Director of Public Prosecutions v Singh

[2014] VCC 2134

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01747

DIRECTOR OF PUBLIC PROSECUTIONS

v

PARDEEP SINGH

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2014
DATE OF SENTENCE:	10 December 2014
CASE MAY BE CITED AS:	DPP v Singh
MEDIUM NEUTRAL CITATION:	[2014] VCC 2134

REASONS FOR SENTENCE
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Criminal law - sentence
Catchwords: Pleaded guilty sexual penetration of child under 16, indecent act with a child under 16. Offender 24, complainant 14 – neighbours – Indian student  unaware sexual acts with child under 16  an offence -  major depressive order of moderate  severity – imprisonment last resort

Cases  R v Verdins

Sentence: 2 year Community Corrections Order with 80 hours work over 6 months – SOR 15 years. 

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D. Hogan
For the Accused	Mr I. Crisp

HER HONOUR: 

1Pardeep Singh, you have pleaded guilty to one charge of sexual penetration of a child under 16 and one charge of committing an indecent act with a child under 16.  These are both serious charges which attract prison sentences of up to ten years.

2At the time of the offending, you were aged 24 and the complainant was aged 14.  She and her family lived next door to you and had befriended you over several months.  You had come here from India in October 2013 on a student visa.

3On 7 June this year, you and the complainant exchanged text messages for several hours, before arranging in the early hours of the morning for the complainant to come and visit you.  At about 5 am, she climbed over the side fence of her house and you let her in the back door of your house.  You went into your bedroom and after some innocuous activity, you kissed her on the lips, touched her breast, first over her clothes and then underneath.  You asked her to lie down and then you kissed her stomach and her breast.  You then removed her tracksuit pants and underwear and inserted a finger into her vagina moving it in and out over several minutes.  That is Charge 1, sexual penetration of a child under 16.

4You removed your penis from your pants and took hold of the complainant's hand and placed it on your penis while moving your hips in a back and forth motion.  That is Charge 2, committing an indecent act with a child under 16.

5The complainant's phone rang and she said it was her stepfather and she had to go.  She got dressed and left.  At home, she disclosed what had happened and her mother and stepfather came to your house and knocked on the door and windows.  You went outside and the complainant's stepfather hit you, causing your nose to bleed.

6The police arrived and you were arrested and interviewed, during the course of which you made admissions.  You explained that you had not known it was an offence to act as you did, that you had asked the complainant if she was all right with what you were doing and she had said she was.

7The complainant's mother has provided a victim impact statement in which she describes a pre-existing difficult relationship with her daughter, made worse, she believes, by your behaviour.  She believes she failed to protect her daughter and she bears a burden of guilt for that.

8Your personal background and circumstances provide some clarification of the explanation you gave.  At the age of 24, you had accrued a good work history, having completed your secondary and tertiary education in India, where you were born.  You had studied in the Merchant Navy College there, and had worked briefly for a shipping company before being injured and returning to studies.  Whilst in India, you had no health problems of any sort and no prior convictions.

9On arrival in Australia, you enrolled in an MBA course at a Victorian university, but had difficulties with language and with teaching methods which were unfamiliar.  You failed all your examinations in March this year and that caused you much embarrassment and shame.  You became depressed, lonely and withdrawn and unable to continue working at your part time job in a hotel.  You enrolled in a new course at a different institution, but found you could not concentrate and so you abandoned that as well, leading to further isolation.  Since then you have found part time work assisting a friend.

10You were too ashamed to tell your family and your mental state was such that you drank heavily every day, and whilst intoxicated, made a suicide attempt by cutting your wrists.  You have not told your family about being charged with the offences either.

11Having sought legal advice, you were seen recently by a consultant forensic psychiatrist, Associate Professor Andrew Carroll.  At that interview, you were accompanied by a friend who has also come to court today to support you, along with a former neighbour who has often observed you in the company of children and has had no reason for any concern as to your behaviour in those circumstances.

12Professor Carroll concluded that you were suffering from a major depressive disorder of moderate severity, which appears to have emerged when you failed your examinations in March.  His opinion is that you were not clinically depressed at the time of the offending, but that these charges greatly exacerbated your feelings of shame and anxiety, leading to your present condition.  You have been seen by a general practitioner who has prescribed medication and who referred you to a psychiatrist, but you did not follow through with that.

13Mr Crisp, your counsel, submitted on your behalf that your state of mind from March would likely have adversely affected your functioning and judgment, although this submission was not put as one enlivening the first limb of the decision in the case of Verdins.  Although your state of mind is relevant and is to be taken into account, it comes into play under the other limbs of the decision in that case.

14General deterrence remains an important aspect of sentencing in cases such as this, where the legislature has seen fit to provide protection for children who are too young to make informed decisions about sexual matters.  You were considerably older than the complainant and although your functioning in and judgment were likely to have been affected by your depressed state, as demonstrated by your excessive drinking at the time, that condition justifies only a very slight reduction in how your criminal culpability it to be regarded.

15Professor Carroll considered that because of your illness, you would find imprisonment more burdensome than would another prisoner not suffering in the same way, in particular, because your home and family is in India and you have been in Australia for a relatively short time.  He considers you would be ill equipped for the experience of prison and it would lead to further deterioration of your condition.  Furthermore, he considers that the added factor of shame, would mean that you would be at significant risk of suicide in prison.

16Another mitigating factor is your plea of guilty, which you indicated at the earliest possible opportunity, having made admissions when interviewed.  You avoided the need for a trial and, importantly, the complainant has not had to give evidence in court.  Your plea has expedited the progress of the case considerably, and it is therefore of assistance to the criminal justice system.  For that reason, you are entitled to a discount on your sentence and I also accept it as an indication of remorse.  On that matter, once you understood that the complainant was only 14, not 15 as she told you, and that she was not old enough to consent to having sex, you expressed your remorse when interviewed by the police.  That is an indication that your prospects for rehabilitation are reasonably good when considered together with the absence of prior convictions and the fact that this offending was most likely an isolated occurrence.

17Treatment for your depressive illness is a high priority and will be best addressed by a sentence which avoids imprisonment and provides for some supervision and attendance at suitable programs.

18A sentence of imprisonment is a sentence of last resort and in this case, for all the reasons set out, a community corrections order is appropriate.  It provides stern punishment and at the same time, requires you to attend certain programs with a view to encouraging your rehabilitation to ensure you do not offend again.

19As you know, you have been assessed as being suitable for a community corrections order and the order that I am going to make applies to both charges and will begin today and will last for two years.  You will be under supervision and you must perform 80 hours of unpaid community work over six months.  You must undergo assessment and necessary treatment for your mental health and you must attend a sex offender program.

20Mr Singh, you must go to the Corrections Office at 10 Foundry Road Sunshine no later than 4 pm on Friday, that is 12 December.

21If you had pleaded not guilty to these charges, I would have sentenced you to a community corrections order of three years' duration with a requirement to perform 140 hours of unpaid community work.  The provisions of the Sex Offender Registration Act apply, means that you must report your details to the police every year for the next 15 years.  You will be given a form to sign in regard to that in a moment, Mr Singh.

22The prosecution seeks an order for the disposal of clothing and Mr Crisp, I neglected to ask whether you had instructions.

23MR CRISP:  That is consented to, Your Honour.

24HER HONOUR:  Consent?

25MR CRISP:  Yes.

26HER HONOUR:  I note that you have consented to that through your counsel, Mr Singh, and I make that order.

27My associate will approach your client, Mr Crisp, with the sex offender registration form.

28MR CRISP:  Thank you, Your Honour.

29HER HONOUR:  Is there anything further?

30MR CRISP:  No, thank you.

31HER HONOUR:  Ms Hogan, anything I have omitted?

32MS HOGAN:  No, Your Honour.

33HER HONOUR:  That completes everything, thank you.

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