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) 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 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 the common law.
[1] Unless the principle of proportionality is to be understood to be reflected in s 16A(1).
That understanding is important in the present case because the sentencing statute that applies here has recently been amended so as to impose on sentencing judges a governing principle that one of the sentencing options, the discretionary power to sentence a person to imprisonment but direct their immediate, conditional release, is qualified in the case of sentencing for Commonwealth child sex offences by a requirement for the court to be satisfied that there are “exceptional circumstances”: s 20(1)(b).
In introducing that requirement, Parliament made a deliberate choice not to define that term. Paragraph 295 of the explanatory memorandum stated:
The term “exceptional circumstances” under paragraph 20(1)(b)(ii) is deliberately not defined. Given the variable circumstances which may militate against or support a sentence of imprisonment it would impose practical constraints if “exceptional circumstances” was defined. Firstly, the phrase is not easily subject to general definition as circumstances may exist as a result of the interaction of a variety of factors which of themselves may not be special or exceptional but taken cumulatively may meet this threshold. Second, a list of factors said to constitute exceptional circumstances even if stated in broad terms will have the tendency to restrict rather than expand the factors which might satisfy the requirements for “exceptional circumstances”.
That is an orthodox recognition of the constitutional role of the courts in determining the appropriate punishment for a criminal offence. The breadth of the judicial sentencing discretion was explained by the High Court in Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483. In that case, rejecting the existence of a common law principle that had been understood to permit sentencing judges to address perceived unfairness in the prosecutorial process by having regard to the fact that an offender might have been charged with a less serious offence, the High Court said at [27]:
The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion. It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted.
Those remarks provide an important illustration of the relationship between a sentencing statute and the common law. The court is bound by the governing principles specified in the statute but those principles can never be pre-emptive; they must be brought to the individual circumstances of the case at hand.
The overriding principle specified in the statute here is that the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1). Section 17A provides that the court must not impose a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances.
The Crown prosecutor put two submissions about sentencing for offences of this kind. First, she emphasised that the courts have repeatedly recognised that a term of imprisonment will ordinarily be expected and that, save in exceptional circumstances, a term of immediate imprisonment is generally warranted. It was then submitted that this reflects the seriousness of the offending and “that general deterrence is the paramount sentencing factor.”
The first proposition may be accepted without equivocation. Offences concerning dealings with child abuse material are of the utmost seriousness. The circumstances of the offence here are that, upon the execution of a search warrant in September 2021, police found four videos stored on the offender's computer constituting child abuse material.
The contents of the videos are described in the statement of facts. Two depict the anal rape of prepubescent girls by an adult man, a third shows a sexual assault on a girl who is described as being “visibly distressed”. These videos involve real child victims. It has frequently been observed that those who join in the demand for such material necessarily contribute to its supply. The seriousness with which such conduct is rightly viewed is reflected in the maximum penalty of imprisonment for 15 years which must be taken into account in the manner explained by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27], as a statutory guidepost.
I return, however, to the second proposition contended for by the Crown prosecutor, which is that general deterrence is the paramount sentencing factor. An unqualified statement in those terms does not sit comfortably with the requirement for individualised justice to which I have referred. For that reason, I doubt the correctness of the submission. Further, as to one of the offences, even if the proposition contended for by the Crown was ever a correct statement of sentencing principle, it certainly cannot be said to have survived the enactment of the amendments to the Crimes Act which came into effect on 22 June 2020.
A suite of amendments was implemented by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth). One of the amendments introduced by that legislation was the amendment to which I have already referred, namely, the requirement to be satisfied as to the existence of exceptional circumstances before adopting the sentencing option of conditional release of an offender immediately after conviction. The amendments also introduced s 16A(2AAA) which requires the court, in determining the sentence to be passed or the order to be made in respect of any person for a Commonwealth child sex offence, in addition to other matters, to have regard to the objective of rehabilitating the person.
In order to understand how rehabilitation might be achieved (or not) in any particular case, it is necessary to dive as deeply as the evidence permits into the offender's reasons for offending. Unusually, there is a wealth of information on that topic in the present case. Immediately upon his arrest, the offender told police he thought he had a problem with pornography. He expressed disgust at the material that had been found on his laptop and his desire to distance himself from it. He undertook, of his own volition but presumably in contemplation of being sentenced for these offences, examination by a forensic psychologist and a course of treatment by a clinical psychologist. Reports from both practitioners are before the Court.
The forensic psychologist who has provided an expert opinion is Ms Leesa Morris. Her experience in this field is extensive and was not challenged. She explained that the offender had detailed to her an extensive history of child sexual abuse from around the age of seven years through to 14 or 15 years of age. She recorded the history in the following terms:
He noted that his “memories are hazy at the beginning”, but he then recalled molestation from two paternal male cousins, the sons of the uncle his brother was sent to live with. That uncle “was a violent and angry man.” The offender became emotional as he described digital manipulation, followed by a graphic account of his first incident of anal penetration, which meant that he “couldn't sit properly at school for a week afterwards”. He estimated that he was around “eight or nine” years of age at that time.
Unsurprisingly, carefully listing the symptoms described in DSM-5, Ms Morris reached a diagnosis of post-traumatic stress disorder. She expressed the opinion that the offender appears to have been attempting to manage his symptoms of that condition through “re-exposure to his trauma, paired with emotional avoidance and repression”. In other words, as I understand Ms Morris' report, the offender accesses pornography, and on a rare occasion child pornography, as a way of re-exposing himself to the trauma he is grappling to come to terms with as a result of years of violent sexual assault committed against himself as a child.
The conclusions and recommendations recorded by Ms Morris in her report include the following. Perhaps most importantly, in her opinion the offender is not experiencing a paraphilic disorder. In other words, he cannot accurately be described as a paedophile. Ms Morris further expressed the opinion that the offender is not experiencing a pornography addiction; rather, as she explains in the body of her report, he accesses pornography as a means of accessing his trauma with which he has struggled to come to terms.
Thirdly, she explained her opinion that he meets the criteria for post-traumatic stress disorder. She described the treatment that might be made available for that trauma, which includes recognising the fight or flight response that results from triggering incidents and the increasing aggravation that results from such incidents. Importantly, one included the fact that the offender's son was approaching the age at which the offender began to be a victim of child sexual assault. Ms Morris recognised that post-traumatic stress disorder is a condition which has periods of remission, but not often recovery. That said, she expressed the opinion that the offender was a good candidate for treatment that would enable him to learn to manage his symptoms in less dysfunctional ways.
The offender, in response to the information he obtained from Ms Morris, undertook a course of treatment from Dr Boer. Dr Boer has provided a report to the Court in which he expresses his agreement with Ms Morris' diagnosis of post-traumatic stress disorder. He set out in his written report the individualised sex offender treatment he recommends for the offender, and he noted that the offender had participated in that treatment conscientiously and that he had “worked hard”. Dr Boer also expressed the opinion, as did Ms Morris, that the offender used pornography as a means to cope with negative emotions.
In the hearing at the proceedings on sentence the evidence of both experts was vigorously tested by the Crown prosecutor. In my assessment, the force of their opinions was not undermined by that cross-examination.
It is necessary to undertake an assessment of the objective serious of the offences. I have explained and acknowledged their inherent seriousness. With that recognition, however, it must be observed that there are features of the present case which take the offences well below the range of seriousness often seen in these kinds of matters. First, there was, so far as the evidence revealed, a single downloading of four individual items which remained on the offender's computer. It is not uncommon in cases of this kind to see multiple downloads of material and the retention of hundreds and sometimes thousands of items of child pornography. In the context of the range of offending sometimes seen, the possession of four items downloaded on a single occasion must be seen to be at the lower end of the range of objective seriousness.
The Crown noted the list of factors relevant to an assessment of objective seriousness set out in the decision of the New South Wales Court of Criminal Appeal in R v De Leeuw [2015] NSWCCA 183 at [72]. Of those, leaving aside the nature and the content of the material, to which I have already referred, and the number of items, to which I have also referred, none of the factors that might aggravate the seriousness of the offence are present here. The material was not held for the purpose of sale or further distribution, there was no suggestion that the offender will profit from the offences and the other relevant factors have already been included in the observations I have made.
I understood the Crown nonetheless to contend that the offending falls at the low to mid-range of objective seriousness. In my assessment, the objective seriousness falls at the lower end of the scale. Further, for the reasons I have explained at length, the offender's moral culpability here is plainly lessened by the factors discussed in the psychologist’s report.
I have discussed some aspects of the circumstances of the offender. Otherwise, as set out in the pre-sentence report tendered in the Crown bundle, it may be said that he has had an unexceptional background. He had a good education. He has a strong employment history. He has expressed profound remorse and he enjoys the continued support of his family, particularly including his wife. Indeed, she expressed relief at the fact that his arrest had resulted in the disclosure of his history of childhood trauma, of which she was previously unaware.
One has the impression from the character references before the Court that, if anything, the experience of his arrest has resulted in stronger family bonds for this offender. Again, that makes the case an outlier from the usual experience where persons convicted of offences of this kind often find themselves isolated from their former supports. In my assessment, based on the evidence of Dr Boer in particular, the offender has excellent prospects of rehabilitation, provided he maintains his connection with the treatment available to him and accepts regular treatment for an extended period of time. Dr Boer recommended two years and Ms Morris agreed.
All of those factors in my assessment do make this an exceptional case and militate against the imposition of an immediate term of imprisonment. It must be noted, and the offender should clearly understand, that if he fails in any of the conditions I propose to impose on his release and permits himself to commit a further offence he will take himself into the territory of the mandatory minimum sentences introduced by the suite of amendments to which I have referred. One of the offences was committed before those amendments. The other was after but, for the reasons explained, I am satisfied as to the existence of exceptional circumstances.
The inherent seriousness of the offences and the distressing nature of the material located support the conclusion that no sentence other than a term of imprisonment is appropriate in all the circumstances. However, I am satisfied, for the reasons I have given, that the offender should be released immediately and serve that sentence in another way.
I make the following orders:
(1) For the offences of possessing or controlling child abuse material obtained or accessed using a carriage service and using a carriage service for child abuse material, you are convicted.
(2)For each offence, you are sentenced to a term of imprisonment for two years.
(3)Direct that the terms of imprisonment are to be served by intensive correction order for the same period commencing today 23 September 2022 and ending on 22 September 2024.
(4)The conditions of the intensive correction order will be:
(a) The core conditions in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT);
(b) A community service condition requiring you to complete 50 hours of service within 6 months from today;
(c) Not to access the internet, except for the following reasons:
(i)To obtain legal advice from his legal representatives; or
(ii) To book or receive medical treatment; or
(iii) To undertake online banking; or
(iv) To access MyGov; or
(v) To access COVID check-in apps; or
(vi) For the purpose of employment; or
(vii) For contact with ACT Corrective Services or ACT Child Sex Offender Registry Team.
(d) You are to accept treatment as directed by Corrective Services with my recommendation that such treatment should include ongoing treatment from Dr Boer (or a clinical psychologist of similar experience) for two years with intervals of at least monthly consultations.
(e) To present and provide passcodes to any electronic device capable of accessing the internet to ACT Corrective Services or the ACT Child Sex Offender Registry Team, if requested to do so.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: 15 March 2023 |
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