R v Sirohi [2015] ACTSC 252

Legal Aid ACT (Offender)

1. Neelander Sirohi, you have pleaded guilty to two counts of sexual intercourse without consent. Each of those offences carries a maximum penalty of 12 years' imprisonment.

2. On Friday 2 August 2013, the victim went to dinner with friends at a restaurant in Dickson. During the dinner she drank three cans of Woodstock Bourbon and some beer. She had also taken prescribed medication before going out. After dinner, one of her friends drove her to Bunda Street in Civic, where she left her friends and walked towards the city bus interchange.

3. She then went to the Shooters Bar on East Row, Canberra City, and later to the Phoenix Bar, also in Canberra City. She continued to drink alcohol during the evening and also took some more prescription medication. She was heavily intoxicated and does not recall leaving the Phoenix Bar. A friend of hers stated that she left the bar by herself to get a taxi. At about 3.20 am on Saturday 3 August, she hailed a cab in Alinga Street in the city. You were the driver of that taxi. The victim sat in the front passenger seat and told you to take her to an address in Lyneham. Once in the taxi, the victim said she felt extremely intoxicated, which she described as feeling paralytic and very sleepy.

4. Taxi records and maps show that you drove the taxi to the street address provided by the victim in Lyneham, arriving at 3.28 am. You turned the meter off and remained in that street for approximately eight minutes. You then drove the taxi to your house at an address in Harrison, arriving there at 3.47 am. The victim was still in the taxi at that time. At some point during the journey from Civic to Harrison, you placed your hand inside the victim's stretchy jean leggings and underpants and inserted your fingers into her vagina. That is the first count of sexual intercourse without consent.

5. You continued to say "Shush" and kept touching the victim. When you arrived at your house in Harrison, you helped the victim get out of the car and, due to her level of intoxication, you held her and guided her to walk towards the house. You led the victim into your bedroom, where she lay down on her back on a mattress in the room. While she was lying down you inserted your penis into her vagina. That is the second count of sexual intercourse without consent.

6. The victim does not remember full details of the events but recalls a male torso leaning over her. Between 4.07 and 4.13 am you and the victim returned to your taxi. The victim does not recall going back into the taxi but you then drove the taxi to her house in Lyneham, arriving at approximately 4.20 am. The victim left the taxi but was unable to get into her house. At approximately 4.49 am she drove to the McDonald's store at Dickson, where her car collided with barricades at the store.

7. This was reported to police and, shortly after the victim arrived home, police attended. They noticed damage to her car and required her to do a roadside breath test. This showed a blood alcohol reading of 0.128. The victim was highly emotional and aggressive towards police. She was taken to the City Police Station for a breath analysis. This recorded a blood alcohol reading of 0.142.

8. At about 10 am on 4 August, the victim called her mother, asking her to come over straightaway. Her mother and stepfather arrived, and the victim said, "Something happened to me, something happened to me. It was a taxi driver". Her mother then took her to Calvary Hospital. She was later taken to the Clinical Forensic Medical Services Unit at the Canberra Hospital, where she underwent a forensic medical examination.

9. You were arrested on 19 September 2014. You consented to a forensic procedure and participated in a record of interview. You denied ever having sexual intercourse with a passenger and stated that you had never taken a woman to your house in Harrison. You further stated that you did not always logoff when you finished a shift and that other drivers knew your personal identification number for the taxi. A forensic examination comparing DNA from you with the DNA samples obtained from the victim concluded that the major component of the observed DNA in semen detected in the victim's labial swabs, low and high vaginal swabs and cervical swabs were at least 29 sextillion times more likely to have originated from you than from another unknown, unrelated individual selected at random from the Australian Caucasian subpopulation.

10. The charges that you ultimately pleaded guilty to were those laid in the Magistrates Court in September 2014. You were arrested on 19 September 2014 and granted bail on 20 September, which required you to surrender your passport and prohibited you from applying for travel documents. You initially pleaded not guilty to these charges and you were committed for trial on 27 November 2014. You entered pleas of guilty in this Court on 3 June this year. At that time, you were listed for trial to commence on 8 June this year in this Court.

11. On 30 October last year, police were advised that you were presently at the High Commission of India in Australia applying for emergency travel documentation. You were arrested at the High Commission and bail was refused in the Magistrates Court on 31 October last year. You have remained in custody since that time.

12. You are 31 years old and you were born in India. It does not appear that your early life was marred by disadvantage, but you reported to the author of a Pre Sentence Report that your family had high expectations of you which sometimes resulted in verbal and physical abuse. You reported problematic anger management issues and self harming behaviour during adolescence. You arrived in Australia in 2009 to pursue further educational opportunities. You maintained regular contact with your parents after your arrival but your relationships with your family have seriously deteriorated following these offences. You apparently have no contact with your father, and contact with your mother is irregular.

13. Prior to being remanded in custody, you resided with your partner in rented accommodation. This relationship has now broken down and you are likely to be deported when you are released from custody.

14. You completed year 12 studies and tertiary level courses in India. At the time of these offences, you were completing qualifications in social work. While in Australia you have supported yourself by working in the hospitality industry and as a taxi driver.

15. There do not appear to be any alcohol or drug issues relevant to your offending.

16. You told the author of the Pre Sentence Report that you were diagnosed with a mental health condition in 2012, for which you received treatment. You reported experiencing episodes of severe depression throughout your life, with suicidal ideation and attempts of suicide from 16 years of age. You reported continuing suicidal ideation since your arrest on these charges. You have engaged with psychological services during your time in custody and reported gaining benefit from these services. There is nothing in the material before me to suggest that any underlying mental health condition was connected with your offending. Nor is there any evidence that any such mental health condition will be exacerbated by imprisonment or make imprisonment more difficult for you.

17. You expressed limited remorse to the author of the Pre Sentence Report, apparently, in the eyes of the author of that Report, regarding yourself as a victim in this matter. You were assessed as at medium risk of general reoffending, and at a low to moderate risk of sexual offending. It was noted that referral to the Adult Sex Offender Program may be appropriate, and that this program may be undertaken within the Alexander Maconochie Centre.

18. You gave evidence at the sentence hearing on 5 August this year. You said that you accepted the contents of the statement of facts and expressed yourself as profoundly sorry for your actions. You also expressed some empathy for your victim.

19. The Pre Sentence Report noted that you have been subject to disciplinary action on three occasions since you were remanded in custody. You gave evidence that these incidents were provoked by threats or comments from other inmates. You agreed, in your evidence, that your use of cannabis was not related to your offending. You also indicated your willingness to undertake the Adult Sex Offender Program.

20. I take into account the fact that you have no prior convictions. I also take into account the contents of the testimonials that were placed before me. This material speaks of your offences as being out of character, which is relevant both to your prospects for rehabilitation and the need for personal deterrence. I find that you have reasonable prospects for rehabilitation.

21. Your counsel submitted that these offences were opportunistic, and to an extent that is true. You took the opportunity presented to you by the presence of the intoxicated, and therefore highly vulnerable, victim in your taxi to gratify your sexual desires. It is clear, however, that the offences were not spontaneous. You had ample opportunity to consider what you were proposing to do before you committed these offences, particularly the second offence. In my opinion, the second offence is the objectively more serious of the two offences for a number of reasons:

(a) first, it was committed well after the first offence, which gave you ample opportunity to consider what you had done and the enormity of what you planned to do. It is obvious that you drove from the victim's home in Lyneham to your home in Harrison for the purpose of sexually assaulting the victim. In that respect, the second offence must be seen as calculated;

(b) secondly, the second offence involved unprotected penile/vaginal intercourse which continued to ejaculation, giving rise to the possibility of pregnancy. The victim would also have been concerned about the possibility of a sexually transmitted infection.

22. Both offences, of course, involved a significant breach of trust. As a taxi driver you were trusted to see your patrons were transported safely to their destinations. Many people use taxis precisely because they are intoxicated and cannot transport themselves.

23. It is important that the sentences I impose send a clear message to taxi drivers and others in like employment that breaches of trust such as these will be subject to stern punishment. It is equally important to send the message to those in our community, who may not yet accept it, that the fact that a woman is intoxicated is not an invitation or justification for sexual abuse.

24. Your criminal actions have had a lasting impact on your victim. She now suffers from post traumatic stress disorder, which continues to take away her enjoyment of life. She finds it difficult to maintain friendships and relationships and to trust people.

25. You are an educated adult male. It is difficult to comprehend why you are willing to engage in such selfish and destructive cruelty for the sake of fleeting sexual gratification. What this reveals about you as a man and as a human being is something that you must ponder.

26. I will reduce by 15 percent the otherwise appropriate sentences in order to reflect your pleas of guilty. I accept that these two offences have significant common elements, so that a degree of concurrency is appropriate with respect to the individual sentences.

27. I also take into consideration that imprisonment for you is likely to be isolating, as you have no family in the ACT or other supports. It is, nevertheless, inevitable that these offences be met by lengthy terms of imprisonment.

28. In my opinion, the appropriate starting point for the first offence, that of digital penetration, is four years' imprisonment. I will reduce this to three years and four months' imprisonment to reflect your plea of guilty. The appropriate starting point for the second offence is eight years' imprisonment, which I will reduce to six years and eight months to reflect your plea of guilty.

29. On count 1, I record a conviction and you are sentenced to three years and four months' imprisonment commencing 30 October 2014 and expiring 28 February 2018.

30. On count 2, I record a conviction and you are sentenced to six years and eight months' imprisonment commencing 30 October 2015 and expiring 29 June 2022.

31. The aggregate sentence I have imposed is therefore one of seven years and eight months' imprisonment commencing 30 October 2014 and expiring 29 June 2022. I set a non-parole period of four years commencing 30 October 2014 and expiring 29 October 2018.

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.