R v Aryal

[2020] NSWDC 67

District Court

New South Wales

Medium Neutral Citation:	R v Aryal [2020] NSWDC 67
Hearing dates:	20/8/19-30/8/19, 13/12/19, 19/2/20
Date of orders:	19 February 2020
Decision date:	19 February 2020
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 8 years with a NPP of 5 years 6 months.
Catchwords:	Crime – Sentencing – Aggravated sexual intercourse without consent – cognitive impairment
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	DPP (Crown) Brijesh Aryal (Offender)
Representation:	Counsel: Mr T Buckingham (solicitor) for Crown Mr D McCallum (counsel) for the offender
File Number(s):	2018/86059
Publication restriction:	Non-publication of the complainant

sentence

1. The offender, Mr Aryal, stood trial before a jury in the District Court at Parramatta from 21 August 2019 on an indictment containing four counts, counts 2 and 4 being expressed in the alternative to counts 1 and 3. On 30 August 2019 the jury found the offender guilty of the two primary offences in counts 1 and 3. The offences are one each of having sexual intercourse with the complainant without consent knowing that she was not consenting in circumstances of aggravation, namely that the complainant had a cognitive impairment. Each offence carries a maximum penalty of 20 years imprisonment, and a standard non-parole period of ten years, which are matters that I have taken into account as guideposts in the sentencing exercise.

2. In determining the appropriate sentence I am required to make findings as to the relevant facts, which must of course be consistent with the verdicts of the jury. I make the following findings.

3. At the time of the offences the complainant victim was 21 years of age and lived with her mother and grandmother. She had been diagnosed a number of years earlier as having a mild to moderate intellectual disability. In March 2017, about one year before the offences, she scored in the extremely low range for cognitive functioning with her full scale IQ scores being in the extremely low range, placing her IQ as being greater than 0.1% of others in the community of a similar age. What this means is that more than 99% of people of similar age would score more highly than the victim.

4. Due to her intellectual disability the victim required constant supervision and care, including assistance getting dressed, having her meals prepared, and in taking her medication for a lifelong epilepsy disorder. She also had difficulty understanding the concept of time and safety. Although she had learned to shower herself and to put on her own shoes, she did not know how to tie her laces. She did, however, work part-time as an office assistant in Wynyard on weekdays from 2pm to 5pm doing administrative and cleaning jobs, although even then she required assistance from a job support trainer three days per week.

5. In 2018 she was attending Randwick TAFE two days a week and undertaking a certificate in career preparation. The victim had been “travel trained” so that she could…