R v Randhir Singh; R v Ajitpal Singh
[2014] ACTSC 250
•22 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Randhir Singh; R v Ajitpal Singh |
Citation: | [2014] ACTSC 250 |
Hearing Dates: | 1-5, 8 and 22 September 2014 |
DecisionDate: | 22 September 2014 |
Before: | Rares J |
Decision: | See [77]-[81] and [86]-[91] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – sentencing – jury verdicts – joint offence of abduction with intent to engage in sexual intercourse – unlawful confinement – sexual intercourse without consent – act of indecency – two offenders – five offences by each offender – three hour ordeal of victim – deportation upon release not relevant in determining sentence – use of blackmail and threats to abduct victim and negate consent – aggravating factors – presence of three, then four, males, use of blackmail and threats, anal intercourse knowingly causing pain, and knowingly traumatising victim |
Legislation Cited: | Crimes Act 1900 (ACT) Migration Act 1958 (Cth) |
Parties: | The Queen (Crown) Randhir Singh (First Offender) |
Representation: | Counsel: Ms M Jones (Crown) Mr J Sabharwal (First Offender) |
| Solicitors: Office of the ACT Director of Public Prosecutions (Crown) | |
File Numbers: | SCC 13 of 2014; SCC 14 of 2014 |
Rares J
On 8 September 2014, the jury found the offenders guilty on a total of ten of the counts in the indictment. There were four categories of offending, all of which occurred over nearly three hours on 26 September 2013. First, the jury found that each offender, jointly with each other, abducted the complainant with the intent that she should have sexual intercourse with one or other of them in contravention of s 63 of the Crimes Act 1900 (ACT). That offence carries a maximum penalty of ten years' imprisonment. Secondly, the jury found that, on separate occasions, each offender had unlawfully confined the complainant in contravention of s 34 of the Act. That offence also carries a maximum penalty of 10 years’ imprisonment. Thirdly, the jury found that Randhir Singh had committed one act of indecency on the complainant without her consent in contravention of s 60(1) of the Act. That offence carries a maximum penalty of seven years’ imprisonment. Finally, the jury convicted Randhir Singh on two counts and Ajitpal Singh on three counts of engaging in sexual intercourse with the complainant without her consent in contravention of s 54(1) of the Act. Each of those five offences carries a maximum penalty of 12 years’ imprisonment.
The trial proceeded over six days from 1 September 2014. The principal issues concerned whether, first, the offenders had made threats that forced the complainant to accompany Randhir Singh from the Kippax shopping centre to an apartment in Belconnen, and, secondly, the complainant had consented to engaging in the sexual activities to which she was subjected.
The general background
The complainant was a married woman, aged 39, with two children at the time of the offences. She had only arrived in Australia in May 2013. She discovered that her husband had had an affair while he had been here working over the previous four years. She felt isolated and vulnerable.
At the time of the offending, Randhir Singh was an Indian national, 20 years of age, who had arrived in Australia on a student visa in July 2013. He is now 21. He worked as a trolley collector for his co-offender, Ajitpal Singh. He is also an Indian national, now 31 years of age, who operated a significant trolley collection business at various shopping centres in the Territory. He held a bridging visa.
Both offenders were arrested on 11 October 2013 and have been remanded in custody since then. I take that period of remand into account in reckoning the periods of imprisonment that I will impose.
I have also taken into account the victim impact statement of the complaint as to the effect of the offending on her. The offending has made her more withdrawn from the community. She has feelings of shame, guilt and fear as a result of the text messages that she sent to Randhir Singh as I will explain shortly. She is scared of trusting people and making friends.
Randhir Singh arrived in Australia on 4 July 2013. He enrolled in an educational institution in Queensland far from Canberra where his sister, brother-in-law and their family lived. He visited them and on 15 July 2013 consulted with a general practitioner here who recorded that he had symptoms of anxiety and depression. The doctor recommended that he move to Canberra to address his mental health.
He said he had suffered bullying, bashing, and racist remarks both outside and in prison because of his distinctive appearance, including his wearing a turban as an incident of being a Sikh.
His sister and brother-in-law gave evidence of the support that they have given him since his arrival, including while he has been in prison. His parents live in a small village in India. His sister said that, because of the internet and social media, news of his arrest and conviction has spread there and the local community knows.
His parents are both in frail health, and indeed his mother is very ill. He said that he is very close to his parents but now has trouble speaking with them because of the limited communications he can have from the prison. His father lost his business assets in a flood last year. Now, his elder sister supports his family at home.
He has undertaken a number of courses and programs in prison and says that he has learned from his mistake, which I accept. He wants to join the sex offender program and take other courses in prison to become a better person.
I am satisfied that he will suffer some hardship while in prison because of his inability to have contact with his family at home in India. He has reasonable prospects of rehabilitation and has shown some insight by acknowledging that what he did was unacceptable.
Ajitpal Singh came from a poor family in India. He went to school until Year 11 and took a trade course to obtain a certificate as a boilermaker. His arranged marriage in India unravelled when the couple came to Australia in 2008 and had to live in separate cities. They subsequently divorced. His father had paid for the trip and Ajitpal Singh has tried to pay interest on the loan and provide some extra cash to support his family at home from his earnings here.
He had a falling out with a girlfriend in Sydney in mid-2009 that led to his receiving two six-month good behaviour bonds without convictions in the Local Court of New South Wales on 2 September 2009. He began a relationship with Belinda Jones, a Canberra resident, in late 2009 or early 2010, and married her on 13 June 2013, but that relationship had deteriorated by the time of the offending. By around then, he was involved in a sexual relationship with another woman.
He is a very entrepreneurial man. He owned a car at the time of the offending and, by early 2013, he had obtained a sub-contract to collect trolleys from shopping centres around the Territory. He was sending home about $400 to $500 per month to his parents when he was arrested. Now, his younger brother, in India, is supporting them.
He says that he also feels stress in gaol and has suffered bullying and racism. He was prescribed sleeping tablets by the prison doctor for his anxiety. He has not seen his family in India for six years. He says that they and his village have also learned of his arrest and conviction through the internet and social media, and he is now ashamed to go home and cannot face his family.
He also wants to participate in the sex offenders program in prison and said that if he could right the wrong he had done he would improve himself. He only has one friend who visits him every one or two months in prison. He feels that being deported will be a double punishment even though currently he has no visa to enable him to stay in Australia, other than a bridging visa E for criminal detention purposes.
Each offender will have his bridging visa E, that authorises his presence in Australia for the purposes of his criminal detention, cancelled at the completion of his custodial sentence.
Randhir Singh's student visa was cancelled on 28 October 2013 and Ajitpal Singh's bridging visa E, associated with his application for a spousal visa, was cancelled on 21 October 2013, and the spousal visa application was also refused.
Even if either offender subsequently applies for a visa authorising him to remain in Australia in the future, it is highly likely that it will not be granted because of the provisions of s 501 of the Migration Act 1958 (Cth). That is because the sentences that I will impose necessarily will result in each of them failing the character test under s 501 by reason of having being sentenced to imprisonment for more than 12 months. That will result in each offender being returned or deported to his homeland, India, once he completes the custodial period of his sentence. That consequence is the result of the application of the law to a sentence that the Court considers to be appropriate in all the circumstances. Whether the Minister exercises his or her discretion, in the future, under s 501 is not a matter that bears on the sentence that I will impose as punishment for the offending conduct.
The current visa situation of the offenders is that they have no entitlement to remain in Australia beyond serving their periods of imprisonment.
I have taken both offenders’ personal circumstances into account, but there is little in them to which I can attach much weight.
Findings as to the offending
I am satisfied beyond reasonable doubt that the jury convicted on finding the following facts.
Joint offence – Count 1
On 25 September 2013, the complainant accepted a friend request from the offender, Randhir Singh, on her telephone Tango communications application. The application allowed users to communicate with voice calls and by sending text messages and photographs. The complainant and Randhir Singh were strangers with a significant age difference. They began exchanging text messages that, over the course of the day and night, became more and more sexually explicit. The complainant arranged to meet Randhir Singh at Kippax at a bus stop near the shopping centre at noon the next day when she finished her shift at work.
Unbeknown to the complainant, Randhir Singh was discussing his exchanges with her with his co-offender and supervisor, Ajitpal Singh and a third Indian national, Jaskaran Sandhu, known as Gora. Those discussions took place throughout the day and night of 25 September 2013, as is plain from the telephone records that are in evidence.
Towards the end of the message exchanges on the night of 25 September 2013, Randhir Singh enquired whether the complainant liked threesome sex. She responded she had not tried it and did not agree then to engage in any sexual activity with anyone other than Randhir Singh. The texts also discussed the marital problems that the complainant was having and the fact that she had a son. The offenders ruthlessly exploited that information the next day.
On 26 September 2013, the complainant did not go to the bus stop rendezvous. She saw Randhir Singh, whom she recognised because of his turban, in the back seat of a silver car in which two other men, being the co-offender and Gora, were in the front seat. The three men were together in the car as part of their previous day’s plan for at least a threesome sexual encounter between the two offenders and the complainant.
She entered the Kippax shopping centre and sat on a seat. Randhir Singh followed her to the centre and sat next to her. When she told him that she had changed her mind and that she did not want to participate in the previous arrangement to have sex with him, he telephoned Ajitpal Singh and they had a short discussion. He left the complainant, went back to the car and had a further short discussion with its other occupants. The offenders agreed that Randhir Singh should return to the centre and again try to persuade the complainant to accompany him, and if she still refused, Ajitpal Singh would come to the centre and threaten the complainant that they knew where her son went to school and that he, Ajitpal Singh, would show her husband the text messages she had exchanged with Randhir Singh the previous day.
Randhir Singh then returned to the centre, located the complainant and sat down with her on the seat. He again sought to persuade her to come with him in the car so that they could follow the previous night's plan. She again refused. He then called Ajitpal Singh, and the two offenders spoke together for a short time. Immediately after, Ajitpal Singh entered the centre and walked straight to the seat where his co‑offender and the complainant were sitting. Ajitpal Singh then carried out the plan, as both offenders intended, and threatened the complainant.
In effect, the offenders blackmailed her to act against her will by using Ajitpal Singh's threats. He said that, if she would not do as they demanded, they would expose to her husband the highly compromising and indiscreet texts and the photos she had exchanged on Tango and in some way also involve her son, perhaps by also showing him what his mother had written in the texts. Ajitpal Singh then left.
The threats hit home with the complainant. She buckled to the offenders’ will. She told Randhir Singh that they were forcing her to do this and that it was all his fault. She said that she would go with him, but only in a car with just her and him, if the offenders would not show the texts to her husband.
Once he knew that the complainant would now accompany him, Randhir Singh telephoned Ajitpal Singh at about 12.31 pm and told him of the position and that they had to get him a car in which to drive the complainant to the apartment. However, both offenders intended that they and Gora would be at the apartment when the complainant was there. The offenders then communicated over the next 45 minutes with each other, monitoring progress on the arrangement to get the complainant to accompany Randhir Singh to the apartment. In that way, the offenders made and carried out their agreement to force the complainant, by means of blackmailing her through the two potent threats that Ajitpal Singh had made to her, to abduct her from the Kippax shopping centre. Both offenders intended that she should engage in sexual intercourse with one or other of them.
The offenders were well aware of the effect of the blackmail throughout what followed. They knew that the threats had intimidated the complainant into submission. The offenders' use of blackmail to make the complainant submit to their will deliberately exploited the vulnerability of the complainant. The mere fact that neither offender used physical force at this point does not detract from the objective seriousness of their offending on the joint count. The offenders knew and planned that the complainant would find their threats as overwhelming, so that she would be theirs to do as they wished. And, that is what they did. The nature of their offending on the first offence is between the middle and upper end of the objective seriousness of the offence under s 63.
I will now deal with the separate offences that each offender committed.
Count 3
Once a separate car had arrived, Randhir Singh took the complainant in it. He asked her during this journey to suck him while they were driving. He applied, in her words, a little bit of force to the back of her head to guide her mouth towards his exposed erect penis. He forced her to engage in the act of fellatio, being sexual intercourse without consent. He knew that the only reason that she was in the car and compliant was because of the intimidatory effect of the earlier threats.
This offence was of short duration. It was not, however, minor. The complainant could not escape from the moving car. I am satisfied that the third count was an offence in the mid-range of objective seriousness, but toward the lower end.
Count 4
When the car carrying Randhir Singh and the complainant arrived in the secure underground carpark of the Belconnen apartment building, he told her that he wanted to have sex in the car. He left the driver's side of the car, walked around to the passenger side and opened the door. He pulled her pants down to some extent and made the complainant's seat recline. The complainant managed to keep her lower clothing sufficiently on to prevent the offender being able to position himself in a way that he could penetrate her. She felt his erect penis on her knees. This activity lasted for between one and a few minutes. When he realised that he could not have sexual intercourse in those circumstances, they got dressed and he guided her to the lift. That was the act of indecency.
Randhir Singh knew that the complainant did not consent to this conduct and was only there because of the continuing effect of the blackmail. I note that in 2011 the Legislative Assembly increased the penalty for an act of indecency offence under s 60(1) from five to seven years’ imprisonment. I am satisfied that this offence was in the lower end of the mid-range of objective seriousness.
Count 5
Gora was in the carpark and accompanied the complainant and Randhir Singh in the lift. The three entered the apartment. The complainant did not know that Ajitpal Singh was also in the carpark, sitting in his car at that time.
After arriving in the apartment, the complainant repeatedly asked Randhir Singh to let her go. She told him that she had agreed to go with him but not with others. She only knew that Gora and the man who had been asleep in the bedroom, Sam Wise Jones, were in the apartment at that time. That was reason enough to make her more intimidated and apprehensive.
Randhir Singh took her into the bedroom. She did not know that, shortly after she had gone to the bedroom, Ajitpal Singh had also entered the apartment. I am satisfied beyond reasonable doubt that when he went into the bedroom, Randhir Singh knew that Ajitpal Singh either was in the apartment or would soon be there.
The purpose for which Randhir Singh took the complainant to the apartment and kept her there was to have sexual intercourse with her. He knew that with three men present, namely, himself, Gora and Sam Wise Jones, she could not expect to be able to get away unless he let her, and that was not his intention, at least not until he had achieved his purpose.
I am satisfied that Randhir Singh unlawfully confined the complainant in the apartment in those circumstances and that his offending was in the higher end of the objective range of seriousness of the offence under s 34.
The offence was not of long duration, but it achieved the offender's purpose; that is, he had sexual intercourse without consent with the complainant while he had unlawfully confined her in the apartment.
Count 6
The final offence that Randhir Singh committed was to engage in sexual intercourse with the complainant in the bedroom. That occurred without her consent. He tried to kiss her for about a minute, but she told him that she did not like it. He then guided her to the bed, pulled her pants down and got the complainant to lie down. He undressed and got on top of her.
She told him, while he was penetrating her, that she did not like it, but he was determined to get what he wanted. That act of sexual intercourse lasted less than 10 minutes and probably lasted until Randhir Singh ejaculated. That is because the forensic evidence has his semen located at least on the complainant's underwear, which she put on shortly afterwards. Their activity was interrupted at about 1.52 pm when Gora took two photographs of the complainant on the bed in a state of undress and obvious distress using Ajitpal Singh's iPhone.
Non-consensual sexual intercourse without additional violence is itself an extreme form of violence against the victim. The victim is made, against her or his will, to engage in an activity that violates the victim. The Legislative Assembly has created three separate offences in ss 51, 52 and 53 of the Act that deal specifically with differing degrees of physical violence, and so establish various categories of physical acts of assault accompanying sexual intercourse without consent.
The physical act of penetration of a victim's body is, as the offence created by s 54(1) recognises, a very serious offence in itself.
Here the complainant was a woman who was begging to be allowed to leave, saying that she did not like the penetration by Randhir Singh as it was happening and who believed that she was in an apartment with two men other than him.
Moreover, I am satisfied that Randhir Singh did not use a condom and took no steps to guard himself against transmitting any sexual disease he may have had or causing the complainant to be exposed to any risk of pregnancy. There is no evidence of either of those risks having been present, but the failure to use the condom is, in my opinion, an aggravating factor in addition to those that I have referred to. These matters leave me to be satisfied that the offence is at the higher end of the objective seriousness for this offence.
After Gora took the photographs, Randhir Singh put some clothes on and went into the other room. The complainant heard raised voices in another language that suggested that the men were arguing. Randhir Singh returned to the room and the complainant, who had dressed again, begged him to let her go out of the building. She was crying. He responded, “Sorry for everything. I didn't know that this would happen.” He picked up his clothes and left her to her fate with his co-offender.
Your counsel submitted that you had demonstrated remorse because, at 4.10 pm on 26 September 2013, you sent the complainant a text message on Tango in which you said, “I m sorry they hv cheated with me sry for everything n I think nw u dnt msg me eva but it will be fine for me by tc”, which I infer means “take care”. I do not place weight on this as a genuine expression of regret at the time. It rings very hollow, having regard to the execution of the plan to abduct the complainant and your abandonment of her to your co-offender when you left the bedroom.
I am unable to perceive how anyone cheated with you. Rather, the text reads as an attempt by the offender to distance himself from what he knew was his responsibility for the position in which he had deliberately placed the complainant.
I am satisfied beyond reasonable doubt that Randhir Singh left the complainant in the bedroom knowing full well that Ajitpal Singh intended to engage in sexual intercourse with her next. It was a callous act of abandonment on Randhir Singh's part. The complainant was already obviously traumatised. By then she was contemplating jumping from the 14th floor apartment.
Count 7
Next, Ajitpal Singh unlawfully confined the complainant. That offending was the second count that the jury found against him. He came into the bedroom and found the complainant trying to hide in a cupboard in a state of obvious distress, crying loudly. He told her to calm down. Now she realised that four, not three men, were in the apartment. He went outside to get her a drink of some sort, which she refused when he returned.
While outside, at about 2.17 pm, he sent the two photos that Gora had taken on his iPhone to Gora's phone. He told the complainant that he was the “real boss” rather than his co-offender. He tried to comfort the complainant by touching her gently and telling her falsely that everything was okay. He told her that he wanted to go to bed with her “with this” when placing his hand on her chest over her heart. The complaint was crying, sobbing loudly and uncontrollably as I saw her in the witness box doing. She asked how he could expect her to do so in that situation.
He told her that he had been the one who had sent her the text messages and that Randhir Singh was "just following my orders". He told her that he knew her husband and could cause the husband to lose his job. He reinforced the earlier threats he had made at the Kippax shopping centre, saying that he would show the texts to her husband.
Ajitpal Singh told the complainant that the men in the other room were going to follow his orders and if he told them not to come inside the room they would not. He said that he would take her to Sydney. The complainant continued to cry throughout the ordeal and to beg to be let go. She only escaped at about 3.25 pm when the offender fell asleep and Sam Wise Jones awoke and heard her sobbing in the bedroom.
The unlawful confinement by Ajitpal Singh lasted about one and a half hours, during which time he engaged in the three acts of sexual intercourse comprising the remaining offences. I reject your counsel's submission that your purpose in confining the complainant to have sexual intercourse only amounted to a crime in the mid-range of seriousness. I am satisfied that the unlawful confinement was at the high end of objective seriousness for the offence under s 34.
You told the complainant that the three men in the other room would follow your orders. You knew that she was distraught, sobbing and afraid. You were determined to keep her in the bedroom and have sexual intercourse with her as you pleased and you effectively did so, holding her as your prisoner. Your conduct was deliberate, premeditated and unspeakably callous.
Count 9
Ajitpal Singh’s third offence, being the ninth count on the indictment, was to engage in penile-vaginal sexual intercourse with the complainant without her consent. He guided the complainant to the bed and undressed her. She continued crying loudly and out of control, as she did when giving evidence. She continually begged throughout her ordeal at your hands to be let go. You got on top of her, facing each other and penetrated her vagina with your penis. She moved around trying to resist. She told you that she did not like what you were doing but you persisted. As the complainant was moving about trying to resist, the bed collapsed at the far end.
I am satisfied that this first occasion of sexual intercourse was at the higher end of objective seriousness for an offence under s 54(1). You had reiterated your threat to tell the complainant's husband about the text messages. You knew that she was distraught and that she did not consent. You told her that the three men outside the bedroom would follow your orders. You knew that she had seen Gora take the photographs of her with your co-offender and that this added to her apprehension of what you could show her family. Like your co‑offender, you did not bother to use a condom while you violated the complainant.
Count 10
Your next offence occurred after the bed collapsed. You told the complainant to get on top of you but she refused. You got her to face toward the broken foot of the bed when you positioned yourself behind her and again inserted your penis into her vagina.
The medical evidence is clear that you ejaculated inside her vagina, but it is not possible to determine whether this occurred once or both times you penetrated her that way. Dr Eldridge’s report observed that there was a large amount of semen in her vagina, and the DNA evidence clearly connected it to you.
She continued to sob loudly but stopped her acts of resistance on this occasion. As far as you were concerned, this was a continuation of your determination to engage in sexual intercourse with the complainant, knowing that she was not consenting. I am satisfied that this offence, too, is at the higher end of objective seriousness for an offence under s 54(1) for the same reasons of the prior offence, but was aggravated by your continuation of the complainant's ordeal by this act.
Count 11
The last offence was your act of penile-anal intercourse with the complainant. The medical evidence provided clear, independent corroboration of the complainant's account that she had been subjected to this form of intercourse. She said that she did not know if you did this accidentally. I am satisfied beyond reasonable doubt that you did it deliberately. The complainant told you that what you were doing was painful and you told her it was not. She said that you inserted your penis twice into her anus and caused her pain.
Dr Eldridge recorded observing blood on the anal swab. I am satisfied beyond reasonable doubt that the blood resulted from the trauma caused to the complainant's rectum by the anal intercourse.
The act of anal penetration was at the higher end of objective seriousness for an offence under s 54(1). Not only were the other aggravating factors for which your first two offences of sexual intercourse without consent present, but you knew you were causing the complainant physical pain and continued to do what you wanted regardless of how she was suffering. It was the final act of humiliation that you inflicted on her before you fell asleep and she was able to escape.
Consideration
The purposes for which the Court imposes a penalty are to ensure that the offender is adequately punished for the offence or offences in a way that is just and appropriate to prevent crime, deterring both the offender and others from committing the same or similar crimes, to protect the community from the offender, to promote the offender's rehabilitation, to make him or her accountable for his actions, to denounce his conduct and to recognise the harm done to the complainant.
It is important that the conduct of both offenders be denounced to the community and that there be a general warning to deter others from misusing the internet and dating sites and communication applications. Persons such as the complainant can become vulnerable to exploitation by others by being ingenuous in their revelations of themselves on the internet when dealing with strangers.
Each offender has been convicted of five offences. Each offence, in itself, is a very serious offence. I have considered whether any of the alternatives to full time imprisonment is appropriate for each offence but have concluded that each occasion of offending conduct can only be punished appropriately by imprisonment. Abduction, unlawful confinement, acts of indecency and sexual intercourse, in the circumstances of this case, all without the consent of the victim, are crimes that in the circumstances require condign punishment by imprisonment.
The offenders deprived the complainant of her liberty and her dignity. They engaged in numerous sexual acts with her without her consent, praying on her vulnerability, fear and their power of blackmail over her in circumstances where she had effectively no real means of escape.
I am mindful that each of the five offences committed by each offender form part of his entire course of conduct in the early afternoon of 26 September 2013.
The joint offence of abduction involved a plan that one offender would engage in sexual intercourse with the complainant. That activity also contemplated the possibility of one or other offender engaging in an act of indecency as well as unlawfully confining the complainant while each offender carried out his intended sexual activities.
Randhir Singh
In Randhir Singh's case, I am satisfied that these are first offences. You were a young man of 20 years of age at the time and a student. Your boss was your co‑offender, and you felt, I infer, somewhat under his influence. You chose to involve your co‑offender on 25 September 2013 by telling him all about the texts with the complainant and copying him with the complainant's photos, knowing that he wanted to take advantage of the opportunity that was developing, and that is why you sent her the texts about a threesome and arrived at the Kippax shopping centre on 26 September 2013 in company with Ajitpal Singh and Gora.
Despite your youth, you must have appreciated, at least when the complainant said to you in the Kippax shopping centre that she no longer wished to go with you, that she had the right to say no. You determined, with your co‑offender, to blackmail her into going with you, intending that you or he would have sexual intercourse with her. In my opinion, your youth and position as an employee of your co‑offender made your conduct in abducting the complainant under count 1 marginally less serious than that of Ajitpal Singh.
Will you stand up, please. I sentence to you to imprisonment on count 1 for six years. Your sentence for forcing the complainant to engage in fellatio with you in the car played on her vulnerability to the threats that you and your co‑offender had made. I sentence you to a term of five years’ imprisonment for that offence. This was a new and distinct offence, but it was part of a course of conduct that you intended or contemplated would occur once you had abducted the complainant. In my opinion, this factor requires that some part of this sentence and the subsequent ones that I will impose be served consecutively. However, I also need to consider the overall sentence that is appropriate in all of the circumstances in order to decide the additional terms.
On your third offence of engaging in an act of indecency, I sentence you to two and a half years’ imprisonment. For the fourth offence of unlawful confinement, I accept that you did not anticipate that Gora would take the photographs of the complainant, but your act of leaving her crying and begging to leave was callous. I sentence you to six years' imprisonment.
On your final offence of sexual intercourse without consent, I sentence you to seven years’ imprisonment.
The sentence for the second offence should be concurrent with that for the first, except for the last nine months. In other words, there should be an extension of nine more months to the imprisonment. The sentence for the third offence should be concurrent, except for the last three months, which will be consecutive on the head sentence. The sentence for the fourth offence, of unlawful confinement, should be concurrent, except for the last six months, which should be added to the head sentence. The sentence for the final offence of sexual intercourse should be concurrent, except for the last six months.
The overall effect is that there will be a head sentence of eight years that will expire on 10 October 2021. In my opinion, you should be eligible for parole after serving a minimum term of five and a half years that will expire on 10 April 2019. You may sit down.
Ajitpal Singh
Ajitpal Singh, you accumulated a small criminal history during the period between 2009 and 2011 both in New South Wales, as I have mentioned, and in this Territory, for offences of driving while disqualified, disobeying a traffic sign and twice driving with more than the prescribed concentration of alcohol in your blood. However, you have not been previously sentenced to imprisonment. I take your prior sentences into account. You have previously been supporting your family in India. You may not be able to return to your small village where your family lives in India because of your feelings of shame and their embarrassment when you leave Australia. I have taken into account those matters. However, you have shown no remorse for the very disturbing nature of your crimes.
I am satisfied beyond reasonable doubt that you were the ringleader in the joint offence of the abduction of the complainant. You were the boss of your co-offender and Gora. You are much older than your co-offender. You were present at the Kippax shopping centre because you intended in to engage in sexual intercourse with the complainant. You suggested the threesome in the text messages and you decided to blackmail the complainant when she told your co-offender at Kippax that she did not wish to proceed. You were determined to get her to the apartment and you did. I sentence you to imprisonment for the joint offence for seven years.
Your offence of unlawfully confining the complainant was plainly particularly callous. You made her endure over one and a half hours of imprisonment while you used her to satisfy your lust. You ignored her continuing evident deep distress and her pleas to be let go. You told her that the three men outside the door followed your orders. You repeated your blackmailing threats while subjecting her to a dreadful ordeal. I sentence you for the offence of unlawful confinement to eight and a half years’ imprisonment.
Each of your three remaining offences were part of a course of conduct on which you had embarked with your first two offences. They occurred over one and a half hours, however, each of the offences of engaging in sexual intercourse without the complainant’s consent was an individual act of sexual violence that requires its individual distinct punishment.
For the first offence under s 54(1) of sexual intercourse without consent, I sentence you to eight years’ imprisonment.
Despite the complainant’s attempts to resist your violation of her leading to the collapse of the bed and her continuing distress, you committed the second offence of engaging in sexual intercourse, knowing that she was not consenting. On that offence, I sentence you to eight years’ imprisonment.
The final offence of anal intercourse was, in my opinion, more serious and sexually violent than the other two. You persisted in forcing yourself on the complainant, despite her telling you that what you were doing was painful. You treated her inhumanely. I sentence you for the offence of anal intercourse to 10 years’ imprisonment.
The sentence for the second offence, being unlawful confinement, should be concurrent with the head sentence except for the last year. For ease of calculation of the overall sentence, I will treat this sentence as having been imposed last in the sequence of the 5 counts. The sentences for each of the third and fourth offences should be concurrent on the head sentence, except for, in each case, the last year. And the sentence for the final offence of anal intercourse will be concurrent on the head sentence except for the last two years.
Having regard to the fact that all five offences were committed as part of a course of conduct of offences of the same or similar character and all the other circumstances, the appropriate total term of imprisonment that you should serve is 12 years with a non-parole period of eight years. The head sentence should start from 11 October 2013.
The overall effect is that the head sentence of 12 years will expire on 10 October 2025 and you will be eligible for parole on 10 October 2021.
You may take the offenders away.
| I certify that the preceding ninety-two [92] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Rares. Associate: Date: 25 September 2014 |
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