DPP v Singh [2019] VCC 1484

7. The prosecution does not allege her entry into your car was involuntary.

If it did, there would be a charge giving effect to that allegation.

8. The psychologist who saw you recorded your explanation of your motive from driving the complainant to Mulgrave. It paints you as some type of Good Samaritan, which is unlikely. In any event, I cannot find you formed the intention to rape the complainant before reaching your home.
9. At about 5 am, the complainant was coming in and out of consciousness.

She was in a strange place, and you were on top of her, thrusting your penis into her vagina. Her underpants had been removed. She did not know you.

10. She asked you for her mobile phone. You stopped penetrating her and went outside to your car to find her phone. You found it, returned to the house, and gave it to her. By then, the complainant had put on her underpants. She left the house, ran up the street, and rang 000. Within two minutes, the police arrived to find the complainant in a highly distressed state.
11. Pausing there, the complainant has no memory of the events starting with her dancing at the Swan Hotel until she regained consciousness.
12. The complainant was taken to the Monash Medical Centre and was examined, and specimens were taken. A urine sample was taken for analysis for blood alcohol level, which was found to be high. The likely blood alcohol content between 2.30 am and 4.30 am meant her ability to perceive, remember and consent were adversely affected.
13. You were arrested and interviewed on 10 December. To most questions, you gave 'No comment' answers. You made no admissions of guilt.
14. On 5 August this year, the complainant made a victim impact statement which the prosecutor read out in the courtroom. I will summarise what she says.

Your offence has had a profound effect upon her. She has tried to avoid changing the way she feels about the world by seeking counselling and support from her friends and family.

15. Despite these steps, she is less trusting of others, wary of strangers, hyper-vigilant, and feels less safe than before. She experiences regular nightmares. She is highly anxious and depressed, and takes medicines to overcome her depression. She has trouble sleeping, which leaves her exhausted.

The trauma has affected her memory and ability to concentrate.

16. In turn, this affects her work as a nurse and her studies. She found the process of investigation by police a continuing reminder of the rape, and the forensic examination shortly afterwards as a horrible and very dehumanising experience. She has trouble sleeping, with regular nightmares about the rape. I have already mentioned that. Her disrupted sleep leaves her exhausted and with difficult coping in her day-to-day life.
17. As a result of the rape, her relationship of six years with her partner broke down and she had to leave their apartment. The impact of the trauma makes it more difficult for her to maintain relationships. This is heartbreaking to her, as people have tried to support her and she is unable to engage with them normally.
18. After the rape, she was unable to face her workmates who had been interviewed as part of the police investigation. She could not return to her place of employment. Since February, she has found another job. Both changing her job and leaving her apartment has cost her financially. Her life has drastically changed due to the rape, and she is working very hard to rebuild her life.
19. You are the only child of your parents who live in a small village near the city of Ludhiana in the state of Punjab. You were raised in this village. Your father was frequently away from home because of his job as a truck driver. When at home, he drank heavily and was violent to your mother. During his absences, you and your mother were poorly treated by your extended family, with no money provided and little food. From the age of 12, you were required to work hard on the family farm. Your grandfather was physically violent to you.
20. Nevertheless, your parents borrowed to send you to a private school, where you experienced shunning and bullying during your school years.

You completed your secondary schooling, completed an English-language course, and came to Australia in June 2009 as a student. As I said, you came to Australia to study. You have been successful obtaining a Certificate III in Automotive Technology, a Diploma of Business Management, and a Certificate IV in Automotive Technology, and a Diploma of Automotive Management. These studies occupied you between 2009 and 2014.

21. Throughout your time in Australia, you have near-continuous employment, whether as a car detailer, car washer, a console operator, and finally, as an unregistered Uber driver.
22. Finding out that your mother has been diagnosed with breast cancer caused you anxiety. To overcome its effects, you started using small quantities of cannabis two or three times a week, as well as drinking alcohol to excess most nights. Your mother has been treated for cancer in her left breast.
23. Your counsel supplied me a number of documents, mainly from the Mohan Dai Oswal Hospital, and including reports on CT scans, blood tests, and a discharge summary on 8 April 2017. There was an operation removing the breast and the gall bladder, with your mother discharged from hospital in a satisfactory condition. A report of an ultrasound examination in November 2018 seems positive.
24. Other than those observations, I do not know whether your mother is undergoing further treatment, and if there is a prognosis, what it is. I dare say you know little more than I do.
25. No member of your family lives in Australia. Your parents live in India.

Your mother's condition is unresolved. It is an anxious matter for you, for you are unlikely to see her while in prison.

26. Once you serve your sentence, it is likely you will be deported, and you are aware of this likelihood. This is not speculation, but arises from the cancellation of your visa and the very serious charge for which you are being sentenced. You have been in Australia since 2009. You were seeking permanent residency. If you are unable to remain in Australia following your release, it is also unlikely you will ever be permitted to return to this country.
27. As I said earlier, Carla Lechner, a psychologist, interviewed you on 15 July. She is a well-known clinical psychologist. She concluded you were a low risk of reoffending sexually. Although depressed and anxious after learning about your mother's illness, the fact of committing the rape and being held in prison has led her to identify you as suffering from a recognised psychological disorder, an adjustment disorder with depression and anxiety.
28. She administered two standard tests which showed you were in the extreme range of depression and the severe range for anxiety. She noted you have been prescribed antidepressant medicine in prison. She implicitly recommends counselling, but says you are likely to be restricted to mood management courses in prison. Implicitly, these courses will be less effective than group counselling sessions available if you were not in prison.
29. Your longstanding friend, Pali Singh, describes you as a good person, polite and timid and quite shy with women. He speaks of you sending money to your mother to help her fight her cancer.
30. As I have already said, I received a report from Carla Lechner. Your counsel specifically did not rely upon the first four principles in the case of R v Verdins. He did point to the deprivation and abuse you experienced when young; however, there is no evidence that they contributed to your offending behaviour.
31. To an extent, your psychological condition will mean your sentence of imprisonment will weigh more heavily upon you than a person with normal health, because the treatment available in prison is less than ideal.
32. Your counsel referred me to three helpful judgments handed down by two judges of our Supreme Court in R v Brown, R v Robinson, and R v Lee.

They set out the correct approach to the standard sentence scheme. As I said earlier, your offence of rape is subject to the standard sentence scheme.

It is so because you committed the offence after 1 February last year.

33. Where an offence is a standard sentence offence, the standard sentence for that offence is the period stated as such, which is 10 years' imprisonment for rape. The standard sentence is the sentence in the middle of the range of seriousness for that offence, after taking into account only the objective factors affecting the relative seriousness of the offence.
34. The objective factors affecting the relative seriousness of the offence are to be determined without reference to matters personal to you or to a class of offenders, and wholly by reference to the nature of your offending.
35. Under s.5(2) of the Sentencing Act, I must have regard to 12 factors in sentencing you, one of which is the standard sentence for this offence.

No one factor has dominance over the other. Similarly, the standard sentence does not occupy any special place among those factors. It represents a guidepost. It is not the starting point from which the sentence is fashioned.

It does not affect the instinctive synthesis principle which I must undertake to determine the appropriate sentence for you.

36. The three Supreme Court decisions to which I was referred are empathic that it would be wrong for me to engage in what is called a two-stage process to sentencing; that is, a process starting with an assessment of whether the offence falls in the middle range of objective seriousness, and then look at factors justifying a longer or shorter sentence than the standard sentence.
37. In order to assess the nature and gravity of the offence, and in relation to the objective seriousness of your offending, your counsel raised a number of circumstances.
38. The offending was opportunistic. The complainant was not your customer.

No weapons, disguises or masks were used. Apart from the rape itself, there was no violence or threat of violence. You were alone. The actual rape was relatively short. It was a single act of penile penetration. No attempt was made to photograph the complainant. No drugs or alcohol were supplied to the complainant. You stopped when asked to find the complainant's mobile phone, and no physical disease or pregnancy resulted from your penetration.

39. They are legitimate matters for me to consider. The other circumstances, I have already described.
40. The law requires me to have regard to current sentencing practices. 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.

Neither your counsel nor the prosecutor drew my attention to any such case.

I drew attention to a case, but rightly so, neither counsel made any submission regarding it.

41. Among other things, my sentence must deter you or other persons from committing offences of the same or similar character. It must manifest the denunciation of the type of conduct in which you engage. Deterring others and denouncing this crime are important considerations in framing my sentence. Others must see my sentence as a strong reason not to offend in a like manner. My sentence is a public denunciation of your offending.
42. As to deterring you, Ms Lechner says you are a low risk of future sexual offending. Her view is based on two standard tests she administered to you, and your remorse, the likely underlying motive for your offending, and the stress related to your mother's illness. I accept her view, coupled with other considerations, that specific deterrence and the protection of the public from you are of lesser significance.
43. You were charged with the offence of rape on 10 December 2018.

The following day, you appeared in the Magistrates' Court for what is called a filing hearing. Your case was adjourned for a court event called a 'committal mention.' Before that event, the police served a copy of their brief of evidence upon your lawyers.

44. You pleaded guilty shortly after the date of the committal mention. Your counsel submits, and I agree, that this was done at the earliest reasonable opportunity. Although you pleaded guilty at the earliest reasonable opportunity, you did not admit your guilt when interviewed by the police.
45. Your plea of guilty is also evidence of your remorse. From your interview with the clinical psychologist on 15 July, I accept you are deeply remorseful for your offending and acutely aware of the negative impact of your actions upon the complainant. This also emerges from the letter you wrote.
46. Your plea of guilty saves the complainant the stress of giving evidence at a trial, as well as a host of other witnesses giving evidence. From her victim impact statement, the complainant found the investigation processes of the police very distressing. She would have found the giving of evidence equally so. Judging from the list of potential witnesses, the prosecution could have called 40 other witnesses at your trial if one had been held.
47. To use of the words of Justice Campion in one of the three cases to which

I refer, Brown's case, my task is to have regard to and instinctively synthesise all the sentencing factors and consider these alongside the sentencing purposes. I do not begin by asking whether there are reasons for not imposing the standard sentence of 10 years' imprisonment and work up or down. Rather, my task is to use the relevant standard sentence and the maximum penalty as guideposts.

48. I have taken these matters, along with all other relevant factors, into account, which includes the significant effect of your offence upon the complainant.
49. Overall, I sentence you to imprisonment for five years and six months.
50. This sentence is significantly less than the standard sentence for your offence. I have identified the matters which have led me to this sentence. Shortly, I will make a declaration under s.6AAA of the Sentencing Act as to the precise impact upon the sentence of your plea of guilty.
51. I come now to the non-parole period. The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation through conditional release where appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances.
52. In relation to the standard sentence offences and your crime, I must fix a non-parole period of at least 60 per cent of the sentence I impose, unless

I considered it in the interest of the justice not to do so. No-one submitted

I should depart, and there is no reason for me to do so.

53. I set a non-parole period of three years and four months.
54. I have imposed a less severe sentence because of your plea of guilty.

In the absence of your plea of guilty, I would have sentenced you to seven years' imprisonment with a non-parole period of four years and two months.

55. You have been in custody since 10 December last year. I declare that you have served 275 days of pre-sentence detention.
56. I understand the prosecution seeks that I make a disposal order?
57. MS McVEAN: That's correct, Your Honour.
58. HIS HONOUR: And there is no opposition to that?
59. MR WANG: That's by consent, Your Honour.
60. HIS HONOUR: All right. I make such an order. Are there any other matters?
61. COUNSEL: Nothing further, Your Honour.
62. HIS HONOUR: All right.
63. MS McVEAN: As the court pleases.
64. MR WANG: As Your Honour pleases.
65. HIS HONOUR: That being the case, I will adjourn the court.