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District Court 24 April 2025

R v Bishwakarma

[2025] NSWDC 586

Sexual offences
CRIME SEXUAL OFFENCES SEXUAL TOUCHING VICTIM INTOXICATED AND UNCONSCIOUS VICTIM INCAPABLE OF CONSENTING OFFENDER INTOXICATED

Citation: [2025] NSWDC 586
Court: District Court of New South Wales
Date: 24 April 2025
Judge(s): Sutherland SC DCJ

Background

The offender, a 22-year-old Nepalese citizen on a student visa, pleaded guilty to three substantive offences arising from events in the early hours of 25 January 2024 in Burwood. The charges comprised one count of intentionally recording an intimate image without consent (s 91P(1) of the Crimes Act 1900) and two counts of sexually touching another person without consent (s 61KC(a) of the Crimes Act 1900). A further count of sexual touching without consent was placed on a Form 1, attached to the recording offence.

The victim, a 30-year-old woman, had been drinking heavily at a Strathfield hotel before travelling to Burwood, where she consumed more alcohol and became unconscious on a bench near Burwood train station. At approximately 3:44am, the intoxicated offender found the unconscious victim, carried her to a secluded ATM alcove, and committed a series of sexual touching offences while filming the conduct on his mobile phone. A council street sweeper interrupted the offending, and a security guard across the road called police.

Police located the offender nearby, arrested him, and conducted a recorded interview in which he admitted knowing the victim was drunk, acknowledged filming her, and expressed regret. The victim had no memory of the offending and confirmed she did not consent to being touched.

  • What was the appropriate sentence for the three substantive offences and the Form 1 offence, having regard to objective seriousness, subjective factors, and the purposes of sentencing?
  • Whether it was appropriate to place a more serious offence (sexual touching, carrying a five-year maximum) on the Form 1 attached to a less serious offence (recording an image, carrying a three-year maximum).
  • How should the court balance the offender's genuine expressions of remorse, lack of prior criminal history, and difficult personal background against findings of a high risk of reoffending?
  • What weight, if any, should be given to the likely cancellation of the offender's visa under the Migration Act 1958 (Cth)?
  • What discount was appropriate for the offender's guilty plea?

Decision

The court acknowledged that placing the more serious sexual touching offence on the Form 1 (attached to the less serious recording offence) was an unusual course, referencing the Court of Criminal Appeal's observations in Attorney General's Application No 1 of 2002. However, it noted there was no legislative prohibition on doing so.

Sutherland SC DCJ assessed the objective seriousness of the offending as above the mid-range for offences of this kind. Significant aggravating factors included the vulnerability of the unconscious victim, the fact she was incapable of consenting, the public setting of the offending, the deliberate relocation of the victim to a secluded spot, and the recording of the conduct. The offender's actions were described as predatory and opportunistic.

The court considered a range of subjective matters. The offender had no criminal history, had experienced a difficult upbringing involving family violence in Nepal, had emigrated to Australia to study and support his family, and had expressed what the court found to be genuine remorse. A psychological report noted problematic alcohol use as a contributing factor. However, the Sentencing Assessment Report assessed the offender as presenting a high risk of reoffending, creating a tension between the offender's prospects of rehabilitation and this risk assessment.

In assessing the sentence, the court had regard to the likely cancellation of the offender's visa under s 50 of the Migration Act 1958 (Cth), which would result in deportation. The court applied a 25 per cent discount for the offender's guilty plea, entered at an early stage.

Orders Made

  • For Sequence 2 (intentionally recording an intimate image without consent, with the Form 1 offence of sexual touching taken into account): imprisonment for 2 years and 3 months, with a non-parole period of 1 year and 4 months, commencing 24 April 2025.
  • For Sequence 8 (sexual touching without consent): imprisonment for 2 years and 3 months, with a non-parole period of 1 year and 4 months, commencing 24 April 2025 (concurrent).
  • For Sequence 4 (sexual touching without consent, being the offence involving the offender's exposed penis): imprisonment for 3 years, with a non-parole period of 1 year and 10 months, commencing 24 April 2025.
  • The aggregate sentence was 3 years imprisonment, with a non-parole period of 1 year and 10 months.
  • The earliest release date was set at 23 February 2027, with the sentence expiring on 23 April 2028.

Key Takeaways

  • Where a victim is unconscious and incapable of consenting, the District Court treated that extreme vulnerability as a significant aggravating factor bearing directly on objective seriousness.
  • A Form 1 offence carrying a higher maximum penalty than the substantive offence to which it is attached is unusual and has attracted comment from the Court of Criminal Appeal, but no legislative bar prevents this approach.
  • Genuine remorse and the absence of prior criminal history were given weight as mitigating factors, though they were insufficient to displace the court's assessment of the overall seriousness of the offending.
  • The tension between an offender's prospects of rehabilitation and a high assessed risk of reoffending was expressly identified as a factor requiring careful navigation in sentencing.
  • Likely visa cancellation and deportation under s 50 of the Migration Act 1958 (Cth) was taken into account as a relevant consideration, consistent with established appellate authority, on the basis that it makes the experience of custody more burdensome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61KC, 91P
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 53A
- Migration Act 1958 (Cth), s 50

Cases:
- Abbas v R [2024] NSWCCA 228
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Fisher v R; R v Fisher [2021] NSWCCA 91
- Kelly v R [2022] NSWCCA 189
- R v Alcazar [2017] NSWCCA 51
- R v Burton [2020] NSWCCA 54
- R v Daley [2010] NSWCCA 223
- R v Hibbard (2009) 194 A Crim R 1; [2009] NSWCCA 20
- R v Holder; R v Johnston [1983] 3 NSWLR 245
- Stein v R [2023] NSWCCA 324
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- TM v R [2018] NSWCCA 88