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Mohindra v R

Mohindra v R

Case [2020] NSWCCA 340 16 December 2020

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Breach of Trust

Criminal Law

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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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mohindra v R

Details

AGLC: Mohindra v The Queen [2020] NSWCCA 340
Case: [2020] NSWCCA 340
Decision Date: 16 December 2020

CaseChat Overview and Summary

The defendant, Mohindra, appealed against his conviction and sentence for aggravated indecent assault. The victim, a job applicant, was indecently assaulted by Mohindra, her prospective employer, during a job interview. The case was heard in the Court of Criminal Appeal in New South Wales. Mohindra argued that the sentence was excessive and that the trial judge failed to properly consider the objective seriousness of the offence and the nature of the discount for a guilty plea.

The legal issues before the court were whether the sentence was excessive, whether the trial judge had correctly assessed the objective seriousness of the offence, and whether a discount for a guilty plea should have been applied. Mohindra argued that the trial judge had not properly considered the degree of physical contact and that the position of trust or authority did not constitute an aggravating factor. The prosecution maintained that the sentence was appropriate and that the trial judge had correctly exercised his discretion.

The court found that the sentence was not excessive and that the trial judge had properly considered the objective seriousness of the offence. The court held that the degree of physical contact was significant and that the position of trust or authority did constitute an aggravating factor. The court also found that there was no obligation to allow a discount for a guilty plea as the plea was entered on the fourth day of the trial. The appeal was dismissed.

The Court of Criminal Appeal dismissed Mohindra's appeal against both his conviction and sentence. The court held that the sentence was not excessive and that the trial judge had properly exercised his discretion in assessing the objective seriousness of the offence. The court also held that the position of trust or authority did constitute an aggravating factor and that there was no obligation to allow a discount for a late guilty plea.

Orders