Mohindra v R

[2020] NSWCCA 340

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mohindra v R [2020] NSWCCA 340

Hearing dates:

4 December 2020

Decision date:

16 December 2020

Before:

Basten JA at [1];
Johnson J at [69];
Davies J at [70]

Decision:

(1)   Grant the applicant leave to appeal against the aggregate sentence imposed by the District Court on 13 March 2020.

(2)   Dismiss the appeal.

Catchwords:

CRIME – sentencing – aggravated indecent assault – aggregate sentence – threshold for sentence of imprisonment – Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 – application to indicative sentences

CRIME – sentencing – aggravated indecent assault – objective seriousness – degree of physical contact

CRIME – sentencing – guilty pleas – utilitarian discount not provided – guilty pleas entered on fourth day of trial – whether obligation to allow discount – nature of discretion under Crimes (Sentencing Procedure) Act1999 (NSW), s 22

CRIME – sexual offences – indecent assault – circumstances of aggravation – position of trust or authority – employer indecently assaulting job applicant at interview – whether aggravating factor engaged – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k)

Legislation Cited:

Anti-Discrimination Act 1977 (NSW), s 22B

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 9, 21A, 22, 54B

Crimes Act 1900 (NSW), ss 61L, 61M

Cases Cited:

Corby v R [2010] NSWCCA 146

Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54

Grealish v R [2013] NSWCCA 336

Mol v R [2017] NSWCCA 76

Mulato v R [2006] NSWCCA 282

R v AA [2017] NSWCCA 84

R v Gommeson [2014] NSWCCA 159; 243 A Crim R 534

R v JRD [2007] NSWCCA 55

R v Shortland [2018] NSWCCA 34

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Van Hong Pham [2005] NSWCCA 94

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Suleman v R [2009] NSWCCA 70

You, Jae Bok v R [2020] NSWCCA 71

Category:

Principal judgment

Parties:

Rajan Mohindra (Applicant)
Regina (Respondent)

Representation:

Counsel:
Ms S Dowling SC / Mr A Brown (Applicant)
Ms H Roberts / Mr C Young (Respondent)

Solicitors:
Ms A Mohindra (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2016/162199

Publication restriction:

There is a non-publication order in place with respect to the identity of the complainants.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

13 March 2020

Before:

Townsden DCJ

File Number(s):

2016/162199

Judgment

1. BASTEN JA: On 19 August 2019 the applicant, Rajan Mohindra, was arraigned on an indictment containing 10 counts of aggravated indecent assault (Crimes Act 1900 (NSW), s 61M(1)) and one count of indecent assault (s 61L), involving six complainants. After two days of preliminary matters, the jury was empanelled on 22 August. On the fourth day of the trial, after the fourth complainant had given evidence in chief, the applicant changed his pleas from not guilty to guilty with respect to six counts on the indictment (counts 1, 2, 3 and 6, 8 and 9), each involving one of the six complainants. The pleas were accepted in full answer to the indictment and the matter proceeded to sentence. On 13 March 2020 Judge Townsden imposed an aggregate sentence involving a non-parole period of 2 years with a balance of 1 year 4 months, giving a total sentence period of 3 years 4 months, commencing on 13 March 2020.

2. On 1 October 2020 the applicant sought leave to appeal on five grounds. The first four alleged specific errors on the part of the sentencing judge, namely:

1. in finding that the offending the subject of count 1 was aggravated by the abuse of a position of trust;

2. in assessing the objective seriousness of count 3;

3. in failing to provide a discount for the utilitarian value of the pleas of guilty, and

4. in determining that no sentence other than imprisonment was appropriate for counts 1 and 3.

Ground (5) alleged that the aggregate sentence was plainly unreasonable or unjust.

3. There is a non-publication order in place with respect to the identity of the complainants which will continue. It is convenient to identify the six victims by reference to the counts on the indictment. (A non-publication order with respect to the name of the offender, which was in place in the District Court, has not been continued.)

Factual circumstances

4. Count 1 involved the only charge of indecent assault, with no element of aggravation. Victim 1 was seeking employment at the time of the offending conduct; each of the other victims was an employee working for the applicant, being under his “authority” being the circumstance of aggravation relied upon in each of the other counts. The result was that the maximum penalty for the count 1 offence was 5 years, but in each other case it was 7 years, with a 5 year standard non-parole period. In other respects the nature of the offending on count 1 was similar to the offending involving the aggravated indecent assaults.

5. The following account of the offending in relation to each offence is taken from a statement of facts signed by the offender on 27 August 2019 when the pleas were entered.

Count 1

6. On 15 March 2001 victim 1 (then aged 20 years), applied for a job as a warehouse assistant working for the offender. He let her into the warehouse through a roller door which he closed behind her. There was no one else present. During the interview he rubbed the complainant’s upper thigh and kissed her on the cheek, asking if she had a boyfriend. He then showed her clothes and told her to try on some clothes which he would give her at a discount. After she had tried on one dress, the offender bought her another dress and told her to put it on in the change room. She described the dress as “really short, completely see-through, really revealing” and like a beach dress with singlet straps. When she came out of the change room the offender walked up behind her, told her the dress “looked really good” and started feeling her bottom. He then felt up her thighs and her side, putting his hands inside the dress onto her breasts. (She was wearing underclothes.) Victim 1 said she “froze” and felt “terrified”. She told the offender she had to leave, got changed and left. From her car, she called a friend and then went to report the matter to the police.

Count 2

7. Count 2 occurred on a date between 12 September and 27 September 2009. The victim was 16 years of age when she was offered a job by the offender. She was still at school and worked after school hours.

8. She said that a little time after the start of her employment her interactions with the applicant became “advances rather than interactions”. The offender told her he would increase her pay if she wore “skirts rather than pants”, but she did not. The offender would hug her and kiss her on the cheek. After she had been working there a few months he started kissing her on the lips, touching her bottom and breasts.

9. The offender asked her to go to Sydney with him. She said her mother (who also worked at the store) would not let her go, but the offender spoke to her mother and agreed that the mother, the complainant and her younger brother would all go for the trip. They stayed at the Casino, the offender paying for a separate room for the family. After dinner the offender asked the complainant to come to his room, which she did with her younger brother. The offender told the brother to go back to his room, which he did. He then approached the complainant, grabbed her face and kissed her. She backed away telling him “No”, but he kept trying to kiss her on the lips and touched her breasts, bottom and arms. He stopped when the brother knocked on the door.

Count 3

10. Count 3 occurred on 7 September 2010, when the victim, then 17 years of age, had been working for a short time for the offender and was to be paid at the end of the day. When she reached out to take her pay the offender grabbed her arm, pulled her towards him and kissed her on the mouth for about five seconds. She said she “tensed up”, was shocked and left the store quickly. She then called her sister who picked up her and took her to the police station to report the matter.

Count 6

11. Count 6 occurred in December 2015 at the offender’s shop at Erina Fair Shopping Centre. The victim was 28 years of age. She was first employed for a trial period on a single day. During that period the offender rubbed her arm and asked her questions, told her she had “nice skin”, which made her feel uncomfortable. She was offered a job which she took. When she attended the store on 23 December the offender welcomed her with a “kiss on the cheek”. During the day, the offender rubbed her arm and touched her on the bottom with the palm of his hand. During her work hours on 24 December, the offender gave her a dress and was “constantly” rubbing her arm. At one point he grabbed her on the arms, leaned in to smell her and kissed her on the neck.

12. His attentions during her 28 December shift commenced in the morning. She told him she felt sick and would go home early. He gave her Nurofen and told her to sit behind the counter to see if she felt better. The offender came up behind her and started massaging her head and face. After she stood up and served a customer, she was told to sit down and was massaged again. She said that happened three times. At about 1pm, while massaging the complainant, the offender put his left hand on her back and his right hand on her chest. As he massaged her back with his left hand he moved his right hand over her chest, under her top and onto her breast, outside her bra. He then moved his hand under her bra and massaged her breast. He squeezed her breast a few times and said “Tell me if I’m using too much pressure”. He then changed hands. This conduct constituted count 6. When she was able to leave the shop at about 1:45pm, she spoke to two friends, and her mother; the matter was reported to the police that evening.

Count 8

13. The victim of count 8 was 16 years of age at the time of the offending. She commenced work with the offender in December 2015 at the Erina Fair shop. After undertaking a trial, the offender told her she had the job and gave her a hug. On several occasions leading up to Christmas, he would put his hand on her hip, an arm around her shoulders, hug her and kiss her on the head.

14. She said that by the new year he was touching her on every shift and would press his body against her. The offending the subject of count 8 occurred on 5 April 2016 when they were discussing the roster and he said, “Come on, let’s look at the calendar”, which was on the wall in the back room of the shop. He grabbed her by the arm and pulled her into the back room. In the room he grabbed her hand interlocking her fingers with his and holding her very tightly. He then put both arms around her so that she was facing the wall with the offender’s whole body pressed against hers. She froze, and the offender held her for some time. She did not return to work after that shift.

Count 9

15. Count 9 occurred between 11 April and 6 May 2016, also at the shop at Erina Fair. The victim was 19 years of age when she worked at the shop. She was employed for approximately five shifts. On each shift the offender would touch her, including by holding, rubbing and kissing her hand, kissing her on the cheek and calling her a “good girl” and complimenting her on her clothes. She told the offender she was not a “touchy person” and it was making her uncomfortable, but the behaviour continued. On an occasion when she told the offender she had a sore back, he sat her down and rubbed her neck and lower back. He put one arm around her chest whilst using the other to massage her back. The hand on her chest touched her breast. He then used his whole hand to grab her breast firmly. She tried to adjust her position, but he continued to touch her breast. That conduct constituted count 9. It was repeated on two other occasions, and she did not return after her shift on 9 May 2016.

Findings of sentencing judge

16. After setting out the elements of the offending in the terms summarised above, the judge considered the subjective circumstances of the offender, having regard to the following material:

1. evidence given by the offender on the sentencing hearing, together with evidence given by his son;

2. a report of 14 November 2019 by a consulting psychiatrist, Dr Richard Furst;

3. reports by Susan Wojciechowski, clinical psychologist, dated 15 December 2019 and 22 February 2020;

4. sentencing assessment reports dated 28 November 2019 and 9 March 2020.

17. The chronology of the sentencing proceedings was significant. Following the agreement in relation to the pleas, reached on 27 August 2019, a statement of agreed facts was tendered and admitted without objection. The legal representative of the offender, Mr Seeney, agreed a sentencing assessment report should be obtained. The matter was then adjourned to Friday, 29 November 2019.

18. When the matter came back before the Court on 29 November 2019, Mr Seeney sought leave to withdraw, which was granted. Further documents were then tendered, with the offender unrepresented. The matter was then adjourned to 19 December 2019, when Mr J Lewis appeared for the offender. Further material was tendered on that occasion, including the first reports of Dr Furst and Ms Wojciechowski. The offender gave evidence and was cross-examined. His adult son also gave evidence on that occasion. Both parties made submissions on 19 December, but it was agreed that further material going to rehabilitation might be sought on behalf of the offender. Accordingly the sentencing proceeding was adjourned to 13 March 2020.

19. On 13 March 2020 further reports were tendered. The offender gave further evidence. There were also short oral submissions, following which the judge delivered his reasons and sentenced the offender.

20. As noted above, the sentence involved an aggregate sentence with a non-parole period of 2 years imprisonment and a balance of the term of the sentence of 1 year and 4 months. The judge indicated that individual sentences would have been imposed, as follows:

Count 1 – 9 months.

Count 2 – 18 months (11 month non-parole period).

Count 3 – 14 months (9 month non-parole period).

Count 6 – 10 months (6 month non-parole period).

Count 8 – 10 months (6 month non-parole period).

Count 9 – 10 months (6 month non-parole period).

21. It was neither necessary nor appropriate for the judge to indicate a non-parole period in respect of count 1, there being no standard non-parole period for an offence under s 61L of the Crimes Act. However, where an aggregate sentence is imposed in respect of offences carrying a standard non-parole period (of which one is s 61M(1)) it is necessary to state the non-parole period which would have been set for each individual sentence. [1]

    1. Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), s 54B(4)

22. The judge was also required to give reasons for departing from the standard non-parole period in respect of those offences: s 54B(5). The judge noted, the curiosity that the standard non-parole period was itself more than half (62%) of the maximum penalty. He found that the objective seriousness of the offences was below the mid-range for offences of their type. Further, the offender entered pleas for all the offences. These may all be treated as appropriate reasons for departing from the standard non-parole period.

23. It will be necessary to refer to the subjective circumstances which the judge identified and took into account when considering the ground of manifest excess. Before addressing that issue, it is convenient to deal with the grounds of appeal raising specific complaints about the sentencing.

Ground 1 – count 1 (circumstance of aggravation)

24. The particular of aggravation relied upon in respect of each count of aggravated indecent assault was that the complainant was “under the authority of” the offender at the time of the offending. That authority flowed from his position as the employer of the victims. The phrase “under the authority of” is identified in s 61M(3)(c) of the Crimes Act. With respect to count 1, the victim was an applicant for employment at the time of the offending conduct; the indictment identified no element of aggravation, but for the purpose of sentencing, the prosecution alleged that the offender “abused a position of trust or authority in relation to the victim”, as provided in s 21A(2)(k) of the Sentencing Procedure Act. In particular, it was said that the offender, as a prospective employer, was in a position of trust.

25. It is true, as the applicant submitted, that the concepts of “trust” and “authority” differ in some respects. The characterisation will often depend upon the circumstances of the particular case; in some cases both terms may apply. For example, there may be a relationship of trust and authority between a parent or other senior relative and a young member of the family. However, the familial relationship itself will not necessarily be sufficient to satisfy the aggravating circumstance, as explained in Director of Public Prosecutions (NSW) v Burton,[2] a case involving an uncle and niece, who had had virtually no contact throughout the niece’s childhood and adolescence. It has also been said, albeit in relation to commercial circumstances, that the aggravating factor “is not made out simply because the victim trusted the offender for some reason or other.”[3]

    2. [2020] NSWCCA 54 at [31].

    3. Suleman v R [2009] NSWCCA 70 at [22] (Howie J); see also Mol v R [2017] NSWCCA 76 at [107] (Fullerton J).

26. The applicant’s written submissions stated, succinctly:

“30.   There was no established relationship between the applicant and the complainant [on count 1] that was capable of giving rise to a special relationship of trust – they first met on the day of the offence and the applicant was not the complainant’s employer. Accordingly, it was not open to his Honour to find that the offending the subject of count 1 involved a breach of trust, nor that it was aggravated by that fact.”

27. That submission gave too narrow a scope to the concept of a relationship of trust. It is not insignificant that equal opportunity legislation, which proscribes sexual harassment in particular situations, makes it unlawful for an employer to sexually harass either an employee or a person who is seeking employment with the employer. [4] Not only is there a significant power imbalance between the person seeking work and the potential employer, but the person seeking work may have to attend at a place identified by a complete stranger and submit to an interview in the privacy of the prospective employer’s premises, as happened in the present case. There is no incongruity in describing the making of sexual advances in such circumstances as abusing a position of trust. Ground 1 is rejected.

    4. See Anti-Discrimination Act 1977 (NSW), s 22B(1).

Ground 2 – count 3 (objective seriousness)

28. The judge identified the objective seriousness of each of the aggravated indecent assaults as “below the mid-range but not towards the lower end.” The count 3 offence involved grabbing the victim’s arms and kissing her on the mouth for about five seconds. It was clearly intrusive and forceful conduct, although for a limited period. The judge said he had regard to the respective ages of the complainant and the offender, being 17 years and 55 years respectively.

29. Conceding that the assessment of objective seriousness was quintessentially a matter for the sentencing judge,[5] the applicant nevertheless submitted that any assessment other than “at the lower end of the range” was not reasonably open.

    5. Mulato v R [2006] NSWCCA 282 at [46].

30. One reason why it is difficult to challenge an assessment of objective seriousness is that there is no prescribed scale. Further, different aspects of particular offending may bear differing weight, rendering a linear scale inherently unhelpful. Nevertheless, assuming that the sentencing judge had some linear scale in mind, whether he identified the “mid-range” as between 45% and 55%, or between 30% and 70%, is unknown.

28. The applicant sought to draw a relevant comparison between the facts of the offending in this case and that in Corby v R,[6] where this Court described kissing and cuddling a complainant with an intellectual disability (in a secluded place and in the context of an ongoing inappropriate relationship) as lying “towards the bottom of the range of objective seriousness for this class of offence.” The offence was, as the applicant noted, an offence under s 61M(2) involving a complainant under the age of 16 years, and carrying a maximum penalty of 10 years imprisonment. Merely because this Court identified a certain level of objective seriousness (which, significantly, was “towards”, not “at”, the bottom of the range), the case does not provide any helpful guidance as to what was reasonably open to the sentencing judge in the present case. Further, the victim of count 3 in the present case gave evidence and was cross-examined. The judge heard her oral testimony, which may well have impressed him as to her level of maturity and the significance of the event for her.

    6. [2010] NSWCCA 146 at [72].

29. At the heart of the applicant’s complaint was the proposition that the judge must have overestimated the objective seriousness of the offending because the indicative sentence for that offence was 14 months (with a 9 month non-parole period), whereas the indicative sentence for each of counts 6, 8 and 9 was 10 months (with a 6 month non-parole period).

30. The relative level of indicative sentences reflected the language of the findings of the trial judge with respect to objective seriousness. Thus, count 2, which had the longest indicative sentence (18 months) was described as being “below the mid-range but not to a significant extent.” Each of counts 6, 8 and 9 were described as offences “well below the mid-range but not at the lowest end.” The deliberate discrimination between that description and that with respect to count 3 (“below the mid-range but not towards the lower end”) was clearly not inadvertent. Whether this court would have adopted the same relativities is not to the point. The assessment in relation to count 3 does not warrant the intervention of this Court; ground 2 should be rejected.

Ground 3 – (all counts) discount for pleas of guilty

34. The sentencing judge declined to allow any discount for the guilty pleas entered with respect to some offences (and accepted in full settlement of the indictment) halfway through the estimated length of the trial. The submission on appeal was that such a course was not reasonably open, given that there was some utilitarian value in the pleas, the length of the trial having been shortened.

35. The judge expressly addressed the issue and considered whether he would “reduce the overall sentence in respect to each offence”. He said that he would not, “having regard to the timing of the pleas.” He accepted that “saving the remaining victims from giving evidence is relevant to the offender’s remorse.”

36. The submission on the appeal relied upon two propositions, namely (i) the recognition by the trial judge in the course of submissions before him that there had been a saving in the length of the trial and demands on some victims, and (ii) in those circumstances it was not reasonably open to the judge to decline to provide some discount “however modest”.

37. With respect to the first point, it is permissible to refer to submissions made to the trial judge for the purpose of (i) demonstrating the issues which had to be determined; (ii) demonstrating procedural unfairness (for example where in the course of submissions the judge has indicated a view which leads counsel to desist from making a submission, yet in the judgment the point disavowed in argument is accepted)[7] or (iii) supplementing reasons (usually in relation to an interlocutory ruling) where only brief reasons are given because the adversely affected party is fully apprised of the judge’s thinking from recent exchanges. [8] On the other hand, it is not permissible to rely upon observations of the judge in the course of argument in order to establish error in the reasoning in the judgment. [9]

    7. See Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54.

    8. You, Jae Bok v R [2020] NSWCCA 71 at [20], [78].

    9. R v Van Hong Pham [2005] NSWCCA 94 at [11] (Wood CJ at CL, Hislop and Johnson JJ agreeing).

38. In the present case the applicant relied upon a remark by the judge, as recorded in the transcript, to the effect that the applicant may have obtained some benefit from the negotiated plea as a reason for not extending any discount on sentence. Such a reason, the submission continued, revealed error, as the possible benefit to the applicant did not warrant a refusal to discount the sentence. It was also noted that the judge appeared to accept some utilitarian value from the late pleas in the course of argument, although it was not suggested that counsel desisted from making further submissions as a result.

39. Reliance on the exchanges in the transcript to establish error in the ruling, as expressed in the final judgment is impermissible. The judge gave his reasons for refusing a discount, namely that the pleas were entered only after half the trial (and considerable time spent on pre-trial rulings) had been completed. To infer illegitimate reasoning, not found in the judgment, based on an exchange in the course of submissions is contrary to principle.

40. The second limb of the submissions was that where some utilitarian value was established, it was not open to a judge to refuse some element of discount. That reasoning too must be rejected.

41. The obligation on the court to take account of a guilty plea is expressed in the following terms:

22   Guilty plea to be taken into account for offences not dealt with on indictment

(1)   In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account—

(a)   the fact that the offender has pleaded guilty, and

(b)   when the offender pleaded guilty or indicated an intention to plead guilty, and

(c)   the circumstances in which the offender indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.

(1A)   A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

(2)   When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.

…

42. The section imposes an obligation to have regard to the fact of the pleas, the time at which it was proffered and the circumstances in which that occurred; however, the court has a discretionary power as to whether to impose a lesser penalty than it would otherwise have imposed and as to the extent of the reduction. That discretion is regulated, but not confined, by the guideline judgment in R v Thomson; R v Houlton. [10] The purpose of the guidance given in Thomson was to ensure a degree of consistency and transparency in giving effect to s 22. The result of the guideline judgment was not to “constrain the exercise of the discretion” nor to prescribe a particular outcome. [11] However, the Court expressed the opinion that “the appropriate range for a discount is from 10-25 per cent.” [12] Discounts outside this range are uncommon, although examples of 5% discounts are to be found.

    10. (2000) 49 NSWLR 383; [2000] NSWCCA 309.

    11. Thomson at [72].

    12. Thomson at [152], [160(iii)], (Spigelman CJ).

43. In the present case, the prosecutor submitted that the sentencing judge would not consider a discount of more than 5%. To do so would have failed to give proper weight to the lateness of the plea. However, there is no reason to encourage small discounts. Even a 10% discount assumes a starting point which has a high degree of precision. That will almost always be a false assumption. For example, where the outcome of the sentencing process is a sentence of imprisonment of 20 months, it is entirely likely that the judge considered a possible range of between 16 and 24 months, involving a possible variation of plus or minus 20%.

44. In the present case, it is doubtful that there should have been any consideration of a discount with respect to those offences with respect to which the evidence was materially complete by the time of the plea. With respect to the other offences, the indicative sentences were 10 months. To submit that it was “not reasonably open” to the trial judge to refuse to provide a discount of 15 days or less on such sentences reflects the false assumption as to precision in the sentencing process.

45. There was no basis for criticism of the judge in declining to give a discount in respect of the late pleas. Ground 3 must be rejected.

Ground 4 – sentence other than imprisonment (counts 1 and 3)

46. Section 5 of the Sentencing Procedure Act requires that a court not sentence an offender to imprisonment “unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.” Further, a specific obligation to record reasons for so deciding is imposed where a sentence of 6 months or less is imposed: s 5(2). The gravamen of ground 4 was not that a different kind of sentence was warranted with respect to the overall course of offending, but rather that indicative sentences of imprisonment for counts 1 and 3 were not justified. If two of the offences, taken in isolation, would not have warranted sentences of imprisonment, the aggregate sentence, it was submitted, should have been lower. That was said to follow because the judge had stated with respect to the individual sentences, that there would be a degree of accumulation in respect of each offence.

47. With respect to count 3, the written submissions acknowledged the offence (aggravated indecent assault) was more serious than the non-aggravated offence under count 1. The submissions also depended in part on acceptance of ground 3, which had challenged the judge’s finding of the objective seriousness of count 3. It is therefore convenient to address this ground first by reference to count 1.

48. It may be accepted that count 1 involved the first offence committed by the applicant, was not an aggravated form of the offence and occurred several years before the next offence in time. It may also be accepted that, if it had occurred in isolation, it would not have warranted a sentence of imprisonment, including in that assessment an intensive correction order served in the community. However, as the applicant further accepted, the fact that an offender is being sentenced for multiple offences may be relevant to the determination of each of individual sentence, a proposition established in R v JRD. [13]

    13. [2007] NSWCCA 55 at [27], [33] (Howie J, McClellan CJ at CL and Bell J agreeing).

49. One important reason for having regard to other matters for which the offender is being sentenced is to avoid imposing inconsistent sentences. For example, it is not possible to impose a community corrections order, requiring community service work, where the person is incarcerated under another sentence. Similarly, a form of conditional release order would be inappropriate if it ran concurrently with a sentence of imprisonment.

50. In determining that no sentence other than imprisonment was appropriate, including for counts 1 and 3, the judge had regard to the findings as to the objective seriousness of the conduct in each case and, importantly, the need for general deterrence, which he identified as a “very significant consideration”, and the need for “clear denunciation” of conduct involving exploitation by an employer of young women for sexual gratification. The judge was entitled to conclude that, however counts 1 and 3 might have been dealt with if sentences were notionally imposed for them in isolation, some significant penalty should be imposed and, in the circumstances of the case, the only appropriate penalty would have been one of imprisonment.

51. In support of the proposition that some other sentence could have been indicated with respect to counts 1 and 3, counsel for the applicant relied upon the outcome in Grealish v R. [14]

    14. [2013] NSWCCA 336.

52. Mr Grealish committed four offences of obtaining a financial advantage by a false and misleading statement, and one offence of giving false evidence to the Police Integrity Commission (PIC). The original sentence had been an aggregate sentence of imprisonment for 2 years with a non-parole period of 12 months. The Court rejected the proposition that the judge had failed to comply with s 5(1) of the Sentencing Procedure Act because “it was clear that a sentence of imprisonment was the only sentencing option in relation to the [offence of giving a false statement to the PIC]”. [15] Nevertheless, the Court was required to consider whether sentences of imprisonment were appropriate with respect to the financial advantage offences. The Count concluded that 9 months’ imprisonment for each offence of obtaining a financial advantage was excessive. The aggregate sentence was set aside and the offender was sentenced to a good behaviour bond of 18 months duration,[16] for the first offence. In addition, he was sentenced to imprisonment for a total period of 19 months, with an effective non-parole period of 9 months. Thus, at least 9 months of the good behaviour bond were to be served whilst he was in custody. The second 9 months would have been served concurrently with parole, on the assumption that he remained at large throughout the period of his parole.

    15. Grealish at [49].

    16. Pursuant to Sentencing Procedure Act, s 9(1).

53. In my view, there are serious doubts about the appropriateness of imposing a good behaviour bond to be served concurrently with a period of imprisonment, even assuming that the imprisonment is not directly inconsistent with the conditions of the bond. At the very least, there is no error in declining to adopt such a step. In the result, there was no error in the primary judge accepting that in the circumstances of the case, where a period of imprisonment was necessary, the indicative sentences for the individual offences on counts 1 and 3 should be expressed as periods of imprisonment. Because an aggregate sentence was imposed, it was neither necessary nor appropriate for the judge to indicate the extent to which sentences for later and more serious offences would have been accumulated on sentences for the earlier, lesser offending. There was no contravention of s 5(1) of the Sentencing Procedure Act. Ground 4 should be rejected.

Ground 5 – manifest excess – aggregate sentence

54. In considering whether the aggregate sentence imposed was manifestly excessive, it is necessary to bear in mind that it covered six separate offences, five of which carried a standard non-parole period of 5 years imprisonment. The total sentence period was 3 years 4 months, or two-thirds of a single standard non-parole period. The non-parole period itself was 2 years, being 40% of a single standard non-parole period.

55. Further, while the judge assessed objective seriousness with respect to each offence as below the middle of the range, in no case did he consider that it was at the lowest end. With respect to count 2, he assessed the gravity as not significantly below the mid-range. The notional sentence proposed for count 2, taken in isolation, was 18 months imprisonment with a non-parole period of 11 months.

56. In part the applicant relied upon the specific grounds to support the unreasonableness of the aggregate sentence. Those grounds have been rejected.

57. Secondly, the applicant noted the reliance by the sentencing judge on the “age discrepancy” between the applicant and the victims, accepting that the discrepancy was less relevant in relation to count 6, the victim being 28 years of age. To that end, the applicant relied upon the reasoning of this Court in R v Shortland [17] for the proposition that “age difference is rarely likely to be relevant in the case of non-consensual intercourse between adults.”

    17. [2018] NSWCCA 34 at [15], [87].

58. However, Shortland was not authority for that proposition. Shortland involved an appeal by the Director from a judgment in the District Court imposing sentences of 2 years imprisonment for each of three counts of sexual intercourse without consent, but suspending the sentences. One factor relied upon by the sentencing judge as favouring leniency was the lack of a significant age difference between the offender (31) and the victim (25). I said that the absence of a significance age gap was “immaterial in circumstances where both were young adults.”[18] That proposition did not imply that the existence of a significant age difference between an older man and a young woman in her teens or a little older would not be highly relevant.

    18. Shortland at [15].

59. Hidden AJ in Shortland also referred to the lack of a significant age gap as not a matter bearing upon the objective gravity of the offence, meaning that it did not lower the objective gravity. Hidden AJ noted that reliance had been placed by counsel on a statement in R v AA [19] that “the age difference between a sexual offender and their perpetrator [sic] can affect an assessment of the objective seriousness of the offending.” (The intention was clearly to refer to an offender and victim.) Hidden AJ noted that the victims in AA were young children. The issue arose because the offender was still in his teens. However, there is no reason to infer that in other cases a significant age discrepancy is not a material factor. Indeed, the applicant’s written submissions appeared to accept that, at least with respect to counts 2, 3 and 8, it was a relevant factor, though not attracting the same weight as in cases where the victims were children. The sentencing judge was correct to place significant weight on the disparity in ages. (I would not have excluded count 6, although the weight may in that case have been reduced, but off-set by the persistence of the misconduct.)

    19. [2017] NSWCCA 84 at [55].

60. The applicant also submitted that the offending “was generally at the low end of the range” because of a lack of coercion, physical force and overt use of his position of authority to gain acquiescence, or to silence the victims. This submission cannot be accepted. The objective seriousness was found not to be “at the low end of the range” and such a submission is inconsistent with the findings of the sentencing judge. Nor is it clear what is meant by a lack of coercion or physical force “beyond the acts themselves”, where the applicant imposed himself physically in circumstances where consent was neither sought nor forthcoming. To say that there was no “overt” exercise of authority presumably meant that the women were not threatened with dismissal if they did not comply. Nothing is to be derived from these submissions, beyond noting that the level of objective seriousness accepted by the trial judge was sufficient to justify the sentence imposed.

61. Finally, there was reference to the applicant’s subjective case, including remorse and contrition, his “evolving insight into his offending behaviour”, and the support of his family.

62. The judge made favourable findings with respect to the applicant’s subjective circumstances. First, he accepted that the pleas of guilty, “saving the remaining victims from giving evidence is relevant to the offender’s remorse.” He also accepted that the offender has “continued to gain insight into his offending behaviour, including an appreciation of the impact his offending has had on the victims.” He accepted the offender’s statements of remorse and contrition.

63. These findings were favourable to the applicant in circumstances where despite the pleas, a sentencing assessment report prepared in November 2019 found that he demonstrated lack of insight and “denial”. Dr Furst, who also saw the applicant in November 2019, referred to his lack of insight. In December 2019 the clinical psychologist, Ms Wojciechowski, reported:

“Mr Mohindra initially indicated that his plea of guilty represented legal advice and his inability to pay for a trial. He acknowledged physical contact with the victims but denied that the contact was anything other than ‘friendly’. …

Mr Mohindra has yet to accept responsibility for his offence-related thoughts and actions and this denial is a key component of intervention for his offending behaviour.”

In a further report on 22 February 2020 Ms Wojciechowski identified various aspects of denial as having “resolved”.

64. The sentencing judge also took into account the fact that the applicant was a person of “prior good character”, whilst noting that the offending involved “a course of conduct spanning 15 years and involving a number of victims”. That was an important consideration: as explained in R v Gommeson,[20] it was necessary for both the aggregate sentence and non-parole period to reflect the fact that there were six victims of indecent assault offences committed over a period of years.

    20. [2014] NSWCCA 159; 243 A Crim R 534 at [106]-[109] (Johnson J, Harrison and Garling JJ agreeing).

65. Importantly, the judge stated:

“Given the offender’s prior good character, pleas of guilty and most importantly, ongoing psychological intervention to address his offending behaviour, I am satisfied the offender does have good prospects of rehabilitation. In coming to that conclusion, I also have regard to the offender’s disclosure to family members who remain supportive. Such an assessment is, however, dependent upon continued counselling.

I am satisfied that his risk of reoffending is low, however, that is very much dependent upon his continued counselling and ongoing family support.”

There can no doubt that the sentencing judge took all of these matters into account in weighing the appropriate sentence. There is, indeed, no suggestion that they were disregard or inappropriately undervalued. They do not entail a conclusion that the sentence was excessive.

66. Having regard to the various considerations set out above, there is no basis for considering the aggregate sentence to be manifestly excessive. Ground 5 must be rejected.

Conclusions

67. There was sufficient merit in the proposed grounds of appeal to warrant a grant of leave to appeal against sentence. However, the grounds each having been rejected, the appeal must be dismissed.

68. I propose the following orders:

1. Grant the applicant leave to appeal against the aggregate sentence imposed by the District Court on 13 March 2020.

2. Dismiss the appeal.

69. JOHNSON J: I agree with the reasons of Basten JA and the proposed orders.

70. DAVIES J: I agree with Basten JA.

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Endnotes

Decision last updated: 16 December 2020