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

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.
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.
The facts refer to, in each case, both of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Shrestha

Details

AGLC: R v Shrestha [2024] NSWDC 256
Case: [2024] NSWDC 256
Decision Date: 25 March 2024

CaseChat Overview and Summary

The appellant, Shrestha, was convicted of two counts of sexual intercourse with a child under the age of 16 and one count of intentionally touching a child in a sexual manner. The case was heard in the Court of Appeal, which reviewed the sentence imposed by the trial judge. The appeal focused on the severity of the sentence and the need for the offender to address substance abuse issues.

The court considered whether the trial judge correctly identified and weighed the aggravating and mitigating factors in determining the sentence. The appellant argued that the sentence was excessive and did not adequately account for his remorse and efforts to address his substance abuse. The prosecution maintained that the sentence was appropriate given the gravity of the offences.

The court found that the trial judge had appropriately considered the aggravating and mitigating factors. The court noted the seriousness of the offences, including the duplicity of acts and the impact on the victims. However, the court also acknowledged the appellant's remorse and efforts to address his substance abuse. The court determined that a longer period of supervised parole was necessary to support the appellant's rehabilitation and reintegration into the community.

The court upheld the sentence imposed by the trial judge, with modifications to the parole conditions. The appellant was sentenced to a term of imprisonment of 4 years, with a non-parole period of 2 years. The court set specific conditions for the parole period to ensure the appellant's continued rehabilitation and to protect the community.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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.