R v Shrestha [2024] NSWDC 256

R v Shrestha [2024] NSWDC 256

The offences were serious because they involved sexual acts against a 15-year-old complainant in her own bedroom, a breach of trust placed in the offender as a longstanding family friend, and occurred while the offender was on conditional liberty. The Court rejected any finding that the complainant was a willing participant, accepted remorse and some rehabilitation prospects, but held that self-induced intoxication could not mitigate sentence. The s 5 threshold was passed and no alternative to imprisonment was appropriate. An aggregate sentence of 4 years with a 2-year non-parole period was imposed, with special circumstances found to allow a longer supervised parole period to assist with...

Jurisdiction
Australia
Judgment Date
25 March 2024
Procedural Posture
Criminal Sentencing for Two Counts of Sexual Intercourse With a Child Aged 14 and Under 16, With Two Form 1 Matters / Sentence After Guilty Plea
Outcome
Convicted and sentenced to an aggregate term of imprisonment for 4 years comprising a non-parole period of 2 years and a balance of term of 2 years; eligible for release to parole on 22 March 2026.
Legal Topics
['sexual Intercourse With a Child Aged 14 and Under 16' 'intentionally Sexually Touch Child Aged 10 Years or Over and Under 16' 'duplicity of Counts' 'crown Election' 'form 1 Matters' 'objective Seriousness' 'breach of Trust' 'self Induced Intoxication' 'mental Health and Sentencing' 'special Circumstances' 'aggregate Sentence']
['criminal Law' 'sentencing' 'sexual Offences'] ['sexual Intercourse With a Child Aged 14 and Under 16' 'intentionally Sexually Touch Child Aged 10 Years or Over and Under 16' 'duplicity of Counts' 'crown Election' 'form 1 Matters' 'objective Seriousness' 'breach of Trust' 'self Induced Intoxication' 'mental Health and Sentencing' 'special Circumstances' 'aggregate Sentence']

Case Brief

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Procedural Posture

Criminal Sentencing for Two Counts of Sexual Intercourse With a Child Aged 14 and Under 16, With Two Form 1 Matters / Sentence After Guilty Plea

Legal Issues

  1. 1 ['What sentence should be imposed for two offences contrary to s 66C(3) of the Crimes Act 1900, each with a Form 1 matter contrary to s 66DB(a) of the Crimes Act 1900 taken into account.' 'How the Court should proceed where the two counts were duplicitous and the Crown elected to proceed on fellatio for Count 1 and vaginal/penile intercourse for Count 2.' 'Whether the complainant was a willing participant and how the facts affected the seriousness of the offences.' "Whether the offender's intoxication, mental health conditions, remorse, rehabilitation prospects and subjective circumstances mitigated sentence." 'Whether special circumstances justified a longer period of supervised parole.']

Ratio Decidendi

The offences were serious because they involved sexual acts against a 15-year-old complainant in her own bedroom, a breach of trust placed in the offender as a longstanding family friend, and occurred while the offender was on conditional liberty. The Court rejected any finding that the complainant was a willing participant, accepted remorse and some rehabilitation prospects, but held that self-induced intoxication could not mitigate sentence. The s 5 threshold was passed and no alternative to imprisonment was appropriate. An aggregate sentence of 4 years with a 2-year non-parole period was imposed, with special circumstances found to allow a longer supervised parole period to assist with...

Court Disposition

Convicted and sentenced to an aggregate term of imprisonment for 4 years comprising a non-parole period of 2 years and a balance of term of 2 years; eligible for release to parole on 22 March 2026.

Orders

  • ['Indicative sentence for SEQ 011 - Count 1 with Form 1 SEQ 001: 3 years and 6 months.' 'Indicative sentence for SEQ 012 - Count 2 with Form 1 SEQ 006: 3 years and 6 months.' 'Aggregate sentence: convicted.' 'Special circumstances found for the need for a longer period of supervised parole to aid the offender to...