Director of Public Prosecutions v Singh

[2014] VCC 1012

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -13-02434

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASKARANDEEP SINGH

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 June 2014
CASE MAY BE CITED AS:	DPP v Singh
MEDIUM NEUTRAL CITATION:	[2014] VCC 1012

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M Styliano
For the Accused	Mr G Boas

HER HONOUR: 

1Jaskarandeep Singh, you have pleaded guilty before me to two charges of rape; one charge of intentionally damaging property; and one charge of common law assault.

2The facts underlying your offending are as follows:  It occurred in March 2013 when you were 23 and the victim 18, and a first year university student you had met through Facebook the year before.  The two of you met up and played video games and kissed, but your relationship was not sexual.  She was born in Australia to a fairly traditional Indian family. 

3On a weekday one morning in March 2013, you invited her to your home and she arrived at about 9.30 am, when you offered her alcohol.  She said she had never drunk before, had a few sips of raspberry Vodka mixed with Coke, but did not like it and had two shot glasses of the Vodka by itself, felt sleepy and lay on the couch. 

4Her next memory was waking up on the floor of your bedroom.  She could smell vomit on herself and some in her hair, was dazed and noted she was not wearing her bra or jacket.  She asked you what had happened, you told her she had got really drunk, taken off her clothes and told you she wanted sex with you, but you had not done it because she was so drunk.  You drove her home about 7 pm, as she was still too drunk to drive. 

5About a week later the victim went to your home again, at which time the two of you kissed and you asked her to go to your room.  There you moved to take off her pants and she said "No".  You said, "Don't worry, I've seen it all before".  After this incident the victim became disinterested in you and ignored your text messages.  You then sent messages to her, alluding to a sex tape, together with a photograph of her naked from the waist down, with your fingers in her vagina.  The victim recognised the clothes as being the same as those she wore the day she had passed out in your home, and she could see she was lying in your bedroom.  Charge 1, rape, relates to your digital penetration of her vagina, as depicted in the photograph. 

6You continued to send messages, telling her you had videos as well, and as to what would happen if her friends and family found out.  The victim asked what she could do for you to delete the images and you said she should meet up with you so she could delete them.  The victim went to your home and deleted a photo and two videos from the phone.  The first video depicted her passed out on her side, with a penis penetrating her vagina from behind.  It was clear she was then unconscious.  Your actions in penetrating the victim with your penis underlie Charge 2 on the indictment, rape.  The second video showed you lifting up her top and touching her breasts. 

7A few days later the victim sent you a text message saying she did not want to see you anymore and you became angry, reminding her you had the photographs and saying she had no choice but to meet you or you would ruin her life by sending them to her parents.  Worried, the victim did as you asked and went to your house four or five times.  She then tried to ignore your messages and calls.  On July 20 2013, you sent the two videos to her phone and told her to meet you one more time and you would delete them.  She went to your house on 26 July 2013.  You became angry with her because she did not want to see you and went outside and broke the side mirror on her car.  These actions underlie Charge 3 on the indictment, criminal damage. 

8You then threatened to kill yourself and the victim left the house, but returned when you called her and said you would fix the mirror, saying you would pay for them if she unblocked you from accessing her Facebook page and she did this.  She left again but through the window, you showed her you had accessed her page and changed her password.  The victim came back in and asked for the password, but you said she had to, "Suck my dick", if she wanted it.  You pushed her against a wall and took your computer into your room, the victim following and you pushed her on the bed.  Then you tried to kiss her, but she moved her head.  You grabbed at her neck and she pushed you off.  These actions underlie Charge 4 on the indictment, common law assault. 

9The victim left the house and told a friend what had happened, and with the friend, went to police later that night and reported the matter, the victim showing her phone containing the offending videos and photographs. 

10You were arrested on July 29 2013, your computer seized, but analysis revealed you had changed your operating system on the day of the police report and there were no records of the images.  There was, however, clear evidence from the phone records that the images were sent from you to the victim. 

11In a police interview that day, you denied any knowledge of the photographs and videos and said you had been in a consensual relationship with the victim for some time, but it had broken up on 26 July 2013.  You admitted breaking the car mirrors because you were upset.  You were charged and released on bail, which was revoked on 2 August 2013, after you attended the victim's house to speak to her mother, in breach of your bail conditions.  The matter was resolved at case conference on 17 December 2013, and you entered a plea of guilty.  This is accepted as being an early plea and the victim has not had to give evidence or undergo a cross-examination. 

12The maximum sentence for rape is 25 years imprisonment.  The maximum penalty for criminal damage is ten years imprisonment.  And the maximum penalty for common law assault is five years imprisonment.

13You have remained in custody since your bail was revoked in August 2013.  I now turn to your personal circumstances.

14You are now 24.  You have no prior criminal convictions.  You were born in India in the Punjab and your father was a naval officer for 25 years.  You are the eldest of three children.  Your father lived in Italy for much of your childhood and adolescence, moving to work there when you were eight.  You have a remote relationship with him, as you did not see him for ten years, then only briefly when you were 16, and for a third time when he visited Australia to see you. 

15

Your mother and both sets of grandparents raised you and your siblings, this often involving harsh discipline, including regular weekly beatings.  You were educated from Years 1 to 12 at an army school in India, which was strict, although you told psychologist, Dr Jennifer McGrail, whose report dated

19 May 2014 was obtained by the court, that your schooling was good and that you excelled in sport.  You then completed an English course and emigrated to Australia in 2009.  Apparently living abroad is the norm for men in your family.  You chose Australia for a better life. 

16You lived with friends from school already residing here and undertook a bakery/chef course at a college at the CBD, which you completed in 2011.  You then undertook a business management course, but ran into difficulties with your fees, which affected your visa, and in 2012, you lost your visa and your enrolment.  You applied for a protection visa.  It was pending at the time of your arrest.  In those years you also worked delivering pizzas; at a printing works; and as a truck jockey. 

17You had three significant relationships.  The first began in your last year of school with another student and ended when you came to Australia and was not sexual. 

18The second relationship was a woman you met on Facebook in 2011 and you dated her for about two years, ending because of your employment status.  Again, this was not a sexual relationship.  You have remained in contact with this woman and she has visited you in gaol and regularly telephoned you there. 

19The third was the victim of these offences.  You told Dr McGrail that in the days leading to the rapes, the victim told you she wanted to get drunk, in the context of talking about her father being over-controlling.  She said she had only tried alcohol once or twice before.  She said you said she fell asleep after you shared Vodka shots, during which you had - you having first played video games together and started kissing and then gone to the bedroom.  You said when the victim passed out, you thought she was sleeping and started to have sex with her, this being the first time you had ever had sex.  The phone rang, you answered it, then thought it would be funny to take a video.  You said you believed the relationship had deteriorated because the victim was seeing other men, felt hurt and so told her about the video and photographs. 

20As to the charges of intentionally damaging property and common law assault, you told Dr McGrail you wanted to speak to the victim to see if she would recommence the relationship and she agreed to see you if you deleted the filed material.  When you met, you told her you had done this.  You said the victim began ignoring you, you began crying, slashed your wrists with a razor and smashed a mug, and believed she became scared and left.  You followed her to the car and pushed the side mirrors and broke them.  She left and then you called her and offered to fix the broken mirrors, she came back.  You wanted to check if she was dating another man and asked the victim to log onto Facebook, which you checked after she left again.  You said she returned once more and tried to snatch the laptop from you, punched you in the back and your pushed her so she fell on the bed. 

21This latter account in particular differs from the summary of prosecution opening and you apparently minimised the incident saying she did not receive any marks or bruises. 

22In the latter days you tried to get back with the victim, sending her pictures of your slashed and bleeding arm, believing this would make her reconcile with you.  You described your actions to Dr McGrail as horrible, bad and evil and said you should have realised she was not conscious when you had sex with her. 

23Dr McGrail assessed you as suffering extreme levels of depression, anxiety and in stress, that is with a major depressive disorder as a result of being gaoled.  Only one of your former friends had visited or contacted you there and you have endured racial discrimination and taunts.  Nevertheless, you have undertaken a number of courses in custody, that is a food handling course and an IT course, and spend five days a week in industrial work. 

24Ultimately your plan is to return to India, where you will be welcomed back by your family.  However your counsel told me that your arrest and imprisonment for this offending will entirely diminish your chances in India, of ever contracting a marriage.  You told Dr McGrail, the first time you broke up with the victim, you cut yourself, in order to feel pain and to "feel better". 

25In terms of substance abuse, you told Dr McGrail you first drank alcohol when you were 14, but not whilst living with your parents.  You said in the past you had drunk too much when relationships ended, on one occasion drinking spirits until you passed out.  You also drink on special occasions and have hurt yourself whilst drunk. 

26

Dr McGrail administered two forms of testing to assess a likelihood of your

re-offending in this way, ultimately concluding there was a moderate risk, which was confined to a relationship setting.  She said you held distortions in your thinking around relationships, justifications for your behaviour and a misinterpretation of the victim's behaviour.  She said you presented with naivety and immaturity regarding sexual relationships and had intimacy deficits.  She said as a result of your very strict upbringing, you suffer fears of abandonment and rejection, which then lead to feelings of anger and jealousy, if a relationship does not run smoothly. 

27She stated, "Factors that have placed Mr Singh at increased risk of offending, including unstable relationships with others, intimacy deficits, some minimisation responsibility, poor victim awareness, cognitive distortions, poor emotional regulation and poor coping skills should be addressed."  However, she did not find there was any deviant sexual fantasies surrounding your offending and importantly that you are not predatory.  She believed that whilst you had partial remorse for your actions, you did not fully appreciate their gravity and the likely impact on the victim. 

28In her evidence on the plea, Dr McGrail said you had difficulty reconciling the sexual norms of Indian culture compared with those in Australia, but repeated you had personal difficulties beyond that, which led her to the risk assessment of you.  She said you engaged well with her and believed you would benefit from the Sex Offender's Program, which would address some of these personal issues. 

29In her victim impact statement, the complainant said she now experienced fear, had trouble speaking, relived the incident over and over, had difficulties with concentration, felt shock and guilt, was tired and stressed and had failed three units of study in 2013. 

30The offending has impacted on her relationship with her family.  While previously she could not go out much, now she was not allowed out at all.  Sadly her emotional responses are unfortunately all too familiar to the court, in relation to victims of serious sexual assault.  It appears she is not receiving counselling, and that as the child of a traditional Indian family, is being punished by the regime now forced upon her, even though she was a victim of a sexual assault by you.  It is the experience of this court that these grave difficulties will continue to be suffered by her for some years, if not longer. 

31Your counsel submitted that in mitigation, no violence, threats or use of a weapon accompanied your offending.  He submitted there was no allegation of unprotected sex, so was asked to view the video, the prosecutor having formed the view, it showed no condom was used.  Having viewed the film whilst on balance, it does not seem a condom was used.  I cannot be satisfied beyond reasonable doubt, as I must be of the aggravating feature of the sex being unprotected. 

32It is not denied that there are aggravating features to your offending.  They are that sexual penetration occurred while the victim was unconscious; that you filmed it and later you sought to use that film to manipulate her. 

33Your counsel correctly submitted that you should be given credit for an early plea, and indeed credit for pleading to serious sexual offences, where more often than not, such accused utterly resist the charges, irrespective of evidence against them, or the distress to the victim, who must endure giving evidence and being subjected to cross-examination.  I accept that submission. 

34I am satisfied that you are remorseful for your actions, albeit that you do not fully appreciate the gravity of them or their impact upon the victim. 

35The offending, of course, was extremely serious.  Rape is a serious violent offence in any circumstance involving bodily invasion and degradation of the victim of the most serious kind.  Its effects are always grave and long-lasting to the unfortunate victim and there has been no submission that I should deal with you, other than by a sentence of imprisonment to be immediately served, reflecting as it does, the dominating principles in the sentencing exercise before me, that is general deterrence, denunciation and just punishment.

36It was submitted to me that notwithstanding Dr McGrail's assessment of risk, you do have good prospects of rehabilitation, given your previous unblemished record; the fact that any risk would be contained to future relationships; you not being predatory; and the likelihood that you will benefit from a Sex Offender's Program. 

37

I am prepared to find, in a guarded sense, that you do have reasonable prospects of rehabilitation.  I accept that the consequences of your offending will last long after you have left gaol.  I also accept that service of a sentence of imprisonment is particularly difficult for you in the isolated circumstances you find yourself in; also because of your naivety and immaturity; the racial discrimination you are likely to experience and have indeed experienced.  As Dr McGrail said in her report, "Mr Singh may experience prison as more difficult than other prisoners, given his naivety, isolation from the Indian community and history of self-harm behaviour, and depressive symptoms." 

I also take into account the you do have a major depressive disorder, which also makes service of any terms of imprisonment more difficult.  She recommended that your mental state be monitored in gaol, including depressive symptoms and suicidal ideation. 

38It was also submitted that whilst you do not fit specifically within the definition of an offender, a young offender, that is a person aged 21 or younger, you are close it in age and that therefore issues of rehabilitation should receive attention, rather than being totally subsumed by the more pressing principles of punishment and general deterrence.  I do, to a limited extent, take that into account in sentencing you. 

39As I said, in particular, I take into account your previous good history, your difficulties in gaol, and your early plea of guilty, which as I have already said, is not one commonly made to charges of this kind, and have saved your victim much distress and the community the time and expense of a trial.  However, as it have also said, your offending is grave and involved not only the sexual degradation of an innocent young woman, that gravity was compounded by your filming of it and your use of it to manipulate her, adding to her already considerable distress.  It was cruel behaviour. 

40I therefore sentence you as follows: 

41Stand up please, Sir.

On Charge 1 you are sentenced to three years imprisonment. 

On Charge 2 you are sentenced to four years imprisonment.

On Charge 3 you are sentenced to one months' imprisonment.

On Charge 4 you are sentenced to eight months' imprisonment.

42I order that the base sentence be the sentence imposed on Charge 2, four years. 

43I order that 18 months - I am sorry, Charge 4 should be nine months.  I order that 18 months of the sentence imposed on Charge 1 and six months of the sentence imposed on Charge 4, be served cumulatively to the sentence imposed on Charge 2 and to all other sentences, giving a total effective sentence of six years imprisonment. 

44I order that you serve a minimum term of three years and six months. 

45What is pre-sentence detention please? 

46MS STYLIANOU:  Your Honour, I'm just trying to find it.  As at Monday's date, it was 326 days.  So it's - - -

47HER HONOUR:  As of Monday?

48MS STYLIANOU:  As of Monday, so as at the 23rd of - - -

49HER HONOUR:  330. 

50MS STYLIANOU:  Yes. 

51HER HONOUR:  I declare that 330 days of this sentence have already been served by way of pre-sentence detention.

52You may have a seat, Sir.  Thank you. 

53Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you a term of imprisonment of seven years and six months and order that you serve a minimum term of five years.  Thank you. 

54MS STYLIANOU:  As Your Honour pleases.

55MR BOAS:  As Your Honour pleases.

56HER HONOUR:  Thank you.  We will stand down until 10.30. 

57I am sorry, I've got some orders to sign, sorry.

58MS STYLIANOU:  Yes, thank you, Your Honour.

59HER HONOUR:  Have a seat.  You can be taken down, Mr Singh, thank you very much.  Sorry, before you go, Mr Singh will be deported when he leaves?

60MR BOAS:  Yes. 

61HER HONOUR:  Well then why do you need an intimate sample?  I am not granting one.  I can't see any reason for it.  All right, thank you, you can take Mr Singh down, thank you.  What is the date?  It is 27th today, isn't it? 

62MR BOAS:  Yes. 

63HER HONOUR:  Yes, I am ordering compensation in the sum of $600. 

64MS STYLIANOU:  And a Disposal Order, Your Honour. 

65HER HONOUR:  I have done the Disposal Order. 

66

MS STYLIANOU:  Your Honour, the s.464ZF.  The application was made at the outset of the plea and it was consented to, but I understand Your

Honour's - - -

67HER HONOUR:  I am not granting it.   

68MS STYLIANOU:  Yes.  Yes, no, I understand, Your Honour.

69HER HONOUR:  Thank you.  Thank you.  We will stand down.  Thank you very much. 

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