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11
Court of Criminal Appeal 16 December 2020

Mohindra v R

[2020] NSWCCA 340

Sexual offences
CRIME SENTENCING AGGRAVATED INDECENT ASSAULT AGGREGATE SENTENCE THRESHOLD FOR SENTENCE OF IMPRISONMENT SENTENCING

Citation: Mohindra v R [2020] NSWCCA 340
Court: NSW Court of Criminal Appeal
Date: 16 December 2020
Judges: Basten JA; Johnson J; Davies J

Background

The appellant was a retail employer who faced an indictment of 10 counts of aggravated indecent assault and one count of indecent assault, involving six complainants. The offending spanned from 2001 to 2016 and occurred in the context of employment, with the appellant assaulting women and girls who were either applying for jobs or working for him. The conduct ranged from unwanted touching and kissing to more invasive physical contact.

After two days of preliminary matters and four days of trial, the appellant entered guilty pleas to six counts. The District Court sentenced him to an aggregate term of 3 years and 4 months imprisonment, with a non-parole period of 2 years.

The appellant sought leave to appeal on five grounds, each targeting a specific aspect of the sentencing judge's reasoning or challenging the overall aggregate sentence as manifestly excessive.

  • Whether the sentencing judge erred in finding that count 1 (the indecent assault of a job applicant) was aggravated by an abuse of a position of trust or authority under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge erred in assessing the objective seriousness of count 3
  • Whether the sentencing judge was obliged to provide a discount for the utilitarian value of the guilty pleas, entered on the fourth day of trial after four complainants had given evidence
  • Whether the sentencing judge erred in concluding that no sentence other than imprisonment was appropriate for counts 1 and 3, by reference to the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the aggregate sentence was plainly unreasonable or unjust

Decision

Ground 1: Position of trust or authority (count 1). The sentencing judge had found that the appellant held a position of authority over the victim in count 1 because she was a job applicant, relying on the aggravating factor in s 21A(2)(k). The Court of Criminal Appeal held this was an error. At the time of the offending, the complainant was not an employee but a job applicant; no employment relationship existed, and the aggravating factor was not properly engaged. However, because count 1 was the single charge carrying the lower maximum penalty of 5 years (rather than 7 years), and because the sentencing judge had treated it as the least serious offence, the error did not materially affect the outcome or the aggregate sentence.

Ground 2: Objective seriousness of count 3. Count 3 involved the appellant grabbing a 17-year-old employee, pulling her towards him, and kissing her on the mouth for approximately five seconds. The Court rejected the submission that this was below mid-range in objective seriousness. The degree of physical contact, the vulnerability of the victim, and the power imbalance within the employment relationship all supported the sentencing judge's assessment. No error was established.

Ground 3: Discount for guilty pleas. The pleas were entered on the fourth day of trial, after four complainants had already given evidence. The Court confirmed that s 22 of the Crimes (Sentencing Procedure) Act 1999 confers a discretion, not an obligation, to allow a discount for the utilitarian value of a guilty plea. While a discount is ordinarily available even for late pleas, the timing here was highly relevant. The sentencing judge exercised the discretion not to allow any discount, and the Court found no error in that exercise given how late the pleas were entered and the evidence that had already been given.

Grounds 4 and 5: Imprisonment threshold and aggregate sentence. The Court confirmed that the s 5 threshold question, namely whether no sentence other than imprisonment is appropriate, applies to the assessment of indicative sentences that form the basis of an aggregate sentence. On the facts of counts 1 and 3, the Court found that imprisonment was plainly appropriate. The aggregate sentence was not manifestly excessive, and all grounds were dismissed.

Orders Made

  • Leave to appeal against the aggregate sentence imposed by the District Court on 13 March 2020 was granted.
  • The appeal was dismissed.

Key Takeaways

  • The aggravating factor of "position of trust or authority" under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 does not automatically apply where the victim is a job applicant rather than an established employee; an actual relationship of authority must exist at the time of the offending.
  • Under s 22 of the Crimes (Sentencing Procedure) Act 1999, a court retains a discretion rather than an obligation to apply a utilitarian discount for guilty pleas; where pleas are entered very late in a trial after multiple complainants have already given evidence, withholding any discount may be an appropriate exercise of that discretion.
  • The s 5 imprisonment threshold applies not only to the aggregate sentence itself but also to the indicative sentences for individual offences that underpin an aggregate term.
  • Where a sentencing error is identified, it will not ground a successful appeal unless it materially affected the sentencing outcome; the Court of Criminal Appeal confirmed that the misapplication of the trust aggravator to count 1 caused no practical injustice given the overall structure of the sentence.
  • Objective seriousness in cases of indecent assault is assessed by reference to the degree and nature of physical contact, the vulnerability of the complainant, and the circumstances of the offending, including any power imbalance arising from the employment relationship.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61L, 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 9, 21A, 22, 54B
- Anti-Discrimination Act 1977 (NSW), s 22B

Cases:
- Corby v R [2010] NSWCCA 146
- Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
- Grealish v R [2013] NSWCCA 336
- Mol v R [2017] NSWCCA 76
- Mulato v R [2006] NSWCCA 282
- R v AA [2017] NSWCCA 84
- R v Gommeson [2014] NSWCCA 159; 243 A Crim R 534
- R v JRD [2007] NSWCCA 55
- R v Shortland [2018] NSWCCA 34
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Van Hong Pham [2005] NSWCCA 94
- Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
- Suleman v R [2009] NSWCCA 70
- You, Jae Bok v R [2020] NSWCCA 71