Sentence - found guilty by jury verdict - rape (2 charges), make threat to kill (2 charges) and intentionally cause injury (2 charges)
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Sentence - found guilty by jury verdict - rape (2 charges), make threat to kill (2 charges) and intentionally cause injury (2 charges)
Judgment (6 paragraphs)
[1]
Sentence: Total effective sentence of nine years and six months. Non parole period of six years and six months.
[2]
Sandeep Kapoor[1], you have been found guilty by jury verdict of two charges of rape, for which the maximum penalty is a term of imprisonment of 25 years, two charges of making a threat to kill, for which the maximum penalty is a term of imprisonment of 10 years, and one charge of intentionally cause injury, for which the maximum penalty is also a term of imprisonment for 10 years.
I ordered your direct acquittal on a further charge of rape, which was Charge 2.
The charge of rape is a Category 1 offence, and the court must impose a custodial order pursuant to s5(2G) of the Sentencing and a combination sentence is unavailable pursuant to of the .
The offence of rape is a standard sentence offence and the standard sentence is 10 years' imprisonment.
The jury clearly accepted beyond reasonable doubt the evidence given by your former wife, Ms Aisha Kapoor[2], and rejected your denials in your record of interview. In accordance with the jury verdict, I find the circumstances of your offending as follows.
You married Ms Kapoor in India in 2017. It was an arranged marriage, as is common in Indian culture. She came to live with you and your parents in Melbourne[3] in September 2017. Ms Kapoor entered this country on a visitor's visa, which required her to leave and re-enter the country every three months.
From the outset you and your parents were cruel and controlling of her. She was not allowed to leave the house unaccompanied, she did not have a mobile phone. She was unable to freely contact her sisters here in Australia. She had to do all the cooking and the cleaning.
You regularly abused her physically and verbally and threatened to send her back to India. You were also financially abusive to her and in around May 2018 made her sign a pre-nuptial agreement that she did not understand.
You sexually abused her. You would expect sex from her whenever you wanted. You subjected her to degrading demands such as making her sleep on the floor or at the end of the bed. When she was menstruating, you would force her to suck your penis or use her hands. You told her she had no right to say no to you. You told her words to the effect that she was a slave, and you were a king.
You and Ms Kapoor travelled to Europe in December 2017. You were physically and sexually abusive to her on this trip, including an occasion when you penetrated her vagina with your finger and then with your penis when you were drunk, and she was not consenting. You made her post images to her Facebook account depicting you as a happy couple. You said this would be 'proof' so that if she ever complained about you no-one would believe her.
In March 2018, Ms Kapoor was again required to leave the country as a condition of her visitor's visa. She went to India with your mother. When she returned in March 2018, you grabbed her around the neck and threw her onto a table. You slapped her face and complained about the way she had spoken to your sister in India. You told her that if she spoke like that again to anyone, you would divorce her and kill her. As a result of that assault, Ms Kapoor sustained a red mark on her forehead and bruises and marks on her body.
In June 2018, Ms Kapoor again had to leave Australia to comply with the conditions of her visitor's Visa. You took her to Bali. While you were away, Ms Kapoor was not allowed to look at any other person. While you were away, Ms Kapoor got her period. You were upset and angry with her. You forced her to have sex with you, and verbally abused her when there were blood stains on the hotel bed sheets.
In August 2018 at the family home in Melbourne you raped her anally. Ms Kapoor was distressed and in pain. Ms Kapoor gave evidence that she had pain and bleeding from her anus, which according to Dr Marceglia was indicative of an anal fissure. Ms Kapoor spoke to your mother the next day, asking her to get medical help, which she refused.
You travelled together to India in August 2018. You threatened her there would be consequences if she spoke to her family about you. You were abusive and controlling during this trip.
When you came back to Australia you continued to mistreat Ms Kapoor.
In October 2018 she was diagnosed with ovarian cysts and required surgery. On 29 October she had the surgery. You and your mother instructed her not to speak with anyone at the hospital.
At approximately 6:30am on 8 December 2018, Ms Kapoor was sleeping in a cupboard after an argument with you. In the cupboard your raped her by inserting your penis into her vagina without her consent.
Later that same day, you were in an agitated state and demanded money from Ms Kapoor, for the construction of her sister and brother-in-law's residential premises. You were involved with the construction and claimed they owed you money
You threatened Ms Kapoor that you would kill her and her sister saying: "I will kill you and your sister; I have links, I can just give them one look and they will do the job for me." Ms Kapoor felt immediate fear for her safety and for the safety of her sister.
At approximately 11:00pm that same day, you were still angry and were abusing Ms Kapoor, telling her to go and have sex with her father or her brother. You grabbed Ms Kapoor by the hair and slapped her face hard, she described it as being with a great amount of force. She was dizzy and in pain. The next day she could still see the marks on her face. You continued to hold onto Ms Kapoor's hair as she tried to get away from you. Ms Kapoor began screaming out of pain and fear and her screams were overheard by the neighbour, Rebecca Chen[4].
The following day after you had inadvertently left the house key at the front door, Ms Kapoor escaped. She arrived at Ms Chen's house in a highly distressed state and collapsed onto the floor. Police were contacted. Ms Kapoor made a statement but did not in this initial statement disclose sexual abuse.
You were arrested on 23 January 2019. You were interviewed by police, you denied the allegations and denied having mistreated Ms Kapoor in any way. You were re-interviewed on 19 December 2019 after Ms Kapoor had made allegations of sexual abuse and again you denied all allegations and any abusive behaviour.
Ms Kapoor has made a victim impact statement. She says she has been deeply affected by your abuse. She said during her marriage to you she felt as though her life had ended. She says her mother died while she was married to you and she was unable to see her before she died. She says she still fears you. She says she has lost trust in people. Ms Kapoor had been married and divorced before she met and married you. She has now divorced you. She says divorced women are stigmatised in the Indian community and she says because of this she is socially isolated here in Australia.
I turn now to your personal circumstances.
You were born in December 1984 and you are presently 39 years old.
You were born in Punjab in India. You have one sister. You have a close relationship with your parents and your sister.
You completed your secondary schooling in India. You came to Australia in 2003. You studied a Diploma of Business and a Bachelor of Business at the University of Ballarat. You drove taxis before you purchased a liquor retail outlet in 2009.
You are an Australian citizen. You sponsored your parents to come here on parental visas. You lived with your parents at the property in Melbourne.
Your parents are both now in their seventies and both suffer a number of health conditions. Your father has hypertension and arthritis. Your mother has a heart condition, diabetes, arthritis and has problems with her eyes and kidneys. Both have limited mobility. Although, as was apparent in the trial evidence, your father did work at your shop earlier, he no longer does, and both your parents are financially dependent on you.
You conviction and imprisonment has left your parents in a very difficult and distressing situation and your business in disarray. You put no arrangements in place in case you went into custody. Your parents were financially dependent on you. They are currently living off dwindling savings in order to pay the mortgage and attempting to keep your business afloat. You fear they will have to either return to India or may die while you are in custody.
You have no prior convictions and no matters pending. You are otherwise a person of good character.
Turning now to the submissions.
Mr Smallwood who appeared on your behalf relied upon the following matters in mitigation of sentence.
First, that you have no prior or subsequent convictions. He submitted the sentencing principles of specific deterrence and community protection are not engaged in sentencing you.
Second, he relied upon the considerable delay in the finalisation of this matter. You were first interviewed in January 2019 which is now over four years ago. He submitted that you have not reoffended during this period and the stress of the matter hanging over your head all this time has caused you considerable stress and anguish.
He submitted you will endure additional hardship in prison due to a combination of factors. First, this is your time in custody. Secondly, prison continues to have restrictions in place to deal with the COVID 19 pandemic. And thirdly, you worry about your parents' situation.
He submitted much of your abuse of Ms Kapoor was uncharged conduct for which you did not fall to be sentenced, although he acknowledged its relevance in my assessment on the effects on the victim and to my assessment of your moral culpability.
Mr Smallwood acknowledged the inevitability of a sentence of imprisonment.
Mr Grant on behalf of the prosecution submitted that your offending represented a significant breach of trust and occurred in a context of ongoing abuse. Mr Grant submitted Ms Kapoor was entitled to feel safe and protected as your wife and a family member instead of threatened, hurt and humiliated by you.
He referred me to a number of comparator cases which consider the principles of sentencing in cases of rape where the offender and the victim were married.[5]
I turn now to my own assessment of the objective gravity of your offending and your moral culpability.
Your offending occurred in circumstances where you isolated and effectively imprisoned Ms Kapoor in the family home and showed her no love, no respect and afforded her no personal autonomy or dignity. You well understood and exploited her vulnerability as woman living in a foreign country, holding only a visitor's visa, and fearful of being sent back to India by you, knowing the stigma she faced as a woman twice divorced.
Your cruelty to her was appalling. There was nothing in the evidence to suggest Ms Kapoor did anything other than try and meet your demands, until she could take no more.
The rapes were committed in circumstances where you treated Ms Kapoor as your property and not as a person worthy of respect. The anal rape caused her pain and injury. The second occasion of rape occurred in a cupboard where she was forced to take refuge from your abuse. The Court of Appeal has described such conduct by a husband to his wife as abhorrent and not to be tolerated.[6]
I regard the charges of rape as objectively serious examples of that crime.
The charges of threat to kill and intentionally cause injury are also serious examples of these offences. Your threats to kill were in graphic terms and involved not only Ms Kapoor but also her sister, and violence perpetrated by a man on a defenceless woman is always serious.
Your moral culpability is high.
The principles of both general and specific deterrence, denunciation and just punishment are all engaged in sentencing you. The message must be sent by the sentence I impose, that male violence against women will not be tolerated by the courts, and that marriage is a relationship of partnership and respect and not of dominion and subjugation. That message must also be sent to you. You cannot treat any future partner the way you treated Ms Kapoor.
You are without remorse or insight into your offending. You are not to be punished for that, but it is relevant to my assessment of your prospects of rehabilitation. Part of the reason you were unable to contemplate that you might be convicted for this offending has been your unshakable belief that Ms Kapoor would not be believed. You have expressed your astonishment at your conviction by repeatedly asserting there was no evidence against you. You could not imagine that Ms Kapoor's evidence was capable of belief. This attitude is a further indication of your complete lack of respect for her and in my view bodes ill for your rehabilitation, even though you have not reoffended in the four or so years that this matter has been hanging over your head.
I assess your prospects of rehabilitation as guarded and I regard the sentencing principle of community protection engaged in sentencing you.
Your refusal to grapple with the seriousness of your situation has left your parents in a terrible situation. Despite ongoing discussions during your trial about whether your mother would be a witness, it appears in fact your parents knew nothing about your situation and were, and remain, in a state of complete bewilderment that you are now in gaol.
I take into account the current difficult conditions in gaol. I take into account this is your first time in custody and I take into account your anguish at the situation your parents find themselves in. I take into account the stress that the delay in progressing this matter has caused you. Some of this delay has been attributable to your own behaviour but the main reason your trial has taken so long to come to court was it was one of the trials caught up in the delays occasioned by the COVID 19 pandemic.
You fall to be sentenced as a serious violent offender on the second charge of threat to kill. I must regard protection of the community as the predominant sentencing consideration. Unless otherwise ordered the sentence on Charge 5 must be served cumulatively upon other sentences. The operation of the serious offender provisions do not displace the principle of totality. The prosecution do not seek a disproportionate sentence. Your serious offender status must be entered on the Court record.
Charges 3 to 6 were all committed on the same day, albeit over a protracted period of time. These charges involve different heads of criminality and I intend to order some cumulation, not only upon Charge 1 but upon each other.
I am mindful of the principle of totality in a sentence involving multiple offences and I am mindful of the principle of parsimony.
I take into account the maximum penalty for the offences, and I also take into account the standard sentence for the offence of rape. A standard sentence is not the same as a mandatory sentence, nor is a standard sentence the primary sentencing consideration or the starting point from which to add or subtract time. It is but one matter that I must take into consideration, and I do so. I must explain how the sentence I impose relates to the standard sentence and I have in these reasons endeavoured to set out fully the facts, matters and circumstances I have taken into consideration in sentencing you.
Given my assessment of the gravity of your offending, your moral culpability and the mitigatory matters upon which you rely, I intend to sentence you to a sentence that is less than the standard sentence. Taking into account all the matters I am required to under the Sentencing Act and matters personal to you, I intend to sentence you as follows.
Please stand now, Mr Kapoor.
On Charge 1, you are convicted and sentenced to seven years' imprisonment.
On Charge 3, you are convicted and sentenced to six years' imprisonment.
On Charge 4, you are convicted and sentenced to 1 year and six months' imprisonment.
On Charge 5, you are convicted and sentenced to 1 year and six months' imprisonment.
And on Charge 6 you are convicted and sentenced to 1 year and six months' imprisonment.
Charge 1 is the base charge.
I direct that one year and six months of the sentence on Charge 3 and six months of the sentences on Charges 5 and 6 be served cumulatively upon the base charge and upon each other.
That makes a total effective sentence of nine years and six months' imprisonment.
Section 11A of the Sentencing Act, directs that unless it is in the interests of justice not to do so, the court must fix a non-parole period, in this case of at least
[3]
60 per cent of the total effective term of imprisonment. I direct that you serve a non-parole period of six years and six months before you are eligible for parole. You have served 138 days of pre-sentence detention, not including today.
[4]
[5]Johns (a pseudonym) v The Queen[2016] VSCA 97; Samuels (a pseudonym) v The Queen [2019]
[5]
VSCA 14; Flynn (a pseudonym) v The Queen[2020] VSCA 173; and Clarke (a pseudonym) v The Queen ]2022] VSCA 89.