R v Shrestha

[2024] NSWDC 256

District Court

New South Wales

Medium Neutral Citation:

R v Shrestha [2024] NSWDC 256

Hearing dates:

22 March 2024

Decision date:

25 March 2024

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Indicative sentences:

SEQ 011 - Count 1 (+Form 1 SEQ 001) : 3 years and 6 months

SEQ 012 - Count 2 (+Form 1 SEQ 006) : 3 years and 6 months

Aggregate sentence:

Convicted.

Special circumstances found– need for a longer period of supervised parole to aid the offender to deal with his substance abuse and return to a normal life in the community.

Sentenced to a term of imprisonment for 4 years comprising a NPP of 2 years to commence on 23 March 2024 and to expire on 22 March 2026 and a balance of term of 2 years to commence on 23 March 2026 and to expire on 22 March 2028.

Eligible for release to parole on 22 March 2026.

Catchwords:

CRIMINAL – sentence – 2 counts of sexual intercourse with a child aged 14 and under 16 – duplicity of acts - election - Form 1 matters (x2) intentionally sexually touch child (10 years or over and under 16) – seriousness of offences - subjective matters

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

DPPvDeLa Rosa [2010] 79 NSWLR

RvCollins [2023] NSWDC 599

Rv Fisher [2021] NSWCCA 91

RvProverts [2002] NSWDC 737

R v Rush [2019] NSWDC 773

RvWright [2017] NSWCCA 102

SalvatorevR [2009] NSWCCA 104

Category:

Sentence

Parties:

Rex
Shrestha, Akash

Representation:

Counsel:
Crown: Ms K MacKenzie
Defence: Mr G M Thomas

Solicitors:
Crown: Ms S Tam ODPP (NSW)
Defence: Ms J Fahmy, Fahmy Lawyers Pty Ltd

File Number(s):

2022/361231

Publication restriction:

NPO in respect of the name of the complainant or anything that might tend to identify her.

JUDGMENT

1. Akash Shrestha appears for sentence in relation to two offences. The matter came before me yesterday for a sentence hearing, and it became apparent that the two counts relied on were duplicitous in that each referred to two separate acts of sexual intercourse. Count 1, having sexual intercourse with a child aged 14 and under 16, and a second count of the same nature, both contrary to s 66C(3) of the Crimes Act 1900, each have available a maximum penalty of ten years’ imprisonment, and there is no relevant standard non‑parole period.

2. The agreed facts indicate that Count 1 was in fact two separate acts of sexual intercourse, being digital\vaginal intercourse and fellatio, and Count 2 had a similar problem in that it also related to two separate acts of intercourse, one being vaginal/penile intercourse and the other digital/vaginal intercourse. As the counts were duplicitous, the Crown has elected to proceed only in respect of the offence of fellatio in respect of Count 1 and the charge of vaginal/penile intercourse in respect of Count 2.

3. The facts refer to, in each case, both of the alleged acts, and it is relevant to retain that information in the agreed facts as a matter of context and in relation to the sequence of offending to make it more understandable.

4. I note in respect of each of the two counts, there is a matter on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. In respect of Count 1 it relates to an offence of intentionally sexually touch a child contrary to s 66DB(a) of the Crimes Act, in respect of which the maximum penalty, if it was dealt with separately, is ten years’ imprisonment, being in relation to a child between the age of ten and less than 16 years of age.

5. In relation to Count 2 that I referred to, there was a further Form 1 which refers to another offence of intentionally sexually touch a child of ten years or above and less than 16 years of age, contrary to s 66DB(a) of the Crimes Act.

Agreed Facts

6. The facts are as follows:

1. The offender, Akash Shrestha - also known as "Cash" - was born 4 November 1999. At the time of the offending, he was 22 years of age. In fact, he was almost 23 years of age.

2. The complainant, "AG" was born in September 2007. At the time of the offending, she was 15 years and nine months of age.

3. The offender was friends and went to school with the complainant's older sister, CG, and older brother, RG. The complainant has known the offender for some nine or ten years, approximately.

4. On Saturday, 8 October 2022, the offender attended CG's birthday party. The offender arrived at CG's family home at about 5 - 6pm. The offender consumed some cocaine with CG at her residence. RG sourced and supplied a number of one‑gram bags of cocaine to the offender and most members of the group, who were participating in the planned birthday celebration. The offender also consumed about four bourbon and cokes.

5. The offender, RG and another friend arranged an Uber at 6.05pm and travelled to a bar in Cronulla. At 8.13pm, the offender took a line of cocaine in the bathroom. The offender estimated that he had at least five more lines of cocaine throughout the night and drank between five to 15 cocktails. The party finished at the bar at approximately 11pm. CG and the offender both took an MDMA capsule before continuing to the North Cronulla Hotel.

6. The offender travelled with CG and other friends via Uber back to CG's residence at 12.10am on Sunday, 9 October 2022.

7. The offender and CG went to the pool table area downstairs at her residence where the complainant joined her sister and the offender whilst they played pool. The complainant left after some time to go upstairs.

8. The offender asked CG if he could stay for the night as he was too "fucked" to go home. CG agreed.

9. Not too long after that, the offender had another capsule of MDMA and a line of cocaine.

10. After that, the complainant came downstairs to join her sister, the offender and their remaining friends who were still gathered at the residence.

11. At 2.17am, the offender and CG had another line of cocaine, and they joined the complainant in her bedroom upstairs. The complainant was the only one who had a television in her room. After about ten minutes, two other friends, RG and one I will refer to simply as "K" also went into the complainant's room upstairs. They were all watching a movie in the complainant's room. The complainant and the offender were next to each other on the bed.

12. After an hour or two, RG and “K” left the room, and the offender said to CG, "Let's go to my car and have a cone". The offender and CG had two cones of marijuana before they returned to the complainant's bedroom.

13. The offender had his arm around the complainant while they were watching the movie.

14. The complainant took a Snapchat video of herself, her sister and the offender in her bed and sent it to her friend, “C”.

15. When the movie finished, CG left the complainant's bedroom to go to bed. CG asked the offender, "Are you going to come?" The complainant also asked, "Are you going to go?" The offender replied, "No".

16. The complainant took another Snapchat video of the offender in the middle of the complainant's bed, taking up the whole space, with his eyes closed and apparently sleeping, and sent it to her friend, “C”.

FORM 1: Intentionally sexually touch a child ten years or above and under 16 years, namely, 15 years - s 66DB(a) Crimes Act 1900 (vaginal touching)

17. After CG left the complainant's bedroom, the offender said, "Oh, it's getting hot" and took off his shirt. The offender was lying in the middle of the bed. The complainant told the offender to move over so she could lay down. The complainant faced away from the offender at one side of the bed.

18. The offender started stroking the complainant's arm and stomach. The offender then touched the complainant's hip and then up along her leg and inner thigh.

19. The offender's hand went back up the complainant's leg and then went back down to the vaginal [genital] area. The offender rubbed the complainant's vagina [genital area] on top of her clothes and then under her clothes on her skin.

20. Both the offender’s and the complainant's clothes were on.

COUNT 1: Sexual intercourse with a child 14 years or above and under 16 years, namely, 15 years - s 66C(3) Crimes Act 1900 (fellatio)

21. The offender inserted two fingers into the complainant's vagina [genitalia]. The complainant was on her period. The offender inserted another finger into the complainant's vagina [genitalia] and moved his fingers in and out of the complainant's vagina [genitalia].

22. The offender withdrew his fingers from the complainant's vagina [genitalia], and the complainant sat up on the bed. The offender pulled down his pants under the blanket. The offender put his hand on the back of the complainant's head and pushed it down onto his penis.

23. The offender's penis was in the complainant's mouth for a couple of minutes. The complainant eventually pushed him away and laid back down on the bed. The offender did not ejaculate.

COUNT 2: Have sexual intercourse with a child aged 14 years or older and under 16 years - s 66C(3) Crimes Act1900 (vaginal\penile)

24. The complainant curled up on the bed. The offender tried to move closer to her, and the complainant moved away. The offender tried to touch the complainant’s leg with his hand, and the complainant said, “No, I just want to go to bed.” The offender replied, “I can’t sleep.”

25. The offender got off the bed and pulled the complainant’s shorts off.

26. The offender inserted his penis into the complainant’s vagina [genitalia]. The complainant was lying at the end of her bed on her back, and her legs were around the offender’s shoulders. The offender was standing up at the end of the bed, leaning over the complainant with his hands on the bed next to her head. After a while, the offender withdrew his penis from the complainant’s vagina [genitalia] and inserted his fingers into the complainant’s vagina [genitalia]. The offender did not ejaculate.

28. The complainant said, “Stop”, and removed the offender’s fingers from her vagina [genitalia]. The offender immediately got up and started putting his pants on. The complainant turned onto her side, facing away from the offender. The offender said to the complainant, “Oh, that was a bit unexpected.”

30. The complainant got up and put her pants on and went to the bathroom. The complainant cleaned herself up as she was on her period.

FORM 1: Intentionally sexually touch a child 10 years or above and under 16 years, namely 15 years - s 66 DB(a) Crimes Act 1900 (vaginal touching).

31. When the complainant returned to her bedroom, she lay on the opposite side to the offender on the edge of the bed.

32. The offender then moved closer to the complainant with his whole body up against the back of the complainant’s body. The offender touched the complainant’s leg and vaginal [genitalia] area. The complainant said to the offender, “Cash, I just want to go to bed. Please stop.”

33. The complainant and the offender went to sleep.

The morning of 9 October 2022

34. At 8am on 9 October 2022, CG went into the complainant’s room and saw the complainant was lying on the bed facing away from the offender. The offender was lying on his back with no shirt on.

35. CG took the offender’s car keys and went to his car to get her phone which she had left in the offender’s car when they had been smoking marijuana the previous night. When she returned to her room, the offender entered a couple of minutes later.

36. The offender left shortly after.

37. Later that day, the complainant met her friend, “C”. They went to Menai shops to get food. The complainant told “C’, “Me and Cash had sex.” “I know. It’s so bad.” “C” told the complainant that she needed to tell someone about this because, “it’s really bad.”

38. The complainant told “C” that the offender “fingered her” and “made her suck his dick”.

16 October 2022

39. On Sunday, 16 October 2022, CG received a text from the complainant at 6.12pm saying that she wanted to tell CG something “really, really bad”.

40. At 6.18pm CG went into the complainant’s bedroom. The complainant told her sister that she and the offender “fucked”. The complainant told CG that she told the offender, “No, Cash, I’m on my period.” The complainant told her sister that the offender “…made (me) suck his dick.”

41. After the complainant told CG, CG spoke to her friend, “KB”, about the situation and explained to the complainant that the right thing to do was to tell the police.

Police Investigation

42. On Monday 17 October 2022, CG and “KB” took the complainant to Sutherland Police Station to report what happened.

43. On 24 October 2022, AG told police about the offences committed against her in an interview.

Telephone Intercepts

44. On 22 November 2022, a surveillance device warrant was granted. Given the close relationship between CG and the offender, CG called the offender on 26 and 28 November 2022.

45. On 28 November 2022, a listening device captured a conversation between CG and the offender. The offender made the following statements throughout the duration of the call:

• “Yeah, something happened. Ey, it’s fucked.”

• “Yeah, that’s - I know, that’s what I’m saying - that’s fucked what happened, man.”

• “Yeah, but, like, it was totally my fault, ey. Like, I should’ve fucking - I don’t know what happened, man, like, honestly.”

• “My - I don’t know, man. Like, it was honestly my mistake, ey.”

• “Yeah, it would be, bro. It would be. I fucking - I’ll talk to her (the complainant), like, I’ll say, “sorry.” I’ll talk to her a bit.”

• “I’ll message her. I’ll make her feel better, but it was an honest mistake. Like, it wasn’t meant to happen, but fuck man, like.”

• “Fucking - it’s a shit thing to happen, I guess, ey.”

• “But, like, it didn’t mean anything, like, it didn’t really mean shit, ey. Like, honestly, just fucking - I was fucked.”

• “I know, I don’t want, like, I don’t want to hurt her…or anyone as a matter of - matter of fact.”

46. On 28 November 2022, the offender told CG in a text message that “it’s the biggest regret in my life, and it’s so fucked up that I haven’t been the same.”

47. On 28 November 2022, a listening device captured a further conversation between CG and the offender. The offender made the following statements during the call:

• “Like, it’s my fault. Like, I know it’s my fault.”

• “Like, I wanted to say I didn’t do it, but I did.”

• “Me being blind is, like, fuck, I was blind, I guess. Like, I was fucked, but that’s no excuse to do dumb shit. I know that.”

• “Man, I was, like - like, (CG), I’m fucking sorry, I - like, I don’t remember much, like, fuck me dead, like, I’ve done a massive mistake, like, you know, what I’m saying, like, you know what I’m trying to say, like, fuck - you know me, (CG), I would never do shit like that, but, like, I’m a fucking good cunt, man, like.”

• “Yeah, but, fuck, I know I was fucked, but that’s not an excuse. Like, I did something bad, but I don’t remember much of it.”

• “I know, that’s what I’m trying to say. I take full responsibility for it.”

• “Then fucking - I don’t remember anything she’s said, or what happened.”

• “But like, yeah, I remember that. Then I remember fucking fucking.”

• “I don’t know if I was…like, I know I fucked up bad, like, fuck.”

• “I’ll understand if you never forgive me.”

Offender’s arrest and ERISP

48. The offender was arrested on 30 November 2022. The offender participated in an electronically recorded interview at Sutherland Police Station.

49. The offender made the following admissions in the electronically recorded interview:

• “I just remember seeing, like, I don’t, like, it feels like a dream.”

• “Felt like a dream, like, I just remember seeing, I don’t remember, like, much at all. Like, I don’t even remember how I got home, to be honest.”

• “(I was) not myself. I was stumbling, passing out here and there, and I needed to go toilet heaps bad.”

• “…I just remember the scenes. I don’t remember, like, exactly what happened.”

• “We were all just watching a movie, and I don’t even know what movie we were watching, to be honest, like, I remember the scenes of watching a movie and, sort of talking to them, and blacking out, and waking me up, blacking out. Stuff like that.”

• “Then I remember scenes of, like, um, like, having sex.”

• “I’ve got no clue how long it went on for, or anything like that.”

• “Then the next thing I remember, I was in my - in my own bed. Woke up the next morning.”

• “I’ve had this problem now for a while now, that’s why I’ve stopped, like, you know, drinking and doing drugs. I’m clean now, like, because I’ve been having mad, like, chronic memory loss.”

• “I remember her riding me and that’s all I remember.”

• “I was pretty messed up, to be honest. I should’ve went home.”

• “I was pretty gone.”

• “I remember, like, them, like, someone, like, slapping me every now and then trying to wake me up.”

• “I didn’t even know it was real or not. That’s the thing.”

• “I was pretty messed up. I was pretty messed up, and obviously those other substances didn’t help…with the drinking.”

• “I remember she got on top, then we hooked up. Then, yeah, she started riding me. Then, like, that’s all I remember. Then, like, I don’t know. Then I blacked out, like, I blacked out a couple of times that same night, but that’s the thing.”

• “It’s my fault. It’s my fault, like, that’s what it is.”

• “I was gonna kill myself. I nearly jumped off the - I nearly jumped off to the cliff, but I couldn’t do it.”

• “I could not forgive myself.”

• “Like, that’s not me, like, I’m telling you this is not me.”

• “I would never force myself on anyone, like, you know, especially, AG. She’s like my little sister, like…I would never hurt her…never.”

• “I haven’t spoken to anyone, like…I just been to myself, like, been coming out of TAFE, crying in the toilets, having, like, breakdowns and shit.”

• “I would never be able to forgive myself after this.”

• “I don’t know. I just feel like as soon as, like, try to remember that, I just want to, like, to hurt myself, to be honest, cause I would never do that if I was sober.”

• “I remember her. The scene when she was on top, yeah.”

• “I don’t even know what happened, like, I don’t know what’s true, what’s not, like, it’s fucked.”

• “I admit that I fucked up. Like, it was my fault. It was no one else that doing it.”

50. The offender admitted that he was pretty sure the complainant was 15 or 16 years of age.

51. The offender had been consuming cocaine, MDMA and alcohol throughout the night of 8 October 2022. The offender described his intoxication level as a “ten out of ten” during the time that he was watching the movie on the complainant’s bed. The offender estimated that he had four beers before leaving the AG residence and had between five and 15 cocktails. The offender had two or three capsules of MDMA. The offender also snorted cocaine about four or five times during the night.

52. The offender remembers kissing the complainant, the complainant being on top and riding him whilst they were having sexual intercourse. He also remembers the complainant “sucking my dick” whilst he was laying down. The offender told the police that he did not remember much from the night due to his intoxication.

53. He told police that he felt the whole night was like a dream and did not remember much including how he got home.

SUBMISSIONS AND CONSIDERATION

7. A great deal of time was spent by the offender’s representative, Mr George Thomas of counsel, in trying to suggest to the Court that the complainant was a willing participant. As far as I can discern from the facts, there is nothing to indicate that she was a willing participant, although the facts are silent as to whether she was, in fact, oppositional, except at certain times.

8. It was the offender who pushed her head onto his penis, and she eventually pushed him away. She later said, “No, I just want to go to bed” when he replied, “I can’t sleep.” It was after that when he got off the bed and removed the complainant’s shorts. He then commenced penile\vaginal intercourse with her, which is Count 2, before withdrawing his penis and inserting his fingers, at which time the complainant said, “Stop”, and he removed his fingers.

7. There is no suggestion in anything that he said to her older sister in the telephone conversations, or to the police, that he at any time asked her if she was prepared to participate in any form of sexual intercourse at any time. And as I have previously said, I am unable in the circumstances, even on the balance of probabilities, to find that there is any support in the facts for the proposition that she was a willing participant; rather, that there is simply limited evidence of opposition.

8. The offender was almost 23 years of age at the time, and he is now 24. He was apparently a longstanding family friend who was trusted - certainly by the complainant’s older sister and generally by the family - as demonstrated by the fact that when he said he did not wish to go, that it was accepted that he could stay, certainly in the circumstances where he must have been considerably affected by alcohol and/or prohibited drugs and a significant risk to the community if he had driven a car at that point. Because of his close relationship with the family and the familiarity with him, there was perhaps nothing unusual about him seeking to stay rather than drive his car that night. But he was allowed to stay because he was trusted, and he abused that trust by committing sexual acts in relation to his friend’s younger sister who was under 16 years of age.

9. It is common to find in relation to sexual offending, particularly in relation to children, that when, in effect, taken by surprise in relation to a sexual offence of some nature, that they do not respond. They do not cry out. They do not protest. They do not run away immediately to call their parents or any other adult that might be nearby, because they are so taken by surprise that the offending can occur, particularly where it is a trusted friend of the family who is committing the offence.

10. In my view, each of the offences, including the Form 1 offences, is a serious offence. There are, of course, ways in which the individual offences may have been more serious, but in themselves, they are each serious, because they involve a breach of trust, being both the complainant’s and her family’s trust. I note that the parties assess them differently on a scale of objective seriousness from low range through midrange to high range. It is not necessary to so assess them in respect of offences that do not carry a standard non‑parole period, and the Court of Criminal Appeal has moved away from listing that as a requirement for sentencing judges. These were, in themselves, serious offences for the reasons that I have stated.

SUBJECTIVE MATTERS

13. Before the Court in respect of subjective matters are the following: the offender’s criminal history, which indicates that on 22 February 2022, he was dealt with at the Sutherland Local Court for an offence committed on 29 January 2022, a special category driver drive with special range PCA, first offence. He received a Conditional Release Order without a conviction of six months commencing on 22 February 2022 and concluding on 21 August 2022. On the same date as committing that offence, he was also charged with an offence of driving with illicit drug present in blood. He was not dealt with for that offence until 22 August 2022 at the Sutherland Local Court and in respect of which he received a Conditional Release Order without a conviction of two years, to expire on 1 August 2024.

14. It is not before me, but I presume that he was charged with each of those offences on the one occasion but that there was a delay before the testing for the illicit drug present in his blood was confirmed, and accordingly, he was dealt with then on separate dates, noting, of course, that he had the benefit of no conviction being recorded. On 4 June 2022, that is, approximately five months after those offences, he was arrested again for an offence of possess prohibited drug, which was dealt with at the Wollongong Local Court on 26 July 2022, and in respect of which he received the benefit of s 10A, being a conviction with no other penalty. Those are his only recorded offences.

15. Accordingly, at the time of this offending on 9 October 2022, he was still subject to the Conditional Release Order in relation to the offence of drive vehicle with illicit drug present in the blood. indeed, he had received the Conditional Release Order in August 2022 and committed these offences approximately one month later, and it would seem from the agreed facts in this matter that he had learnt little from the way he had been dealt with by the Court in relation to the earlier offences involving, as they did, drugs, considering what he had consumed on this particular night by way of cocaine, MDMA, marijuana and alcohol.

16. He was arrested on 30 November 2022, and he was released on 1 December 2022. Although the Crown facts refer to that as being one day in custody, which has not been disputed, in my view, it should be counted as two days in custody, and I will take that into account. He was committed for sentence on 21 September 2023 from the Downing Centre Local Court and maintained his plea of guilty to the offences in this Court. He is accordingly entitled to a 25% discount for the utility of the plea alone, as provided by the legislation, and I will provide a 25% discount.

17. As to subjective matters, in addition to the criminal history and the Community Corrections Report, there is a Sentencing Assessment Report under the hand of Katie Mordue, dated 14 March 2024; and a New South Wales Department of Corrective Services case note report provided by Jennifer Barton, psychologist. I note in relation to the Sentence Assessment Report that he denied having intentions to commit the offences and that he had minimal recollection of the offences due to his level of intoxication. He also reported to Ms Mordue, contrary to the agreed facts, “having the impression the victim had consented and initiated the offences and indicated he was unaware of the legal age of consent.”

18. I note from the other material before me that the offender was eight years of age at the time when he - together with his parents - migrated from Nepal to Australia. He has remained, so far as I am aware, in New South Wales since that time and went through the New South Wales education system until leaving school and obtaining a job. He has had almost 15 years living in the Australian community from the age of eight through to almost 23. I do not believe that any male child, in particular going through the New South Wales school system, could possibly spend all of that time in the system without being fully aware that the age of consent is 16.

19. In my view, that is simply the offender trying to diminish his responsibility for what happened, just as he also did when he informed Ms Mordue that he attributed his offending to being under the influence of drugs and alcohol. They may have had some role to play, but he is like many offenders in these circumstances who wishes to say, “It wasn’t me. It was the drugs”, or “It wasn’t me. It was the alcohol,” as a way of diminishing their personal liability and placating their own self‑image to some extent.

20. I note that during his conversations with the offender’s older sister that were intercepted or recorded in compliance with the warrant, he has fully accepted responsibility, and he also did so when talking to the police, even though there may have been some attempts to diminish the extent of his liability for the same reasons I have already referred to. I accept that he is genuinely remorseful and contrite and sincerely regrets what he did to AG. He has written what was referred to by his counsel as a letter of apology to the Court. It unfortunately shows little empathy for the victim, rather than apologising to the Court and using it as a means to put subjective matters before the Court.

21. There was little that he said in his evidence on sentence that similarly went to the issue of demonstrating empathy with the victim. However, I accept that he is genuinely remorseful and does regret the pain and suffering that he has caused her, which will no doubt continue for many years, and indeed, it is common for offending of this nature to affect complainants for a substantial period of years, if not for the balance of their lives, and normally requires a considerable amount of psychological treatment and aid for them to come to terms with what happened.

22. There is a Victim Impact Statement before the Court from AG. It demonstrates that the offending has had a significant effect on her, and as I have said, that will continue for a significant period of time, if not the balance of her life. It, however, does not take the offending beyond what might be reasonably expected to be the sequelae for a victim in matters such as this, so, it is not in itself an aggravating circumstance.

23. An aggravating circumstance is, of course, that he was on conditional liberty at the time and was in breach of that conditional liberty by committing this offence so shortly after he had been placed on that Conditional Release Order. I suppose, in a way, that might be referred to as being consistent with the foolishness of relative youth. While it is an aggravating circumstance, I do not regard it, in the circumstances of what the Conditional Release Order was granted for, to be of high significance.

24. The offending took place in the victim’s family home. Indeed, it took place in her bedroom. The fact that the offending took place in circumstances where she would normally expect to have been safe and protected within the bosom of her family is an aggravating feature which must be taken into account, in particular, in the circumstance where the offender was breaching the trust placed in him by being allowed to stay there because he was no doubt incapable of driving without probably having some accident.

25. I note the Sentence Assessment Report refers to him as being a medium‑to‑low risk of reoffending, according to the “Level of Service Inventory – Revised” and an average risk of sexual reoffending according to Static-99. In that regard, I note the New South Wales Department of Corrective Services report from Jennifer Barton, which assessed him as being an average risk of sexual reoffending.

26. However, on carefully reading that report, I think there is a difficulty with it in that it raises matters that are not in the agreed facts that are part of the assessment of the offending, such as, “He tried to push her head onto his penis, but she resisted.” That is not contained in the agreed facts. It goes on to say, “He removed her shorts and inserted his penis into her vagina. She told him to stop and moved away.” That is perhaps accurate, but it is an extension of what is contained in the facts. It makes it appear as though she told him to stop when he inserted his penis or shortly thereafter, which is not in the facts. In my view, there is a problem with the psychological report and its assessment of the offender being an average risk of sexual reoffending. One of the factors that is relevant to that is the extent to which an individual has had past relationships. He is a relatively young man, and I think that has also contributed to a finding that is perhaps more serious than it ought to have been.

27. In addition to that material before the Court is the material provided on his behalf. That is a psychological report from Ms Alison Cullen dated 20 February 2024; a number of testimonials from family, being his father, Krishna Shrestha, his brother, Kanish Shrestha, his uncle Abhijit Shrestha, Jyotshna Shrestha, being his aunt, and Bhagwat Shrestha, his grandfather.

28. In addition, I have been supplied with his general practitioner medical records; a summary from New South Wales Health of drug and alcohol counselling records; a number of TAFE documents, being an apprenticeship training contract dated 9 March 2021, a New South Wales apprenticeship training plan dated 10 October 2023 and a further training plan dated 6 March 2024, as well as a letter from Training Services New South Wales regarding an apprenticeship extension allowing for the completion of his particular course, or a particular course, being changed from 15 February this year to 15 August 2024; and a number of cases provided by Mr Thomas on his behalf, being R v Rush [2019] NSWDC 773, R v Proverts [2002] NSWDC 737, R v Collins [2023] NSWDC 599, Salvatore v R [2009] NSWCCA 104 and R v Wright [2017] NSWCCA 102. I have perused each of those cases, and I have unfortunately found them not particularly helpful. I have also been provided with some statistics, but I have in fact turned to the statistics myself that are available through JIRS and studied them as relevant to s 66C(3), drilling down to some of the individual cases referred to.

29. In addition, a further item provided was a USB containing two Snapchat videos taken by the complainant, as referenced in the agreed facts. That is currently with the court file, but I have viewed it. Although it appears to be one continuous video, I have been assured that it is in fact the combination of two recordings which play as one.

30. Subjective matters are taken from the material that I have referred to. Although the offender does not have a blemish‑free record, I do not regard it as having any particular significance in relation to the offending in this matter, except to the extent that the breach of the Conditional Release Order is, of course, an aggravating feature to the extent I have previously referred to. I think I omitted to say before when I was dealing with the objective seriousness of the offence, there is no allegation contained in the facts of any associated violence or threat, nor is there any evidence of any injury being occasioned to the complainant by any of the offending.

31. I note, of course, that the penile\vaginal intercourse and the fellatio was apparently without the benefit of a condom. The facts refer to there being no ejaculation, but of course, the transmission of sexual infections is not prevented when there is no condom. There is, of course, no information before me that there has been such a consequence as to any transmission of a sexual disease.

32. In my view, the offending was not pre‑planned but was the result of the situation in which the offender found himself that night: dosed to the gills on alcohol and prohibited drugs and finding himself alone with a 15‑year‑old female occupying the bed beside him. In those circumstances, he spontaneously reacted to take advantage of the situation. There is nothing to suggest that he pre-planned it or endeavoured to remain in her bedroom because he had as an object future sexual misconduct.

33. I have already referred to accepting that he is genuinely remorseful and contrite. As to rehabilitation, I note that having been released on bail one day after his arrest, he has taken on board that he needs to deal with his general problems. He has clearly, from the material before me, been involved in the abuse of prohibited drugs for years leading up to this event.

34. As referred to previously, the offender was born in Nepal and relocated with his family when he was eight years of age, having shortly prior to that time spent time in a number of different schools in India. When he came to Australia in 2008, he was suddenly immersed in a different culture and had some difficulties in navigating school life and struggling with language barriers and the ability to form friendships. He was introduced to alcohol at an early age, as it was normalised as a cultural custom within the Nepalese community, just as it is in Australia. He began social binge drinking and smoking cannabis in Year 9 when he was 14 or 15. His drug use escalated during his work in the field of demolition, where he also reported using cannabis and cocaine regularly.

35. His drug and alcohol consumption escalated in the period leading up to the index offences, as is demonstrated by the criminal history I previously referred to. I am informed that his first offence transpired when he had been out drinking and snorting cocaine, and the second offence was again when he had present in his blood cocaine. The third offence on 7 June 2022 related to his possession of marijuana. I accept that he had developed a problem in relation to the use of prohibited drugs, as referred to in Alison Cullen’s psychological report.

36. I accept that he has endeavoured, since being charged in relation to these matters, to address some of the problem areas in his life and has abstained from using prohibited drugs and has attended regularly for drug and alcohol counselling from at least 10 January 2023 until 6 September 2023. I note that Ms Cullen found that the offender suffered from a generalised anxiety disorder, a persistent depressive disorder, a moderate cannabis use disorder, a mild alcohol use disorder and a mild cocaine stimulant use disorder and that he has suffered from symptoms of anxiety and depressed mood for approximately a four‑year period, even preceding this offending.

37. No doubt, his arrest in relation to these matters have caused some increase in his anxiety and depression, which is not unusual, particularly in the circumstances where the offences are serious and the offender had to be cognisant of the fact that a sentence of imprisonment was a highly likely result, whatever advice he might have received in the alternative.

38. I note that he informed the psychologist:

“I take full responsibility for it. I feel really bad for her. I’ve known her for ages. I can’t believe I did something to her. I feel heartbroken, disappointed, angry at myself. I feel like shit.”

39. I accept that that fills in what I had previously referred to as being a lack of indication for empathy for the victim. It at least helps in that regard. I accept that he has made a significant effort to change his lifestyle since being charged. He is said to have - self-reporting - abstained from drugs for the past 15 months prior to the making of the psychological report.

40. I accept that he is highly regarded by the members of his family, who have provided references to the Court, although I note that at least some of them appear to be on the basis of limited contact, as Abhijit Shrestha resides in Nepal, and there is no indication in his reference that he has spent time with the offender in Australia, although I note from the material that the offender has spent some two months assisting Bhagwat Shrestha, who I take to be his grandfather, while he was being treated for cancer in hospital overseas.

41. His maternal aunt, Jyotshna Shrestha, apparently resides in the United States, and there is nothing in her reference that suggests that she has spent any significant period with him since he was charged in respect of this matter.

42. I accept that he is well regarded by his family, and that they have continued to support him and will continue to do so in the future. Noting the seriousness of these offences and the offender's reaction to them and the effort that he has made in the intervening period while on bail, in my view, there is at least a reasonable prospect of rehabilitation and a reasonable prospect that he will not reoffend in this manner in the future.

43. However, the purposes of sentencing as set out in the Crimes (Sentencing Procedure) Act, s 3A, in my view, require that sentences imposed in relation to matters such as this do provide for general deterrence and address the community's need for retribution. It has been argued on his behalf that Ms Cullen has drawn a direct nexus between the offender's mental health conditions and the index offence. To quote from Ms Cullen's report:

"To restate, Mr Shrestha's upbringing and the subsequent development of the aforementioned mental health diagnosis heightened his vulnerability to drug use during his adolescent years and beyond. His reported use of drugs was both social (alcohol and cocaine) and whilst alone (cannabis), and he had made various reported attempts to cease prior to the index offence. Accordingly, this supports that he was psychologically dependent on the use of same. Consistent with the agreed facts, Mr Shrestha detailed consuming a polysubstance cocktail across nine hours on the night of the index offence, which he attributed to his poor recollection of certain events. Undeniably, the combination and amount of each of the illicit drugs taken that night (especially following a period of decreased tolerance, if only using cocaine and alcohol sporadically) would have significantly impaired his decision‑making. The above‑mentioned, therefore, denotes a direct nexus between his mental health conditions and index offences such that in the absence of his adverse childhood experiences and subsequent aetiology of mental health conditions, he may not have grown dependent on the use of illicit drugs, especially in social situations".

44. Mr Thomas relies on DPP v De La Rosa [2010] 79 NSWLR at 43 to 44. I will not put the quote in, but it refers to, in short, where an offender is suffering from a mental illness, intellectual handicap or other mental problems, the courts have developed principles to be applied when sentencing, which is then summarised in that judgment.

45. However, s 21A(5AA) of the Crimes (Sentencing Procedure) Act1999 provides as follows:

"Special rule for self‑induced intoxication.

In determining the appropriate sentence for an offence, the self‑induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor."

46. In R v Fisher [2021] NSWCCA 91 at 221, 224 to 225 and 232, it was held, in effect, that self‑induced intoxication cannot be taken into account either on the question of the offender's knowledge or as a mitigating factor on sentence, nor can it be taken into account by a sentencing judge to explain an accused's behaviour where such explanation effectively minimises the accused's moral culpability.

47. As I have indicated, there was a significant age difference between the complainant and the accused; she being 15, or almost 16, and he being almost 23 years of age at the time. The fact that his use of prohibited drugs and alcohol may lead him to making poor decisions does not justify making a finding which is contrary to the legislation.

48. I have taken all of those matters into account in determining an appropriate sentence. I am aware that a sentence of imprisonment is likely to adversely affect the accused in that it will obviously affect his ability to complete his apprenticeship course, and I acknowledge that his fears of how he may be dealt with in custody are, in my experience, well‑founded. I accept that a period of custody will be harder for him than others, thanks to his pre‑existing anxiety and depression and the manner in which it is likely that he be retained in custody, as it is likely that Community Corrections will, whether he asks for it or not, see that it is appropriate to put him into protective custody.

49. That might be an easier way of serving a sentence, rather than being exposed to the violence in the general prison population. But it is still quite restrictive and makes it difficult for offenders to receive the assistance they may need in relation to their individual problems, especially due to the limited number of people in protective custody. I have taken all of those matters into account. In my view, it is clear that the s 5 threshold has been passed and that there is no alternative other than a sentence of imprisonment.

50. I have then turned my mind as to what is an appropriate sentence, having regard to all of those matters, and I intend to proceed by way of an aggregate sentence, which means that I have to provide an indicative sentence. It is always possible to draw a distinction between different types of sexual intercourse, such as fellatio, cunnilingus, anal intercourse, penile\vaginal intercourse, et cetera. However, in my view, there is little to make a distinction between the two separate acts of intercourse as alleged here, although I presume that the complainant may have found fellatio more offensive. However, there is no evidence of that.

SENTENCE

51. Both offences, or both acts of sexual intercourse that are the subject of the charges, were of relatively short duration, and so I have determined that the appropriate indicative sentence in relation to each of Count 1 and Count 2, taking into account in each case the Form 1 matters provided in respect of each, is a sentence of three years, six months.

52. The aggregate sentence will be a total sentence of four years with a non‑parole period of two years, having found special circumstances in order to assist the offender. Although he claims to be rehabilitated from his abuse of prohibited drugs, I have no doubt he needs further assistance in that regard, and so I have changed the statutory relationship between the non‑parole period and the balance of term in his favour so that the non‑parole period is two years. I have backdated it from two days before today, so the sentence commences on 23 March 2024. He will be first eligible for parole on 22 March 2026. The balance of term is two years, and it will expire on 22 March 2028.

53. You need to take into account, Mr Shrestha, that you will not necessarily be released on 22 March 2026, because it is still a matter for the authorities. But I am certain that if you make every effort while in custody to comply with prison regulations and to take advantage of any assistance that may be available to you while in custody, that you are likely to be released on 22 March 2026. Is there anything I have missed?

MACKENZIE: Your Honour, we do have to formally call up‑‑

54. HIS HONOUR: In relation to the matters that are the subject of a call up to which the offender has indicated that he is happy to have them dealt with in this Court, I will simply say that, in view of the fact that I have sentenced him to a period of imprisonment, I will call him up and take no further action.

MACKENZIE: Thank you, your Honour.

HIS HONOUR: I don't think it needs any more explanation than that, does it, Madam Crown?

MACKENZIE: No, it doesn't, your Honour, and certainly, the Crown doesn't require it.

**********

Decision last updated: 02 July 2024