Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Aryal v R [2021] NSWCCA 2 Hearing dates: 26 November 2020 Decision date: 03 February 2021 Before: Johnson J at [1]; R A Hulme J at [2]; Wilson J at [67] Decision: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. Catchwords: CRIME – sentence appeal – manifest excess – two counts of aggravated sexual assault in one episode – aggregate sentence - offender reckless as to accused's cognitive impairment – futile to attempt arithmetic as to accumulation and concurrency between indicatives and aggregate sentences – focus must be on whether aggregate reflects totality of criminality – sentence within judge's discretion given objective seriousness and no discounts – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), s 61J(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 53A Cases Cited: Bell v R [2019] NSWCCA 251 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 Kliendienst v R [2020] NSWCCA 98 Lee v R [2020] NSWCCA 244 Vaughan v R [2020] NSWCCA 3 Category: Principal judgment Parties: Brijesh Aryal (Applicant) Regina (Respondent) Representation: Counsel: Mr S Howell (Applicant) Ms E Wilkins SC (Crown) Solicitors: Matouk Joyner Lawyers Solicitor for Public Prosecutions File Number(s): 2018/86059 Decision under appeal Court or tribunal: District Court Citation: [2020] NSWDC 67 Date of Decision: 19 February 2020 Before: Bourke SC DCJ File Number(s): 2018/86059 Judgment 1. JOHNSON J: I agree with R A Hulme J. 2. R A HULME J: Brijesh Aryal (the applicant) was sentenced in the District Court on 19 February 2020 for two offences of aggravated sexual assault. 3. The circumstance of aggravation in relation to each offence was that the victim had a cognitive impairment: s 61J(2)(g). 4. The offences are contrary to s 61J(1) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 20 years and there is a standard non-parole period of 10 years. 5. His Honour Judge Bourke SC imposed an aggregate sentence of imprisonment for 8 years with a non-parole period of 5 years, 6 months dating from 17 March 2018. He specified indicative sentences of 4 years, 6 months with a non-parole period of 3 years (count 1) and 6 years with a non-parole period of 3 years, 9 months (count 3). 6. The applicant seeks leave to appeal upon the following grounds: 1. The sentencing judge erred in his approach to the totality principle; and 2. The sentence imposed is manifestly excessive. 1. For the reasons given below, leave to appeal should be granted but the appeal be dismissed. The offences 1. The applicant was convicted after trial. The following facts reflect the findings made by the learned sentencing judge. 2. The victim was aged 21, lived with her mother and grandmother, and had a mild to moderate intellectual disability. Her intelligence was assessed as being greater than only 0.1% of others of her age. She required constant care and supervision including assistance getting dressed, having her meals prepared, and in taking her medication for a lifelong epilepsy disorder. She had difficulty understanding the concept of time and safety. She had learnt to shower by herself and put on her own shoes, but she did not know how to tie her laces. She did, however, work part-time as an office assistant in the city on weekday afternoons doing administrative and cleaning jobs, although she required assistance from a job support trainer. 3. The victim had been "travel trained" so that she could catch the train from her home near Panania to the city and return, although she was usually accompanied to the railway station in the mornings by her grandmother. She had a mobile phone and a watch that enabled her mother to track her whereabouts using software installed on those devices. 4. The applicant was 42 years old at the time of the offences. He lived in Panania with his wife, two young children, and parents-in-law. He worked as a registered psychiatric nurse for the Justice Health and Forensic Mental Health Network. He had a master's degree in nursing, majoring in mental health, and had been working as a nurse for about 10 years. At the time of the offences his work involved caring for, attending to, and assessing patients with mental illnesses, brain injuries and intellectual disabilities. 5. The applicant first met the victim by chance in early March 2018 as she was walking home from Panania railway station and he was walking his young son in a pram. They commenced talking and exchanged telephone numbers. 6. On Sunday 11 March 2018, the applicant and victim spoke by telephone for about 30 minutes. The applicant subsequently called her five times but the calls were unanswered. 7. On Monday 12 March 2018, the applicant said in a text, "I'm so excited to meet you this afternoon, so let me know when you finish your work, okay?" In another he said, "I finish my work at 2 today so after work we can meet, have Thai and hang out all right?" At about 5pm the applicant and the victim spoke by phone for a few minutes, followed by the applicant sending texts about meeting at Padstow railway station. They also included that he was sorry that she had had a bad day and that he was "eagerly waiting" for her. He told her that she should forget the bad things and that a "new future is waiting" for her. 8. The victim failed to get off the train at Padstow. She was eventually contacted by her mother who collected her from Panania railway station. Text messages sent by the applicant confirmed that he had been waiting for her to arrive at Padstow and had made several attempts to contact her. 9. After being collected by her mother, the victim asked if they could get some takeaway Thai food. The mother thought that this was odd, but she collected some Thai food while the victim waited in the car. When the mother returned to the car, the victim was speaking with the applicant on the phone. The mother spoke briefly with the applicant who said he wanted to meet up with the victim. The mother replied that it was too late in the evening. She later told her daughter that she should not meet up with a stranger. 10. That night, shortly after midnight, the applicant sent a text message saying, "Hi babe, sorry I could not meet with you … maybe next time. I will call you tomorrow. Sweet dreams. Love you." There was also a word, "muwaaa", which the judge presumed was intended to be some sort of kissing sound. 11. The applicant continued the next day, Tuesday 13 March, with his attempts to contact the victim, asking if she wanted to meet at Panania station. When the victim's mother picked her up from the station that afternoon, she noticed that the victim was speaking with the same male as the day before. 12. On the day of the offences, Friday 16 March 2018, the applicant met the victim at Panania station on her return from work and bought some food for them to eat. He asked her if she wanted to drive somewhere with him. She agreed and he said, "Maybe I'll take you somewhere we can get to know each other". He drove to Deepwater Park in Milperra. He suggested to the victim that they be "friends". 13. The victim began to talk about an injury to her ankle and he began massaging it. He kissed the victim on the mouth and suggested that they get into the back of his van. There he removed her pants and, while kneeling over her, placed his fingers into her vagina for a few minutes (Count 1). The applicant then had penile/vaginal intercourse for one or two minutes until he withdrew his penis and ejaculated into a tissue (Count 3). 14. Telephone tracking records indicated that the victim was in the vicinity of Deepwater Park for about 18 minutes from 6.08pm. 15. The victim's mother contacted police after she was unable to contact her daughter or the applicant. Police patrolled the area of Deepwater Park but found no trace of the pair, presumably because they had already left the area. The applicant dropped the victim a short distance from her home because he knew that the victim's mother would not be happy that he had been with the victim. 16. The victim walked to her home and immediately told her mother she had had sex with the applicant. 17. In the early hours of Saturday 17 March 2018, the applicant booked a flight for himself from Sydney to Kathmandu, departing later that day. He also made internet searches using the phrases, "consensual sex", "sexual assault punishment Australia", "sexual assault" and "sexual contact without capacity". 18. Police arrested the applicant at his home that afternoon. He admitted having had sex with the victim, stating that it was consensual and that she was, "like a girlfriend" with him and was wanting sex and enjoying it. 19. The applicant told police that he thought the victim was a very simple girl and that she, "doesn't look very smart". However, he claimed that at the time of the sexual intercourse he did not know that she did not have the capacity to provide consent and did not know that she had a cognitive impairment. 20. In relation to the proposed travel to Nepal, the applicant said that he wanted to go because he was devastated and thought the situation was going to be a mess. However, after speaking with his wife and her family he decided to cancel the ticket, believing that if he ran away it might look like he was a criminal. 21. The applicant told police that the first time he thought something was not right with the complainant was when he dropped her off and he noticed that she appeared to walk in the wrong direction. He said that he did not use his brain and that maybe he was just desperate to have sex. 22. There were submissions made at the sentence hearing as to the basis upon which the judge would make a finding as to the applicant's knowledge of there being no consent. His Honour was satisfied beyond reasonable doubt that the applicant was reckless as to the victim's capacity to consent in that he realised the possibility that she was not capable of consenting but went ahead with the sexual intercourse regardless. [1] Objective seriousness of the offending 1. The sentencing judge referred to factors potentially relevant to the objective seriousness of the offences including the following: [2] (a) there was no use of violence beyond that inherent in the sexual assaults, although there was some evidence of physical hurt in that the victim said that she felt pain in her vagina; (b) the duration of the offending was fairly short but that neither mitigated nor aggravated the offences as it was a common feature of such offences; (c) the applicant did not physically coerce or overpower the victim and absence of consent arose solely from the victim's lack of capacity to provide consent; (d) however, the objective seriousness was increased "because of the relatively significant intellectual impairment present in the complainant which … would have been apparent even after a short interaction with her"; (e) the applicant, a chronologically mature man of 42, actively pursued a physical relationship with the complainant by contacting her over a number of days using language such as, "Hi babe" and "sweet dreams, love you"; (f) sexual assaults occurred within a very short space of time after the applicant collected the victim from the railway station and immediately after satisfying his sexual urges, he drove her back to the vicinity of her home; (g) while the applicant told police that he had ejaculated into a tissue, semen was detected in vaginal smears indicating ejaculation in her vagina. Clearly, he was not using a condom and subjected the victim to the risk of pregnancy and the risk of infection; 1. The judge concluded that the applicant was on notice that the victim was intellectually compromised, especially given his qualifications and training. That conclusion was reinforced by the applicant having been told by the victim's mother that she was not allowed out at 7 o'clock and that she was "not mature enough" to meet with him. His Honour continued: [3] "It was in these circumstances that he took advantage of the complainant's intellectual disability and her childlike innocence for the sole purpose of pursuing his own sexual urges. In doing so, he subjected her to the somewhat degrading act of digital and penile penetration on the floor in the back of his motor vehicle, following which he immediately dropped her a safe distance from her home so as to limit the risk that his own indiscretions would be discovered". 1. The judge accepted the Crown submission that the offending fell just below the mid-range of objective seriousness, with the offence involving digital penetration (count 1) being at a slightly lower level. [4] Victim impact 1. The judge said he took a cautious approach to a victim impact statement, partly in recognition of the fact that it was not subject to testing by cross-examination. He accepted the Crown submission that a finding of substantial harm extending beyond that ordinarily expected ought not be made. He continued: [5] "However, I am certainly not satisfied that the offences have had little or no impact on the victim. Courts in recent decades have repeatedly commented on the adverse and often long term effects on victims of these sorts of offences, effects which are entirely understandable and which are ordinarily to be expected as a consequence of offending of this kind. This case is no different and I have no doubt that the offences have regrettably left their mark on the victim and her family members." 1. The applicant was not critical of his Honour having taken this approach. The applicant's subjective case and other aspects of the sentencing remarks 1. There was nothing in particular in the applicant's subjective case that is pertinent to the grounds of appeal except to note findings that were made and taken into account in the applicant's favour. Such matters are listed below in the consideration of Ground 2. 2. The judge also referred to the importance of deterrence (general and specific), denunciation and protection of the community in their application to sentencing for sexual offences of the present kind. 3. Special circumstances were found on the basis that it was the applicant's first time in custody and there was a need to ensure that he would be monitored for an extended period of time upon release given the adjustments he would need to make in relation to employment and that he might struggle with the separation from his children. Ground 1 – error in application of the totality principle 1. Counsel contended in written submissions that the degree of "notional accumulation" of the indicative sentences was erroneous. 2. There is no controversy about the totality principle itself. Howie J explained its application in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]: " … [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 1. The principle applies just as much when an aggregate sentence is imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Of the principles relating to appellate review of aggregate sentencing collected in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the following are pertinent: [6] "11. The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. 12. Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive. 13. A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures." 1. Citing Bell v R [2019] NSWCCA 251 at [62], the applicant accepted that "it cannot be known, nor was his Honour required to explain, whether the sentence for count 1 was accumulated upon the sentence for count 3, or vice versa, or whether his Honour looked at the two sentences and made an assessment of what was appropriate for the totality of the offending". [7] 2. It was, however, submitted that the degree of notional accumulation was erroneous for the following reasons: [8] 1. The offences were part of the same course of conduct in that they involved the same victim and occurred at approximately the same time. 2. Each offence was of brief duration. 3. There were no additional aggravating features as between the two counts. 4. The applicant bore the same level of moral culpability for each offence. 1. The applicant also relied upon the submissions made to the primary judge. His counsel had submitted that there should be concurrent sentences or, if there was to be any accumulation at all, there should be a "substantial measure of concurrency". The Crown agreed, although stating that it was a matter for the judge's discretion. It submitted, "there should be some perhaps very partial accumulation between sentence imposed for both offences to recognise the different sexual acts, but it's otherwise accepted that they're inextricably linked and part of the same course of conduct". [9] 2. The judge said: [10] "In imposing sentence for the two offences I must of course have regard to the principles of totality. As the Crown conceded, the offences involved a single episode and the sentences to be imposed should therefore reflect a substantial degree of concurrency with a limited degree of accumulation." (Emphasis added) Consideration 1. There are three difficulties with this ground of appeal. 2. The first is that the appeal is against the aggregate sentence and not the indicative sentences. It was noted in Vaughan v R [2020] NSWCCA 3 by Johnson J at [90]-[91] that indicative sentences are required for the purpose of understanding the components of the aggregate sentence in general terms but they have no practical operation. Further, while the principle of totality has operation, the principles of sentencing concerning accumulation and concurrency at general law have no application when an aggregate sentence is imposed. I agreed with Johnson J and added [11] that there is no actual accumulation of indicative sentences when an aggregate sentence is imposed. A sentencing judge simply determines the aggregate sentence by assessing what is appropriate to reflect the totality of criminality in all of the offending. This is the effect of what I had earlier stated in Bell v R. [12] 3. The fact that the sentencing judge in this case proceeded in that way in his assessment of the aggregate sentence is evident by the fact that it is impossible, just as it was in Vaughan v R, to describe an actual degree by which the two indicative sentences were notionally accumulated. A calculation can be made in relation to a notional accumulation of the head sentences, but it does not accommodate the same level of accumulation of the non-parole periods. (It does not need to.) 4. The applicant relied upon N Adams J having said in Kliendienst v R [2020] NSWCCA 98 at [84] that although transparency regarding the degree of accumulation and concurrence is not the same when an aggregate sentence is imposed, there is "some transparency" when the sentence is imposed for only two offences. "Transparency" in this context is taken to mean an ability to arithmetically calculate the extent of notional accumulation but, as indicated above, as well as in Kliendienst v R at [103], it is not always possible in a complete sense when non-parole periods need also be indicated. Even if it was completely possible, there is then the next difficulty. 5. The second difficulty is that the applicant's submissions assume the correctness of the individual sentences assessed and indicated for each offence. As noted above, one of the propositions relating to appellate review of an aggregate sentence listed in JM v R [13] was that "even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive. This was affirmed recently by Beech-Jones J in Lee v R [2020] NSWCCA 244 at [32]. Generally speaking, the same must apply if the indicative sentences are inadequate, at least where their sum equals or exceeds the aggregate. 6. Rather than making an assumption that the indicative sentences are correct, and then endeavouring to assess the extent by which there has been some notional accumulation, the critical question is another of the principles noted in JM v R, "whether the aggregate sentence reflects the totality of criminality involved". [14] That raises for determination under Ground 2 of the proposed appeal. 7. The third difficulty is the reliance upon the judge having said there would be a "substantial degree of concurrency with a limited degree of accumulation". The terms "substantial" and "limited" are relative and not amenable to precise quantification. The one thing that is clear is that at the time he uttered those words he must have known the aggregate sentence that he was just about to announce as well as the individual indicative sentences. The sentencing remarks were not delivered ex tempore; the judge had reserved for two months. It is inconceivable that his sentencing remarks delivered on the adjourned date were a series of unscripted thoughts that were uttered simultaneously as they occurred to him and then immediately forgotten before uttering the next. 8. Ground 1 fails. Ground 2 – manifest excess 1. The applicant's written submissions raised the following matters in support of the proposition that the aggregate sentence was manifestly excessive: [15] 1. The absence of consent arose solely because of the complainant's lack of capacity to consent. 2. The applicant was sentenced on the basis that he was reckless, as opposed to actually knowing that the complainant lacked the capacity to consent. 3. The offences were not accompanied by any physical or psychological coercion. It was not disputed at trial that the complainant participated in the sexual intercourse. 4. There were no aggravating features. 5. The applicant had no prior convictions, was of otherwise good character and had good prospects of rehabilitation. 1. It was contended that the sentence was in respect of a single occasion of "gross error" in the applicant having sexual intercourse with an "adult female" who was "willing", but incapable of consenting because of her cognitive impairment, with the applicant reckless as to that fact. The offences were "brief". The applicant had reached middle age and had no prior criminal offences and so in that sense his conduct was completely aberrant. 2. The applicant maintained that the aggregate sentence was one that exceeded what was proportionate to the totality of criminality. Consideration 1. A problematic aspect of the applicant's submissions, both written and oral, was the repeated references to the complainant being an adult who was a willing participant in the sexual intercourse with consent only vitiated by her cognitive impairment. During an exchange at the hearing, counsel acknowledged the difficulty in maintaining this contention and clarified that the point was more one of comparison with the range of circumstances of aggravation that may be encountered with offences against s 61J of the Crimes Act. 2. There is no merit in the original contention expressed as broadly as it was. Section 61J is the aggravated form of the offence in s 61I, namely sexual intercourse without consent, knowing that the other person is not consenting. The circumstances which may operate in aggravation are listed in s 61J(2)(a) to (i). They include, for example, the intentional or reckless infliction of actual bodily harm, the threatened infliction of such harm by means of an offensive weapon or instrument, and the threatened infliction of grievous bodily harm (s 61J(2)(a)-(c)). Aggravating circumstances that pertain to the personal circumstances of the victim are set out in the following paragraphs of s 61J(2): (d) The alleged victim is under the age of 16 years, or (e) The alleged victim is … under the authority of the alleged offender, or (f) The alleged victim has a serious physical disability, or (g) The alleged victim has a cognitive impairment. 1. In Bell v R there was a submission that the circumstance of aggravation of offences against s 66C(2) of sexual intercourse with a child above the age of 10 and under the age of 14 was not as serious as other circumstances of aggravation that could apply to that offence. The "circumstances of aggravation" for the purposes of s 66C were listed in s 66C(5) and they were largely the same as those listed in s 61J(2). It was held that "it was not self-evident that the circumstance of aggravation averred in the charges was necessarily less serious than others listed in s 66C(5)". [16] The same may be said in relation to s 61J(2). 2. The sentencing judge referred to and accepted a concession by the Crown that "the absence of consent in this case arises solely from the complainant's lack of capacity to provide that consent". However, he immediately added: [17] "[T]he objective seriousness in this matter is increased because of the relatively significant intellectual impairment present in the complainant which … would have been apparent after even a short interaction with her." 1. His Honour referred to the expert evidence that 2-3% of the population have an intellectual disability. Within that group, 85% will have a mild intellectual disability and the balance have a moderate, severe or profound disability. The victim in this matter was in the "mild to moderate" range. 2. There is no challenge to the judge's assessment of objective seriousness being "just below the mid-range" for Count 3 and "at a slightly lower level" for Count 1. Factors he cited in support of that finding have been listed earlier. [18] 3. The judge summarised the evidence concerning the applicant's background and personal circumstances. Specific subjective matters that he said would be taken into account were the following. [19] 1. The applicant had facilitated the course of justice at the trial by cross-examining the complainant "carefully and sensitively". This was taken into account but was not something that "should attract a lot of weight". 2. There had been no prior offences and the applicant had generally been a law-abiding and worthwhile member of society. 3. The applicant had experienced difficulties in custody, including being on a limited association classification, although it had not been submitted that difficulties in custody should warrant an amelioration of sentence. 4. The applicant was remorseful in a limited respect. 5. There were "at least reasonable prospects of rehabilitation". 1. It is necessary to bear in mind that the maximum penalty prescribed for an offence against s 61J is 20 years and the standard non-parole period is 10 years. Here there were two offences committed in the course of one incident but each made an additional contribution to the totality of criminality. As observed previously, it is the aggregate sentence of 8 years that must be the focus of the appeal, regardless of the Goldilocks-type assessment that might be made of the indicative sentences being inadequate, excessive, or just right. 2. In summary, there was no challenge to the assessment of the objective seriousness of the offending; there was no entitlement to any discount that would apply if there had been pleas of guilty; and the applicant's subjective case warranted some, but not extensive, mitigation of penalty. 3. All these circumstances indicate that the aggregate sentence was one that was well open to be imposed in the exercise of the sentencing judge's discretion. Orders 1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. 1. WILSON J: I agree with the orders proposed by R A Hulme J, for the reasons his Honour has given. ********** Endnotes 1. Remarks on Sentence [16] 2. Remarks on Sentence [18]-[21] 3. Remarks on sentence [22] 4. Remarks on sentence [23] 5. Remarks on sentence [24] 6. Citation of authority omitted. 7. Applicant's written submissions (AWS) at [40] 8. AWS [42] 9. 13.12.19 Tcpt 10, 15 10. Remarks on sentence [32] 11. At [117] 12. Supra, at [62] 13. At [40](12) 14. JM v R at [40](13) 15. AWS [48]ff 16. Bell v R at [38] 17. Remarks on sentence [18]-[19] 18. Above at [30]-[31] 19. Remarks on sentence [25]-[30] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 February 2021