AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 23 February 2022

R v Adhikari, Basanta

[2022] NSWDC 123

Public order & justice offences
OFFENDERS

Citation: R v Adhikari, Basanta [2022] NSWDC 123
Court: District Court of New South Wales
Date: 23 February 2022
Judge: P Taylor SC DCJ

Background

The offender, a Nepalese national who had arrived in Australia approximately a year before the relevant events, pleaded guilty to one count of acting with intent to pervert the course of justice under s 319 of the Crimes Act 1900. The charge arose from conduct in August 2019, some 16 months after his older brother had been involved in an alleged sexual assault against a complainant at the household where they lived.

In the weeks leading up to his arrest, the offender participated with his brother and a co-accused in a coordinated scheme involving phone calls, text messages, and a face-to-face meeting. The purpose was to persuade two witnesses who had been present during the incident to provide police statements saying nothing had happened. Those witnesses initially gave false statements but later corrected them, telling police that the earlier statements had been made on instructions from the offender, his brother, and the co-accused.

The offender was arrested on 20 August 2019 and spent approximately 15 months in pre-sentence custody on remand. He had no prior criminal history, expressed remorse in a letter to the court, and his brother was separately convicted and sentenced for both the underlying sexual offence and the perverting charge.

  • What was the appropriate sentence for a first-time offender who was a willing but non-instigating participant in a planned scheme to cause witnesses to lie to police?
  • What weight should be given to the time the offender had already served on remand, relative to the sentence that would otherwise have been imposed?
  • Whether an Intensive Correction Order remained a sentencing option given the length of pre-sentence custody already served.
  • How should co-offender parity principles apply where the offender's role and motive differed from those of his brother, the principal beneficiary of the scheme?

Decision

Judge Taylor SC DCJ characterised the offence as serious. It was planned, committed in company, and involved causing witnesses to make false statements to police about a significant sexual assault. The offence attracted multiple statutory aggravating factors: it was committed in company, formed part of planned criminal activity, and involved more than one act. The maximum penalty of 14 years' imprisonment under s 319 reflects the gravity with which the law regards conduct that strikes at the integrity of the justice system.

At the same time, the court identified meaningful mitigating factors. The offender had no criminal record, demonstrated genuine remorse, pleaded guilty, and was unlikely to reoffend. Critically, he was neither the instigator of the scheme nor stood to gain personally from it. The court was satisfied on the balance of probabilities that his motive was to protect his brother rather than to shield himself from any liability, distinguishing his position from that of his brother, whose sentence reflected that his own liability was being protected.

The court assessed what sentence would otherwise have been appropriate and concluded it would likely have been one that could have been served by way of an Intensive Correction Order. However, because such orders cannot be backdated, making one at the time of sentencing would have been an inappropriate penalty. The 15 months the offender had already served on remand was treated as significantly exceeding the custodial component he would otherwise have received.

Having found special circumstances (the offender had never previously served a sentence of imprisonment), the court set a non-parole period of six months within a 12-month term. The entire sentence was backdated to 23 November 2020, meaning both the sentence and the notional parole period had already expired by the date of the sentencing hearing. The offender was convicted but had no further time to serve.

Orders Made

  • The offender was convicted of acting with intent to pervert the course of justice under s 319 of the Crimes Act 1900.
  • Sentenced to 12 months' imprisonment, backdated to commence on 23 November 2020 and expiring on 22 November 2021.
  • Non-parole period of six months set, making the offender notionally eligible for parole from 22 May 2021.
  • As the entire sentence had already been served, no further period of imprisonment or parole remained outstanding.

Key Takeaways

  • A conviction for acting with intent to pervert the course of justice under s 319 of the Crimes Act 1900 does not require the perverting attempt to have succeeded; the offence is complete upon the act combined with the requisite intention, and failure to achieve the intended outcome does not diminish the objective seriousness of the offence.
  • The District Court confirmed that while a custodial sentence is generally appropriate where the offender instigated the conduct or stood to benefit from it, the position may differ where the offender was a willing participant who neither initiated the scheme nor derived personal advantage from it.
  • Where co-offenders had materially different roles and motives, parity principles do not operate to produce identical sentences; the court examined the differences in each offender's position individually.
  • Under s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999, the absence of substantial harm resulting from the offending can operate as a mitigating factor, even where the offence is complete on its face regardless of outcome.
  • An Intensive Correction Order cannot be backdated; where an offender has already served pre-sentence custody that exceeds what such an order would cover, making the order at the date of sentence becomes an inappropriate penalty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 24, 47

Cases
- Allen v R [2008] NSWCCA 11
- BJT v R [2011] NSWCCA 12
- Bland v R [2014] NSWCCA 82
- Church v R [2012] NSWCCA 149
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- Harrigan v R [2005] NSWCCA 449
- Lowe v R (1984) 154 CLR 606
- Mandranis v R [2021] NSWCCA 97
- Marinellis v R [2006] NSWCCA 307
- Mill v R (1988) 166 CLR 59
- Neal v R (1982) 149 CLR 305
- Podesta v R [2009] NSWCCA 97
- Postiglione v R (1997) 189 CLR 295
- R v Abookahled (CCA(NSW), 9 May 1991, unreported)
- R v Cook [1999] NSWCCA 234
- R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342
- R v Eastway (NSWCCA, 19 May 1992, unreported)
- R v Edelbi [2021] NSWCCA 122
- R v Egan [2013] NSWCCA 196
- R v English [2000] NSWCCA 245