R v Luitel

[2024] NSWDC 616

District Court

New South Wales

Medium Neutral Citation:

R v Luitel [2024] NSWDC 616

Hearing dates:

5 December 2024

Decision date:

06 December 2024

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted on each count.

Special circumstances found – first time in custody, need for an extended period of supervision in the community.

Indicative sentences:

Count 1: 4 years with NPP of 2 years

Count 2: 4 years with NPP of 2 years

Count 3: 1 year and 6 months

Aggregate sentence:

Sentenced to a total term of imprisonment of 5 years and 6 months comprising a non-parole period of 2 years and 9 months commencing on 11 September 2024 and expiring on 10 June 2027, upon which date he will become eligible for parole, and a balance of term of 2 years and 9 months commencing on 11 June 2027 and expiring on 10 March 2030.

Catchwords:

CRIME – Sentencing - sexual intercourse without consent (x 2) - sexually touch another person without consent – seriousness of offending - statutory aggravating factor of being under authority applies –difficulties of assessing prospect of rehabilitation, remorse and contrition & need for strong emphasis on general and specific deterrence where offender continues to deny the offences - subjective matters

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

Rex
Luitel, Ashish

Representation:

Counsel:
Crown: Ms E Beljic
Defence: Mr Dalton SC
Solicitors:
Crown: Ms U Ossatjyz, ODPP
Defence: Mr S Mercael, Criminal Lawyers Group

File Number(s):

2023/00199016

Publication restriction:

NPO in respect of the names of the complainant and her family, and anything that might tend to identify them.

JUDGMENT

1. HIS HONOUR: Ashish Luitel appears for sentence in respect of three offences of which he was found guilty by a jury on 8 November 2024, the trial having started on 24 October 2024.

2. The three offences are as follow: sexual intercourse without consent, s 61I of the Crimes Act 1900 and a second offence of the same nature. In relation to each of those offences, the maximum penalty provided by the legislation is 14 years’ imprisonment and there is a relevant standard non‑parole period of seven years.

3. The third count was sexually touch another person without consent, contrary to s 61KC(a) of the Crimes Act, in respect of which the maximum penalty is five years’ imprisonment.

4. The maximum penalty and any standard non‑parole period are guidelines in relation to the seriousness of the offence and must be considered in determining an appropriate sentence.

5. I find the facts as follows:

!. The offender is a 32-year-old man born on 11 August 1992. At the time of the offences, he was 31 years of age, and he is now 32.

2. The victim, AP, is a now 20-year-old Nepalese woman who was 18 years of age at the time of the offending.

3. The victim arrived in Australia from Nepal on 22 May 2023 on a student visa and was registered to commence study for a Bachelor of Applied Finance and Accounting. After arriving in Australia, she took up residence with her sister and her sister’s husband, PS.

4. Upon arriving in Australia, the victim began looking for part time work to take care of her personal expenses. She found nothing for three weeks until her sister saw a post looking for a female office administrator on an internet application by a business known as Wise Cleaning Company in Ashfield.

5. Both the victim and her sister arranged to be interviewed for the role and attended the office at 10am on Wednesday 14 June 2023. The offender, who owned the company, interviewed the sisters separately.

6. The victim entered the offender’s office after he finished speaking with her sister. The offender asked her name, looked at her paperwork and explained the role. He told her that “I think you have perfect role for this job. I’ll call you if you get hired.”

7. Around 8pm the following night, the offender called the victim. The offender told her that there had been several women interviewed, and she was one of the women selected for a trial. She agreed to attend the trial the following day.

8. At 10am on 16 June 2023, the victim attended the offender’s office for a three-hour trial. The victim initially worked with the offender’s employee, Nikesh Baral, that morning, and later with the offender in his office. During the trial shift, Baral asked the victim if she drank alcohol. The victim replied, “I drink occasionally, only with my family on a festive occasion.” The offender joined in the conversation and said, “You should drink, it’s fun. It’s fine for your age.”

9. Later that day, when the victim had returned home, she received a call from the offender to the effect that she was hired and to start work on Monday at 10am.

10. On Sunday 18 June 2023, the offender sent the following text message to the victim. “What’s the news with the new person? When are you going to throw a party?”

11. The victim replied, “I’m good. Tell me about yourself.” They then had the following conversation:

“OFFENDER: I’m fine. So, when are you giving the party?

VICTIM: Am I officially hired?

Offender: You tell me. Should I hire you or not?”

VICTIM: Should I throw the party or not?

OFFENDER: I’m just asking if you will really give a party. Now without asking Nikesh and Rhea, I’m asking you, should I hire you or not? Tell me yourself.

VICTIM: I’m going to give the best from my side; however you really think I fit well for this job, I’m happy to be welcomed.

OFFENDER: Okay then, get in now. You’re hired totally but you only report to me personally, not Nikesh or Rhea. Don’t say to them anything. Okay then, if it is okay with you, we will talk your shifts in the phone call.

VICTIM: For sure, I respect this.

OFFENDER: Okay, call me when you are free, and I will tell you what your role is really about. There are two roles. Let’s discuss which one really fits you.

VICTIM: Okay, dada (big brother, which is a Nepalese term of respect for someone older than oneself). So, when will you be free so I can call you?”

12. Shortly after, the victim received a call from the offender, and they discussed work for about 15 minutes. The offender told the victim that there were two possible roles for her, one as an office administrator and the other working for him in his office. The offender explained the role of the administrator was to look after the cleaners and the sites and that working with him in his office involved bookkeeping and invoicing. The victim accepted the offer.

13. The offender told the victim that the discussion was only between them and said that the victim would eventually be senior to Baral and other staff and that she would work in his office during his absence when he was travelling. The offender also said that he would transfer the other staff to the Belmore office. The victim would be the person looking after the Ashfield office and he said that this role would be good for her because of what she was studying.

14. The victim arrived at work at 10am on Monday 19 June 2023. She met Baral at Ashfield Station, and he gave her the key to the office. Baral assisted the victim with the work required on the first day. The offender did not initially speak with her that day.

15. After some time, Rhea Kachi, a female who worked in the office invited the victim to enter the offender’s office. The victim recalled the following conversation.

“KACHI: It’s my birthday.

VICTIM: You could have said this before. I could have brought you some gifts.

KACHI: It’s okay, you can come in.”

16. It was not, in fact, Kachi’s birthday.

17. The victim followed Kachi and Baral into the offender’s office and they all sat around a table on which were a bottle of Johnny Walker Blue Label whisky and a bottle of tequila, together with a salt container, snacks, lemon pieces, buffalo jerky and four shot glasses. On the evidence in the trial, the shot glasses were 70 millilitres each. The victim took two photos of the table and sent them to her sister.

18. Kachi filled the shot glasses with alcohol. They all said “Cheers!” and drank the alcohol. Everyone started talking. The victim was quiet, as she did not know what to say. Kachi refilled the victim’s glass with tequila while Baral and the offender were drinking whisky.

19. At 2.35pm, the victim received a message in Nepalese from Baral who was then sitting next to her. The victim’s evidence in relation to the text was as follows.

“Nikesh was sitting next, quite far to me but he was through the text through the phone, and I was like feeling strange because he’s just sitting next to me. Why can’t he talk to me? Why is he texting, and I felt like maybe he’s quite awkward to talk in front of all and then he was texting me, ‘Are you ok? Why aren’t you drinking? You can drink. It’s okay, I’m here. I’ll drop you home. You can drink’ and I was saying it’s okay, but I can’t drink much.”

20. The victim had another shot of alcohol.

21. The offender and Baral left to go and get more snacks, leaving Kachi and the victim in the office. The victim gave the following evidence in relation to a conversation she had with Kachi.

“Q. How do you feel after the second drink?

A. So, I was feeling a bit tipsy, a bit tipsy. I was feeling I’m about to get drunk, like you know I was feeling dizziness and after some time again, Ashish and Nikesh said, ‘the snacks are about to get over, we’ll go down and bring more snacks’ and they left the office and there was only Rhea and me and I went to Rhea and I said to her ‘Are you okay, aren’t you drunk?’ And Rhea said, ‘it’s normal for me, I’m okay.’ And then I said ‘I’m feeling quite dizziness. I’m feeling quite, I’m drunk, maybe I can’t drink much’”.

The victim gave evidence at trial that she was 5 foot 1 and 50 to 51 kilos at the time. On that day, she had only consumed a single apple for breakfast and had no lunch and had eaten only three or four pieces of the beef jerky.

22. The offender and Baral returned with cashew nuts, chips and more jerky. Baral poured the victim another drink of which she consumed half.

23. The victim told Baral that she was not feeling well and that she was drunk. She asked Baral to look after her. Her evidence was as follows;

“Q. How did you start feeling after that half drink?

A. So, after that I was feeling very dizziness, and I was seeing things quite blurry. I couldn’t even stand by myself and then I was consistently saying to Nikesh like ‘I want to go home. I can’t drink much. I’m not feeling okay’ and then he said ‘It’s okay. I’ll drop you home” and “tell your sister you’re here till 5 and I’ll drop you home by Uber” and I said ‘I can’t. I can’t stand up. I want to use the washroom. I want to go to the bathroom.’ And then he said, ‘I’ll take you to the bathroom’ and the bathroom is just outside the office. He took me to the bathroom, and I wanted to vomit, and I just vomited there, and I couldn’t control, and I couldn’t manage myself, so I just laid down on the floor of the bathroom and then I--'

Q. You laid down on the floor of the bathroom - yes, okay?

A. Yes, and he kind of supported me. I don’t exactly remember clearly but he kind of supported me with my hands and he said that ‘I should’ve stopped you, you can’t digest the alcohol.’ And then he supported me, and he took me to the storeroom.”

24. Baral took her to a storeroom next to the office and made her sit on the floor saying, “You stay here, I’ll come back.” He then left her.

25. A short time later, the offender appeared and said, “Why are you here? Why aren’t you home?” The victim said, “Nikesh left me here.”

26. The offender said “I don’t think Nikesh’s intentions are good with you. I don’t trust him. Come, I’ll drop you home.”

27. The offender then picked the victim up off the floor and supported her to walk to his office and into a chair. The offender was speaking to the victim. He said “You can just talk to me, distract yourself. So, tell me about - how was your day? We’ll talk and then you can get distracted and then you won’t feel you are drunk.”

28. The victim said, “I want to vomit”. The offender said, “It’s okay, you can vomit here, I will clean it.” The victim vomited on the carpet in the office and the offender cleaned up the vomit with wipes while continuing to talk to the victim. He asked if she had a boyfriend, and the victim was unable to reply.

COUNTS 1 AND 3

29. The next thing the victim remembered was lying on the floor. The offender took off her clothes. She had been wearing a white top, black jacket and black trousers. At the time she was having her period and was wearing a pad. She was bleeding heavily, and her pad was full as she had not had time to change it. The offender then removed her underpants, leaving her naked. She was not able to move. She looked up and saw the offender standing next to her, naked. Her vision was blurry, but she could see the offender and hear his voice.

30. The offender began kissing and sucking both the victim’s breasts. The victim can’t remember exactly how long this lasted but it was for two or three minutes.

31. The offender put his penis inside the victim’s vagina which caused her pain. She felt herself moving up and down. The victim does not know how long he penetrated her for, but it was ‘quite long.’ She remembers that he kept talking while he penetrated her vagina with his penis and that he was very heavy on her. She could not push him off.

32. The victim gave the following evidence in relation to Counts 1 and 3.

“Q. What did he do after he took off your clothes?

A. Well, he was consistently asking me like “Do you have a boyfriend, do you like me? Nikesh was flirting with you. I don’t like him doing that.” And he started kissing my body parts because I can feel that.

So, he started kissing from my neck. He was kissing on my lips and then he was going slowly down. He was touching the...parts and he was even sucking the breast. He was touching the breast parts. He was doing all those things and then again, he started doing - he started penetrating.

Q. When you say he was touching your body parts, what specific body parts was he touching?

A. So, he was touching breast parts. He was squeezing it. He was sucking them and the next thing, I - he was - I could feel my body moving up and down, up and down and it was quite painful...”

33. The victim heard her phone ring. The offender removed his penis from the victim’s vagina, saying to the victim “Your sister is consistently calling you.” He answered the call, and the victim could hear her sister’s voice saying “Are you okay? I’ll come to pick you up.” The victim could not speak or ask her sister for help.

34. The victim moaned, unable to speak. The offender hung up the call and said “Nikesh is consistently texting you. Why is he texting you? Can you unlock your phone?” She was unable to unlock her phone due to her level of intoxication.

COUNT 2

35. The offender laid on top of the victim again and again inserted his penis into her vagina for a second time. He continued to penetrate her. The victim gave the following evidence in relation to Count 2.

“VICTIM...and he again dropped my phone there and he again started doing - started putting his penis into my vagina and again started doing all this penetrating thing and I was feeling up and down again. It was very painful.”

36. The victim again could not remember how long the penetration lasted in respect of Count 2, but it was “a bit long”. Eventually, the offender removed his penis from the victim’s vagina and ejaculated onto the carpet.

“Q. At some point it stopped, obviously?

A. Yeah he stopped and then he moved out from myself and I felt much relief because he was a bit heavy so I felt much relieved and the next thing I remember was I don’t know how I dressed me up, even - I don’t remember how I dressed up by myself and he asked like ‘Should I drop you home or can you go by yourself?’ and I said - I was mumbling in my voice like ‘I’ll go, I’ll go, I’ll go’ and then I just came out from his office and with support of furniture I came downstairs and I left the office and I crossed the road and I went to the station.”

EVENTS FOLLOWING COUNT 1 - 3

37. At 5.35pm the victim made her way to the station. She was dizzy and visibly unsteady on her feet, as is evident from the railway CCTV recording.

38. The victim stumbled across the station, sat on a bench on Platform 5 where she received a call from Baral, who said “Where are you?” He came to the station. He said, “I’ll drop you home” and assisted her to walk back up the stairs of the station and to the street, where they sat on a bench.

39. At about 6.10pm the victim called her sister and agreed to her sister coming to pick her up.

40. Her sister recalled that the victim sounded drunk to her and that it was hard to understand what she was saying. Her sister then ordered an Uber to go and find the victim.

41. While the victim was sitting on the bench, she was crying and shivering and told Baral, “He fucked me. I was on my periods. Believe me.” Baral replied, “I do believe you.”

42. The offender called the victim several times and the victim declined the calls. The offender then arrived at the bench the victim was sitting on and said to the victim and Baral, “I’ll drop you guys home.” Baral said to the victim, “Come, let’s go. You drop us home.”

43. The victim felt unsafe and told him to go and that her sister was on her way. The offender and Baral left together.

44. When her sister arrived, her sister asked, “What happened?” The victim said, “I don’t want to talk, I will talk in home.” Her sister recalls when she arrived and saw her sister, she was crying. Her hair was messy, and her clothes were not properly on. The victim’s sister fixed her sister’s hair and clothes and held the victim in her arms, supporting her as she walked up the stairs at the station as was captured on CCTV footage.

45. The two sisters then got on the train and went home. The victim slept the whole way home.

46. Both the offender and Baral were calling the victim’s phone. The victim’s sister saw the calls and ignored them until they left the train at Merrylands and her sister seemed more able to walk by herself. The offender called the victim who answered on loudspeaker. The offender asked to speak to the victim’s sister, and they had a conversation about drinking alcohol in the office. The sister recalls the offender “assured me that he would take action against it, that this wasn’t good, and he was the one who assured me that you can send the victim back to work. He would promise that the things like this won’t be repeated, and he sincerely apologised for drinking situation.”

47. When the sisters arrived home, the victim went to her room. Her sister made dinner. While the victim was in her room, she rang the offender and had a conversation with him.

“VICTIM: “...he was saying me like, like ‘don’t worry, we’ll talk tomorrow when you come to office.’ I was continuously - I was crying and saying him like ‘why did you do this to me, I can’t work tomorrow. How can I come to work there? You already did this to me...”

48. During the phone call with the victim, the offender denied having done anything wrong and repeatedly tried to convince the victim to return to the office the next day and talk with him further.

49. At some point, the victim’s sister went into the victim’s bedroom and found her laying on the bed, not completely asleep.

50. Later, the victim sat down at the table with her sister and her husband for dinner. PS asked what had happened at work and eventually the victim burst into tears and told them “He fucked me.”

51. PS became angry and called the offender from the victim’s phone and said, “What did you do to my sister?” PS was swearing at the offender, but the offender was quiet and calm. The victim’s sister told PS to hang up and contact the police instead. The sister called the police.

INVESTIGATION

52. Police arrived at the victim’s home and took her to Blacktown Hospital for a Sexual Assault Investigation Kit (SAIK) to be conducted. They also took the victim’s clothes for examination.

53. Police found blood, semen and saliva on the floor of the office where the offences had occurred. Forensic testing showed DNA matching the offender located in the semen from the floor and on the victim's breast. The victim’s DNA was found in the blood and saliva on the office floor.

54. On 21 June 2023, the offender was arrested, cautioned, and taken to Burwood Police Station, where he was informed of his rights.

55. The offender’s two phones, an Apple iPhone and a Samsung Galaxy, were seized. Police identified a ten-hour recording on the Samsung phone, which included audio of the offender talking to Baral and Kachi and personal friends of the offender on 19 June 2023, after the offences had taken place.

56. The offender was recorded discussing the victim, and the events surrounding the offending with these individuals, having arranged for them to meet him that night in his car in a car park near the office. He asked them to say that they had all left the office together and that nothing had happened. In one conversation, the offender said to one of his friends, not Baral or Kachi.

“...if you can help me out...just tell me what is the best situation to get out of this, you have the lawyer...because I don’t know the lawyer actually...the problem is...we had sex, we had sex, that’s the problem. We had sex, we had sex, we had a physical relation today. I fuck her there, no... they can check my DNA... yeah but I had sex. I fuck - I have fucked.”

56. Mr Fletcher, a forensic toxicologist, gave evidence opining that the victim’s blood alcohol concentration at 4.30pm was 0.18 grams per 100 millilitres and that at 5.30pm it would have been 0.16 grams per 100 millilitres. That calculation was based on when her blood was taken at 12.40am on 20 June 2023. At that time, her blood alcohol concentration was 0.048 grams per 100 millilitres.

6. As to the period during which the offending occurred, an external CCTV camera outside the business recorded the offender as returning to the premises at 4.57pm. The victim left those premises to go to the railway station at 5.35pm. Accordingly, all of the three offences had to have been committed during that 38-minute period. The victim’s description of the two acts of penile-vaginal intercourse as being “long” or “a bit long,” does not really assist in determining the duration but they certainly had to have occurred together with the kissing and touching of her breasts within that period of 38 minutes.

7. The victim was at the time attending to commence her first day of work at the offender’s business.

8. She was an impressive witness, and I accept beyond reasonable doubt her recollection of the events rather than the version given by the accused, just as the jury must have done.

9. I accept beyond reasonable doubt that the accused was aware that she was substantially affected by alcohol and was not consenting to the sexual intercourse, particularly in the circumstances where it commenced after he had removed her clothes, and she became in effect frozen and unable to move but was aware of what was happening.

10. He was aware that she had already vomited in the bathroom before he took her from the storeroom to his office, and she had vomited again in his presence in the office, which he cleaned up before then committing the offences.

11. There was nothing in her conduct which would suggest that she might have consented or been willing to consent to the sexual intercourse in circumstances where he was some 14 years older than her, her entirely new or fresh employer, and in circumstances where she had only worked at the business for the one day and was obviously suffering the effects of alcohol.

12. The sexual intercourse with her on each occasion was unprotected and his semen was detected on the floor. He had exposed her to the risk of pregnancy and potentially the transmission of an STI.

13. The fact that his semen was located on the floor does not mean that he had not in fact put her significantly at risk by ejaculating in part prior to withdrawal. The offender’s semen was also found from a wipe of the complainant’s anogenital area.

14. The victim was vulnerable in the sense that she was significantly affected by alcohol at the time, as the offender knew.

15. As to statutory aggravating factors, the offending comes within the definition of the aggravating factor at s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999, that is, of abusing a position of trust or authority.

16. The victim had commenced her first day at work and she was then under the authority of the offender.

17. Although the victim referred to the sexual intercourse as being “very painful” there is no evidence before the Court as to any resulting injury. There was no violence during the course of the offending, but of course sexual intercourse without consent is by its very nature an offence of violence, although to the extent that it is an offence of violence it is taken into account by the maximum sentence provided.

18. In the circumstances I find that the offending was opportunistic and not in any significant way premeditated.

19. On my view of the inadvertently recorded phone call, or conversation [Exhibit 15] , it is clear that the offender was endeavouring to get Nikesh Baral and Rhea Kachi to provide a false story to the police if they were spoken to. He is not charged with any such offence and its use to the jury was only in relation to being relevant to the fact that he had had sexual intercourse and that he wanted to cover up for that fact.

20. Although the duration of the offending was in the circumstances necessarily of a relatively short nature, it will no doubt have a lasting and long-term effect on the victim. I note that no Victim Impact Statement has been provided to the Court, but it has been long recognised that Courts can take account of the usual consequences to victims of offences such as this.

21. I have no doubt that the victim has been adversely affected to a significant degree and that that will continue for an indeterminate period, indeed, even potentially for the balance of her life. Incidents such as these are not easily forgotten by women who suffer from them. However, there is no evidence that indicates that the adverse effects on the victim are beyond those which are the expected consequences of such offending as taken into account by the maximum sentence provided for the offence. In my view, the offending in this matter approaches the mid‑range, if not at the mid-range, of objective seriousness.

SUBJECTIVE MATTERS

22. In relation to subjective matters before the Court is the offender’s criminal history in New South Wales, which indicates that he has not been previously convicted of any offence. There is no evidence of him having been convicted of any criminal offence in his lifetime, and I accept that he is a person with no previous convictions, whether it be here or internationally.

23. In addition, there is a New South Wales Department of Corrective Services “Convictions, Sentences and Appeals Report” which relates to the two periods that he has been in custody since arrest on 21 June 2023 until 17 August 2023, a period of 58 days. He was on bail from 17 August 2024 to 8 November 2024 and returned to custody at the conclusion of the trial, a period of 28 days prior to today, giving a total of 86 days in custody solely in relation to these matters prior to today.

24. During those periods of custody, he has not been in breach of prison regulations on any occasion. When permitted bail during the period between 17 August 2023 and the conclusion of the trial on 8 November 2024, his bail was subject to a number of conditions other than the relatively standard ones.

25. He was to report daily at the Campsie Police Station between 8 am and 6 pm, to comply with a curfew requirement to reside at his home and to only leave between the hours of 8.30 am and 8 pm, if in the company of his wife or for the purpose of attending conferences with his legal representatives, or court, or to obtain medical treatment. He was also directed not to attend any business meetings in person unless in the company of his wife, and not to be in the company of any female employee unless in the company of his wife.

26. He was required not to consume any illegal or prescription drugs other than those prescribed for him, and he was to be subject to an electronic monitoring condition, as well as abstaining from the consumption of alcohol. Those are in my view not particularly restrictive bail conditions, although I take into account that for the period that he was on bail, they did put certain limitations as referred to on his daily life, which to a limited degree must be held relevant to the sentence to be imposed.

27. In addition, the Court has before it material provided on his behalf, being a psychological report from a Ms De Santa Brigida of 30 November 2024, an affidavit from the offender’s wife, dated 29 November 2024, a letter to the Court from the offender’s brother (Anuj Luitel) dated 20 November 2024, a letter from a friend of the offender’s (Shankar Dahal) dated 19 November 2024, a public relations officer for the Nepali Society of Northern Tasmania and a director of the Bashalaya Nepali Language School, Launceston, and Binod Kunwar, vice president of the Non-Resident Nepalese Association in Australia State Coordination Council, NSW. And lastly there is a letter to the Court from the offender, dated 3 December 2024.

28. I note that while the Court requested that a Sentence Assessment Report from Community Corrections, including a report or risk assessment on likely recidivism, that Community Corrections have indicated in the intervening period that they were not able to provide a report within the timeframe allowed. While I would have preferred to have such a report, it was not available, and it was desired to have the matter resolved before I commence leave at the conclusion of this matter since I do not return until March next year. In my view, that would have been too long a period to have this matter hanging over the offender’s head unresolved, and the report was sought at the Court’s request rather than the offender’s application. Correspondence from the offender’s representatives has indicated a preference for the matter to be determined in the absence of such a report. Subjective matters are drawn from the material listed above.

29. The offender was born in Nepal and arrived in Australia in July 2019, joining his wife who had already been in Australia for 4 months. He does not have Australian citizenship. His parents reside in Nepal and are still together. He is one of two children, having a younger brother who teaches and lives in Nepal. He describes his family as a good middle-class family, his parents working hard to give him a good education. He has no history of physical or sexual abuse and no history of neglect. He has been married to his wife, who is aged 30, for approximately 9 years, and they have been together for a full 16 years. She has completed studies as a qualified accountant and there is one child from the marriage, aged now approximately 10.

30. Having completed his education in Nepal to the equivalent of Australian Year 12, he trained for 8 months to become a teacher in English and social studies and commenced working in schools teaching children aged between 11 and 13. He subsequently worked in sales in Nepal for a period of 2 years and after arriving in Australia, he completed an Aged Care Certificate course before opening his own business, “Wise Complete Cleaning”, which involved cleaning offices and housekeeping at hotels and other venues. He was managing that business at the time of the current offence, and that was the business that the victim was being employed to serve.

31. I note that from his wife’s affidavit that at its peak the company had approximately 400 people, being administrative staff and cleaners. It would therefore appear to have been of a substantial nature. However, his wife now has the responsibility for looking after the child, and has in recent times, returned the child to Nepal to be looked after by the child’s grandparents. She has endeavoured to continue operating the company, but her affidavit indicates that under her control it is now in the position of being liquidated.

32. I note that from the material before the Court that the offender has been a consistent support for his family in Nepal, particularly in relation to his brother, who suffers from seizures which limit his ability to work or support the family.

33. With the offender’s support, his brother-in-law has been able to complete his education and recently moved to Australia to pursue a better future, which his brother-in-law indicates would not have been possible without the support of the offender, who he regards as a “selfless individual, sacrificing his own needs for the wellbeing of others.”

34. Shankar Dahal refers to him as “being a kind, responsible, respectful person” and “a devoted husband and father.” I accept that all those persons that have provided references on his behalf have expressed their genuine opinions in relation to the offender. That is, that he is in general very well regarded as a hardworking individual with a community interest, particularly in relation to the Nepalese community in Australia, having apparently assisted the Non-Resident Nepalese Association over the past three years in respect of several initiatives of mental health awareness campaigns and instruction in first aid and CPR training.

35. Mr Kunwar indicates that he has:

“…a strong commitment to supporting international students in their professional journeys. Through his own business, he has successfully provided job opportunities to hundreds of international students, helping them gain financial independence and workplace experience in a new country. This dedication to uplifting others reflects his deep sense of responsibility and care for the community. Based on my observations, I believe this incident is not representative of his overall character.”

36. As I have previously said, I accept that this offending was, in the circumstances that it occurred, entirely opportunistic. I also accept that in view of his past record, it is out of character. However, I also note that in his letter to the Court, the offender has maintained that he did not commit the offences:

“I maintain that I believe she was consenting but have come to terms with the jury verdict.”

37. As this was a defended matter, there is no evidence of remorse or contrition. The offender’s letter to the Court shows concern only for the impact on himself and his family and not the impact on the complainant, although he states:

“I am sympathetic to (the victim) and her family for the trial proceedings that she had to go through.”

38. He also notes in his letter to the Court that his time in custody has been difficult due to cultural differences as well as lock-ins caused by COVID and being placed in protection. There is no particular evidence about the difficulty of being placed in protection, but the Court is entitled to generally recognise that protection is a more restricted form of custody. A prisoner in protection is not part of the general prison community and time out of cells is more limited. I accept that it is a more onerous form of custody than a prisoner in the general population. However, it does have the benefit that those who have been convicted of sexual offences are not then the prey of those persons in the general prison community who particularly take umbrage in relation to other prisoners who have been convicted of sex offences, although that is in general more particularly related to offenders who have been convicted in relation to child sex offences, which is different to the case here.

39. It is clear from the material before me that he enjoys ongoing support in the community and particularly from his immediate family, and I accept that there will no doubt be some hardship in respect of his wife, who has lost the income support from the business, and has now had to arrange for their son to be looked after in Nepal by the child’s grandparents.

40. These circumstances, however, are not what might be called exceptional circumstances. While it is no doubt a hardship for the family and should be taken into account in the general mix in determining the appropriate sentence, it cannot result in a substantial reduction or elimination of a sentence of imprisonment on the grounds of hardship.

41. I note that the offender does not have any history of using or abusing prohibited drugs, and that while Ms De Santa Brigida noted that the results of the PAS indicate alcohol problems in the marked range, he does not meet the criteria for an alcohol abuse disorder.

42. He has had no problems at school. He has been either in full‑time employment or self-employment since leaving school and is assessed as falling in the low-risk range of committing future sexual violence offences. I accept that assessment, although again noting that, even with the psychologist, he continued to claim that the sexual contact with the victim, to his belief, was consensual.

43. His wife indicates in her affidavit under the heading of “Remorse,”

“Ashish is deeply ashamed of his actions in 2023. He constantly tells me how sorry he is for everything, especially leaving me to handle so much on my own. He feels unbearable guilt, the guilt of knowing how much I’m struggling and how much his absence is affecting our son.”

44. Again, there is no doubt his being ashamed is not for committing the offences themselves, but of having had, on his version, consensual sexual intercourse with the complainant, and apologising to his wife for that, rather than in any way acknowledging the commission of the offences or acknowledging the harm to the complainant.

45. It is always a difficult matter to assess the prospect of rehabilitation in circumstances where an offender denies the offence or offences and continues to deny them, as does this offender. He is clearly not an unintelligent man, taking into account his past history, education and his ability to set up and operate what was apparently a substantial business. Rehabilitation is unlikely to really come about until such time as he can admit to himself his offending conduct. However, I accept Ms De Santa Brigida’s assessment that he has a low prospect, or a low risk of reoffending, and there is at least some prospect that time will provide rehabilitation.

46. There is a strong need for general deterrence in matters such as this, where a young woman is taken advantage of because she happens to be seriously affected by alcohol, and of course there is a need for specific deterrence particularly in the circumstances where the offender does not admit the offending. Those matters must be taken into account in determining the sentence.

47. I intend to proceed by way of an aggregate sentence. I note of course, that all of the offences occurred, in effect, on the one occasion and within a relatively short period of time. The two acts of sexual intercourse, on the accused’s version, occurred prior to him answering the telephone call from the victim’s sister, and that he withdrew his penis as a result of changing position before the call came through. The victim’s version is that he withdrew his penis, answered the call by picking it up, and then reinserted his penis. In my view, it makes little difference in terms of sentencing as to whether the two acts were interrupted by a phone call or resulted from a change in position prior to the phone call. In any event they were very close in time. As I have indicated, however, I accept the victim as a truthful and reliable witness.

48. In my view, the two separate acts of sexual intercourse were part of a single sequence of offending of the same nature., and if sentenced separately, would be largely concurrent, although not completely, because they are separate acts, and there would be a need for some concurrence in relation to the offence of sexually touching without consent. Having determined the indicative sentences, there would then be a need to take into account the concept of totality, and I will do so. So, concurrence and totality are both relevant to determining the aggregate sentence.

44. The indicative sentences are as follows:

45. In respect of Count 1: sexual intercourse without consent, contrary to s 61I of the Crimes Act, acknowledging that the maximum penalty provided by the legislation is 14 years and that there is a relevant standard non-parole period to take into account, particularly when it is a defended matter, of seven years. Both the maximum and the standard non-parole period are relevant guideposts. I have however determined that the sentence in respect of Count 1 is an indicative term of imprisonment of four years with an indicative non‑parole period of two years.

46. In relation to Count 2, it being a further offence of the same nature, the second act of sexual intercourse without consent, again, the indicative sentence is four years with an indicative non-parole period of two years.

47. In relation to Count 3, the offence of sexually touching the complainant without consent contrary to s 61KC(a), in relation to which the maximum penalty is five years, the indicative sentence is one year and six months.

48. It will be obvious from the indicative non-parole periods that I have determined that it is appropriate to find special circumstances, particularly in view of the fact that this is the offender’s first time in custody, and that it is my expectation that he will find his time in custody somewhat more onerous because he is at least currently in protection, and, in my view, because although he has not yet admitted the offences, he may well do so, and a longer period of potential rehabilitation on parole would be appropriate. I note that I accept that he is likely to be deported on conclusion of the non-parole period. However, that is not a matter that I can take into account adverse to him, so I have changed the statutory relationship between the non-parole period and the balance of term so that the non-parole period represents 50% rather than 75% of the total term.

49. The aggregate sentence will accordingly be one of five years and six months with a non-parole period of two years and nine months, which will be backdated by the time that he has already spent in custody, being a total of 86 days. The sentence will commence from 11 September 2024, and he will be first eligible for parole on 10 June 2027. The balance of term of two years, nine months will expire on 10 March 2030.

HIS HONOUR: Mr Luitel, you will not necessarily be released when you first become eligible for parole. That will depend on the authorities. It is important that while in custody, you make every effort to be in their good graces by doing whatever courses you can to improve your quality of life once you are released and also to convince them that you are unlikely to commit further offences if released on parole, because they simply will not take into account that you are likely to be returning to Nepal. And if you continue as you have so far in custody, that is, by not breaching prison regulations and doing what you can to help yourself, it’s highly likely you will be released at the first date eligible for parole, being 10 June 2027.

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Decision last updated: 20 January 2025