from sexual predators.  It is not suggested that you were a sexual predator, and it is not suggested that you are a person who has paedophilic tendencies, or that you are attracted to inappropriately-aged young women.

16However, putting that to one side, the other experience of this court is, as I have already stated, that young girls who enter into sexual relationships at a time in their lives when they should be concentrating on other more important aspects in their development, such as school, such as friendships, are very much burdened by an inappropriate sexual relationship, because it takes over their lives.  They end up, as did the complainant in this case, seeking very much to please the much older partner, who they often hold in overly high esteem, and again, as I have already stated, this can result in long-term difficulties with their own sense of self, their own self-esteem, and their place in the world.  So even if you are not a sexual predator in the classic sense, you do need to understand - and particularly as a father of a daughter yourself - that when girls are growing up, the effects of one engaging in a sexual relationship when they were probably too young to do so, and two, when it is with somebody who is inappropriately older than her, results in long-term emotional effects, and there will be long-term blocks to their development which can take years to overcome.

17I am going to turn to your personal circumstances in a moment, but I make the comment now that it was clear, and I am grateful for this indication from both ends of the Bar table, that it is not sought that I deal with you by way of a term of imprisonment to be immediately served.  Primarily this is because of the delay that has been caused in this matter through no fault of your own.

18That segues neatly into your personal circumstances, to which I will now refer.  You are now 28 years of age.  You are married with a daughter.  You were born in Kenya to Indian parents, who immigrated to Australia when you were age six because of violence perpetrated upon them in the country of your birth.  There was a particular targeting of Indians who were perceived as being more affluent and unfairly better-placed than native Kenyan people.

19Your father ran a mechanics business and was robbed at gunpoint on three occasions before deciding to emigrate here.  You and your mother and father and older sister emigrated to Perth, where your father set up his own workshop, which he ran until six years ago.  Your family upbringing was not without difficulties.  Your father was an entrenched alcoholic, who regularly assaulted your mother, on one occasion so severely that he ended up being incarcerated for it.  That saw the end of his business.  Remarkably your parents were able to work through this, but it is quite clear that you were subjected regularly to very frightening domestic violence at the hands of your father, and saw your mother being assaulted on a regular basis as you were growing up.

20You unsurprisingly acted out at school.  You described yourself to psychologist Carla Ferrari, whose report was tendered on the plea, as a class clown, who was attracted to the wrong crowd.  You began abusing alcohol and marijuana at an early age, and this is borne out by your prior criminal history, which is essentially limited to appearances in 2008 and 2009, primarily for unlawful use of motor vehicle whilst under the influence of alcohol, and whilst unlicensed.  There were also some convictions for dishonesty matters, such as possessing stolen goods and theft.

21Eventually in 2009, you were imprisoned for four months.  You began using marijuana from the age of 14 to 15, but you ceased use of it when you were expelled from school in Year 10, in fact using cannabis.  You were a regular drinker from about age 15.  That continued, apparently, to be somewhat of a problem for you until your daughter was born.

22You began an mechanical engineer apprenticeship with your father, but left in the third year when your father's drinking simply became too much for you to handle.  You then worked in warehousing for a year.  You worked for Bob Jane's for nine months.  You were then unemployed.  At that time, you were still drinking heavily. 

23When you were 18, an arranged marriage was organised.  You had not met your fiancé until your family went to India.  At the age of 20, you worked as a watchmaker for two and a half years.  Eventually you and your wife separated, and you came to Melbourne to live with your sister.  Whilst in Melbourne, you lived with your sister, and as I have said, you met the complainant through mutual friends.

24Soon after, your sister decided to go back to Perth, and you moved in with the complainant.  After splitting up with the complainant, you left Melbourne for good in 2011.  You and your wife had by then reconciled, as she came to Melbourne, and the two of you returned to Perth together. 

25In Perth, you worked for four years as a fitter, and then as a salesperson, and in 2015, you left Western Australia with your daughter, who was born in 2012.  The birth of your daughter, I was informed, very much changed your lifestyle.

26You decided to come to Melbourne to make a fresh start.  You still had associates who were causing you trouble in Perth.  In Melbourne, you first worked as a cashier, and then worked as a furniture salesperson for 12 months.  However, you obtained work as a salesman for Doors Plus, a job you have been in for three months.  It appears you have been working in the sales area for some time, and your counsel informed me that this is an area of work that you very much enjoy, at which you feel you are talented and that you feel offers you a future.

27I received a reference from your employer, who remains ignorant of this offending, to the effect that you are employed there and are doing well.  You now only drink occasionally. 

28Your parents have joined you in Melbourne, and they live with you and your wife and daughter in rented premises in Tarneit.  Your mother has a shoulder injury, which prevents her from working, but in particular your father is now suffering from alcohol-related dementia.  He requires a full-time carer, a role undertaken by your mother.

29Your wife has part-time work in before and after school care, but you are the primary breadwinner, supporting both your wife, your daughter, and your parents. 

30The situation is that delay is an extremely significant factor in the plea material before me.  This is a classic case where had you been dealt with at the time of this offending, your personal situation would have been completely different to what it is now, so that the imposition of a gaol sentence now would have far more serious effects upon you than it would have back in 2011. 

31Further, it is quite clear in my view that you have  completely cleaned up your lifestyle.  You have remained in steady work, you have a daughter, you are a responsible, hardworking man, and it is certainly my view that your prospects of rehabilitation are good, and that is very much in contrast to the way you presented in 2011.

32In all the circumstances, I accept that you are remorseful for this offending.  There has been an early plea of guilty.  There has been a considerable delay, your position is one where your prospects of rehabilitation and your behaviour as a contributing, law-abiding citizen are immeasurably improved as to what they were as at 2011, and because of those matters, notwithstanding the seriousness of this offending, I have determined that I need not gaol you, and indeed, that it could not be said that gaol is the only appropriate response in this case.

33I have had you assessed for a community corrections order, for which you have been found suitable.  I can only place you on that order with your consent, so I need to explain what the conditions of it are.  They are that on being placed on this order, you must report to the community corrections office within two working days of the making of this order.  That is, by Tuesday of next week.

34Whilst on this order, you must not commit another offence punishable by imprisonment.  That does not mean that if you commit an offence and are not gaoled for it, that is not a breach.  Any offence for which you theoretically could be gaoled, such as stealing a box of matches from Woolworths, will amount to a breach of this order.  You must report to and receive visits from the community corrections officers as directed.  You must report any change of address or occupation to the community corrections office within 48 hours of the making of this change.

35You may not leave Victoria without the permission of the community corrections office.  You must not attend upon the community corrections office under the influence of drugs or alcohol.  You must obey all lawful directions of the community corrections office.

36In the circumstances as I have described them, it is not my view that you require any particular program.  I do not regard you as sexually predatory, I do not regard you as naturally-attracted to inappropriately-aged partners.  I do not regard you as suffering from any substance abuse problems, or suffering from any mental health difficulties.

37So the only special condition I am going to attach is that you undertake unpaid community work.  The order will last for 18 months, and I am going to order that you undertake 150 hours of unpaid community work.  You will have to get into arrangements with Corrections about when you can do this.  You will find that they are pretty cooperative about this, that they do not want to interfere with people's employment, but you are probably not going to have your Sundays to yourself for a long time, all right Mr Singh?

38OFFENDER:  Yes Your Honour.

39HER HONOUR:  A bit better than going to gaol, I would imagine however?

40OFFENDER:  Yes, yes Your Honour.

41HER HONOUR:  Yes, exactly.  Stand up, sir.  Are you prepared to enter this order?

42OFFENDER:  Yes Your Honour.

43HER HONOUR:  I therefore impose the 18-month community corrections order in the terms I have expressed.  Pursuant to the Sex Offenders Registration Act, you are placed on the Sex Offenders Register for a period of 15 years.

44MS STYLIANOU:  Yes Your Honour.

45HER HONOUR:  It is not discretionary, is it?

46MS STYLIANOU:  No Your Honour.

47HER HONOUR:  All right.  Your counsel will explain the repercussions of that.  Thank you, we will just print out ‑ ‑ ‑

48MS STYLIANOU:  Section 6AAA, Your Honour?

49HER HONOUR:  Pardon?

50MS STYLIANOU:  Section 6AAA.

51HER HONOUR:  No, because it is a - I do not have to.

52MS STYLIANOU:  That is correct.

53HER HONOUR:  It is one of the reasons I like - no I do not.

54HER HONOUR:  Thank you.  I very much doubt any court will see you again, Mr Singh.  I certainly hope that is the case, all right?  You have got your life on track, you do not need - yes.  Yes, thank you.  We might make a point, I think, of sending Mr Singh a copy of my sentencing remarks, just in case something happens in relation to the Sex Offenders Register, it is fairly important the circumstances are understood.

55MS SLEETH:  Yes, thank you Your Honour.

56HER HONOUR:  So we will make a note of doing that.  Is there any point sending it to you?  Or perhaps if you can give my associate the name of your instructor.

57MS SLEETH:  Yes Your Honour.

58HER HONOUR:  And we will forward it so Mr Singh has got hold of that.

59MS SLEETH:  Thank you Your Honour.

60HER HONOUR:  All right, thank you very much.  It would be very nice if we had more discretion.  Thank you.  I thank counsel for their assistance in this matter.  Yes?

61MS SLEETH:  Thank you Your Honour.  Your Honour, in relation to any potential change of law in relation to the Sex Offenders Register, is it Your Honour's view that if there was discretion ‑ ‑ ‑

62HER HONOUR:  If I had been given the discretion, I see no need to place this man on the Sex Offenders Register.

63MS SLEETH:  Thank you Your Honour.

64HER HONOUR:  I am going to do a speech.  The whole purpose of the Sex Offenders Register is to monitor sexual predators who pose a danger to children who are too young to engage in sexual activity.  Mr Singh does not, in any shape or form in my view, fall into that category.  He does not require that monitoring, nor is it helpful to his future progress in the community to have to be subject to the sorts of conditions and restrictions that pertain to such an order.  He does not fall into the class of offender from whom the community needs protection.  That is the whole point of the Sex Offenders Register.

65And unfortunately, the way the Sex Offenders Register is now, it is a bit like - what was that - drift line fishing, you know those massive nets they put in the sea?  They catch everything.

66MS SLEETH:  Yes.

67HER HONOUR:  They catch the fish that they want, and they catch everything else in the ocean.  This is very much - yes, drift net fishing it is called.  It is exactly the same thing, and it is a great waste of resources, because that means police have to monitor people who do not require monitoring.  I have already said that Mr Singh's prospects of rehabilitation are excellent.  He is not attracted to underage children, he is not sexually predatory.  The supervision offered by the community corrections order is quite sufficient in terms of all the sentencing principles this court should have had regard to in this case.

68MS SLEETH:  And Your Honour, to capture those remarks, would I need to seek a transcript to be ordered?

69HER HONOUR:  I will make sure that they are included in my sentencing remarks.

70MS SLEETH:  As Your Honour pleases.

71HER HONOUR:  Because I think that would be handy in any event.

72MS SLEETH:  Thank you Your Honour.

73HER HONOUR:  Thank you very much.  All right, we will stand down until 10.30 thank you.

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