Director of Public Prosecutions v Sriranganathan

[2023] VCC 992

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01460

DIRECTOR OF PUBLIC PROSECUTIONS

v

SRIRANJAN SRIRANGANATHAN

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JUDGE:	JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2023
DATE OF SENTENCE:	14 June 2023
CASE MAY BE CITED AS:	DPP v SRIRANGANATHAN
MEDIUM NEUTRAL CITATION:	[2023] VCC 992

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING

Catchwords:              Rape – Sentence following guilty verdict at trial – Delay – Strong prospects of rehabilitation – No criminal history  

Legislation Cited:      Sentencing Act 1991 ss 3, 5, 5B(2)(a), 6AAA, 8.

Cases Cited:Brown v The Queen [2019] VSCA 286; Clarke (a pseudonym) v The Queen [2022] VSCA 89; DPP v Gorgulu [2023] VSCA 140; DPP v Mokhtari [2020] VSCA 161; Jurj v The Queen [2016] VSCA 57; R v RLP [2009] VSCA 271.

Sentence:                  4 years and 10 months imprisonment with a non-parole period of 2 years and 6 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms P. Thorp	The Office of Public Prosecutions
For the Accused	Dr M. Fitzgerald	Doogue + George Defence Lawyers

HER HONOUR:

1Mr Sriranganathan, following a trial from 26 July 2022 to 5 August 2022, you were found guilty by a jury of 12 of one charge of rape.[1] The charge reads that you intentionally sexually penetrated Ms Jacqueline Moores[2] by introducing either a sex toy or your finger into her vagina without her consent, in circumstances where you did not reasonably believe that she consented to the penetration.  You were found not guilty of the other seven charges on the indictment. 

[1] Charge 6 on the Indictment

[2] A pseudonym.

Summary of offending

2In July 2014, Ms Moores began working at the factory where you were employed. At this time, you had a supervisory role there.  You and Ms Moores became friends due to working together.

3On 25 February 2019, you called Ms Moores and asked if you could come to her house and she agreed.  At this time Ms Moores was feeling depressed and had been drinking.  You arrived in the early evening with a bottle of scotch.  She described herself as being down that night and just wanting company.  You were making the drinks and you were both drinking and chatting.  Ms Moores gave evidence of later putting her young son to bed and then moving to the couch.  By this stage, she was 'pretty trashed'.  She said that she needed to go to bed.  She managed to walk to her bedroom and went in there on her own.  When she got there she stated 'I just pretty much laid there on the bed, because I was just – I was stuffed'.  You then entered her room.

4Given the mixed jury verdicts, particularly in relation to the allegations of Ms Moores directly leading up to this charge, there is a need to proceed cautiously.  Ms Moores gave an account of oral and digital penetration, the subject of separate charges for which you were found not guilty.  To be clear, I have confined myself, as discussed with counsel, to the facts that underpin the charge for which you were convicted. Relevantly, Ms Moores gave the following evidence:

'I had sex toys in my side drawer, he knew that so that's what he was looking for, so he went hunting for that, and he found some and that's when he started using them. 

Question, 'And what did he do with the sex toys?'.  Answer, 'He put them in me'.

'And whereabouts did he put them in you?'.  Answer, 'In my vagina'. 

…

Question 'And when he was using the sex toys, what did you do at that point?'.  Answer, 'I froze.  I just laid there and absolutely froze, you know, there was a point where I said no and then he said "sorry, sorry, sorry" but he kept going'. 

Question 'Did Ranjan say anything else during this period?'.  Answer, 'I do remember after when he had finished, he did mention something about "that was good", and that we should do it again'. 

Question 'What was your level of intoxication at the time when this was happening?'.  Answer, 'I was drunk, I was absolutely maggoted.  The room was spinning, I was not there, I was not in the right state to make any choices or anything like that and that is why I told him I need to go to bed.’

5You had allegedly told witness Suresh Santhirasekaran that Ms Moores had opened her cupboards, showed you some vibrators and then asked you to use those objects on her.  In cross examination of Ms Moores, it was suggested to her that she took the sex toys from the bedside drawer and began using them on herself.  She did not accept this.  It was then suggested that she had asked you to assist by holding one of them against her vagina.  Again, she disagreed with this suggestion. 

6Ms Moores gave evidence that you then left, she got up, went and locked the door and proceeded to have a three hour long bath.

Victim impact

7Mr Sriranganathan, your offending has had a significant impact on Ms Moores. She recently provided a powerful victim impact statement.  She speaks of the physical and emotional damage she has experienced.  She felt disconnected from others, alone and isolated.  She states:

‘I honestly didn't think that I would be here anymore.  That I was just
going to be another victim that no one remembers.  I couldn't see a life worth living with that'.

8She also speaks of the motivation and inspiration that her young child provides her and of her resilience and commitment to 'win this battle'.  She states:

I survived you and I will live again how I used to with time, love of my family and the trust of those who love me I will get there'.

9I take into account the impact your offending has had on Ms Moores. 

Gravity of the offending

10The offence of rape is an inherently serious one as indicated by the maximum penalty. It is a Category 1 offence as defined in s.3 of the Sentencing Act 1991. The standard sentence for the offence of rape is 10 years.

11The crime of rape is an invasion of a victim's bodily integrity without consent.[3]  The principles of general deterrence, specific deterrence, protection of the community, just punishment and denunciation are important principles to be taken into account in sentencing.

[3] DPP v Mokhtari [2020] VSCA 161.

12In assessing the objective gravity of your offending, I take into account, as part of the overall circumstances, that you were invited into Ms Moores’ home, a place she was entitled to feel safe, as a friend and ultimately you took advantage of this.[4] It appears that she was emotionally distressed that day, vulnerable and intoxicated.  I proceed on the basis that there was no planning or premeditation on your part and that your offending, in all the circumstances, can be characterised as opportunistic.  I also accept, in all the circumstances, that while your offending was not necessarily fleeting and Ms Moores gave evidence of protesting, it was not protracted or repeated.  Further, without detracting from the seriousness of your conduct, I accept that it lacks other aggravating features that are commonly seen.  You did not use a weapon, act in company, use additional violence (which often accompanies rape by use of an object),[5] cause or threaten physical injury, or additionally humiliate or degrade your victim; that is, beyond that which is inherent in an act of rape.[6]    

[4] DPP v Gorgulu [2023] VSCA 140.

[5]Clarke (a pseudonym) v The Queen [2022] VSCA 89 [29].

[6]Jurj v The Queen [2016] VSCA 57 [80]

13I take into account all the relevant circumstances of your offending.  While it was submitted that your offending was unplanned and opportunistic, it was not suggested on your behalf that there were any special circumstances which might moderate your culpability or capacity to have appreciated the wrongfulness of your actions.   

Procedural history

14Mr Sriranganathan, your case has had a somewhat protracted procedural history.

15The offending occurred in February of 2019.  You were interviewed a month later and charged in December 2019. 

16From late 2020, there were a number of direction hearings.  In August 2021, there were pre-trial submissions and rulings.  Initially, you were charged on the one indictment against two complainants, that is the Moores’ sisters. The indictment was subsequently severed into two, each relating to a separate complainant.

17On 19 July 2022, a jury of 12 were empanelled and were subsequently discharged on 20 July 2022.

18On 22 July 2022, a second jury of 12 were empanelled, who were again, subsequently discharged on 25 July 2022.

19On 26 July 2022, a third jury of 12 were empanelled and on 5 August 2022, they delivered a verdict of guilty on the one charge of rape. 

20Following the verdict, your case was adjourned to run alongside the other indictment against you.  Your bail was continued to ensure your full participation in the subsequent trial.   

21

On 8 March 2023, a jury of 12 were empanelled on the second indictment. 

On 15 March 2023, you were found not guilty of all charges on this indictment.

22On 22 May 2023, a plea hearing was conducted on your behalf and on this day, you were remanded in custody. Therefore, you have currently 23 days in pre‑sentence detention.

Personal circumstances

23As to your personal circumstances, you are now 50 years old and you were approximately 44 at the time of the offending.  You were born in Sri Lanka and are of Tamil ethnicity.  You have three siblings.  Your parents were religious and encouraged you all to be observant.  Your father ran a mixed business store. 

24Growing up you experienced instability and frequent movements, due to the outbreaks of violence and armed conflict during the Sri Lankan civil war.  Your childhood was dominated by the civil war and the associated ethnic and sectarian conflict.  As a child and young person, you were exposed to the devastating effects of the unrest and you experienced significant instability.  Your family's house was burnt down three times during outbursts of rioting.  Your education was significantly disrupted as you did not attend school during periods of displacement.  It was also during these times that you were most directly exposed to the armed conflict, as this was concentrated in the Tamil-majority areas in which your family sought refuge.  You witnessed the effects of bombings in marketplaces and places of worship.

25Even after returning permanently to your home in Trincomalee, you lived with constant uncertainty and fear of persecution.  There was a heavy military presence and disappearances of Tamil civilians continued.  You were able to complete your secondary education, but could not find consistent employment.

26Another worshipper at your temple suggested that you might find work recording advertising and promotional 'slots' for a radio station.  You became involved in this recording work, which led to engagements as an announcer at public events. Gradually, you came to record radio announcements for political parties and appeared at political rallies as a stage announcer.  Consequently, this made you an object of suspicion to supporters of opposed political groups and you started to receive threats.

27In 2001, you sought asylum in Australia, travelling by boat via Indonesia.  You were detained on Christmas Island and spent in excess of six months in a detention centre, before being granted a permanent protection visa on the basis it seems of your imputed political profile.  You are now a citizen.

28You moved to Melbourne in 2002, and you began working at the factory I have already referred to.  For a period, you also had part-time work at a factory that produced granite slabs.  In March of 2003, you experienced a serious workplace accident.  You suffered multiple injuries, including fractures, and you were hospitalised for three months and underwent multiple operations.

29After 18 months off work, you returned to your original factory where you gradually resumed your duties.  You continue to experience back pain which is managed with medication (Panamax and Celebrex), and you cannot sit or stand for extended periods.  I was told that in custody, your injuries continue to cause you discomfort.

30You have never sought assistance for mental health issues, apart from a short episode of counselling with a psychologist after you were stood down by your employer, following these allegations.  You returned to work and were employed up until the period of your remand.

31You married in 2009 and have a 12-year-old daughter.  Your wife has limited English and her ability to support the family financially will be difficult while you are in custody.  There is a mortgage to pay and you have been the primary income earner.  It is only in the last 18 months or so that your wife commenced paid employment.

32I take into account in sentencing you, your personal circumstances including your exposure and experiences of war, displacement and then your journey of seeking asylum.  I also take into account your integration into the community and your solid work history, spanning over some two decades.

Factors in mitigation

33A number of discrete factors were relied upon in mitigation on your behalf and advanced by your counsel, Dr Fitzgerald. You have no criminal history or subsequent criminal matters[7] and you are otherwise, I accept, of good character.

[7] With the exception of an exceed PCA matter that the Court was informed of.

34The testimonials from your friends and members of the Tamil community refer to your history of community involvement through cultural programs, fund-raising activities and community broadcasting.

35The delay in this matter was also relied upon as a significant factor.  A period approaching four and a half years has now elapsed since the offending.  There is no suggestion that you have contributed to the delay and I accept that it is an important factor. As the higher courts have recognised:[8]

First and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process, but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. 

[8] R v Cockerell [2001] VSCA 239, [10].

36I take into account that you have not reoffended, complied with your bail conditions and continued to work and provide for your family.  I also take into account that you have had the stress and uncertainty of unresolved criminal charges ‘hanging over’ your head for an extensive period of time.

Prospects of rehabilitation

37In all the circumstances Mr Sriranganathan, I consider that you have very good prospects of rehabilitation.  I take into account your lack of prior criminal history, your community involvement and participation and your motivation to support your family on release.

38

Character references were tendered on your behalf that all speak highly of your work ethic. Satheeskumar James describes you as someone who is 'honest, humble and hardworking' and trustworthy.  

Emilianus Chandrakumar has known you for eight years through your community radio engagement.  Edward Mariathasan speaks of your valuable contributions as an active member of the local Tamil Association and as a broadcaster in the community radio program.  Balasingham Prabhakharan, who has known you for the past 20 years, refers to you organising and taking part as a presenter of charitable fundraising cultural programs, and as spending valuable time in educating all children about Tamil art and culture. 

Sentencing principles

39The basic purpose for which a court may impose a sentence are punishment: general and specific deterrence, rehabilitation, denunciation and protection of the community.  I consider that specific deterrence and community protection are of reduced significance to the exercise of my sentencing discretion given your previous good character and my assessment of your prospects of rehabilitation.

40Given the seriousness and nature of this offending, I consider that punishment, denunciation and general deterrence remain primary sentencing considerations.[9] I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic) where relevant to your case. I have had regard to current sentencing practices for rape, and the cases referred to by the prosecution, and I have only had regard to sentences previously imposed for the offence as a standard offence. Of course, each case must turn on an individual consideration of the circumstances and features of the particular offence and offender.

[9] R v RLP [2009] VSCA 271.

41Given the seriousness of the charge and the impact of your offending, the only appropriate sentence in this case, Mr Sriranganathan, is one of immediate imprisonment for a substantial period.  I recognise this is a severe sanction for a first-time offender of relatively mature years.  You are currently at Port Phillip Prison and I was told by your counsel that you are experiencing difficulty adjusting to this environment.  I accept that your concern for your wife and young daughter will be a source of anxiety for you while you are in custody.  It is clear from the letter of your wife that she is distressed and experiencing difficulty in coping without you.  I also take into account that English is not your first language and this is likely to represent a further challenge.

42As earlier noted, the standard sentencing regime applies to your case and the standard sentence for rape is ten years' imprisonment.  The standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness.

43In considering the impact of standard sentencing on your case, I have had regard to the relevant cases and principles.[10]  In particular, when sentencing for a standard sentence offence, I must take the standard sentence into account as one of the factors relevant to sentencing.[11]  This requirement, therefore, is to be treated as a legislative guidepost having the same function as the maximum penalty.  It does not affect the established instinctive synthesis approach to sentencing or require or permit two-stage sentencing.

[10] Brown v The Queen [2019] VSCA 286.

[11] See also s5B(2)(a) Sentencing Act 1991 (Vic).

44Accordingly, I have taken the standard sentence for rape into account as one of the factors to consider in my instinctive synthesis of all of the relevant factors in your case.  The sentence I am about to impose Mr Sriranganathan in respect of your charge is lower than the standard sentence.  I have considered all relevant factors in assessing your sentence, including the standard sentence, the objective seriousness of your offending and the matters available to you in mitigation, including delay.

45Synthesising all relevant matters, I have determined Mr Sriranganathan, that the following sentence is just and appropriate.   

Sentence

46On the charge of rape you are convicted and sentenced to a period of four years and 10 months imprisonment.  As the charge is a standard sentence offence, I must fix a non‑parole period of at least 60 per cent of the sentence I impose, unless I consider that it is in the interests of justice not to do so.  In your case, taking into account all relevant factors, including the delay in your case and your prospects of rehabilitation, I consider that it is in the interests of justice not to fix a non-parole period otherwise required and I fix a period of two years and 6 months.  

47Pursuant to s18, I declare that you have served 23 days in pre-sentence detention.  Counsel is there anything further?

48DR FITZGERALD:  Nothing further, Your Honour.

49MS THORP:  No, Your Honour.

50HER HONOUR:  Mr Sriranganathan, I am going to leave the Bench in a moment, you will have an opportunity to speak to your counsel, Dr Fitzgerald.  Wait for a moment so that others may leave or exit the connection.  You will then also have an opportunity to speak to your family.  We will adjourn the court, thank you.

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