R v SAINI [2011] NSWDC 216

District Court New South Wales

Medium Neutral Citation: R v SAINI [2011] NSWDC 216 Hearing dates: 27 October 2011 Decision date: 27 October 2011 Before: Berman SC Decision: Sentenced to an overall period of imprisonment of 7 years with a non-parole period of 5 years. Catchwords: CRIMINAL LAW - Sentence - Detain for advantage - Sexual intercourse occasioning actual bodily harm - Attempted sexual intercourse - Sexual intercouse without consent - Form 1 - Indecent Assault Category: Sentence Parties: The Crown Rajesh Kumar Saini Representation: E Balodis - The Crown Ms P David - The Offender Director of Public Prosecutions File Number(s): 2010/265320

SENTENCE 1HIS HONOUR: Rajesh Kumar Saini has pleaded guilty to four very serious offences. They are all offences that he committed on 9 August, 2010. 2The first offence is detaining the complainant, who I will not name, without meaning any disrespect to her of course, without her consent and with intent to obtain an advantage, namely to have sexual intercourse with her and at that time of detaining actual bodily harm was occasioned to her. That is an offence that carries a maximum penalty of twenty years imprisonment. 3The second offence is that he attempted to have sexual intercourse with the complainant knowing that she was not consenting. That relates to an attempt by the offender to penetrate the complainant's vagina with his penis. The maximum penalty for that offence is fourteen years. Had the offence been completed, a standard non-parole period would apply to it. 4The third offence is an offence of having sexual intercourse with the complainant by penetrating her vagina with his finger without her consent, knowing that she was not consenting and at the time occasioning actual bodily harm to her. That carries a maximum penalty of twenty years with a standard non-parole period of ten years. 5Attached to that offence are two offences on a Form 1. They are both indecent assaults, one relating to the offender placing the complainant's hands on his penis and the other relating to the offender placing his hands upon the complainant's breasts. 6Finally, the offender has pleaded guilty to an offence of sexual intercourse without consent relating to an act of fellatio. That has a maximum penalty of fourteen years with a standard non-parole period of seven years. As is obvious I have taken into account both the maximum penalties and the standard non-parole periods where appropriate. I will not impose the standard non-parole period for the reasons which appear in these remarks on sentence. 7The offender worked as a cleaner in the McDonald's store. The complainant worked at the same McDonalds store. After the store closed one day the two of them were left alone. The complainant was performing her function. She knew that the offender was there. She was approached by the offender who told her that there was a leak in the crew room. This was not true. This was part of a ruse that the offender used to get the complainant in a position where he could do what he later did. 8The complainant was able to smell alcohol on the offender and he appeared unsteady on his feet. Once they got to the crew room and it was apparent that there was no leak, the offender grabbed the complainant around her waist with his hands. She said "let me go" and began to cry and attempted to struggle free. She also had with her a small knife that she had been using to open boxes. She threatened the offender with that knife and kicked him in the shins. Nonetheless, the offender continued to hold onto the complainant around the waist. 9I will interrupt this narrative to refer to something that the offender has said by way of explanation as to why he committed the offences. He said that he misunderstood that the complainant liked him. Whatever misunderstanding there was, as soon as the complainant began to cry, struggle, threaten the offender with a knife and kick him in the shins, it must have been apparent to the offender, even intoxicated as he was, that the complainant had no wish to do what the offender then did. 10What then happened, or at least part of what then happened, was captured on closed circuit television. At 8.28pm the footage shows the offender grabbing the complainant by the waist near the entrance of the crew room and pulling her towards the staff change room. He pulled her into the change room and positioned himself in front of the door blocking the way out. For the next two hours and twenty-three minutes the complainant was detained by the offender. 11Once more the complainant began to cry and told the offender that she was scared. He told her he just wanted to talk. The offender let the complainant leave the change room when she said she needed to go to the toilet, but rather than allow her to go to the toilet in a dignified manner, he told her that she could use the drain in the wash room. She tried to run away but he grabbed hold of her once again. She still had the knife so the offender grabbed hold of it and tried to pull it out of her hand. He told her to let go of the knife and eventually she did so, the knife falling to the ground of the crew room. She tried to get away but she could not break free of his grip. He said "I do not want to force you, you are forcing me, if you do as I say I will not force you". The agreed facts then say that, despite that, the offender did force the complainant into a chair at the far end of the crew room. He knelt down in front of her and said that he was sorry and did not mean to scare her. He told her that he loved her and did not want to hurt her. She did not respond. 12Even if what the offender said is true, what he then did is not any demonstration of affection at all. He said to her "what are we going to do now. I cannot let you go, you will tell everyone". He then told her to stand up, grabbed her around the neck and dragged her from the crew room to the change room. He let her go and told her to sit down next to him, which she did because she was scared. He then tried to kiss her on the lips, not surprisingly she drew away from him. Again he told her he loved her and that he would not hurt her if she did as she was told. He told her that if she did not struggle and let him do as he said, it would all be over in five to ten minutes. He said he would give her three chances and after that he would force her. 13By now the complainant was curled up on the floor with the offender leaning over her. He said "will you co-operate" and she said "no". So what the offender did was to put his hand in the complainant's underpants touching her skin just above the vagina. He then took his hand out and said "will you cooperate?". 14The complainant remained curled up on the floor crying. He forced open her legs and started to unbutton her trousers. He then pulled her trousers and underpants down. She continued to struggle to try to resist the offender removing her clothes. The offender then pulled his trousers down, knelt on the complainant and pinned her shoulders down with his body weight forcing her legs apart. He attempted to put his penis inside her vagina but he was unable to penetrate her vagina because his penis was not erect. At the same time the complainant was trying to push the offender off her. The offender said "this is not going to work for us" and took all his clothes off. He then pulled the complainant up off the floor and tried to kiss her once again. He kept trying to put his tongue inside her mouth. The complainant was still crying and tried to keep her mouth shut and as a result was having difficulty breathing. 15The act of attempting to penetrate the complainant's vagina with his penis is count 2 on the indictment, the attempt at sexual intercourse without consent. 16The next act that occurred is the first matter appearing on the Form 1. The offender stopped trying to kiss the complainant and she tried to get away. Unfortunately she could not open the door quickly enough. The offender told the complainant to sit down, pulled her towards him, grabbed her hand and made her touch his penis. She pulled her hand away. He then pushed the complainant back down on the floor on her back. He grabbed her hair because she was struggling. She was sobbing and begging the offender to let her go. All the offender did by way of response was to put his hand over her face, force her legs apart and put his finger into the complainant's vagina which hurt her, causing her pain and discomfort. He said "why are you crying, other people enjoy this". It was later observed when the complainant was taken to hospital that this act of digital penetration had injured the complainant's genitals amounting to actual bodily harm. A medical examination revealed abrasions, a laceration and blood. 17The offender then took off the complainant's jacket and shirt. He tried to take her bra off too and in his attempts he hurt her so he asked the complainant to remove her bra. She did so, clearly as a result of the position that she was in. The offender then began to rub her breasts and suck her nipples. That matter is the second offence appearing on the Form 1. 18He then put his finger back inside the complainant's vagina for some time. That is not a separate act of sexual intercourse without consent but is a continuation of the offence that I have referred to earlier. 19Once more he tried to force her legs apart so that he could put his penis inside her vagina and once more he was unsuccessful because the complainant was struggling and he could not maintain an erection. Again that is not a separate act of sexual intercourse without consent but is a continuation of the attempt that I referred to earlier. 20For a third time he penetrated the complainant's vagina with his fingers. At the same time as he pushed her head towards his groin. Again that is a continuation of the offence of digital penetration I referred to earlier. 21The offender said "suck my dick". He pulled her up so that she was standing and began kissing her on the lips, then he pushed her back towards the ground and pulled her up so that she was kneeling in front of him. He was trying to put his penis in her mouth and she was trying to keep her mouth shut, but she had to breathe. When she opened her mouth to breathe the offender took the opportunity of forcing his penis inside her mouth. The complainant felt like vomiting but the offender continued to thrust his penis inside her mouth for some time. Eventually he withdrew and began to masturbate until he ejaculated. After he did so he put his penis back into the complainant's mouth as he had before. 22The offender then pulled the complainant up from the ground so that she was standing and kissed her again during which time he bit her lip. He said, "what are you going to do now" and she said "I am going home." When the offender offered to help she said "I am going home, it can wait until tomorrow." Finally the offender let the complainant get dressed but he would not let her leave the change room until he got dressed. He handed her her keys and swipe card and she unlocked the change room and ran away. 23The CCTV footage that I referred to earlier shows what time all this ended, at 10.51. The footage shows the complainant running from the staff change room towards the exit of the store. The offender simply walked out of the change room and started cleaning. 24Although I have described a great deal of sexual activity, the statement of facts records that at sometime within that two hours and twenty-three minutes when the complainant was in the change room with the offender they sat there in complete silence. 25The complainant ran out of the shopping centre and went to another McDonalds where she spoke to the assistant manager of that store telling her some of what had happened. The police were then called. They went to the McDonalds where the offender was working and arrested him. They observed a smell of alcohol and that his eyes were red and glazed. 26The offender was interviewed by police. He told them lies. He denied speaking to the complainant on the night of the offence and said he simply started his cleaning duties. He said he had not gone into the locker room or staff room with her. 27He said that before work he had been drinking with a friend at Auburn. He said that he had three to four small glasses of red wine, arrived about 2 o'clock and left about 6.30 or seven. He told police that when he left he was not intoxicated. He was able to get the train, or two trains actually, to work and started work at about 8 o'clock. 28As a result of all the matters that I have just described the complainant suffered a number of injuries. She had a small scratch on her left chin. She had scratches to her upper back, across her left shoulder blade and across her right shoulder. She had scratches on the upper outer aspect of the right arm and below this several linear scratch abrasions. She had a scratch on the back of her left hand. She had a bruise on the outer aspect of the right breast. She had two linear scratches on her left lower back. She had a large extensive area of bruising on the inner aspect of the right mid thigh. This was described as being quite extensive and may have been caused by a blow or a firm grip. She had an oval shaped bruise on the left lower leg just below the knee and a large bruise on her right foot. 29DNA analysis was later conducted. DNA matching that of the offender was discovered on the complainant's pants. Semen was discovered. One sperm cell was detected on the complainant's shirt. Other DNA analysis was conducted which tended to suggest the falsity of what the offender had told police. 30The offender initially faced an indictment containing more charges than those now appearing on the present indictment. He pleaded not guilty to every one of those charges, even though four of the counts on that indictment are exactly the same as the four counts to which the offender has now pleaded guilty. Indeed he did not plead guilty until two days after his trial in this Court was due to start. In those circumstances it is agreed that I should impose a sentence upon the offender which is 12.5 per cent less than it would otherwise have been. I must also say that the belated pleas of guilty are quite inconsistent with the offenders suggestion as to when he began to feel guilt and remorse for what he had done. 31The offender is now twenty-five years of age. He was born in India and grew up in a large household where a number of families lived together. His family are respectable people. His father ran a restaurant and his uncles, who also lived with him, owned businesses. 32The offender has had a good upbringing. He can blame none of what he did on any aspect of his upbringing. He suggests that attitudes to things such as sexual matters are different in India to the way they are in Australia, but this scarcely explains violent sexual activity such as I have described. 33The offender completed high school in India and went to university. His studies suffered a bit because he was focussing on sport but he was achieving a great deal whilst in India. He decided to come to Australia to study, to start afresh after he abandoned his sporting aspirations and so he arrived in Australia in 2008 to do a hospitality management course. He enjoyed the practical course work but found the theory difficult and he failed to complete assignments and eventually left the program in May, 2010. He then had a number of different occupations before finally starting at McDonalds as a parttime cleaner in October, 2009. 34Whilst in Australia he met and married his wife, a woman who still supports him. So does his mother-in-law. Indeed both of them have written references which speak highly of the offender and their feelings towards him. Other references from friends were also tendered. It is to be noted that the offender has no criminal history and so this series of very serious offences is, the evidence would demonstrate, out of character for him. 35I mentioned when reciting what the offender did that he was observed by the complainant and police to be smelling of alcohol and acting in an intoxicated manner. The offender blames his intoxication for these offences. There needs to be some explanation as to why the offender, with a good upbringing who is spoken of as highly as he is, who has no criminal history, would embark upon a series of quite serious offences involving the sustained detention of a woman who was crying and clearly fearful. The only explanation that can be offered is the offender's intoxication. He was not a heavy drinker by any means and so I will regard the circumstance that these offences appear to have been committed whilst the offender was intoxicated as a mitigating factor. However not too much can be made of it. An intoxicated person may lose his or her inhibitions more easily than a non-intoxicated person but the conduct that I have described of the offender is so extreme that it is really difficult to see how even a heavily intoxicated offender could act so out of character. 36The offender has been in custody since he was arrested on 9 August, 2010. He receives visits from his wife, his mother-in-law and friends. So it is not the case that, even though the offender is serving a sentence in a country other than that that he was born in, he is isolated whilst in custody. 37Because the offender has no prior criminal history and has people that speak highly of him, he does have good prospects of rehabilitation. Part of his rehabilitation and part of the finding that I can make that he is unlikely to reoffend in the future is based on the idea that the sentence that I must impose upon the offender will necessarily be lengthy. 38It is a fundamental rule in sentencing that a sentence needs to reflect the objective gravity of what an offender did. As I have repeatedly said, what the offender did was serious indeed. So in the future the offender will know that if he commits an offence of this kind he will go to gaol for a very long period of time. Also relevant to the prospect of the offender committing further offences is his promise that he will not drink alcohol in the future. 39Counsel raised the question as to whether the sentences for these four offences would be concurrent. Ms David, who appears for the offender, suggested that wholly concurrent sentences should be imposed. I do not propose to do this. The offences all cover separate aspects of what the offender did. Even the actual bodily harm, the subject to count 1, is different to the actual bodily harm the subject of count 3. It would be quite wrong for any offender or potential offender to think that having committed one serious offence they could commit other serious offences without receiving extra punishment. Each offence that the offender committed no doubt added to the harm that the complainant suffered. There is no evidence that that harm went beyond what is to be expected in cases such as this, but there has been no challenge to the suggestion that I would take into account that the complainant was harmed by the offender's conduct. 40It was put that the offender did not plan what he had done. There is some element of planning apparent on the evidence in that the offender used a ruse, a trick, to get the complainant into the crew room in the first place, but before that we simply do not know. There is no evidence that he planned the offence before that, there is no evidence that he did not. It is not an aggravating factor that I take into account, nor is the lack of planning a mitigating factor. 41The complainant was detained for a relatively lengthy period of time. Certainly the offence is committed in circumstances where the detention extends over days and even weeks, but the offence is also committed where the period of detention is much shorter than that in the present case. As far as the period of detention is concerned, I will thus say, quite simply, it could have been worse and it could have been better. 42Another matter that was specifically addressed was the nature of the intercourse. The offender did not actually penetrate the complainant's vagina with his penis, not through lack of trying of course, and the acts of intercourse that he achieved were digital penetration and fellatio. I have no hesitation in finding that in the circumstances of this case digital penetration of the complainant's vagina is less serious than other forms of intercourse that might have occurred. 43The same conclusion is not as easily reached regarding the act of fellatio. There is no blanket rule that fellatio is necessarily less serious than penile vaginal intercourse. Certainly it does not carry with it the same risk of pregnancy but it remains an intensively personal act, carrying the risk of sexually transmitted disease amongst other things. I note that the offender did not actually ejaculate whilst his penis was inside the complainant's mouth, but, on the other hand, immediately after ejaculating he put his penis back in her mouth. It remains a very serious example of sexual intercourse without consent. 44I will make a finding of special circumstances in the offender's favour. When a calculation is made of the ratio, it will be seen that the variation from the statutory ratio is a fairly modest one. I have done the maths and I have noted that the variation is modest, but the effective non-parole period I am about to announce is the least which, in my view, properly reflects the criminality of the offender's conduct. The offender is sentenced as follows. 45For count 1 on the indictment I impose a fixed term of imprisonment of three years, that is to date from 9 August, 2010. 46For count 2 on the indictment I impose a fixed term of imprisonment of two years to date from 9 August, 2011. 47For count 3 on the indictment I impose a non-parole period of two years with a head sentence of four years to date from 9 August, 2012. 48Count 4 on the indictment, I impose a sentence of imprisonment consisting the non-parole period of two years with a head sentence of four years to date from 9 August, 2013. 49The overall sentence thus imposed is of a non-parole period of five years, a period of eligibility for parole of two years and a total overall term of seven years. The offender is eligible to be released to parole on 9 August, 2015.