Director of Public Prosecutions v Singh
[2014] VCC 1504
•29 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG (SITTING AT MELBOURNE)
CRIMINAL DIVISION
Case No. CR-14-00304
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GURMIT SINGH |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Geelong (sitting at Melbourne) | |
DATE OF HEARING: | 25 August 2014 | |
DATE OF SENTENCE: | 29 August 2014 | |
CASE MAY BE CITED AS: | DPP v Singh | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1504 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of rape and two charges of indecent assault – Total effective sentence of three months imprisonment and a Community Corrections Order of two and a half years – Unusual features of offending including request for victim to be defendant’s boyfriend – Social isolation and vulnerability of offender – Forgiving attitude by victim – Mercy extended in sentencing the offender.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Gibson | Office of Public Prosecutions |
| For the Accused | Ms D McCann | Victoria Legal Aid |
HER HONOUR:
1 Gurmit Singh, following a trial, you have been found guilty of two charges of indecent assault, each of which carries a maximum penalty of 10 year’s imprisonment. You have also been found guilty of one charge of rape, which carries a maximum penalty of 25 years’ imprisonment.
2 The circumstances of your offending are as follows: On 4 September 2012, yourself and your victim, who was unknown to you, were independently seated in the carriage of a train at Southern Cross Station. Each of you mistakenly believed that the train would be travelling to Geelong. You both left the carriage to discover that you had missed the 8.10pm service to Geelong and, after speaking with a rail employee, you walked together to another platform to wait for another train. Your victim told you that he would now miss his bus connection from South Geelong Station and would have to catch a taxi home. You both got onto the next train. You sat next to a window and your victim sat opposite you on the aisle seat. You struck up a conversation and asked your victim where he lived and with whom. Your victim was aged 20 or 21 years and was a student from Hong Kong. He had only been in Australia for approximately 2 years and was unable to pronounce the name of this street, so he showed you his resume with his address on it. He was playing with his phone and you asked him if you could play games which he had on the phone. You then asked if he would show you photos on his phone, which he did.
3 Later, your victim was looking through his Facebook and you asked if he would add you to his Facebook, so he gave you his phone and you typed your email address into it. You also examined his list of friends on Facebook and asked if his housemates were on it, and checked out the one who was on it, claiming that you thought you knew him.
4 As the train was nearing Geelong, you told your victim that he could get off at Marshall Station, rather than South Geelong, because it was just as close to his home. Your victim started to prepare to alight from the train at South Geelong and you stated that, if he travelled on to Marshall, you would give him a lift home. Accordingly, he remained on the train and you both left it together at Marshall Station and walked to your car, which was parked at the station carpark.
5 Once in the car, your victim was navigating the way to his home address by using his phone. During the journey, you grabbed his right hand and put it on the front of your pants over the top of your penis. Your victim tried to get his hand away and you asked him if he liked it. This is the conduct constituting Charge 1, indecent assault. A couple of minutes later, you, again, grabbed his right hand and pushed it over your penis on top of your pants. Your victim again tried hard to pull his hand away. This is the conduct constituting Charge 2, indecent assault.
6 After a while, you took your hand off his and pulled over to the side of the road and turned the ignition off. You stated that you wanted to fuck your victim’s arse. He said he could not do that. You asked whether he liked boys and he said that he did, but he did not want to do what you asked. You then grabbed him by the head and pushed his head towards your penis and held it hard in that position. You then let go of his head and said that you wanted him to suck your cock. He said several times that he could not do that and you said that you would put a condom on and he repeated that he did not want to do that. In his evidence to the jury, your victim stated that he was very scared because he did not know you and did not want to have sex with you, it was dark outside, and he did not know where he was. You then undid your pants, put a condom on, and pushed his head towards your penis. He was trying to resist and you kept saying, “Do you want to go home or not?” [1]
[1] Transcript 29 – 30.
7 Your victim began to suck your penis as you were pushing his head down hard. He said that he could not breathe and wanted to stop but you kept pushing him and, when your penis was in his mouth, he felt like vomiting. He was unable to say whether you ejaculated. You let his head go after a period of two, three or four minutes and started driving again. You asked him whether he had any disease and he told you that he did not. He asked you whether you had any disease and you said that you did, but your victim could not remember the name of it.
8 You drove him to his house. Out the front, you asked him why he was so upset and whether it was because you said you had a disease. He told you that this was so, but, also, he was not expecting you to have done this to him. You then told him that you did not have a disease and asked whether you could be his boyfriend. You asked him whether he liked you and he said that he just wanted to go home. You asked whether you could see him again and he said no. He then got out of the car and you asked him not to tell anyone what had happened.[2]
[2] Transcript 31 – 32
9 A short time later your victim complained of your conduct by telephoning a friend in Melbourne. She encouraged him to see a counsellor and a doctor, which he did on 5 and 6 September respectively. Your victim was encouraged to report the matter to police, which he did, with the assistance of the counsellor, on 6 September 2012.
10 You were arrested by police and interviewed on 14 September 2012. The allegations were put to you and you were told that you may be charged with rape. You stated that you did not know anything about that and had not done anything wrong.
11 You are presently aged 28 years, having been born on 4 August 1986. You were 26 years old at the time of committing these offences. You come before the court with one prior conviction. On 25 June 2010, you appeared at Geelong Magistrates’ Court on one charge of indecent assault. You were sentenced to be imprisoned for two months, which sentence was wholly suspended for a period of 12 months.
12 The prosecution summary of your prior offending states that on 28 March 2010 at 4.30am, you were driving a taxi and collected your 22 year old victim outside a local nightclub. On the way home, you asked your victim whether he had ever been with another man and he told you that he was “not into that” and changed the conversation. You stopped the taxi approximately 400 metres away from the street where your passenger wanted to be delivered. He paid the fare and then left the taxi. You followed him and grabbed hold of his bottom and groin area and attempted to kiss and lick his face. Your victim pushed you away and told you to “fuck off”. You then left in your taxi.
13 On 2 April 2010, when interviewed by police in relation to your offending on 28 March 2010, you stated that you had walked over to the victim to say goodbye and just grabbed his bottom as a joke. You pleaded guilty to that offence. This was noted by the magistrate in the records of the court, together with your expression of remorse.
14 In a plea on your behalf by Ms McCann, the court was told that you grew up in the Punjab area of India. Your father was a policeman, whose job often took him away from home, and your mother suffered multiple health issues. You have a younger sister, aged 25, who is married. You completed the equivalent of Year 12 in India and then completed one year of a Bachelor of Arts Degree in Humanities, before being granted a student visa to come to Australia. You arrived in Australia in 2006 and undertook a course in hospitality management in Footscray. You worked part-time in restaurants and were granted permanent residency. Following this, you moved to Geelong and worked for a taxi company for a couple of years. You lost that job after you were arrested for your 2010 offending and then returned to work in the hospitality area.
15 Tendered on the plea was a report of Mr Warren Simmons, psychologist, dated 20 August 2014. He noted a history that you had had a relationship in your late teens with a young woman with whom you had studied. This ended after about 12 months. Also, last year you had had a relationship with a woman aged 22, whom you had met at a local gym. This relationship ended when her tourist visa expired and she returned to Italy. Mr Simmons also took a history that, after arriving in Australia, you formed a relationship with a homosexual man, and were introduced to oral sex with men by another friend. You engaged in oral sex with other men, but had never initiated it, as it was the other men who approached you. You indicated that you had never been interested in homosexual activity other than oral sex.
16 In 2012, you had returned to India for the marriage of your sister. At the wedding, you met a young woman and it was arranged between your parents and her parents that a marriage between you and her should occur. You returned to India and married each other in November 2012. You remained there for four and a half months and then returned to Australia, hoping that your wife would later be permitted by Australian authorities to join you here. Your wife had become pregnant while you were in India and subsequently gave birth to your son, who was born on 10 August 2013.
17 Mr Simmons took a history that, in discussion with your victim of the current offences, you had formed the opinion that he was homosexual. You told Mr Simmons that in your mind you were making the same sorts of advances to your victim that other men had previously made to you. Mr Simmons recorded that, notwithstanding the jury’s verdict, it seems that you did not fully appreciate the fact that your victim may not have consented as he did not try to flee or take other action. Mr Simmons commented that this was a question of perception and “it would seem that the offence resulted from (your) somewhat inept attempt to initiate sexual activity with another male”.
18 You told Mr Simmons that you identify yourself as bisexual in nature and saw your victim as someone with whom you may be able to initiate a sexual encounter. Mr Simmons commented that as you had not initiated any such sexual encounter in the past, your attempt was “clumsy and, ultimately, illegal”. He noted that there was no evidence that you had any arousal to forced sexual activity and the use of a condom was consistent with what had occurred in your previous sexual encounters. He considered that there was no evidence that you suffer any disorders of thought or perception. Applying the Static 2002R Actuarial Tool for assessing recidivism, Mr Simmons stated that your score suggested that you were in the moderate range for re-offending. He noted that this particular assessment focuses only upon factors which do not change and stated that “the more dynamic factors that contributed to (your) offending are limited”. He considered that successful treatment or intervention would decrease any future risk.
19 Mr Singh, rape is a very serious offence, as reflected by the maximum penalty of 25 years’ imprisonment. Your victim was a 20 or 21 year old student who trusted you to convey him home safely after you had conversed together while waiting for the train in Melbourne and during the journey to Geelong. In his evidence given at the trial, he stated that he was in shock when you made sexual advances towards him and, when you stopped, he was very scared because it was a really dark place and, although he thought about getting out of the car, he did not know where he was and you were bigger and stronger than him, and he was afraid that you might chase him and do even worse things than making him give you oral sex. He said he felt threatened when you asked him whether he wanted to go home or not.[3]
[3] Transcript 29 – 30
20 In sentencing you, this Court must denounce your conduct and place emphasis upon general deterrence, so that people will know that they cannot compel others to engage in sexual activity without facing just punishment. There must also be some emphasis upon specific deterrence because you have a prior conviction for an indecent assault committed two and a half years earlier.
21 In all of the circumstances, on the charge of rape, there is no appropriate sentence other than a term of imprisonment, of which there must be an immediate custodial component. However, although you did not plead guilty to these offences, I consider that there are a number of factors which should be taken into account in mitigation.
(i) Prior to the commission of the offence of rape, apparently you had not actually initiated an act of sexual penetration with any other male. Rather, you had been the subject of advances by others seeking oral sex. It appears that you only realised that you were bisexual sometime after arriving in Australia in 2006. The material put before the Court on the plea showed you to be a very social isolated individual. Indeed, there was nobody in Court to support you during the trial or the plea hearing. I accept that these factors probably combined to give you a somewhat skewed perception of the appropriate way to go about initiating sexual conduct with another man, albeit that they could never excuse your offending conduct.
(ii) I accept Mr Simmons’ characterisation of your conduct as inept and clumsy albeit illegal. I consider that the fact that you added yourself as a friend to your victim’s Facebook contacts (and, hence, were readily traceable) shows that you probably had no pre-meditated criminal intent. Moreover, the fact that after your offending conduct, you asked your victim whether he could be your boyfriend and whether you could see him again, reinforces that you were not some sort of predator, but, rather, a desperately lonely person, who was looking for a relationship.
(iii) Your counsel told the Court that your offending has had significant ramifications for you in terms of the relationship with your wife and parents. They had no idea that you were other than a dutiful heterosexual son and husband and father, who had been sending money to them all from your earnings in Australia. They are shocked and ashamed and very distressed by both the revelation of your bisexuality and the fact that you are in prison for criminal offending. I accept that this has increased your anxiety since you were remanded in custody and is likely to continue to do so.
(iv) Your counsel stated that your migration to Australia to study here had always been part of a plan to obtain Australian citizenship and an ability to bring your parents here. Subsequently, this plan expanded to include your wife and child. I accept that by reason of this offending, particularly if sentenced to more than 12 months imprisonment, your status as a permanent resident may attract scrutiny and you may face deportation. This is a relevant consideration which I take into account.
(v) Although your offending is serious, it was opportunistic and had not been planned in any significant way. Although your offending includes two indecent assaults, the prosecution concedes that they are on the low end of the scale for such offending. I take into account that those assaults and the rape effectively occurred as part of one incident, which was of relatively short duration. Also, there was no physical harm done to your victim.
(vi) In his Victim Impact Statement, your victim speaks of his understandable psychological distress which flowed from your offending. Fortunately, he also states that, with the assistance of counselling and friends, he has gradually adjusted and improved over the last two years. He generously states that he does not hate you and acknowledges that you would have suffered emotionally a lot in the last two years. He states that it would not be pleasant for him to see you suffer any more, even though he felt he had to report it to the police, as he did do. It may be that your victim, a relative newcomer to Australia who is apparently homosexual, feels empathy with your situation. It is rare, in my experience, for a victim to make such a statement and I take it into account as a significant factor in sentencing you.
(vii) You were remanded in custody following the jury verdict on 31 July 2014. Mr Newton, in his report, recorded that you are experiencing difficulties in custody. You cannot get to sleep and ruminate about your life, your family and your mistakes. You have difficulty remaining asleep and are awoken by nightmares and dreams. You report feeling worried, anxious and tired and have suffered a decrease in appetite and weight. You are tearful most nights and spend time in your cell to avoid talking to others. You told Mr Newton that you are anxious and scared of what may occur. In addition, your counsel stated that, following your revelation to your wife of your offending conduct, and the fact that you are in prison, she has become quite ill and has been hospitalised with a heart condition, as well as suffering from anxiety. Knowing this has increased your sense of shame and anxiety and weighs heavily upon you. Also, by reason of your fear and anxiety, you have elected to go into protective custody. Whilst at the Melbourne Custody Centre, you were in your cell 16 hours a day, and, since being transferred to the Metropolitan Remand Centre, you have been in your cell 12 hours a day. Thus, your isolation has been even greater in custody than it was when you were in the community. You have had no visitors and have no expectation of any visitors. Indeed, your counsel told the Court that when you were arrested by police, you had no-one upon whom you could call to collect your parked car other than a woman from whom you rented your accommodation.
22 There can be no doubt that the offence of rape which you committed should carry a term of imprisonment, of which there should be an immediate custodial component. I have anguished over the sentence to be imposed in your case because, although this is a serious offence and you ran a trial, and your victim was put through cross-examination, I do not perceive your having adopted this course to be indicative of callousness. You did not give evidence at trial denying the conduct but, rather, through your counsel in cross-examination, put to your victim that the sexual activity had been consensual. Clearly, the jury found that it was not.
23 However, at all times whilst in the dock, during the trial and during the plea hearing, your attitude appeared to me to be one of resignation, shame and sadness. Mr Simmons’ analysis concerning your clumsy ineptitude in making the sexual approach to your victim as being consistent with the sexual approaches that you, yourself, had experienced from other men in the past, is a plausible one. Although this does not excuse, it can explain, your conduct. I accept that it is the conduct of someone who was very lonely and has complex sexual identity issues relating to bisexuality.
24 Although I consider that a custodial sentence is warranted, I am concerned that a lengthy custodial sentence, such as would often be imposed for offences of rape, will have a devastating and crushing effect upon you. Not only is it your first time in prison, but you are someone who did not mix easily with others in the community, and this problem is likely to be exacerbated in a prison environment where you are likely to be naïve concerning the culture of experienced criminals. Your lack of any support from the community, coupled with your anxiety about your parents, wife and child, and what the future might hold for all of you, is likely to make you very vulnerable.
25 I consider that there are some unusual features in your case. These include your obvious quest for friendship with your victim, and misguided attempt to establish a sexual relationship (as evidenced by your request to be his boyfriend after the offending behaviour), the generous attitude of your victim that he would find it unpleasant if you were to suffer any further, and your ongoing vulnerability, anxiety and social isolation. These have caused me to conclude that some mercy should be exercised in sentencing you. They have led me to impose an unusual sentence in this case, which may be viewed by some as too lenient.
26 As I have already stated, a term of imprisonment must be imposed in order to denounce your conduct and emphasise general deterrence. However, if such sentence is confined to three months’ duration, then a Community Correction Order can be imposed pursuant to s44 of the Sentencing Act 1991. I have received a pre-sentence report which assesses you as suitable for a Community Correction Order. That order can serve to further the emphasis upon denunciation, and general deterrence. Also, hopefully, it will have a rehabilitative effect so that you can rebuild your life in the community, whilst undergoing the sexual offenders program and receiving other psychological support under the Community Correction Order. I note that Mr Simmons expects that your risk of re-offending will reduce with appropriate treatment.
27 I consider this course is warranted because my assessment is that your offending is not indicative of some serious sexual deviance but, rather, isolation and limited social skills, particularly in matters of sexual conduct. I consider that, after chatting amicably to your victim over a couple of hours whilst waiting for the train and on the journey and having ascertained that he was homosexual, you seriously misread the situation. It is my view that, if given appropriate treatment at a fairly early stage in the community, your prospects of rehabilitation should be quite good. However, if left in prison for a lengthy period, I fear that those prospects may be significantly diminished.
28 On Charge 1, rape, you are convicted and sentenced to be imprisoned for a period of three months and ordered to undertake a Community Correction Order for a period of two and a half years.
29 The terms of the Community Correction Order are that:
(a) you must not commit whether in or outside Victoria during the period of the order an offence punishable by imprisonment;
(b) you must comply with any obligation or requirement prescribed by the regulations;
(c) you must report to and receive visits from the Secretary during the period of the order;
(d) you must report to the Community Corrections Centre specified in the order within two clear working days after the order coming into force, namely, three months from the date upon which you were remanded in custody on 31 July 2014;
(e) you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f) you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(g) you must comply with any directions given by the Secretary that is necessary for the Secretary to give to ensure that you will comply with the order.
30 I order that the following conditions be attached to the Community Correction Order:
(i) that you perform 200 hours of unpaid community work;
(ii) that you undergo:
(a) the sex offender program;
(b) any mental health assessment and treatment and rehabilitation specified by the Secretary;
(iii) that you be supervised, monitored and managed as directed by the Secretary.
31 Do you consent to the order with the terms and conditions that I have just read out?
32 You must be aware, Mr Singh, that if you do not comply with the order then you will have committed another offence for which you will be brought before the court.
33 On Charge 2, indecent assault, you are convicted and sentenced to a Community Correction Order for a period of six months to be served concurrently with the Community Correction Order imposed on Charge 1. The same terms apply and, also, the condition of supervision, but not the other conditions imposed in relation to Charge 1.
34 On Charge 3, you are convicted and sentenced to undertake a Community Correction Order of six months to be served concurrently with the Community Correction Order imposed on Charges 1 and 2. The same terms apply and, also, the condition of supervision, but not the other conditions imposed in relation to Charge 1.
35 Just as I have said in relation to Charge 1, if you breach the Community Correction Order on Charges 2 or 3, you will have committed another offence for which you will be brought before the court.
36 Pursuant to s18 of the Sentencing Act, I declare a period of pre-sentence detention of 29 days to be reckoned as time served pursuant to the sentence imposed on Charge 1.
37 By reason of your prior conviction and sentence of imprisonment for indecent assault and your conviction and the imposition of a term of imprisonment on Charge 1, you come within the definition of serious sexual offender in s6B of the Sentencing Act. Accordingly, pursuant to s6D of that Act, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. However, I do not consider that, in order to achieve that purpose, it is necessary to impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.
38 Pursuant to s6F of the Sentencing Act, I cause to be entered in the records of the court that, in respect of Charge 1, you have been sentenced as a serious offender.
39 Pursuant to s11 of the Sex Offenders Registration Act 2004, this Court has a discretion as to whether you should be ordered to comply with the reporting obligations of that Act. The prosecution has not pressed for registration in your case and, in all the circumstances, I do not consider it appropriate to make a Sex Offender Registration Order. In particular, I am not satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons of the community.
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