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
Cases Cited: DPPvDeLa Rosa [2010] 79 NSWLR
RvCollins [2023] NSWDC 599
RvProverts [2002] NSWDC 737
RvWright [2017] NSWCCA 102
SalvatorevR [2009] NSWCCA 104
Category: Sentence Parties: Rex
Shrestha, AkashRepresentation: Counsel:
Solicitors:
Crown: Ms K MacKenzie
Defence: Mr G M Thomas
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
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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.
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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.
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The facts refer to, in each case, both of…
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- AGLC
- R v Shrestha [2024] NSWDC 256
- Case
- [2024] NSWDC 256
- Decision Date
CaseChat Overview and Summary
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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