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District Court 25 March 2024

R v Shrestha

[2024] NSWDC 256

Sexual offences
CRIMINAL SENTENCE DUPLICITY OF ACTS ELECTION SERIOUSNESS OF OFFENCES SUBJECTIVE MATTERS

Citation: R v Shrestha [2024] NSWDC 256
Court: District Court of New South Wales
Date: 25 March 2024
Judge(s): King SC DCJ

Background

The offender, a man aged 22 at the time of the offending, was sentenced on two counts of sexual intercourse with a child aged 14 and under 16, contrary to s 66C(3) of the Crimes Act 1900. The complainant was 15 years and nine months old. The offender had been acquainted with the complainant for approximately nine or ten years through a friendship with her older siblings.

The offending occurred in the early hours of 9 October 2022 at the complainant's family home, following a birthday celebration at which the offender had consumed substantial quantities of cocaine, MDMA, marijuana, and alcohol. After the complainant's sister left the bedroom, the offender committed a series of sexual acts against the complainant in her own bed, despite her verbal protests and physical attempts to resist.

Each of the two counts was supported by an associated Form 1 matter (offences taken into account on sentence without a separate conviction) for intentionally sexually touching a child aged 10 and under 16, contrary to s 66DB(a) of the Crimes Act 1900.

  • Whether the two counts as originally charged were duplicitous, and how that duplicity should be resolved
  • Which specific acts of sexual intercourse should be the subject of the Crown's election following the duplicity finding
  • How the objective seriousness of the offending should be assessed, including the relevance of the Form 1 matters and the sequence of conduct
  • What sentence, including any adjustment for special circumstances, was appropriate having regard to the offender's subjective circumstances

Decision

Duplicity and election. The sentencing hearing revealed that each count as charged was duplicitous: Count 1 referred to both digital/vaginal intercourse and fellatio, while Count 2 referred to both vaginal/penile intercourse and digital/vaginal intercourse. Because a single count cannot encompass two distinct criminal acts, the Crown elected to proceed on one act per count. Count 1 proceeded on the basis of fellatio; Count 2 proceeded on the basis of vaginal/penile intercourse. The facts concerning the non-elected acts were retained in the agreed facts for context and to illuminate the sequence of offending.

Objective seriousness. His Honour assessed both acts as broadly comparable in seriousness. The court noted that the statutory definition of "sexual intercourse" encompasses a range of acts including fellatio, cunnilingus, anal intercourse, and penile/vaginal intercourse, and found little basis to distinguish between the two elected counts in terms of gravity. The court acknowledged the complainant may have found fellatio more offensive but noted there was no evidence to that effect.

Subjective circumstances and special circumstances. The court took into account the offender's personal circumstances, including his drug use history and asserted rehabilitation. His Honour accepted that the offender would benefit from an extended period on parole to assist with that rehabilitation, and found special circumstances warranting a departure from the standard statutory relationship between the non-parole period and the balance of term. The indicative sentence for each count, taking the respective Form 1 matters into account, was three years and six months imprisonment.

Aggregate sentence. The total aggregate sentence imposed was four years imprisonment, with a non-parole period of two years. The sentence was backdated to 23 March 2024, making the offender first eligible for parole on 22 March 2026, with the balance of term expiring on 22 March 2028.

Orders Made

  • Count 1 (fellatio, s 66C(3)): indicative sentence of 3 years 6 months imprisonment, with Form 1 matter taken into account
  • Count 2 (vaginal/penile intercourse, s 66C(3)): indicative sentence of 3 years 6 months imprisonment, with Form 1 matter taken into account
  • Aggregate sentence: 4 years imprisonment, commencing 23 March 2024
  • Non-parole period: 2 years (special circumstances found), with first eligibility for parole on 22 March 2026
  • Balance of term: 2 years, expiring 22 March 2028
  • Call-up matters: called up and no further action taken, in light of the custodial sentence imposed

Key Takeaways

  • Where a single count charges two distinct acts of sexual intercourse, the count is duplicitous; the Crown must elect which act to proceed upon, though the non-elected conduct may be retained in agreed facts for context.
  • The District Court confirmed that the statutory definition of sexual intercourse under the Crimes Act 1900 covers a broad range of acts, and that sentencing courts should not automatically treat one type of sexual intercourse as more serious than another without evidentiary foundation.
  • Form 1 matters for intentional sexual touching can be taken into account when sentencing for the principal offences of sexual intercourse with a child, affecting the weight given to the overall course of conduct.
  • Special circumstances may be found where an offender has a documented history of substance abuse and requires an extended period on parole to support rehabilitation, even where the offender claims to be substantially rehabilitated.
  • Under the aggregate sentencing approach, the total sentence imposed (4 years) was less than the sum of the indicative sentences for each count (3 years 6 months each), reflecting the principle of totality in cases involving multiple but related offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C(3), 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases
- DPP v De La Rosa [2010] 79 NSWLR
- R v Collins [2023] NSWDC 599
- R v Fisher [2021] NSWCCA 91
- R v Proverts [2002] NSWDC 737
- R v Rush [2019] NSWDC 773
- R v Wright [2017] NSWCCA 102
- Salvatore v R [2009] NSWCCA 104