STATE OF TASMANIA v AMNINDER SINGH BATTH 20 FEBRUARY 2023
COMMENTS ON PASSING SENTENCE BLOW CJ
Mr Batth has pleaded guilty to six charges relating to a series of sexual acts that he performed with a 12 year old girl one night in April 2021. He was 30 years old at the time.
The couple met through a dating application called Grindr. The girl used a false name and said on her Grindr profile that she was 18 years old. She arranged to meet Mr Batth at the Kmart at New Town at 2 am on 8 April 2021. She had left her family home without telling anyone where she was going. The family had contacted the police and reported her missing.
Mr Batth took the girl to his home in Lenah Valley where he committed the six crimes that are the subject of the indictment. The details are as follows:
- Count 1 is a charge of indecent assault. He committed that crime by kissing the girl and licking her breasts.
- The remaining charges are all counts of penetrative sexual abuse of a child. Count 2 relates to him licking the girl’s vagina.
- Count 3 relates to him penetrating her mouth with his penis.
- Count 4 relates to him having unprotected vaginal sexual intercourse with her.
- Count 5 relates to him again penetrating her mouth with his penis.
- Count 6 relates to him again having unprotected vaginal sexual intercourse with her.
Mr Batth returned the girl to the Kmart later that morning on his way to work. She was located by police officers in New Town, taken to the Royal Hobart Hospital, and interviewed there. She disclosed the offending during that interview.
Mr Batth attended a police station on 16 May 2021, voluntarily took part in an interview, and made full admissions. However he said he thought the girl was 18 or 19 years old. He believed that a person had to be at least 18 to have a profile on Grindr. The girl mentioned having a Pakistani husband and a child. When he arrived at the Kmart she was with a man of south Asian appearance, whom he took to be her husband. Her independence, appearance, demeanour and sexual behaviour gave no indication of her true age. He told the police that he found it difficult to judge the age of Australian girls.
Mr Batth is now 32 years old. He has no significant prior convictions. He now has a partner. They have been together for some months. He has no children. He is employed in an administrative position. He is an Indian citizen with an Australian visa. He is solely responsible for providing financial support to his parents in India.
Under s 501(6)(e)(i) of the Migration Act 1958 (Cth), a person who is convicted by an Australian court of one or more sexually based offences involving a child does not pass that Act’s character test and can be deported. Deportation is discretionary and there are rights of appeal, but the likelihood is that Mr Batth will be deported as a result of these proceedings.
His counsel put to me in mitigation that I should take into account a mistaken belief on his part based on the girl’s appearance, knowledge that Grindr was not available to people under 18, the mention of a husband and child, the presence of the man at the Kmart at 2am, and the girl’s behaviour. He conceded that Mr Batth was reckless as to her age and should have made proper enquires.
Section 14B(3)(a) of the Criminal Code provides as follows:
“In proceedings for a relevant offence, by an accused, in respect of a person who is under the age of 17 years, a mistaken belief by the accused as to the age of the person is not honest or reasonable if –
- the accused did not take all reasonable steps to ascertain the age of the person…”.
These are proceedings for a relevant offence within the meaning of that provision. It would appear that the primary purpose of that provision relates to criminal culpability rather than sentencing, but I do not think the plain words of the provision should be given a restricted interpretation. Mr Batth did not take all reasonable steps to ascertain the age of the girl whom he had sex with. She was under the age of 17 years. Any mistaken belief by him as to her age must therefore be regarded as neither honest nor reasonable. He must be sentenced accordingly. However I will take into account in his favour the fact that, in the circumstances, he had no reason to believe or suspect that she was as young as 12.
Nevertheless, when the victim of a sexual offence is under the age of 13 years, s 11A(1) of the Sentencing Act 1997 requires a sentencing court to treat that fact as an aggravating circumstance. However a number of common aggravating factors are absent in this case. Mr Batth did not and does not have any sexual interest in children or adolescents. This case did not involve grooming, seduction, corruption or any abuse of trust. The girl was sexually experienced and a willing participant in all the sexual activity on the night in question.
There are a number of factors that weigh in favour of some leniency in this case. As I have said, Mr Batth has no significant prior convictions. He cooperated with the police and made full admissions. He pleaded guilty at an early stage. He is remorseful. If he goes to prison he will lose his employment and his financial support of his parents will cease. Whether he goes to prison or not, he is very likely to be deported. A friend who has known him for six years provided a reference describing his general good character.
I was provided with a thorough report on Mr Batth by a clinical psychologist. He found no evidence of mental illness. He concluded that Mr Batth had “unhelpful sexual beliefs” originating in part from a lack of sex education. He concluded that there was a low to average risk of him committing a reportable sex offence in the future. He accepted that he had no sexual attraction to children, sexual deviance or anti-social qualities.
Sexual acts involving children and young people are prohibited in order to protect them from ill-considered decisions. The victim in this case lacked the maturity to make sensible decisions about sexual activity and, for that matter, running away from home. Mr Batth exposed her to a risk of pregnancy. Crimes of this nature usually result in sentences of imprisonment. There is a need to impose a sentence that should deter others from this sort of conduct.
Counsel drew my attention to two other cases in which judges of this Court sentenced men for sexual crimes involving the same victim during the days she was absent from her parents’ home. One man received a wholly suspended sentence of 15 months’ imprisonment, but he had a borderline intellectual disability and was described as a “somewhat immature emotionally fragile individual”. The other was sentenced to 9 months’ home detention and 50 hours of community service. It was noted that he needed to undertake ongoing counselling through a psychologist.
I have come to the conclusion however that the only appropriate penalty in this case is a sentence of imprisonment. The mitigating factors, particularly the likelihood of deportation, are significant, and I am taking them into account in fixing the length of the head sentence and making provision for parole.
Amninder Singh Batth, I convict you and sentence you to 10 months’ imprisonment. You will not be eligible for parole until you have served 6 months of this sentence. I order that the registrar appointed under s 42 of the Community Protection (Offender Reporting) Act 2005 place your name on the register under that Act, and that you comply with the reporting obligations under that Act for 7 years from today.