R v Bajracharya - [2022] ACTSC 276

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Bajracharya
Citation:	[2022] ACTSC 276
Hearing Dates:	16 September 2022
DecisionDate:	23 September 2022
Before:	McCallum CJ
Decision:	Offender sentenced to a term of imprisonment for two years to be served by intensive correction order.
Catchwords:	CRIMINAL LAW — Judgment and Punishment — Sentence — Commonwealth child sex offences — Where no sentence other than imprisonment is warranted — Whether exceptional circumstances enliven Court’s discretionary power to direct immediate release — Where moral culpability lessened by offender’s diagnosis of post-traumatic stress disorder — Where offender has excellent prospects of rehabilitation
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 42 Crimes Act 1914 (Cth), Pt 1B, ss 16A, 17A, 20(1)(b) Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) Criminal CodeAct 1995 (Cth), ss 474.22(1), 474.22A
Cases Cited:	Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v De Leeuw [2015] NSWCCA 183
Parties:	The King (Crown) Ayush Bajracharya (Offender)
Representation:	Counsel L Hannigan (Crown) S Whybrow (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Andrew Byrnes Law Group (Offender)
File Number:	SCC 138 of 2022

McCALLUM CJ:

Ayush Bajracharya has been committed to this Court for sentence after pleading guilty in the Magistrates Court to one offence of using a carriage service to access child abuse material and one offence of using a carriage service to possess child abuse material, contrary to ss 474.22(1) and 474.22A of the Criminal CodeAct 1995 (Cth) respectively. Each offence carries a maximum penalty of imprisonment for 15 years.

The task of sentencing in criminal proceedings requires the sentencing judge to identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case, determining the sentence only at the end of that process: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [51] (McHugh J). As is almost universally the case in modern times, that task is governed by the provisions of a statute, in this case Part 1B of the Crimes Act 1914 (Cth).

The governing principles stated in a sentencing statute circumscribe but do not supplant the common law principle approved in Markarian. For example, s 16A(2) of the Crimes Act states a list of matters the sentencing court must take into account where relevant. However, the list is non-exhaustive. Further, as noted in the Crown’s submissions, it is recognised that the common law principles of parity, proportionality and totality also apply to the sentencing task even though they are not mentioned in the statute.[1] So much is obvious when it is understood that the statute is to be brought to a task that has its fundamental foundations in…

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 R v Bajracharya

Details

AGLC: R v Bajracharya [2022] ACTSC 276
Case: [2022] ACTSC 276
Decision Date

CaseChat Overview and Summary

The case of R v Bajracharya was heard by McCallum CJ in the Supreme Court of the Australian Capital Territory. Ayush Bajracharya pleaded guilty to charges of using a carriage service to access and possess child abuse material, offences under the Criminal Code Act 1995 (Cth). The court was tasked with determining an appropriate sentence, considering the nature of the offences and the offender's background and prospects for rehabilitation. The maximum penalty for each offence was imprisonment for 15 years. The court had to navigate the statutory framework provided by the Crimes Act 1914 (Cth) and the Crimes (Sentence Administration) Act 2005 (ACT), alongside common law principles of sentencing.

The primary legal issues involved assessing the seriousness of the offences, the offender's moral culpability, and the potential for rehabilitation. The Crown prosecutor argued that imprisonment was ordinarily expected and that general deterrence was paramount. However, the court had to consider whether the offender's moral culpability was lessened by exceptional circumstances, as required by the amended Crimes Act. The offender's history of child sexual abuse, diagnosed as post-traumatic stress disorder by expert witnesses, was a significant mitigating factor. The court had to balance the inherent seriousness of the offences against the offender's prospects for rehabilitation and the need to avoid imposing a term of imprisonment that would not contribute to his rehabilitation.

The court found that while the offences were serious, the offender's moral culpability was lessened by his history of trauma and his efforts towards rehabilitation. The court was satisfied that exceptional circumstances existed, warranting the offender's immediate release. The court imposed a sentence of two years' imprisonment to be served through an intensive correction order, including conditions to prevent internet access for non-essential purposes and to require ongoing psychological treatment. The decision reflects a nuanced approach to sentencing that considers both the gravity of the offences and the individual circumstances of the offender.

The final orders of the court were that Ayush Bajracharya be sentenced to a term of imprisonment for two years for each offence, to be served by an intensive correction order. The conditions of the order included mandatory community service, restrictions on internet access, and mandatory psychological treatment. The court emphasised the importance of the offender adhering to these conditions to avoid falling under the mandatory minimum sentences for such offences. The decision underscores the court's role in achieving a balance between punishment, deterrence, and rehabilitation in criminal sentencing.

Orders