Director of Public Prosecutions v Sohal
[2012] VCC 1426
•18 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01560
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARPRIT JILATIT SINGH SOHAL |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 September 2012 | |
CASE MAY BE CITED AS: | DPP v. Sohal | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1426 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Coghlan | |
| For the Accused |
HER HONOUR:
1 Harprit Jilatit Singh Sohal, a jury has found you guilty of one charge of false imprisonment and two charges of rape. You have pleaded guilty to one charge of indecent assault. The facts underlying your offending are as follows:
2 Late on Saturday, 4 December 2010, the complainant, MG, went to a pub in Geelong where she met a friend and had a number of alcoholic drinks. She left at about 3 am and became separated from her friends and started walking home. As she walked through a nearby mall, she saw you sitting on the ground with your head between your knees. She stopped and asked if you were all right. You got up and smiled and began a conversation with her. You then went with MG to a nearby McDonalds, so she could use the toilet there, and after that sat on a bench with her and continued talking.
3 About five minutes later, your friend, Mr Madhanthadi, appeared and sat down on the other side of MG on the bench, which made her feel a bit nervous, but the pair of you seemed to be friends. You spoke to each other sometimes in Indian language and you all continued to talk. You tried to kiss MG while she was on the bench and she leant away from you and made a joke of it. She then said she needed a drink of water and the two of you said that you had water in your car. MG then noticed a white ute behind her on the road and she got into the back seat of the car to get the water. You got in the back seat with her. Shortly afterwards, Mr Madhanthadi followed, so ultimately MG was in the back seat with the two of you, one on either side. Once he got in, Mr Madhanthadi tried to kiss MG and she tried to push him away, but he grabbed the back of her neck and pushed her face towards him, and touched her breasts over the top with his other hand. He was ultimately charged with indecent assault for his actions.
4 As this was occurring, you grabbed at MG's breasts, which actions comprise Charge 2, indecent assault.
5 You then put your hand through a rip in her jeans, then inside her underpants and introduced your finger into her vagina. These actions comprise Charge 3 on the indictment, rape.
6 MG tried to say no, but did not want to open her mouth, as Madhanthadi still had his mouth on hers and continued to hold her head and touch her breasts. She struggled and moved around. At some stage Madhanthadi pulled his head back from her face and MG tried to reach for the door handle across you, saying "No" and "Let me out." You grabbed her arm, at which stage you still had your hand in her pants, but your fingers were not inside her vagina. You said to her, "No, Sonny's here." Madhanthadi had hold of MG's head again and was trying to kiss her, at which stage MG was trying to push the two of you away, saying "No." You reintroduced your finger into her vagina. Eventually MG managed to get past you and out of the car. She saw a taxi had pulled up nearby and spoke to the taxi driver about not being let out of the car and being assaulted. The taxi driver saw she was crying, upset and shaking. Ultimately, she was driven by the taxi driver to the police station where she made a complaint and where she was collected by her father.
7 You were arrested and interviewed on 6 January 2011 and admitted in your record of interview that you had met a girl in the Geelong Mall, walked to McDonalds, then to a park bench and Madhanthadi had met you there. You admitted to having your hand on MG's shoulder on the bench. You said that once in the car, you held your hand on MG's shoulder, pulled her and tried to kiss her and she said, "OK, leave me alone, I want to go." You said you opened the car and that MG went in a cab. You said you thought you had done something wrong and admitted to touching MG's breasts over her clothes. You said that you and MG had kissed consensually whilst still in the mall. You denied putting your fingers in her vagina. You also said that you were intoxicated.
8 The maximum penalty for rape is 25 years' imprisonment. The maximum penalty for indecent assault is ten years' imprisonment, as is the maximum penalty for false imprisonment.
9 I now turn to your personal circumstances. You are 27 years old and moved to Australia from India in mid-2009. You left behind your father, sister and grandparents. Your mother died in 2008 of asthma complications and your father has been depressed ever since. He is an engineer. Your sister, aged 21, is studying fine arts at university. You come from a law abiding family and have no prior convictions. You completed the Year 12 equivalent in India in 2002 and then one year of a Bachelor's degree in Commerce. You then left your course and for the next four years worked in India in mobile phone retail. You moved to Brisbane and began studying in a computer course, as I said, in mid-2009.
10 You found life there very lonely and at the start of 2010 moved to Melbourne where you had friends, and began a course in auto mechanics at Menzies Institute of Technology, where your co-accused, Mr Madhanthadi, was also a student. Soon after you were charged with these offences, word got around the campus and you noticed you were being treated differently by other students. You became highly embarrassed and left. You were offered work through friends who had an insulation business and ultimately left your course and your student visa was cancelled. You are currently in Australia only on a criminal justice visa and will be deported once you have completed your sentence.
11 Your counsel told me that alcohol had never been an issue for you in India, but once you came to Australia you began drinking in order to deal with loneliness and then developed a habit of binge drinking in Melbourne, going out on a weekend with friends. I note that MG described you as extremely drunk and that on the night in question you had been ejected from the nightclub because of drunkenness and because you were unable to stand up and were stumbling around the dance floor.
12 Your desire now, your counsel informed me, is simply to return to India. The highlight of your week, whilst in gaol, is apparently your telephone call to your father. You have had some difficulties whilst in custody, being stood over at one stage and moved to another unit. You are working in the kitchen at the gaol and have completed the necessary safety certificate for that.
13 Psychologist, Aaron Cunningham, whose report was tendered on the plea, assessed you as a low risk of re-offending. He said you did have insight into your offending. It was his opinion that alcohol, with its accompanying disinhibiting effect, had a large part to play in your offending on that night. He found that you had no psychological or psychiatric difficulties, came from a supportive family, and ultimately described your offending as a gross lack of judgment, which was out of character and which was brought about by the disinhibiting effects of alcohol.
14 I received two references from Indian friends, living in Melbourne, who described you in positive terms, said you had found the period leading up to your trial extremely difficult and had begun attending a local temple for consolation.
15 The effect on your victim has been appalling. In her victim impact statement MG described a terrible aftermath of anxiety and depression. She has had to move the course she was studying to a Ballarat campus because of her abhorrent reaction now to the Geelong area. Her studies have suffered because of the emotional turmoil she faces on a daily basis. She described difficulties in her relationships with her friends, her fear of socialising. She no longer goes out very much. She has problems relating even to members of her family. She says she is a different person now to who she was previously and I accept that life for her continues to be a difficult, unhappy experience, as she struggles through counselling to overcome the consequences of your offending against her. You have done her a terrible wrong. She has very courageously attended court on the plea and for this sentence.
16 You did not plead guilty to the charges of rape and false imprisonment and are not entitled to any benefit otherwise attaching to a plea of guilty.
17 MG was subjected to cross-examination at committal and trial.
18 I am, however, satisfied that your behaviour was out of character. You had not previously been convicted of any criminal offence either here or in India.
19 I accept that you have good prospects of rehabilitation and note that you impress as a person who would ordinarily never have come before these courts, had you not developed the pattern of drinking that you did, but what you did was extremely serious and there has never been any question that the only way I should deal with you is by way of a sentence of imprisonment to be immediately served.
20 I do take into account the fact that once you are sentenced, it is likely you will be moved to a country prison where you will be socially isolated and this is a matter I take into account. Further, the fact that you will be deported from this country is also a matter a court can take into account as a mitigating factor in sentencing you.
21 There are some serious aspects to your offending, quite apart from the fact that it occurred, but in terms of the circumstances surrounding that offending. Primarily, it is a fact that you committed this offence in company, essentially. That is, you committed this offending whilst MG was seated in the car with you on one side and Mr Madhanthadi on the other. This, in my view, heightens the seriousness of your offending and heightens the trauma of what MG, your victim, underwent at that time.
22 In sentencing you, I also have regard to the comments of the Court of Appeal in the case of R v. Simon [2010] VSCA 66. That was a case where the accused man was convicted on a charge of indecent assault and two charges of digital rape. In that case the complainant awoke to find the accused man rubbing her breasts and inserting his fingers into her vagina. In reducing the sentence from four years with a minimum of two years, to three years with a minimum of 18 months, Ashley JA, with whose judgment the other two members of the court agreed, at paragraph 55 stated:
"Alcohol, though not a circumstance of mitigation, seems likely to explain the applicant's behaviour on this occasion which was quite out of character. Nothing in the applicant's antecedent's . . . hinted that he would offend in such a way or, in my opinion, carried any implication that he would be likely to do so in the future."
23 In my view, His Honour's comments have particular application in your case, although again I note the more serious aspects of your offending, involving, as they did, the presence of another person, also engaged in sexually assaulting MG. His Honour also noted in that case that the sentencing statistics over a five year period around 2010, showed that the median sentence for rape was five years.
24 Ultimately, I do accept that you are a low risk of re-offending. I take into account the fact that you have no prior convictions. I accept that you were very affected by alcohol and that this had a significant role to play in the commission of this offence, and that you took some limited responsibility for your actions, demonstrated by your plea of guilty to the charge of indecent assault. Ultimately, however, I note again the effect on your victim has been terrible. This is an effect sadly all too familiar to this court. One can only hope that resolution of this case will bring some relief to MG and I have taken some care to refer to the sentencing statistics so that she understands that the sentence I am about to impose is in line with the sentences normally handed out in cases of this kind and which have a binding effect upon this court.
25 On Charge 1, false imprisonment, you are sentenced to three months' imprisonment.
26 On Charge 2, indecent assault, you are sentenced to three months' imprisonment.
27 On Charge 3, rape, you are sentenced to three years' imprisonment.
28 On Charge 4, rape, you are sentenced to three years' imprisonment.
29 The base sentence will be the sentence imposed on Charge 3, that is three years. I order that ten months of the sentence imposed on Charge 4 and one month of each of the sentences imposed on Charges 1 and 2 be served cumulatively to the sentence imposed on Charge 3, giving a total effective sentence of four years. I order that you serve two years before becoming eligible for parole.
30 Pursuant to s.6AAA, I declare that if you had not pleaded guilty to Charge 2, that is indecent assault, I would have ordered a sentence of six months on that charge with a cumulative effect of three months, which would have led to a total effective sentence of four years and two months, with a minimum term of two years and two months.
31 What are the - - -
32 MR COGHLAN: Pre-sentence detention?
33 HER HONOUR: Pre-sentence detention.
34 MR COGHLAN: Ninety-one days including yesterday, but not today.
35 HER HONOUR: I declare that 92 days of this sentence have already been served by way of pre-sentence detention.
36 MR COGHLAN: As Your Honour pleases.
37 HER HONOUR: Yes, thank you. Is there anything else I need to attend to?
38 COUNSEL: No, Your Honour. I think the orders have previously been made for a forensic sample order.
39 HER HONOUR: I should also add that I have decided not to place Mr Sohal on the sex offender's register for the matters that I raised at the last hearing, that is this is a discretionary matter in this case. He has been assessed by means of recognised testing as being a low risk of re-offending and he will be deported from this country once he has completed his sentence.
40 Thank you, could you take - - -
41 COUNSEL: Your Honour, the only other matter appears in relation to serious sexual offender provisions.
42 HER HONOUR: Yes. I declare that Mr Sohal is a serious sexual offender in relation to Charge 4.
43 COUNSEL: And three.
44 HER HONOUR: And three? Does it only take - I thought there had to be two?
45 COUNSEL: Yes, so you have got the first three charges of terms of imprisonment.
46 HER HONOUR: But the first one is not a sexual charge.
47 MR COGHLAN: Yes, that is right.
48 COUNSEL: That is a good point, Your Honour. You have to get - yes.
49 HER HONOUR: Yes. It is only in relation to Charge 4.
50 COUNSEL: So Charges 2 and 3 arising in Charge 4, Your Honour, yes.
51 HER HONOUR: Yes. In relation to Charge 4, I note that the prosecution did not require a sentence which was out of proportion.
52 COUNSEL: Thank you, Your Honour.
53 MR COGHLAN: As Your Honour please.
54 COUNSEL: As Your Honour pleases.
55 HER HONOUR: Yes, thank you. Could you take Mr Sohal down.
56 MG, the court thanks you for attending. I hope you understand the basis on which this sentence has been imposed. I also understand that in terms of the period of time relative to the time you have been spending seeking to overcome the effects of this offending upon you may well last a great deal longer, but that is the sentencing regime that I have referred to and I hope that you have some understanding of that, in terms of what the court is confined in doing, all right? I wish you well for your future, MG, and I hope that you can work your way out the other end of this sooner rather than later and take up the very bright future that it is quite clear that you have. Thank you very much.
57 Yes. I think that is everything?
58 COUNSEL: Yes, Your Honour.
59 MR COGHLAN: Yes, Your Honour.
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