Director of Public Prosecutions v Shrestha
[2018] VCC 1978
•28 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-00186
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAJAT SHRESTHA |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 28 November 2018 |
CASE MAY BE CITED AS: | DPP v Shrestha |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1978 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms P. Thorp | |
For the Accused | Mr G. Casement |
HIS HONOUR:
1Mr Shrestha, you can remain seated.
2For the Australia Day holiday weekend in 2016, the victim in this matter went with friends to the Rainbow Serpent festival in the Lexton area. On the Monday, being 25 January 2016 around 9.30 am, the victim went looking around the market stalls for a professional massage stall. She found it difficult to find such a stall open at the time.
3Unfortunately, she came across you, Mr Shrestha. You were seating outside a stall selling Nepalese products. The owners of that stall were off having breakfast. Notwithstanding that they knew you from other markets and from within the community, they did not, it seems, authorise you to do anything in respect of their stall.
4As the victim was looking around for the massage, you spoke to her asking what she was looking for. She said that she was looking for a massage. At that point, you, in my view, fabricated that you did massages implying that you were connected to the stall. In this false scenario created by you was that professional massages were done as part of what occurred at the stall.
5You took the victim to the back of the stall where there was a blow up mattress. She expressed concern that the setup looked shoddy but she went ahead placing real trust in you and your representations that a proper massage would be done notwithstanding the basic setup. You quoted her a price for a 15 and a 30-minute massage. She took the 30 minute option and laid down on the mattress.
6The victim's shorts were said to be "cut like underwear". She further said that she could not recall if she had had any underwear on as well but she thinks she would have.
7You commenced massaging the complainant. At one point, to quote from the prosecution opening, the following occurred: You began rubbing your own chest and face across her back and arms. You told her this was "a body contact massage". She says that she thought this was a bit strange and was feeling uncomfortable. You asked her if she liked that. She responded, "Not really", indicating that, "It's mostly my back that hurts. Can you focus on my back?".
8You continued to massage her across the back area for some time. You then picked up a vibrator and began slowly stroking her from the ankles to buttocks and inside her upper thighs up to her panty line. You then said to her words that were inappropriate for the massage, that is, "You have nice legs and a nice butt".
9The complainant told you that she was uncomfortable with what you were doing around her panty line and that it was too close. You told her it was all part of the experience.
10The use of the vibrator continued until it was placed upon her clitoris rubbing it up and down. She tried to wriggle away but it continued. At some point through this, the complainant went along with what was happening and states that she might have moaned a bit. She felt trapped, she said.
11You leaned over her head and she could feel your chest on her back. You held your face to the side of hers whispering, "You know you want this". She was unable to respond and felt frozen. You then put the vibrator down and put your hand inside the complainant's underwear. You used your fingertips to try and find the opening of her vagina. She yelled out to you, "No, I don't want that", and she wriggled away.
12She then yelled at you as she left getting up off the mattress, "You can't do that. I've never been so violated. You need to get permission from me". You alleged to have said, "It's normal and part of the experience". She responded, "No, it's not" and refused to pay. She then ran from the stall.
13This set of circumstances led ultimately to a single charge of sexual assault, the particulars being when you put your hand inside the victim's underwear and touched her on the vagina with your fingers. After she left, you too left. You had arranged to go back to Sydney and so left the festival shortly thereafter flying back to Sydney.
14You were ultimately arrested in Sydney and on legal advice refused to be interviewed. There was no committal. The trial was listed for 13 August this year, 2018 but it resolved shortly after that for the charge that I have mentioned of a sexual assault being a less serious charge than what you faced originally.
15The impact on the victim has been significant. She wrote in her victim impact statement that she suffers intense anxiety and depression, that it is reoccurring and "I have incredibly low self-esteem and feel like I've lost control of everything and frequently I have panic attacks". She says that she freezes up and she finds it hard to trust people, especially strangers "because I think they have a hidden motive".
16In terms of non-penetrative sexual offending, this is a serious example. Your touching was right on her vagina though there was no penetration. The victim was vulnerable having trusted you to perform a professional style massage. You grossly breached that trust and exploited the circumstances in which she allowed you to touch her but not in the way that you did.
17You put your perverse sexual gratification above her dignity and her right not to be violated. What you did has had an effect on her in the sense of her wellbeing, her self-esteem and her capacity to trust. She should not be made to feel the way she does. Nothing more could be put forward that lowers your moral culpability which on any view is high.
18As to your personal circumstances. You are now 37 years old. You were born in Nepal migrating to Australia in the year 2000 at the age of 18. Your parents were hard with high perhaps unrealistic expectations of you academically. You were sent to boarding school at a young age. Your upbringing was not especially nurturing.
19After school, you came to Australia, no easy step at that age. You gained a degree in Business and a Diploma in Information Technology. You have a solid work history including the establishment of your current business running market stalls and a shop. You gained an interest in clothing and the retail area after your travels for two or so year in Europe and North America. You now have, as I have said, a permanent shop in Sydney and you deal and import the Nepalese type or ethnic type clothing, if I can describe it that way.
20You have had four relationships all for about a year or so. The end of the last relationship was difficult for you. You have a small but supportive group of friends in Sydney all that seems from the expatriate Nepalese community, they think highly of you. The testimonials tendered speak strongly of your good character. You are said to be hardworking and responsible having never been seen to evidence any violence or concerning conduct to those that know you well.
21You have no previous or subsequent convictions. Your previous good character evidenced by a number of factors allows you to call for a more merciful sentence. Your previous good character also operates as a foundation for solid rehabilitation so too does your work history.
22Your plea of guilty also evidences remorse and acknowledgement of responsibility once the charges had crystallised to the matter of the sexual assault. I note that those that write the testimonials on your behalf also indicate your shame and remorse.
23The report from the psychologist, Mr Bardie, in New South Wales who is now treating you also gives emphasis to your insight. At one point he describes as moderate but now low, you were able to articulate for him how the victim would have felt. Mr Bardie considers your risk of reoffending to be low. In all the circumstances, that seems as reasonable as these predictions can be though I say that on the basis that you do not take up massaging females again.
24The psychologist considered you had longstanding depression. Plainly, your anxiety levels have elevated as you came towards confronting the realities of this case. Gaol would be onerous for you but it must be in order to operate as punishment and as a deterrent.
25As our Court of Appeal have said in the DPP v Myers,
"Depression and the impact of prison on someone with depression is not necessarily a factor that would ordinarily establish mitigation."
26In my view, the point made there applies here to your circumstances.
27Your counsel argued in a comprehensive written and oral plea that all sentencing considerations could be met an onerous community corrections order. He pointed out your commitment to such an order as evidenced by your willingness to move Victoria for the duration. This is no small matter. All your supports are in Sydney.
28Prosecution argued that there had to be incarceration given the gravity of the crime, the breach of trust and the impact on the victim. Those matters meant real weight had to be given to denunciation and general deterrence and in turn those purposes and the weight attaching to them could only be properly met by a term of imprisonment, however, the prosecution consented that a combined community corrections order and sentence of imprisonment was within range.
29The Court of Appeal in the well-known and important guideline decision of Boulton & Ors v The Queen, made it clear that a community corrections order is punitive and thus operates as a deterrent. Also, that a community corrections order can also simultaneously be rehabilitative.
30With your previous and subsequent good character, this means that your prospects and your path towards permanent reform are straightforward and solid. Thus detailed program conditions on a community corrections order are not indicated. However, you could benefit from a sex offender's program. The key intension here is whether all sentencing purposes can be satisfactorily met by a community corrections order alone.
31I can only move to impose a gaol term if a community corrections order cannot meet all the sentencing purposes.
32I have given anxious consideration to all the matter for and against you. There is much in your favour and in my view that opens up the prospects of a community corrections order. However, a community corrections order alone is not sufficient to express denunciation and deterrence. The only just and appropriate sentence in my view is a combined community corrections order and a term of imprisonment.
33I have ensured that the grave step of imposing gaol has been kept to the absolute minimum that justice requires in your case.
34Can you please stand, Mr Shrestha?
35Charge 1, the only charge, that is of sexual assault, you are sentenced to be imprisoned for six months and thereafter, with conviction, you are placed on a community corrections order for 18 months. There needs to be some unpaid community work, that is 60 hours of community work. You need to undertake the sex offender's program and be under supervision. All time spent on the sex offender's program can be deducted from the unpaid community work by operation of this order and the Act.
36Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a term of 18 months with a minimum term of nine.
37Is there any other orders required?
38MS THORP: Your Honour, there is an application for a forensic sample made.
39HIS HONOUR: What is the position on that? I cannot remember.
40MR CASEMEMT: I can't recall either, Your Honour, but ‑ ‑ ‑
41HIS HONOUR: Yes. I will tell you that it is not often that consent or otherwise is a tipping point. In this instance the application having been made, I would have to assess the seriousness of the offence which is non-penetrative but, as I have described, it is a serious example of non-penetrative sexual assault. It is within a random circumstance, not as a known offender.
42There is an interest of justice point to be made in having Mr Shrestha provide a forensic sample and I will order that he does.
43MR CASEMEMT: Thank you, Your Honour.
44HIS HONOUR: What that is, Mr Shrestha, is that at a point, the authorities will come and ask you for a taking of a scraping from your mouth. I have ordered that you provide that.
45Now, if you do no cooperate with them when they come to do it, they are authorised to use reasonable force for the taking of that sampletre://ftr/?label="CC 7-4"?datetime="20181128112049"?path="\\svr_vgrs_fs01\Criminal"?Data="53238c21" and the way through it is to just cooperate.
46The corrections order will have to be produced and you need to sign that before being taken downstairs. Just take a seat. There was some hint in the Crown opening, I understand it, I do not know if they pressed it for - that the Sex Offender Registration was discretionary, is that right? It has just been brought to my attention by ‑ ‑ ‑
47MS THORP: No, Your Honour.
48HIS HONOUR: No.
49MS THORP: Instructions are sought and we are not seeking SORA registration.
50HIS HONOUR: But it is open?
51MS THORP: Yes, Your Honour.
52HIS HONOUR: You do not seek it?
53MS THORP: No.
54HIS HONOUR: You opposed it. I do not grant it.
55MR CASEMEMT: Thank you.
56HIS HONOUR: Because he is not a risk to the sexual safety of a member of the community such that, on a finding of beyond reasonable doubt such that I would impose registration. It is going to be a Footscray place you will have to start with and we will see where it goes from there.
57MR CASEMEMT: Yes. Can I just approach him, Your Honour?
58HIS HONOUR: In due course. Just bear with me ‑ ‑ ‑
59MR CASEMEMT: Yes. Thank you.
60HIS HONOUR: ‑ ‑ ‑ because I will get you to take the form down to him.
61MR CASEMEMT: The CCO.
62HIS HONOUR: Right. So what we have got here is a community corrections order, Mr Shrestha. It will last for 18 months from the completion of your term of imprisonment.
63Conditions that apply to the community corrections order - there are a group of them that are mandatory, apply to everyone. The first of them vital. You must not commit another offence for which you could be imprisoned during the time the order is in force.
64The other conditions are really cooperation conditions or matters that require cooperation. You have got to cooperate with the Office of Corrections in respect to sentencing regulations. That, I am told, really is that they will take photographs of you so they can identify you. You have got to cooperate in that process.
65You must report to and receive visits in the Office of Corrections. You must report to the Corrections Centre. You must report to the Corrections Centre within two clear working days of the order starting. The one that is nominated for you is the Sunshine Community Correctional Services. The address is here. That is on the basis that you will reside somewhere in Footscray but it is a matter that you have to work out.
66You must let them know within two clear working days if you change your address or your job and you must not leave Victoria without getting permission to do so. So that is relevant to you and you must obey all lawful instructions and directions.
67You have to do some conditions or programs that are specific to you. You must perform 60 hours of unpaid community work over the 18 months. All the hours of treatment and rehabilitation satisfactorily undertaken can be counted as unpaid community work. You must be under the supervision of a Community Corrections Officer and you must participate in programs and courses that address factors relating to your offending and that will be the sex offender's program.
68Now, that is onerous. If you sign that though, that will be the community corrections order.
69MR CASEMEMT: The order is signed, Your Honour.
70HIS HONOUR: Thank you very much. Mr Shrestha, you have signed this order. Perhaps I will just add to it that you will need to work it out with the Corrections people all the details of where you do it, at what point you can be transferred and so and so forth. There may be prospects of doing some of it in New South Wales but you will have to take that up with them. All right?
71Is there anything further?
72MS THORP: No, Your Honour.
73HIS HONOUR: I thank Ms Thorp for her help. The 6AAA so it is clear related as it must I think to the offence had it pleaded not guilty to this offence.
74MS THORP: Yes, Your Honour.
75HIS HONOUR: Not any other offence which may have been what he would have confronted had he gone to trial so just for his own mind that had he gone to trial in respect of rape charges, there would have been a much more severe penalty had he been found guilty than what I just read out.
76MR CASEMEMT: Yes, Your Honour.
77HIS HONOUR: So the benefits to him by negotiation and plea are palpable.
78MR CASEMEMT: Thank you.
79HIS HONOUR: If he can be down taken down. Mr Casement will come and see you if he is able to later. Thank you.
80MR CASEMEMT: Just one moment, Your Honour. I need to speak with the prison officer, Your Honour, just before she goes.
81HIS HONOUR: Just before the prison office goes, Mr Casement has got something to say. No, no, no, no. No, you wait there. I see. For the transcript, Mr Casement took a bag completely sealed and handed it over completely sealed so it has got nothing to do with him what is in it. Is there anything else required?
82MS THORP: No, Your Honour.
83HIS HONOUR: Thank you. I might remain on the Bench so feel free to leave and I will deal with the other matter.
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