R v Saran

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Loukas-Karlsson J
• Judgment Date: 22 February 2019
• Date: 22 February 2019
• Docket Number: File Numbers: SCC 119 of 2017

[2019] ACTSC 37

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Loukas-Karlsson J

File Numbers: SCC 119 of 2017

The Queen

(Crown)

and

Jasminder Singh Saran

(Offender)

Representation:

Counsel

Mr P Dixon (Crown)

Ms T Warwick (Offender)

Cases Cited:

Cheung v The Queen [2001] HCA 67; 209 CLR 1

Gillard v The Queen [2016] ACTCA 50

Guden v The Queen [2010] VSCA 196; 28 VR 259

HAT v The Queen [2011] VSCA 427; 35 VR 109

Hili v the Queen [2010] HCA 45; 242 CLR 520

Islam v The Queen [2006] ACTCA 21

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Mill v The Queen (1988) 166 CLR 59

R v Agresti [2016] ACTSC 9

R v Alabbasi [2017] ACTSC 231

R v Alabbasi [2017] ACTSC 239

R v Aroub [2017] ACTSC 187

R v Chi Sun Tsui (1985) 1 NSWLR 308

R v Cranfield [2017] ACTSC 171

R v Goold (No 2) [2016] ACTSC;

R v Hoyle (No 2) [2017] ACTSC 175

R v Isaacs (1997) 41 NSWLR 374

R v M.A.K; R v M.S.K [2006] NSWCCA 381

R v Meyboom [2012] ACTCA 48

R v Naqvi [2016] ACTSC 345

R v NC [2017] ACTSC 206

R v NO (No 2) [2018] ACTSC 37

R v Norris; Ex Parte Attorney-General (QLD) [2018] QCA 27

R v Palmer [2017] ACTSC 357

R v PM (No 2) [2015] ACTSC 358

R v Stanley [2015] ACTSC 322

R v Stevens (No 3) [2017] ACTSC 297

R v SV [2016] ACTSC 211

R v Tamawiwy (No 4) [2015] ACTSC 371

R v UE [2016] QCA 58

R v US [2016] ACTSC 130

R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 169 A Crim R 581

R v Wyper (No 2) [2017] ACTSC 103

Singh v R [2015] ACTCA 65

Singh v The Queen [2017] ACTCA 17

The Queen v De Simoni (1981) 147 CLR 383

Zdravkovic v The Queen [2016] ACTCA 53

Legislation Cited:

Crimes Act 1900 (ACT) ss 54, 60

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7,10, 33

Migration Act 1958 (Cth) ss 501, 501CA

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — trial by jury — guilty verdict — act of indecency without consent — sexual intercourse without consent — relevance of likely deportation — hardship to family not exceptional

Loukas-Karlsson J

Introduction

1 On 26 September 2018, Jasminder Singh Saran (the offender) was found guilty by a jury of the following offences contained on an indictment dated 17 November 2017:

Charge Number	Date of Offence	Offence	Maximum Penalty
Count 1 (XO2017/31257)	2 January 2017	Act of Indecency without consent ( Crimes Act 1900 (ACT) s 60(1))	7 years of imprisonment
Count 3 (XO2017/31259)	8 January 2017	Act of Indecency without consent ( Crimes Act 1900 (ACT) s 60(1))	7 years of imprisonment
Count 4 (CC2017/1613)	8 January 2017	Act of Indecency without consent ( Crimes Act 1900 (ACT) s 60(1))	7 years of imprisonment
Count 5 (CC2017/1614)	8 January2017	Act of Indecency without consent ( Crimes Act 1900 (ACT) s 60(1))	7 years of imprisonment
Count 6 (CC2017/758)	8 January 2017	Sexual Intercourse without consent ( Crimes Act 1900 (ACT) s 54(1))	12 years of imprisonment
Count 7 (CC2017/759)	8 January 2017	Sexual intercourse without consent ( Crimes Act 1900 (ACT) s 54(1))	12 years of imprisonment
Count 8 (CC2017/760)	8 January 2017	Sexual intercourse without consent ( Crimes Act 1900 (ACT) s 54(1))	12 years of imprisonment

Facts

2 The High Court in Cheung v The Queen [2001] HCA 67; 209 CLR 1 ( Cheung) endorsed the NSW Court of Criminal Appeal's approach in R v Isaacs (1997) 41 NSWLR 374 ( Isaacs) in relation to the Court's role in sentencing and interpreting a jury's verdict of guilty following a trial. The Court in Cheung at [14] quoted the summarised principles from Isaacs (at pages 377–378) as follows:

• 1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury …

• 2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. …

• 3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury.

• 4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

• 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. …

3 Taking into account these principles, I make the following factual findings.

4 The victim and the offender were employed as cleaners at a hotel in Canberra. The victim was from China, and the offender is from India.

5 On 2 January 2017, the victim and the accused were “teamed” up to work together cleaning hotel rooms.

6 On the same day, while cleaning hotel rooms, the offender pinched the victim on the face, smacked and touched her on the bottom, and asked her to be his girlfriend. These acts make up Count 1.

7 On 8 January 2017, the victim and the offender were again teamed up to work together cleaning hotel rooms. The victim gave evidence that when cleaning hotel rooms, the doors of each room were meant to be open. However, when working with the offender, the offender would close the doors.

8 In the morning of that day, the offender kissed the victim on the face, hugged her and touched her on the bottom. These acts make up Count 3.

9 In one of the rooms, before lunch, the offender pushed the victim on to a bed, pulled up the victim's t-shit and bra to expose her breasts, and pulled out the waist band of her trousers and looked at her vagina. The victim gave evidence that she tried to push him away, and said “no please don't”. These acts make up Count 4.

10 After lunch, while cleaning a room, the offender again pulled up the victim's t-shirt and bra. He pulled her pants down to her knees then removed his erect penis from his pants and masturbated in front of the victim. He had one hand on the victim's breast while he did this. These acts make up Count 5.

11 Later, in a different room, the offender pulled up the victim's t-shirt, kissed her breasts, bit her nipple, pushed her legs apart and inserted his penis in to her vagina. The offender removed his penis and ejaculated onto the victim's vulva. These acts make up Count 6.

12 Later again, the offender kissed the victim on the breasts and he put his penis in her vagina from behind. The victim begged the offender “don't”. These acts make up Count 7.

13 Later, the accused pushed the complainant face down on to a glass top table and engaged in penile vaginal intercourse. The victim said “no” and “please don't”. This act makes up Count 8.

14 It is clear from the jury's verdict that the offender's version was rejected and the complainant's version as to the elements was accepted beyond a reasonable doubt. Consistent with the jury's verdicts I find that the offender was reckless as to whether there was consent.

Victim Impact Statement

15 Included in the Crown tender bundle is a Victim Impact Statement dated 11 October 2018.

16 The extent of the impact upon the victim was made clear by the Victim Impact Statement. Courts know the extremely serious effects of sexual offences on victims. Nevertheless, it is valuable to hear the words of the victim.

17 The court acknowledges the significant impact of the offences on the victim.

Objective Seriousness

18 The offences took place over two separate days at the victim's workplace during the course of employment, where she was, as was submitted by the prosecution, entitled to “carry out her work free from sexual advances and molestation”. This is undoubtedly correct. In this regard, the prosecution submitted the offences where opportunistic, but formed part of a continuing course of conduct.

19 Counsel for the offender submitted that these offences did not involve a breach of authority, and submitted that the victim was not a vulnerable person or working in vulnerable circumstances. Counsel submitted that the offending did not involve humiliating, degrading or dominant conduct, or threats, and that the offences took place “not away from” the public or from help. Ultimately, it was submitted that the offending was opportunistic rather than planned. I find in accordance with the submissions of the prosecution and counsel for the offender that the offences were opportunistic and also part of a continuing course of conduct.

20 In relation to the individual counts, the prosecution and counsel for the offender agreed that Counts 1 and 3 were at the lower range of seriousness. This accords with my view and I find these offences to be at the lower end of seriousness for offences of this nature.

21 The prosecution and counsel for the offender agreed that Counts 4 and 5 should be assessed at the mid to high-range of seriousness. This again accords with my view.

22 The prosecution submitted that Counts 6 to 8 should be assessed at “definitively midrange”, but not “low”. Counsel for the offender submitted that the offences were of low to mid-range for offences of this type.

23 I find that the offences were broadly of mid-range seriousness.

Subjective Circumstances

24 In evidence before me is a Pre-Sentence Report (PSR) for the offender, as well as a letter to the Court from the offender and a letter from the...