Director of Public Prosecutions v Singh

[2017] VCC 275

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 16-01366

DIRECTOR OF PUBLIC PROSECUTIONS

v

SONIA SINGH

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	8 March 2017
DATE OF SENTENCE:	16 March 2017
CASE MAY BE CITED AS:	DPP v Singh
MEDIUM NEUTRAL CITATION:	[2017] VCC 275

REASONS FOR SENTENCE
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Subject:  Sexual penetration of a child under 16
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:  Three year community corrections order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson
For the Accused	Mr P. Lavery

HIS HONOUR: 

1Sonia Singh, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 years.  The maximum penalty for this offence is ten years' imprisonment.

2Your offending occurred in December 2014.  There has been delay in these matters coming before the court.  A statement was taken from the complainant on 25 June 2015, but you were not charged until 22 February 2016.

3There was a committal mention on 3 August 2016, at which time you pleaded guilty to the charges.  I treat you as having pleaded guilty at the earliest opportunity.  By your plea, you have saved the time and cost of a committal and trial, and importantly, you have saved the complainant from having to give evidence against you.

4The circumstances of your offending are summarised in a prosecution opening in writing.  That document was read in open court by the learned prosecutor, Mr Gibson, and was tendered in evidence and marked as Exhibit A on your plea.

5Your counsel, Mr A. Lavery, accepted that the prosecution opening forms a proper basis of fact upon which I can proceed to pass sentence upon you. 

6It is not necessary that I again set out in full that which is contained in the prosecution summary.  These sentencing remarks, however, must be read in conjunction with what is set out in full in the prosecution summary.

7At the time of offending, you were approaching 34 years of age.  You were the mother of three children.  You knew the complainant, who was then aged 15 years.  The complainant began using alcohol to excess and consumed drugs.  He was expelled from his school and he ran away from home.

8You invited him to stay at your home.  On the night, you had a party at your house, at which you and the complainant drank alcohol, listened to music, and smoked cannabis.  You left the party with a friend and went to licensed premises.  The complainant remained at your house.

9You arrived home in the early hours of the morning, having been drinking and consuming drugs.  You were most uninhibited.  You arrived home in the early hours of the morning, where you found the accused in your bed.  You initiated unprotected sexual intercourse with him, as a result of which you fell pregnant and gave birth in September 2015.  The complainant is the father, the child is now 18 months old.

10When interviewed, you made no admissions, and you claimed another man from Geelong was the father of your child.  There is no victim impact statement, but when interviewed the complainant said he was suffering from serious anxiety and had been drinking to excess.  So much so that he has suffered from alcohol poisoning.

11This is a one-off example of what is a serious offence.  The purpose of the law is to protect children, male or female.  Fortunately for you, you are not charged with offending over a long period, which is sometimes the case.  As I say, this is a one-off charge, which has, as its basis, sexual penetration on one occasion which resulted in your pregnancy.

12The fact you were at the time of offending affected by both drugs and alcohol explains the offending, it does not excuse it.

13You have a number of prior convictions from 11 previous court appearances, but you have no previous convictions for offences of a sexual kind.  You have a number of prior convictions for drug offences, and for offences of violence.  You have received a number of community-based dispositions, some of which you have breached.

14You have also in the past received suspended sentences of imprisonment, and you have been to prison before. 

15On 1 December 2016, at the Bendigo Magistrates' Court, you were placed on a community corrections order for a period of 18 months, with conditions for supervision, that you undergo programs to reduce reoffending, and that you receive treatment and counselling for your consumption of alcohol and illicit drugs. 

16A feature of your criminal history sheet is the number of occasions that you have appeared before the Magistrates' Court at Maryborough.  I had you assessed for suitability for another community corrections order.  You have been assessed as a high risk of reoffending, but you appear to be progressing satisfactorily on your current community corrections order.

17You have ceased living in Maryborough to break away from a group of people who were leading you into trouble.  That is a positive. 

18I received into evidence a psychological assessment of you by
Dr Aaron Cunningham, dated 24 January 2017.  He diagnosed you as suffering from post-traumatic stress disorder after having been exposed to significant trauma in early childhood.  He said, inter alia, this:

"In my opinion, this trauma compromised her personality development.  She developed a pervasive mistrust of others, and the belief that she was worthless and that bad things would befall her.  She has distressing recollections of prior trauma.  She has difficulty regulating her emotions.  She suffers depression, anxiety and panic reactive to situations.  She presents as reckless, impulsive, and mistrustful of others.  She has mainly regulated her emotions through drug and alcohol abuse."

19Psychometric testing by Dr Cunningham showed you to have cognitive functioning in the average range.  He thought you would benefit from engaging with psychological and drug and alcohol intervention, and perhaps outreach mental health support.  He noted that because you have not had a stable childhood, you struggled to build your own perception and structure, and source supports.

20You were born in Cairns, and you are one of three children.  Your brother died when you were five.  Your father worked on a fishing trawler.  Soon after you were born, you were told your father was not your natural father.  You were told your father was from Papua New Guinea.

21When you were very young, there was an incident where you and your sister were kidnapped, and your sister was raped.  You received no support, even from your parents, after this.  You have described your mother as an emotionally hard woman.  You left the family home at 13 and lived on the streets.  You have dark skin, and you apparently felt that you did not belong in the family home, due to not being white, and it was not known who your father was.

22You had your first child at age 15.  You raised her, and continue to see her.  You had a relationship with an Indian man which lasted for five years, and you moved to South Australia, where you had two children.  The relationship ended due to your drug abuse.  Your partner raised one child, and you the other.

23You then formed another relationship with a man who was also a drug user and violent.  You relocated to Maryborough to escape him.  You have a son Charles conceived out of this offending, and born in September 2015.

24You have a primary school education and did not attend secondary school.  You have had several short-term jobs, but no long-term employment.  You are a long-term drug user of cannabis, amphetamine and methylamphetamine. 

25Mr Lavery submitted that your life before and after the offence has been chaotic.  In November and December of 2016, you were imprisoned at Dame Phyllis Frost for 40 days, and when released you began the CCO that you are now undergoing.  It expires in June 2018, or thereabouts.  I was told, and accept, that you are progressing well on the current CCO.

26Mr Lavery asked me to release you on another community corrections order.  He submitted your background was tragic, and relying on principles in Bugmy, he asked me not to send you to prison, especially where you have shown a positive reaction to the community corrections order which you have engaged well with.

27Mr Gibson correctly pointed to the seriousness of the offending, and the need for the sentence to appropriately reflect general deterrence.  He submitted any sentence imposed must have an immediate custodial component. 

28In offending of this kind, there is almost always a term of imprisonment imposed.  That is because the victim is always a child, and the sentence must be driven by appropriate application of the principle of general deterrence.

29When adults commit offences against a child as you have, the sentence imposed must denounce your conduct, and send a clear message to anyone thinking of behaving in a similar manner, that if they do so, they will be severely punished.

30I have reflected on the matters raised by the plea, and I have had you assessed for a community corrections order.  I heard the plea on 9 February of this year, and I released you on bail whilst a community corrections order assessment could be done, and I released you on bail to appear last Friday, 10 March 2017.  You did not appear on that day, and you have told me, and I accept, that you panicked, thinking that I would send you to prison.

31You told me, and I accept, that for about three weeks, you have not been taking your medication, Seroquel, to assist you with your psychotic state, and an antidepressant drug, Pristiq.  It gave me great concern whether or not I should place you on a community corrections order, because you did not appear last Friday.  However, I accept your explanation, and I bear in mind what it was that Dr Cunningham said about you in the passage that I have set out above.

32You, because of your post-traumatic stress disorder, I think, probably thought the worst was going to happen last Friday, and I accept that because of that, you did panic, especially in a state where you were without your medication to assist you.

33On balance, I think justice will be served in this case if I do not send you to prison.  Your background is a tragic one, and you appear to be trying to do something about it by getting off drugs and alcohol.  Moving away from Maryborough was a good start.  You need help, and I am of the view the community is best assisted by giving you every chance at rehabilitation, to get on with your life in a positive way with your young child.  You have a lot ahead of you, and on balance, I have concluded that sending you to gaol will not help anyone.

34The punitive aspects of the community corrections order I will impose are enough punishment for what was a one-off offence that had disastrous consequences both for yourself and the complainant.

35On the charge of sexual penetration under the age of 16, you are convicted, and I will make a community corrections order for a period of three years, and there will be a number of conditions.  There will be a further 150 hours unpaid community work.  You will be required to be supervised.  There will be judicial monitoring by me.  That means, Ms Singh, that you are now on my watch, do you understand?

36OFFENDER:  Yes.

37HIS HONOUR:  And I will get reports about you, and you will have to appear before me every six months.

38OFFENDER:  Okay.

39HIS HONOUR:  Even sooner if you step out of line, do you understand?

40OFFENDER:  Yes sir.

41HIS HONOUR:  You will not have to come to Melbourne, it can be done from Bendigo via video link, do you understand?

42OFFENDER:  Yes sir.

43HIS HONOUR:  Community Corrections will speak to you about that.  You are also to undergo programs to assist you in not reoffending, and by that I have in mind you must undertake the sex offenders program that will be administered to you during the course of the three years, do you understand that?

44OFFENDER:  Yes sir.

45HIS HONOUR:  Programs to assist you to overcome problems with alcohol and drugs, and there is a condition that you be assessed and counselled for mental health. 

46I declare that there has been two days presentence detention, including yesterday. 

47For the purposes of s.6AAA of the Act, had it not been for your plea of guilty to the charge, I would have imposed a term of imprisonment of three years, and I would have ordered that you serve a minimum term of two years. 

48For the purposes of the Sex Offenders Registration Act, you are a registrable offender, with reporting obligations for 15 years.  Compliance with this legislation can be difficult and onerous.  I strongly advise you to seek legal advice as to your obligations, so you do not even inadvertently commit an offence against that Act, which could trigger a breach of the community corrections order, do you understand?

49OFFENDER:  Yes sir, thank you.

50HIS HONOUR:  Now, you will need to speak to someone about your obligations under the Sex Offenders Registration Act.  I cannot emphasise that more strongly.

51OFFENDER:  My lawyer?

52HIS HONOUR:  Go and see a lawyer, go and see Legal Aid in Bendigo.

53OFFENDER:  Yes.

54HIS HONOUR:  And ask them to explain it to you very clearly, because it touches upon almost all aspects of your life.

55OFFENDER:  Okay.

56HIS HONOUR:  If you buy a new car, you will have to tell them.

57OFFENDER:  Yes.

58HIS HONOUR:  If you have a telephone, you will have to give them the number.

59OFFENDER:  Yes.

60HIS HONOUR:  If you get a new telephone, you will have to tell them that.

61OFFENDER:  Okay.

62HIS HONOUR:  Do you understand?  It is very onerous, and any breach of that Act can trigger a breach of the community corrections order, do you understand.

63OFFENDER:  Yes sir.

64HIS HONOUR:  Now, do you understand that if you commit any offence punishable by a term of imprisonment in the next three years, that will breach the community corrections order, you will be brought back before me, and if you come back before me, you are likely to go to gaol, do you understand that?

65OFFENDER:  Yes sir.

66HIS HONOUR:  So please seek help.

67OFFENDER:  I will.

68HIS HONOUR:  Approach the community corrections order on the basis that the people involved with it are trying to help you.  Do you understand?

69OFFENDER:  Yes.

70HIS HONOUR:  Very well, come forward if you would.

71COUNSEL:  As Your Honour pleases.

72HIS HONOUR:  You will have to sign some papers.

73OFFENDER:  Yes, thank you.

74HIS HONOUR:  Now, Ms Singh, keep in contact with your doctors.

75OFFENDER:  Yes, definitely Your Honour.

76HIS HONOUR:  Keep your medication up.

77OFFENDER:  Yes.

78HIS HONOUR:  Engage with Corrections.

79OFFENDER:  Thank you.

80HIS HONOUR:  And stay out of trouble.  Do you have any belongings in the cells.

81OFFENDER:  I have a purse, yeah.

82HIS HONOUR:  A purse?

83OFFENDER:  My purse, yeah.

84HIS HONOUR:  Just speak to the prisoner officer, she will tell you how to get that.  But once the court rises, you are free to leave.

85OFFENDER:  Thank you very much.

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