R v Batagoda (No 2)
[2018] ACTSC 54
•7 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Batagoda (No 2) |
Citation: | [2018] ACTSC 54 |
Hearing Date: | 7 March 2018 |
DecisionDate: | 7 March 2018 |
Before: | Elkaim J |
Decision: | See [36] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – act of indecency in the presence of a young person – guilty pleas |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10 |
Cases Cited: | Director of Public Prosecutions (DPP) v Dalgliesh [2017] HCA 41; 349 ALR 37 |
Parties: | The Queen (Crown) Sunil Batagoda (Offender) |
Representation: | Counsel Mr A Williamson (Crown) Mr J Stewart (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 70 of 2017 |
ELKAIM J:
On 30 October 2017, the offender pleaded guilty to five of 26 counts in an indictment dated 22 June 2017. The pleas were accepted in full satisfaction of the indictment.
I accept that the offender should be given a discount for his pleas of guilty. The victims have been spared from giving evidence and there has been a saving of court time and resources. It is also important that persons facing trial are aware that if they enter pleas of guilty they will receive a discount on their sentence. If this were not the case, there would be limited incentive for guilty pleas to be entered. Notwithstanding that the pleas were entered only some two weeks before the trial, I think their utilitarian value was significant. I intend to allow a discount of 20%.
The offender is also entitled to some leniency for his lack of criminal record. There is not much else in this case that is in his favour. I will deal below with the suggestion that he may be entitled to a degree of leniency arising from his assistance in a separate matter.
The offender is to be sentenced in respect of four counts of sexual intercourse with a young person under the age of 16 and one count of an act of indecency in the presence of a young person. It is important to note that the counts reflect the ‘rolling up’ of a number of individual offences.
The offence of sexual intercourse with a young person carries a maximum penalty of 14 years’ imprisonment. The offence of an act of indecency with a young person carries a maximum penalty of 10 years’ imprisonment.
The maximum terms of imprisonment are an indication of the seriousness with which offences of this type must be taken. The prevalence of these type of offences, both historically and currently, is such that general deterrence is particularly important. Any person who takes advantage of an underage person must know that, when apprehended, he or she will be dealt with severely. The presence of rolled up counts must also influence the court in this regard.
The offender was born in 1955. He was, therefore, about 61 years old when he committed the offences. The victims were 14 and 15 years old at the time. This is a substantial age difference.
The offender was born in Sri Lanka. He was one of 11 children. He had a stable upbringing, although his family experienced poverty. The personal history set out in the Forensic Mental Health Report (‘FMHR’) is not entirely consistent with that contained in the Pre-Sentence Report. The FMHR contains reference to the offender’s father being violent to his mother and to him being frequently caned as a child.
The offender was involved in politics in Sri Lanka and worked as a superintendent at a tea plantation. Ultimately, his political views caused him to seek asylum in Australia. He reported an occasion where he was in the company of people who were shot at a political rally.
The offender has worked in Australia as a political advisor. He is now a widower. He is estranged from his son as a result of these offences.
The offender has a medical history that includes a minor heart attack, Type 2 diabetes and injuries sustained in a car accident in 2016. Details can be found in a report from his General Practitioner (Ex A).
The offender tendered statistics from the World Health Organisation concerning life expectancies in Sri Lanka and Australia (Ex B). It was submitted that I should not impose a sentence that was so long that the offender would die in prison. Firstly, I think that consideration is irrelevant. Secondly, the tables do not contemplate the life expectancy of a person who has grown up in Sri Lanka and then migrated to Australia and had the benefit, as this offender has, of local medical facilities. Thirdly, the life expectancies are determined as at the date of birth. In other words, a male born in Australia could expect to live until the age of 81. However, a male living in Australia who has reached the age of 62 can, according to medium life expectancy tables, expect to live a further 24 years.
The offender has also had some mental health issues. However, the FMHR states:
[The offender] does not currently present as experiencing moderate to severe mental health issues. If bailed to the community, he is unlikely to meet the criteria for intervention from a community mental health team, and would be most appropriately managed by a general practitioner.
The offender’s attitude to the offences, as outlined in the Pre-Sentence Report and the FMHR, is of some concern. The offender has sought to minimise his involvement and, to some degree, pass on the blame to the victims. For example, the FMHR states:
Mr Batagoda then explicitly endorsed that it was less serious for him to have sexual relationships with the victims because he believed them to be promiscuous.
The perceived promiscuity of the victims is entirely irrelevant. They were 14 to 15 years of age. It was submitted that I should take into account the precociousness of the victims in seeking out favours from the offender. I disagree. The evidence overwhelmingly demonstrates that the offender made a concerted effort to befriend the victims, ply them with cash, alcohol and drugs and then effectively extort sexual favours from them. The offender took advantage of the victims and obtained sexual gratification from them. In my view, the offences are objectively serious.
Besides the matters I have referred to above, it is also necessary for me to have regard to the objects and purposes of sentencing, set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is also relevant, although I note that it was not submitted that a penalty other than imprisonment is appropriate in this case.
To the extent that it is necessary for me to have regard to current sentencing practices, I have done so. However, I note that the High Court has recently restated that each case must be dealt with on its individual facts (Director of Public Prosecutions (DPP) v Dalgliesh [2018] HCA 41; 349 ALR 37 (‘Dalgliesh’)).
I have also considered the sentencing statistics provided to me, which have their source in cases decided in the Australian Capital Territory and New South Wales. The Crown has fairly and appropriately pointed out that there are no individual sentences in excess of three years in the Australian Capital Territory.
The Crown has, however, urged me to view the sentencing practice in the Australian Capital Territory as lenient. I was reminded that the High Court in Dalgliesh specifically instructs judges to look beyond the confines of the state or territory in which they are sitting. The approach that I will take is that advocated above; namely, to treat this case according to its individual characteristics.
The offences are set out in detail in the Statement of Facts. I think it necessary, however, to make some brief reference to the facts to demonstrate why I have reached the conclusion that the offences were objectively serious.
The five counts to which the offender has pleaded guilty in satisfaction of the indictment relate to four separate victims.
Count 2: Ms A was 15 years old. The offender forced Ms A to perform oral sex on him.
Count 7: Ms B was 14 years old at the time of the offence. Ms B performed oral sex on the offender. Despite her entreaties for him not to do so, he ejaculated in her mouth. Some of the sexual acts against this victim were committed in the presence of another victim, Ms C.
Count 14: Ms B was still 14 years old. The offender engaged in unprotected penile-vaginal intercourse with Ms B, as well as oral sex. She was not a willing participant.
Count 19: Ms C was 15 years old. The offender engaged in unprotected penile-vaginal intercourse with Ms C. He also asked her to manually masturbate him.
Count 26: Ms D was 15 years old. The victim woke up to discover the offender standing over her, masturbating and touching her breasts.
It is difficult to assess the comparative seriousness of the offences of sexual intercourse with a young person. However, because of the dangers of unprotected penile-vaginal intercourse, I regard Counts 14 and 19 as the most serious offences.
Counsel for offender noted that the offender voluntarily gave evidence for the Crown in a separate case. In that matter, it was alleged that a friend of the father of one of the victims attended the offender’s residence, with two companions, with the intention of entering the building to cause harm, or threatening to cause harm, to the offender. I presided over the trial with a jury. The three accused were acquitted.
In the course of the trial, the offender gave evidence about the events of that night. It is impossible for me to say whether the acquittal was a result of the jury not accepting the accused’s version of events. The important point is that the three accused visited the residence as a result of the offender’s appalling criminal conduct. It would, arguably, be an inconsistent and unjust consequence if the offender were to obtain some leniency for having given evidence in this matter.
On the other hand, the Crown did decide to prosecute the three men and the offender did cooperate. I think that this fact should be taken into account, although its significance is limited.
On the question of concurrency and accumulation, although the offences might be seen as occurring as part of a single course of conduct, it is also important to recognise that there are four separate victims who are entitled to see that the crimes committed against them receive separate punishment. It would, however, offend the principles of totality, and result in a crushing head sentence, if each of the sentences was accumulated. Accordingly, there will be a degree of both concurrency and accumulation.
The offender has been in custody since 21 February 2017. The terms of imprisonment will be backdated to this date.
I think the appropriate terms of imprisonment for Counts 2 and 7 are two years and four months (reduced by approximately 20% from three years). Counts 14 and 19 will attract terms of imprisonment of three years and two months (reduced by approximately 20% from four years).
Count 26 will attract a term of imprisonment of one year and two months (reduced by approximately 20% from 18 months).
The partial accumulation will result in a head sentence of seven years. A Non-Parole Period of five years will be set.
I make the following orders:
(a)In respect of count 2, sexual intercourse with a young person (CC 2017/2434), the offender is sentenced to two years and four months’ imprisonment commencing on 21 February 2017 and ending on 20 June 2019.
(b)In respect of count 7, sexual intercourse with a young person (XO 2017/31154), the offender is sentenced to two years and four months’ imprisonment commencing on 21 February 2018 and ending on 20 June 2020.
(c)In respect of count 14, sexual intercourse with a young person (XO 2017/31161), the offender is sentenced to three years and two months’ imprisonment commencing on 21 February 2019 and ending on 20 April 2022.
(d)In respect of count 19, sexual intercourse with a young person (XO 2017/31166), the offender is sentenced to three years and two months’ imprisonment commencing on 21 February 2020 and ending on 20 April 2023.
(e)In respect of count 26, act of indecency in the presence of a young person (XO 2017/31173), the offender is sentenced to one year and two months’ imprisonment commencing on 21 December 2022 and ending on 20 February 2024.
(f)The total sentence is seven years’ imprisonment commencing on 21 February 2017 and ending on 20 February 2024.
(g)I impose a Non-Parole Period of five years commencing on 21 February 2017 and ending on 20 February 2022.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 7 March 2018 |
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