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Parties: Neelander Sirohi (Appellant) The Queen (Respondent)

Representation: Counsel Self represented (Appellant) Mr J White SC (Respondent) Solicitors Self represented (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 37 of 2015

Decision under appeal: Court: ACT Supreme Court Before: Burns J Date of Decision: 14 August 2015 Case Title: R v Neelander Sirohi Citation: [2015] ACTSC 252

MURRELL CJ:

1. I agree with the reasons of Wigney J. In all the circumstances, including ACT sentencing patterns and the important sentencing purpose of general deterrence, the sentences imposed by the sentencing judge, particularly that imposed for the first offence, were stern, but neither individually nor cumulatively were they unreasonable or plainly unjust.

2. I agree that the appeal should be dismissed.

I certify that the preceding two [2] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate: Anneke Bossard

Date: 26 July 2016

PENFOLD J:

3. I agree with Wigney J that Mr Sirohi has not established any specific error on the part of the sentencing judge. He has, however, pointed out that his sentence, given that it reflects a 15 per cent discount on initial sentences of four years and eight years for the digital penetration and penile/vaginal intercourse, is noticeably high in the ACT context.

4. Furthermore, he says it appears to be severe even in the broader context of sentences imposed in similar circumstances, generally sentences for sexual assaults by taxi drivers in other Australian jurisdictions, where the penalties are higher; in some cases considerably higher. Of course all cases have their own special aspects and one should not be distracted simply by attempts at mathematical comparison.

5. On the other hand Mr Sirohi quoted from Mason J commenting on the importance of consistency in sentencing in maintaining public confidence in the integrity of the administration of justice. The more difficult it becomes to explain a decision as reflecting that consistency, the more readily one might conclude that the decision is excessive or inadequate.

6. There are unpleasant aspects of these offences and what I am about to say should not be seen as any attempt to minimise the seriousness of the offences. Nevertheless, taking account of all the matters mentioned by the sentencing judge that have already been mentioned by Wigney J, including in particular Mr Sirohi's isolation from family, friends and other supports in an unfamiliar environment, and the significance of that for the impact of imprisonment on him, which prospect was also before the sentencing judge, as well as the other ACT cases cited by Mr Sirohi, it seems to me that this sentence is identifiable as manifestly excessive and that it could appropriately be reduced without amounting to mere tinkering.

7. I would reduce the starting sentences to three years and six years imprisonment respectively, reduced to take account of the 15 per cent discount that the sentencing judge considered appropriate and applying some concurrency; giving a final sentence of six years and two months for which I would set a non-parole period of three and a half years.

I certify that the preceding five [5] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

Associate: David Hoitink

Date: 26 July 2016

WIGNEY J:

8. Mr Neelander Sirohi pleaded guilty to two counts of sexual intercourse without consent. The two offences involved the same complainant, a heavily intoxicated woman who had the misfortune of hailing a taxi driven by Mr Sirohi so as to get home after a night of heavy drinking. The first offence involved digital penetration while the complainant was in Mr Sirohi’s taxi. The second and more serious offence involved penile/vaginal intercourse at Mr Sirohi’s house. The complainant’s level of intoxication was such that she has little recollection of the events. It must have been obvious to Mr Sirohi that she was in no state to consent to sexual intercourse.

9. Mr Sirohi was sentenced to imprisonment 3 years and 4 months in respect of the first offence and 6 years and 8 months for the second offence. Taking into account a period during which the sentences were to be served concurrently, the effective aggregate head sentence was imprisonment for 7 years and 8 months. A non-parole period of 4 years was fixed.

10. Mr Sirohi appealed the sentence imposed on him. While his Notice of Appeal does not specify a ground of appeal and says only that he wants to be resentenced, written submissions filed on his behalf suggest that the main, if not only, grounds of appeal are that the sentence imposed is manifestly excessive and “offends” the principle of totality.

11. For the reasons that follow, neither of those grounds have any merit. The sentences imposed in relation to the individual offences are neither unreasonable nor plainly unjust. By making the sentences partly concurrent, the learned sentencing judge also ensured that the aggregate sentence was just and appropriate. Facts upon which Mr Sirohi was sentenced.

12. The facts upon which Mr Sirohi was sentenced were not in dispute before the sentencing judge and are not in dispute on appeal.

13. On the evening of 2 August 2013 the complainant went to dinner with some companions in Dickson. She subsequently went on to two bars in Civic. In the course of the evening she consumed a good deal of alcohol. She also took some prescription medication. The result was that when she left the last bar to get a taxi at about 3.20 am on 3 August she was extremely intoxicated.

14. She hailed a taxi driven by Mr Sirohi. She asked Mr Sirohi to take her to her home in Lyneham. Mr Sirohi did drive to the complainant’s home, however the complainant did not get out of the taxi. Plainly she was either asleep or so intoxicated that she did not realise that she was home. A short time later, Mr Sirohi turned the meter off and drove his taxi, with the complainant still in it, to his house in Harrison. At some point during the journey to his house, Mr Sirohi inserted his fingers into the complainant’s vagina. This incident was the subject of the first charge.

15. Once at his house in Harrison, Mr Sirohi took the complainant to his bedroom where he had unprotected penile/vaginal sexual intercourse with her. This incident was the subject of the second charge. The complainant did not remember much about this event. She was obviously so intoxicated that she was not fully conscious of what was happening. She was plainly in no position to consent. That must have been obvious to Mr Sirohi, as ultimately confirmed by his plea of guilty.

16. The complainant told her mother the next day that something had happened to her and that “it was a taxi driver”. She was taken to hospital where she underwent a forensic medical examination.

17. Mr Sirohi was arrested about six weeks later. He consented to a forensic procedure and participated in an interview by the police. He denied that he had ever had sexual intercourse with a passenger in his taxi and claimed that he had never taken a woman to his house in Harrison.

18. Mr Sirohi was initially granted bail. Some weeks later, however, he was arrested whilst attempting to obtain travel documents to enable him to return to India, his country of birth and citizenship.

19. Mr Sirohi initially pleaded not guilty to the charges. He changed his plea less than a week before his trial was due to commence.

20. Mr Sirohi gave evidence in his sentence proceedings. Amongst other things he accepted the statement of facts and said that he was “profoundly sorry” for his actions and that he had “great remorse”. This conflicted, to a certain extent, with a pre-sentence report prepared by an officer of ACT Corrective Services in which the officer expressed the view that Mr Sirohi was “unable to express victim empathy without also identifying himself as a victim”. The author of the report also stated that Mr Sirohi had said that consumption of cannabis had impacted on his ability to make sound decisions on the night the offences took place. In his evidence before the sentencing judge, however, Mr Sirohi said that he had only smoked cannabis 48 hours before the offences and agreed that this did not have any impact on him at the time of the offences.

21. The only other evidence of note tendered during the sentence proceedings was a written character testimonial and a note from a Clinical Psychology Registrar employed by the ACT Government. The testimonial stated that Mr Sirohi’s offences were out of character and that the author believed that Mr Sirohi was a “very trustworthy and moral person, but one who made a very bad judgment call”. The author also stated that Mr Sirohi was deeply ashamed at what he had done. The psychologist’s note recorded that Mr Sirohi had sought psychological treatment to “assist him in changing unhelpful patterns of behaviour and to better regulate his responses”. He was attending regular fortnightly appointments which had commenced about six weeks before the sentence proceedings.

22. A victim impact statement was also provided to the Court. The statement recorded that Mr Sirohi’s offences had a significant and ongoing adverse impact on the complainant. She suffers from post-traumatic stress disorder, has lost her enjoyment of life, and finds it difficult to maintain friendships and relationships.

Remarks on sentence

23. The sentencing judge plainly considered the offences to be objectively serious. His Honour accepted that the offences were, to an extent, opportunistic, but were not spontaneous. Mr Sirohi had taken the opportunity presented to him by the presence of the intoxicated and therefore highly vulnerable complainant to gratify his sexual desires. He had, however, ample opportunity to consider what he was proposing to do before committing the offences, in particular the second offence.

24. His Honour considered that the second offence was objectively more serious than the first offence:

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. 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. Secondly, the second offence involved unprotected penile/vaginal intercourse which continued to ejaculation, given rise [sic] to the possibility of pregnancy. The victim would also have been concerned about the possibility of a sexually transmitted infection. 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.

25. The sentencing judge also took into account the fact that Mr Sirohi’s offences had “a lasting impact” on the complainant as recorded in the victim impact statement.

26. It is also clear that his Honour considered that general deterrence was a significant consideration in sentencing Mr Sirohi. His Honour said in that regard:

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.

27. The sentencing judge also made the following findings, or took the following matters into account in sentencing Mr Sirohi:

(a) Mr Sirohi had no prior convictions; (b) the offences were out of character;

(c) Mr Sirohi had reasonable prospects for rehabilitation;

(d) Mr Sirohi’s pleas of guilty. His Honour stated that he had reduced the sentences by 15 per cent from the sentences that would otherwise be appropriate to reflect the pleas of guilty; and

(e) imprisonment was likely to be “isolating” for Mr Sirohi as he had no family or other supports in the ACT.

28. The sentencing judge referred to other “subjective features”, including Mr Sirohi’s background, family relationships, education, employment, mental health and difficulties that he had encountered whilst remanded in custody. His Honour also referred to Mr Sirohi’s evidence of remorse.

Is the sentence manifestly excessive?

29. The relevant principles when considering manifest excess as an appeal ground are well settled. In the particular circumstances of this matter it is unnecessary to give any detailed consideration to those principles. In Dalton v The Queen [2015] ACTCA 48 at [18] they were summarised in the following terms:

The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following: • Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 2002 CLR 321 (Dinsdale). • The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61]. • In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85]. • It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

30. Mr Sirohi’s contention that the sentence imposed on him was manifestly excessive appears to be based, at least in part, on sentences imposed in other cases concerning sexual intercourse without consent, both in the ACT and various States. He claimed, in particular, that they show that the sentencing judge’s starting point of 8 years for the second count was excessive.

31. The consideration of sentences imposed in other comparable cases may be useful, but must be approached with some caution. Comparable cases may be useful in two ways: first, if it is possible to discern from them any unifying sentencing principles that should be applied; and second, if an analysis of the cases discloses discernible sentencing patterns or a range of sentences. However, the cases may not establish a range, or the range may not necessarily be the correct range or otherwise determinative of the upper and lower limits of sentencing discretion: Hili v The Queen (2010) 242 CLR 520 at 537 [54]-[55] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wong v The Queen (2001) 207 CLR 584 at 606 [59] (per Gaudron, Gummow and Hayne JJ); R v Pham [2015] HCA 39; (2015) 244 A Crim R 280 at 287 [26]-[27] (per French CJ, Keane and Nettle JJ). Much will depend on the number of cases referred to and whether they are truly comparable. As Hoeben CJ at CL (Schmidt J and Barr AJ agreeing) said in Frahm v The Queen [2014] NSWCCA 10 at [19]:

As a matter of principle, submissions based on a small selection of cases produce a result favourable to an applicant, is not an approach which has found favour in this Court. It is, of course, always possible to find cases which favour a particular outcome. This selection of cases is so small that it cannot demonstrate a sentencing trend. Each case of necessity depends on its own particular facts and a selection of cases in this way does no more than demonstrate that a particular outcome occurred in each of the nominated cases. A small selection of cases such as this does not and cannot demonstrate that a particular sentence was manifestly excessive.

32. There is no basis for finding that the sentence imposed on Mr Sirohi was manifestly excessive. There is no basis for concluding that it is unreasonable or plainly unjust.

33. The maximum penalty for the offence of sexual intercourse without consent is twelve years imprisonment. That penalty, which only applies to the worst category of case, nevertheless provides a “yardstick” for assessing the appropriate penalty: Markarian v The Queen (2005) 228 CLR 357 at 372 [31] (per Gleeson CJ, Gummow, Hayne and Callinan JJ). The offences committed by Mr Sirohi were objectively very serious for all the reasons given by the sentencing judge. Mr Sirohi’s subjective circumstances did not demand any particular leniency. There was a need for a sentence which provided general deterrence for the reasons his Honour gave: see also Ali v The Queen [2010] NSWCCA 35 at [61] (per Johnson J, McClellan CJ at CL and RS Hulme J agreeing).

34. Mr Sirohi relied on a number of supposedly comparative cases in support of his contention that his sentence was manifestly excessive. Those cases included: R v Ali [2008] NSWDC 319; R v Nagi [2010] NSWDC 129; R v Dutton [2013] ACTSC, Higgins CJ, 12 March 2013; Singh v The State of Western Australia [2012] WASCA 262; Director of Public Prosecutions v Rana [2013] VCC 2017; R v March [2014] ACTSC 244; R v King [2013] ACTCA 29; R v TN [2013] ACTSC, Penfold J, 10 September 2013; Byrnes v The Queen [2015] VSCA 157; Joyce v The Queen [2015] ACTCA 23: see also Singh v The Queen [2015] ACTCA 65; R v Sordini [2015] ACTSC 45; Al Mosawe v The Queen [2012] NSWCCA 275; and Ali v The Queen [2014] NSWCCA 45.

35. None of these cases assist Mr Sirohi. Mr Sirohi was unable to point to any unifying principles that emerge from the cases. Mr Sirohi did not submit that the sentencing judge did not apply any sentencing principle established by any of these cases. Rather he appeared to simply rely on the different sentences that were imposed in them.

36. There is no doubt that consistency in sentencing is a important consideration: Pham at 287-288 [28] (French CJ, Keane and Nettle JJ). The difficulty for Mr Sirohi is that the cases he relied on involved different facts and circumstances and offenders with different subjective features. More significantly, they do not establish any meaningful sentencing pattern or range of sentences. All of them involved sentences of imprisonment. Some involved periods of imprisonment that were shorter than the period imposed on Mr Sirohi, but equally there were some where the period of imprisonment was greater. The different sentences no doubt reflected the different facts and circumstances, objective and subjective, in the respective cases. They are incapable of supporting a submission that the sentence imposed on Mr Sirohi was somehow or other outside the range of sentences that a proper application of sentencing principles could produce in Mr Sirohi’s case.

Did the sentencing judge correctly apply the totality principle?

37. In simple terms, the totality principle is that where an offender has been convicted of a number of offences, the sentencing judge is required to fix an appropriate sentence for each offence and to then consider questions of accumulation and concurrence with a view to ensure that the total sentence is just and appropriate: Mill v The Queen (1988) 166 CLR 59 at 63-64; Pearce v The Queen (1998) 194 CLR 610 at 623-624 [45] (McHugh, Hayne and Callinan JJ). There is no single correct way to structure multiple sentences, just as there is no single correct sentence: R v TW (2011) 6 ACTLR 18 at 32 [83] (Penfold J).

38. Mr Sirohi did not articulate the basis of his contention that the sentencing judge did not correctly apply the totality principle.

39. The sentencing judge accepted that the two offences had significant common elements and that accordingly a degree of concurrency was appropriate. The sentences were structured in such a way that the second sentence was to commence one year after the commencement date of the first sentence: the effect being that the second sentence added 4 years and 4 months imprisonment to the sentence of imprisonment in respect of the first offence. The other way of looking at the effect of the sentence is that the first (less serious) offence added an extra year of imprisonment to the sentence imposed in relation to the second (more serious) offence.

40. Either way, there is no basis for concluding either that the sentencing judge did not correctly apply the totality principle or that the total aggregate head sentence was not just and appropriate. The non-parole period of 4 years was 52 per cent of the aggregate head sentence. There is no basis to conclude that the non-parole period was not just and appropriate in the circumstances. Indeed, it is a relatively low non-parole period, no doubt recognising the fact that Mr Sirohi had good prospects of rehabilitation, had no prior convictions and had not previously been imprisoned.

Were there any other errors in the sentence or sentencing process?

41. Mr Sirohi advanced a number of arguments in support of his contention that the sentence involved some error and that he should be sentenced. None of them have any merit.

42. Mr Sirohi contended that the sentencing judge did not apply a 15 per cent discount on the sentence. That contention is simply wrong. The primary judge specified both the 15 per cent discount and the exact reductions: the sentence for the first offence was reduced from 4 years imprisonment to 3 years and 4 months and the sentence for the second offence was reduced from 8 years to 6 years and 8 months to reflect the discount. That was in fact a discount of just over 15 per cent. Mr Sirohi appeared to contend that the sentencing judge erred in not giving him a larger discount for his plea of guilty. That contention has no merit. In all the circumstances, a 15 per cent discount was a reasonably generous discount for a plea of guilty shortly before the commencement of a trial. It certainly could not be said to be a manifestly inadequate discount that caused the sentencing discretion to miscarry. Mr Sirohi claimed that he only pleaded guilty at such a late stage as a result of legal advice. Even if that is so, it does not mean that a discount of 15 per cent was inadequate.

43. Mr Sirohi complained about the fact that the sentence judge said that, because he was an “educated man”, it was difficult to comprehend why he was “willing to engage in such selfish and destructive cruelty for the sake of fleeting sexual gratification”. Mr Sirohi contended that the fact that he was an educated man was not an aggravating factor. The short answer to that contention is that the sentencing judge did not treat that fact as an aggravating factor. His Honour’s observation about Mr Sirohi’s subjective circumstances and the nature of the offence was not in any sense inappropriate or erroneous.

44. Mr Sirohi appeared to contend that the sentencing judge did not take into account the fact that he had expressed remorse, that he was in a minority group in gaol by reason of his Indian ethnicity and that prior to the offence he was a man of good character. The short answer to those contentions is that a fair reading of his Honour’s remarks on sentence reveals that his Honour took each of those matters into account. None of them compelled a lesser sentence or suggested that the sentence imposed was manifestly excessive.

45. It should also be noted in relation to the appellant’s reliance on his prior good character that his prior good character was no doubt relevant in him obtaining employment as a taxi driver. An offender cannot expect significant leniency in reliance on prior good character if it is that prior good character that has given him the opportunity to commit his offences.

Evidence on appeal

46. Mr Sirohi applied for the Court to receive evidence on the hearing of his appeal. The evidence related to his remorse and his efforts to rehabilitate himself, including by completing courses whilst in gaol. Such evidence would only be relevant if the Court allowed Mr Sirohi’s appeal and proceeded to resentence him. Since his appeal is to be dismissed and the occasion to resentence him does not arise, the evidence is irrelevant. His application to lead the additional evidence is refused.

Conclusion and disposition

47. In conclusion, the sentence imposed was not manifestly excessive. No other error in the sentence or sentencing process has been demonstrated. The appeal is dismissed.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Wigney.

Associate:

Date: 26 July 2016

MURRELL CJ:

48. The order of the Court is that the appeal is dismissed.