DPP v Sapkota
[2022] VCC 1466
•2 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01029
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SUGESH SAPKOTA |
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JUDGE: | Her Honour Judge Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 August 2022 | |
DATE OF SENTENCE: | 2 September 2022 | |
CASE MAY BE CITED AS: | DPP v Sapkota | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1466 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Rape – plea of guilty – deportation – COVID-19 – Worboyes – previous good character – very strong prospects of rehabilitation.
Legislation Cited: Migration Act 1958 (Vic) s 501(3A); Sentencing Act 1991 (Vic) ss 5, 5B(2)(a), 5B(2)(b), 6AAA, 18.
Cases Cited:Brown v The Queen [2019] VSCA 286; DPP v Elwood (a pseudonym) [2019] VCC 128; DPP v Flancey (a pseudonym) [2021] VCC 1225; DPP v Hyeong-Beom [2021] VCC 2058; DPP v Kala [2021] VCC 151; DPP v Palliyaguruge [2021] VCC 958; Guden v The Queen [2010] VSCA 196; R v Mills [1998] VR 235; Worboyes v The Queen [2021] VSCA 169.
Sentence: Three years and six months’ imprisonment with a non-parole period of two years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | A. Moore | The Office of Public Prosecutions |
| For the Accused | J. Taffe | Doogue + George Defence Lawyers |
HER HONOUR:
1Sugesh Sapkota, you have pleaded guilty to one charge of rape. The maximum sentence for this charge is 25 years’ imprisonment and it is a Category 1 offence.
Circumstances of the offending
2The full circumstances of your offending are outlined in the prosecution opening of 3 August 2022, marked as Exhibit A. At the time of your offending, you were living in Ballarat with your wife. She was friends with the complainant, Hira Nirmala[1], who also lived in the area. You are all originally from Nepal and you and Ms Nirmala were both 23 years of age at the time. On 31 August Ms Nirmala arranged for you and your wife to attend her home to help her prepare for a driving test. You had never previously met her.
[1] A pseudonym.
3You both attended her home and you helped her prepare for her driving test. You all later returned to your home.
4During the evening, the three of you ate dinner, drank alcohol, and played drinking games. All three of you became intoxicated. After smoking a cigarette, Ms Nirmala felt dizzy and vomited. You and your wife helped Ms Nirmala, who kept drinking but later vomited again.
5Ms Nirmala eventually went to sleep in yours and your wife’s bed. She was fully clothed at the time. Your wife got into bed with her as she was concerned she might vomit again, and she asked you to sleep in the spare bedroom which you did. Sometime later, your wife joined you in the spare room and you had consensual sex.
6Between approximately 1.00am to 3.00am Ms Nirmala awoke to the feeling of someone behind her in the bed under the quilt. She was lying on her side and you touched her right breast over her clothing. She pushed your hand away, initially thinking it was your wife because of a sexualised comment she’d made earlier in the night. You then touched her right breast again, this time underneath her bra, and put your mouth on her nipple. You then put your hand down the back of her pants and underwear, grabbing her buttocks. Ms Nirmala felt helpless, her head was spinning, and she felt like she couldn’t do anything. While still on her side, you digitally penetrated her vagina from behind. You then rolled her onto her back. You slid down her pants and underwear with your hands, before using your leg to push them off in a forceful action that also caused one of her socks to come off. You then pulled up her bra, exposed a breast and sucked her nipple.
7You have not been charged for any of the conduct just referred to. The prosecution rely on it as context evidence and that’s how I have considered it. I make clear that you will not be sentenced for offending conduct that is not the subject of a charge.
8The following conduct is the basis of Charge 1. You positioned yourself on top of Ms Nirmala. She grabbed at the front of your face and touched your hair, which caused her to realise that it was you and not your wife. Up until this time, she had been repeatedly saying, ‘is that you, Anita[2]? Stop it Anita.’
[2] A pseudonym.
9You then inserted your penis into her vagina and she told you to go away. You were quiet and didn’t speak throughout.
10Ms Nirmala does not know how long the penetration lasted and could not say whether you ejaculated or used a condom.
11She collected her clothes and belongings and contacted her partner, telling him that she had been raped. In the early hours of the morning she took a taxi home and messaged your wife that she left because she felt unsafe and you had raped her. She then called her best friend and told her what had happened.
12The next day it was arranged that you, Ms Nirmala, her partner and your wife would meet to discuss what happened. After doing so, Ms Nirmala and her partner returned home and contacted the police. On 1 September police commenced their investigation and Ms Nirmala was forensically examined. No physical or anogenital injuries were identified.
13On 2 September 2021 police executed a search warrant on your home, arrested you and later interviewed you.
14During the interview you said that you were drunk and blacked out after having sex with your wife and going to sleep, and that you did not remember anything further until you woke up the next morning around 6.15am. You said you couldn’t believe that you had sex with Ms Nirmala as you did not think you were the sort of person who would rape a girl. You further stated that, while you had no memory, if you did have sex with the Ms Nirmala, you might have mistakenly thought she was your wife as she was sleeping in your bed.
Gravity of the offending
15Clearly your offending is serious. Rape is an inherently serious offence as indicated by the maximum penalty of 25 years’ imprisonment fixed by Parliament. It is also a Category 1 offence under the Sentencing Act 1991 (Vic), requiring the imposition of a term of imprisonment (other than a term of imprisonment imposed in addition to the making of a community corrections order). Rape is also a standard sentence offence. The standard sentence is 10 years’ imprisonment. There was no dispute in your case that your offending requires a term of imprisonment, structured by way of a total effective sentence and non-parole period.
16The seriousness of your offending was accepted and there was substantial agreement between the parties as to the relevant factors. However, the prosecution contend that your offending falls in the mid-range of seriousness. Your Counsel, Mr Taffe, submits that it should be assessed as falling within the low to mid-range of seriousness.
17Turning to an assessment of the gravity of your offending, I accept that it may be described as opportunistic. I also accept that it does not have some of the hallmarks or aggravating features that this type of offending often does. It did not involve any additional overt violence (of course, it is appreciated that the act of rape is an inherently violent one). There were no threats or weapons used. There were no physical injuries caused to Ms Nirmala. On the evidence it’s unknown, and I therefore make no finding, as to whether you ejaculated or wore a condom at the time thereby creating a risk of pregnancy or sexually transmitted disease.
18However, you did take advantage of someone who was vulnerable in that she was asleep and had gone to bed intoxicated and ill from the effects of alcohol. There was also some persistence on your part in the face of verbal opposition from Ms Nirmala.
19In all the circumstances, on my assessment, I accept your Counsel’s submission that the seriousness of your offending sits in the low to mid-range for this type of offending.
20I accept that you were severely affected by alcohol at the time of the offending. This is no excuse for your actions, nor was it proffered as one by your Counsel. The context of your offending is best described by Dr Angela Sorotos in her detailed report of 5 August 2022. She states that given your inexperience with alcohol, in combination with your problematic attitudes “of entitlement”, the use of alcohol created a condition in which you were more likely to engage in poor behaviour controls, than had you not consumed alcohol.
Victim Impact
21Ms Nirmala has provided a Victim Impact Statement which I have read and is marked Exhibit B on the plea. Her statement is considered, articulate and insightful. She describes the impact that your offending has had on her. She states:
“I really don’t like myself to be called or known as victim because I am so much more than a person who’s impacted from this incident. But one thing is sure that after this incident, I have not been the same … This incident made a big impact in my life which brought great challenges on my mental health”.
“I am not the same person anymore after that night, I struggle to enjoy the things that I used to enjoy with carefreeness”.
22She sometimes has flashbacks, suffers anxiety and has concern for her safety. The impact of your offending has been pervasive and has affected all areas of her life, making it harder for her to focus on study and work in particular and to control and regulate her mind and emotions. As I noted at the plea hearing, what is most extraordinary about her statement is the generosity and empathy she expresses for you and your wife. She states:
“…in this journey of life where we make many mistakes, learn lessons and move forward with the wisdom we get, l hope all 3 of us (Anita, Sugesh and myself) will find our peace and happiness”.
23She also uses the opportunity of her statement to pay thanks to the personnel, including the informant, who helped her and showed her compassion and kindness through this difficult process.
24In sentencing you I take into account the impact of your offending on Ms Nirmala.
Personal circumstances
25Your personal circumstances were canvassed in detail by Mr Taffe at the plea hearing and are also outlined in the report of Dr Sorotos.
26You are now 24 years of age. You were born and raised in Pokhara, Nepal.
27You are an only child although your father has two other sons from his first marriage. He separated from his first wife and then married your mother. Both women continued to live in the family home. Alhough a somewhat unorthodox situation, you regarded it as normal and considered both women your mother. You also had a good relationship with your half-brothers, who were a number of years older than you.
28Your father worked in Dubai until you were about nine years of age and he’d visit the family home periodically. Given these circumstances, you were not close with him growing up but since your father’s permanent return you developed a strong relationship.
29Your father continues to run a successful dairy business in Nepal that sells milk to manufacturers.
30Your family remain supportive of you and are aware of the charge against you.
31You completed your primary and secondary schooling in Nepal and showed academic promise. You attended an international college during Years 11 and 12 and were awarded a partial scholarship.
32In 2017, aged 18 years, you came to Australia to commence a tertiary education studying a Bachelors of Business. You moved here in search of employment, a better quality of living and independence.
33You studied a Bachelors of Business at Melbourne Institute of Technology, which took three years to complete. After this, you applied for and were granted a post study visa.
34You first met your wife years earlier in Nepal though you didn’t start a relationship with her until 2017 in Australia. You married in 2020. She remains supportive of you, was present in Court at the plea, is here again today, and has provided a letter, which I’ll refer to shortly.
35While studying you commenced working as a cook and then a manager in a kitchen in Abbotsford, working relatively long hours. This employment ceased when you and your wife decided to relocate to Ballarat in 2021.
36You relocated because your wife secured work at the hospital and it was also thought that it might help with your prospects of obtaining permanent residency.
37Your wife worked as an enrolled nurse at a nursing home in Ballarat. After the move you were also able to obtain employment at the Ballarat Base Hospital as a ward assistant, where you have worked up until very recently.
Factors in mitigation
Plea of guilty
38You offered to plead guilty at the earliest opportunity, prior to the first committal mention. That plea represents an acceptance of responsibility and willingness to facilitate the course of justice in circumstances where, I accept, you cannot remember the commission of the offence.
39The utilitarian value of your plea is most significant. Ms Nirmala has never been required to give evidence.
40I also accept that the utilitarian value of your plea is amplified in the setting of the COVID-19 pandemic. A plea of guilty entered during the currency of the COVID-19 pandemic should attract a more pronounced amelioration of sentence than at another time.[3]
[3] Worboyes v The Queen [2021] VSCA 169.
41I also accept that you have demonstrated some remorse for your offending. As your Counsel submits, in the face of your inability to recall the offence, your remorse is “imperfect”. You struggle to reconcile your behaviour with your self-image.
42Since almost immediately after your offending you have offered conditional apologies in the form of “if I did this, then I am sorry”. I accept that you have expressed some remorse. I was also told that you have effectively not consumed alcohol again since this incident. It is clear though, particularly in light of the opinions expressed by Dr Sorotos, that you would benefit from developing further insights. She considers that while you are not predatory or callous in nature, your early life experiences have predisposed you to minimal consequential thinking in the context of attitudes of entitlement.
43I accept that you have engaged in some reflection and have spoken candidly to your wife about your offending. She states in her letter of 22 August 2022:
“Sugesh has spoken to me at length about the impact of what he has done on Hira. He is ashamed and remorseful of (or for the) harm he has caused her and the destruction. He is also sorry for bringing this stress to me. He was looking forward to our future together but is now suggesting that I divorce him so as not to ruin my future. I intend to continue supporting my husband because I love him so much and I know he is a good person”.
Previous good character
44In her letter your wife also speaks of her history with you and attests to your good character. She describes you as a humble and decent man who respects women and who has always respected her decisions and wishes. This is entirely at odds with the lack of respect and complete disregard you showed Ms Nirmala on the night of your offending.
45I do accept that you are of previous good behaviour and that this offending was out of character. I take into account the letter of your wife and the other testimonials that largely echo her sentiments. Your friend Ms Nakarmi describes you as decent, honest, hardworking, caring and kind hearted. She describes how you helped both her and her family transition and adjust to a foreign country. She was shocked to hear of the allegations. Her relative, Mr Nakarmi, also provided a letter attesting to your good character. Mr Nakarmi also worked with you previously at the Abbotsford café and described you as responsible and hardworking. He speaks also of your shame and concern for your wife. Your friend Mr Shrestha was similarly shocked. He refers to your generosity and loyalty. Your childhood best friend, Mr Thapa describes you as “a man of honour”; humble, honest and decent. He concludes “over all the years I have spent with him I can say that this is not his true character”.
Youth
46You are now 24 years old. You were 23 years of age at the time of offending. While you are not a youthful offender I regard your relatively young age as an important consideration. I accept that given your age, rehabilitation should assume a more prominent role in the sentence to be imposed. Courts recognise that young offenders are immature; that there is an increased potential for their rehabilitation; and also that incarceration is more likely to impair rather than enhance such prospects.[4]
[4] R v Mills [1998] VR 235.
Deportation
47As I’ve already noted, you are presently in Australia on a bridging visa. Your wife was on a spouse visa but has now made her own independent application. Following sentence you will be liable to deportation at the appropriate time. The mandatory cancellation provisions in the Migration Act 1958 (Vic) s 501(3A) will be triggered in your case. While it is possible to seek a revocation of any such decision under the Act, I accept that the prospect of deportation in your case is a real concern.[5]
[5] Guden v The Queen [2010] VSCA 196.
48I accept your Counsel’s submission that such a prospect is relevant in two ways:
(a) It renders, or will render, imprisonment more onerous. You are concerned and uncertain about your future, and also the indirect impact it’s likely to have on your wife; and
(b) It destroys the opportunity to settle permanently in this country. You first arrived in 2017 and have settled here, studying, working and establishing networks. You had intended to apply for permanent residence and make Australia your home.
Custodial conditions
49As discussed at the plea hearing the COVID-19 pandemic continues to impact on all aspects of life in Australia and on the custodial setting. I accept that some of the restrictions and conditions, such as initial quarantining, continue and I take this factor into account in sentencing you. The prosecution tendered an email from the Department of Justice and Community Safety as to the current conditions in custody. It confirms that quarantine continues; in person service delivery and contacts have now resumed in the prison; and lockdowns are likely to occur when a positive case is detected. The effects of the pandemic for prisons are ongoing and fluid.
50I also accept that, while you are relatively established in Australia, you do have a smaller network of friends and family that are here to visit and support you during the service of your custodial sentence.
Prospects of Rehabilitation
51In light of your lack of criminal history, strong educational history, work ethic and continuing supports I accept that you have very strong prospects of rehabilitation.
52Dr Sorotos undertook various assessments, including the RSVP and Static-99 evaluation, and expressed the opinion that overall you were a low risk of sexual reoffending. She also excluded a number of other risk factors and any mental illness. Further, she confirmed that you are largely a prosocial person, which is consistent with your history and the testimonials I’ve already referred to.
Sentencing principles
53The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. The community expects that the courts will unequivocally denounce and punish conduct of this kind and send a clear message that it will not be tolerated.
54Given your relative youth, as I have already indicated, I accept that rehabilitation should assume a more prominent role in the sentence I am to impose. General deterrence, however, in particular still remains an important sentencing consideration. I also accept that, given your previous good character and my assessment of your rehabilitative prospects, specific deterrence and community protection is of reduced importance in your case.
55I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act 1991 (Vic) where relevant to your case.
56The only appropriate sentence in this case is one of immediate imprisonment for a substantial period. I recognise that this is a severe sanction for someone in your position; that is, someone still relatively youthful and with no prior history or experience of custody. Dr Sorotos states that, although you will manage with sufficient supports in place, she expects you will experience some difficulties with imprisonment as you seem little prepared for exposure to antisocial and drug affected men, and the likely effect this will have on you.
57As 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.
58In considering the impact of standard sentencing on your case I have considered the decision of Brown v The Queen.[6] 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.[7] This requirement therefore is to be treated as a “legislative guidepost” having the same function as the maximum penalty. In the same way that the maximum sentence is a factor in the application of the intuitive synthesis, so too is the standard sentence, no more, no less.
[6] Brown v The Queen [2019] VSCA 286.
[7] See also s 5B(2)(a) Sentencing Act 1991 (Vic).
59Pursuant to s 5B(2)(b) of the Sentencing Act 1991 (Vic) in relation to a standard sentence offence I can only pay regard to sentences previously imposed where rape was the subject of the standard sentence scheme. I have regard to cases that deal in particular with sleeping victims since the standard regime commenced operation, though I note that each case turns on its own unique facts.[8]
[8] See DPP v Kala [2021] VCC 151; DPP v Palliyaguruge [2021] VCC 958; DPP v Hyeong-Beom [2021] VCC 2058; DPP v Elwood (a pseudonym) [2019] VCC 128; DPP v Flancey (a pseudonym) [2021] VCC 1225.
60The sentence I am about to impose in respect of your charge is lower than the standard sentence. I have considered all relevant factors, including the standard sentence, the objective seriousness of your offending and the matters available to you in mitigation, and I have determined that the following sentence is appropriate.
Sentence
61On the charge of rape you are convicted and sentenced to three years and six months’ imprisonment.
62As 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, considering all matters including your lack of prior criminal history, relative youth and strong prospects of rehabilitation, I order that you serve a non-parole period of two years’ imprisonment. In all the relevant circumstances I am of the view that it is in the interests of justice to fix this non-parole period in your case.
63Pursuant to s 6AAA I would have sentenced you to a total effective sentence of five years and four months’ imprisonment with a non-parole period of three years and two months’ imprisonment.
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