District Court New South Wales Medium Neutral Citation: R v Rawat [2023] NSWDC 589 Hearing dates: 22 August 2023 Date of orders: 22 August 2023 Decision date: 22 August 2023 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Imprisonment sentence of 1 year and 10 months with a non-parole period of 11 months Catchwords: CRIME — Sexual offences — Sexual touching SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Objective seriousness — Should sentence be served subject to ICO — Community safety as the paramount consideration — Offence and purposes of sentencing require fulltime custody SENTENCING — Mitigating factors — Alcohol use — No previous convictions — Plea of guilty —Previously person of good character — Remorse — Unlikely to re-offend — Special circumstances SENTENCING — Sentencing procedure — Prosecution accept lesser count offered at Local Court­ — Facts initially in dispute — Guilty plea entered after arraignment — Full utilitarian discount for the guilty plea allowed Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A (5A), 21A5AAA, 25E, 66(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Cases Cited: Blackman v Walters [2001] NSWCCA 121 GAS v The Queen; SJK The Queen [2004] HCA 22; (2004) 217 CLR 198 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 R v R E [2023] NSWCCA 184 R v Zheng [2023] NSWCCA 64 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Stanley v Director of Public Prosecutions (NSW) [2021] NSWCCA 337 Stanley v The Director of Public Prosecutions (NSW) [2023] HCA 3 Category: Sentence Parties: Rakesh Singh Rawat (the offender) Director of Public Prosecutions (the Crown) Representation: Counsel: AJ Karim (for the offender) Solicitors: Sydney Criminal Law Specialists (for the offender) A Kerr for Public Prosecutions (NSW) (Crown) File Number(s): 2022/83469 Publication restriction: Statutory non-publication orders apply JUDGMENT – ex tempore revised 1. Rakesh Singh Rawat came to Australia with his extended family in 2009. Since that time, he has; established himself in the community, married, set up a small business with his father, and contributed to the community. 2. In the early hours of 20 March 2022, he committed a serious offence which, on all the material before me, appears to be aberrant and against his otherwise good character. That offence is sexual touching: s 61KC(a) Crimes Act 1900 (NSW). It carries a maximum penalty of 5 years imprisonment. 3. He was initially charged with a more serious offence. He did, however, offer to enter a plea to the matter presently for sentence while in the Local Court. That offer was ultimately accepted by the Director of Public Prosecutions. An ex officio indictment was presented to this Court on 6 March 2023. His guilty plea was accepted in full discharge of the indictment presented at arraignment. Agreed facts 1. Agreed facts were put before the Court. I am told by Mr Karim, his counsel, and accept, that the plea was entered on the basis that he was reckless regarding his knowledge that the complainant was not consenting. While a sentencing judge is not bound to accept agreements between the counsel for the parties, I will here, proceed on that basis: GAS v The Queen; SJK The Queen [2004] HCA 22; (2004) 217 CLR 198. 2. This morning Mr Karim explained that the offender's position was that he simply failed to consider whether or not the complainant was consenting and just went ahead with the act of sexual touching even though the risk the complainant was not consenting would have been obvious to someone with the accused's mental capacity if he has turned his mind to it: see also written submissions, MFI 2. 3. On the evening of 19 March, the complainant in this matter, then aged 20, went with her cousin to well-known licensed premises in Crown Street, Wollongong. As the venue was closing, about 3am on the morning of the 20th, she and her cousin went to a local McDonalds. They stayed outside talking to friends. Her cousin talked to man she did not know and exchanged details. The offender asked the cousin if she wanted to come back to his house for a drink. The cousin then asked the complainant if she wanted to go and the complainant agreed. 4. The complainant, the accused and the cousin got into an Uber that had been ordered by the other man who is a friend of the offender. He had been at the venue that night. The two women were not aware that this other man would be coming. The offender told the complainant and the cousin that they were going to Figtree. In fact, they went to the other man's premises in Unanderra. 5. There they sat on a lounge and talked. The women were asked if they wanted drinks, but they declined. At one stage, the complainant saw her cousin being led into a bedroom by the other man. She went to walk to the kitchen, but Rawat grabbed her, and they ended up on the lounge. 6. Rawat started to kiss her on the lips, using his tongue. She did not want this to happen. Rawat placed his legs between the victim's legs. He used his legs to spread her legs apart. He was still trying to kiss her on the lips, but she was moving her face away. She said, "Can you just please stop?" She repeated this request. Rawat then used his left hand to push down on the victim's shoulder. He placed his right hand inside the split of her skirt. He put his right hand under her dress and pulled down her underwear. She was moving her legs. However, the offender was pulling them apart with his legs. He was too strong for her. She couldn't keep her legs closed. She felt overpowered. 7. Rawat then used his right leg to pull her underwear off completely and his right hand to pull his own pants down. At this stage, the complainant was in shock, she was intoxicated, she had little strength left, so she lay there and did not say anything. She waited for the offender to finish whatever he intended to do. The particulars of the intentional touching are then specified. 8. While lying on top of the complainant and rubbing his penis against her, the offender ejaculated. He then got up from the lounge. He was completely naked except for his shoes and his pants round his ankles. He did not say anything and got dressed. The complainant pulled up her underwear and went to the ensuite. She later complained to her cousin. She was distressed, she was crying. 9. The women then left the house and wandered the streets for a while. They talked about what had occurred and then messaged friends and family. Ultimately, the complainant was picked up by her father. The police were called. Semen was found on her underwear. 10. On 23 March 2022, police attended the premises. Soon after the offender arrived. He was arrested. Objective seriousness 1. The objective seriousness of the particular offending must be determined in the light of, and entirety of, its facts. A sentence should never exceed that which can be justified as appropriate or proportionally to the gravity of the crime considered in the light of these objective circumstances: Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33. A court must consider the actual character of the touching, including the degree of physical contact involved. 2. Although in submissions, reference was made by Mr Karim to a hypothetical range, that does not assist me in assessing the gravity of this offence, as where an offence on a nominal or hypothetical range has no inherent meaning: R v RE [2023] NSWCCA 184 at [35]. 3. It is accepted that the offender was intoxicated at the relevant time. He may have been substantially intoxicated, but that is not a relevant mitigating factor: s 21A5AAA Crimes (Sentencing Procedure) Act 1999 (NSW). 4. The complainant, then aged 20, was alone with the offender, effectively a stranger. It was in the early hours of the morning. She was in unfamiliar premises. She had been drinking. She was grabbed and forcibly kissed. She made her own state of mind clear by saying, and repeating, "Can you please stop?" There was nothing ambiguous in that statement. She was then subject to touching and kissing and the removal of her clothing. 5. By this stage, she had adopted, as is understandable and not at all unusual, a passive response. This allows me to accept the prosecution cannot prove beyond reasonable doubt that there was a deliberate flaunting of her saying no, rather, he was recklessness in the terms outlined above. 6. I cannot accept, however, Mr Khan's other submissions (in MF1 2) that the "reckless conduct was at the lowest end of the spectrum because the offending occurred immediately after the victim and the accused were kissing." That is because the kissing was accompanied by her saying, "Please stop". While obviously not planned, a deliberate flaunting of a persistent refusal does not put this matter in the lowest category of recklessness. Far from it. It is a more serious example than that. 7. I have to focus on the act itself. The offender was effectively naked. He had removed clothing from the lower part of the complainant's body. He then rubbed his penis against her until ejaculation. The facts did not reveal whether there was direct skin on skin contact, but nothing he did was wanted by her. It's not clear how long the event took, but it was intrusive and humiliating. 8. Both parties agree that the offending was serious, so serious that a custodial sentence is warranted. The s 5 Crimes (Sentencing Procedure) Act 1999 threshold has been crossed. 9. Ms Kerr, who appears for the Director of Public Prosecutions, submits that the facts speak for themselves; this was a serious example of sexual touching, forceful and intrusive, as the removal of portions of the complainant's clothing make clear. 10. The defence, as I've indicated, submit that this offence is at the lower end on a scale of recklessly inflicted type matters. They also point to the absence of aggravating factors, whilst acknowledging that absence of aggravating factors is not strictly mitigating. 11. I accept there was a degree of force used – and to ejaculate on someone without their consent, without their active participation, can be and would be here, humiliating. However, as Mr Karim notes; no threats were made, no physical harm was inflicted, there was no, and although the offender did use some force there was no significant violence or physical injury caused. 12. The defence acknowledge the age gap between the offender and the complainant was about 15 years. 13. In this matter, I agree with the prosecution, and I don't think it's in serious dispute, that this was a serious example of its type, while obviously, there could be far less serious matters and far more serious matters. Victim impact 1. The complainant provided the Court with a Victim Impact Statement. She speaks of the offender's "vile actions" which have left permanent scars, visible to no one but herself. She says those "scars will never go away". She speaks of the look on her "father's face when he found out what [had] happened". She speaks of how, "after being examined … she scrubbed and scrubbed [her] body until it bled", but she still felt him, his breath and the pressure of his body. She says his actions made her hate her body. She has been to therapy, something she would not have considered. But, she says, each session, where she has to recount or think about what occurred, makes life "harder and harder". 2. She still has trouble accepting affection. She has found it's difficult to show affection and she feels uncomfortable around men. She is scared to go out on her own. She concludes: "I have taken my power back and you will no longer affect me as of your sentence date. You are weak and will never hold such power as I do. You may have broken me, but I've spent every day since picking up the pieces." 1. I have no difficulty in accepting what she said. The Victim Impact Statement served the very practical purpose of drawing to the offender's, the Court's and the community's attention the personal damage and harm caused by crimes such as this. The Victim Impact Statement speaks to the complainant's resilience. Tragically, what she spoke of is an all-too-common response to such crimes, but what she said must be taken into account. She has come forward; she has been accepted. Now the proceedings are over she can, as she says, start "picking up the pieces". 2. The sentence I impose is only one indicator of the seriousness with which the Court views the crime. A court sentencing an offender must take into account all relevant considerations, both so far as the crime is concerned, and so far as the offender is concerned. Every sentencing exercise is individual. This means a direct correlation between the harm done and the time to be served is impossible. The complainant should not see herself as a victim, nor should she equate or measure the damage she suffered against the punishment actually inflicted on the offender. The guilty plea 1. The guilty plea came after arraignment. However, I am told, and accept, that an offer to plead to the charge presently for sentence pursuant to s 61KC(a) Crimes Act, was made in the Local Court. In such circumstances, the fact that the parties did not agree on the facts to be put before the District Court did not disqualify the offender from a reduction of the otherwise appropriate sentence for its utilitarian value of 25%: s 25E Crimes (Sentencing Procedure) Act. 2. That section applies in its terms. It is not the facts that determine the s 25E(3) discount. I note that if there is a dispute once the matter comes to the District Court after a plea is indicated in the Local Court, if the facts are found against the offender, a s 25F(4) exception applies. That solves a particular problem raised in the prosecution submissions. 3. The offender will have the benefit of his plea of guilty. He will have the benefit of a 25% reduction of the otherwise appropriate sentence for its utilitarian value, and the plea has other benefits to which I will soon refer. The case for the offender 1. Rawat has one matter on his criminal record. I intend to ignore it. It is of a matter of different moment than the matter before the Court. I will treat him as a first offender. I will treat him as a person of good character, and his good character must be taken into account: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267. There are exceptions, but they do not apply here: s 21A (5A) Crimes (Sentencing Procedure) Act. I am prepared to accept that this is an uncharacteristic aberration. 2. His personal history is set out in a report of Mr Attai, a psychologist, dated 15 May 2023. Mr Attai was not required for cross examination and the Prosecution accept that what is set out is uncontroversial. It is mirrored, in terms of factual background, by a comprehensive Sentence Assessment Report (SAR): Exhibit B. 3. Rawat is in mid-thirties. He is married. He has a child. He came to Australia from India when he was 21. He has been in constant employment since then. His business was adversely affected by an unsuccessful lawsuit against the landlord of a premises, and by the pandemic. 4. Financial stress and worry led to symptoms of a depressive disorder which may have been pre-existent. He sought, inappropriately, to mitigate that condition by excessive drinking at times. The SAR notes a history of problematic use of alcohol, but that given since this offence he has been abstinent, there are no identified treatment needs. It also notes that after sentence, he will need a comprehensive sex offender risk assessment. 5. His family are supportive. They are aware of the offence. He spoke to the Community Corrections officer of his regret for the stresses that his actions have placed upon the family. He expressed appropriate remorse. He indicated that he was willing to undertake interventions as required and was cooperative. He will do community service work if ordered and a supervision plan can be put in place. 6. The psychological report attached to the SAR repeats that history. It indicates that if a custodial sentence is imposed, he will have to meet the eligibility criteria for custodial treatment programs. 7. That eligibility criteria could not be met. The sentence appropriate to this offence is unlikely to see him receiving any programs for sex offenders. Should he receive a non-custodial sentence, he will need to be referred for assessment for in-community risk management and treatment options, and those programs may be available to him. 8. The SAR annexure speaks of static criteria. I put little weight upon them. Under the heading "Factors relevant to management", Mr Attai reports there is no significant issues in his personal life, but he told the officer that he was told by his associate that the girls were available to "party on". When this was clarified with Rawat, he said the comment was understood to mean that he believed the girls to be available for sex. He told the officer that the offence occurred in the context of "consuming too much alcohol" and his judgment was impaired. It appears that he has limited understanding when it comes to questions of consent. 9. The report of Mr Attai, Exhibit 1, provided a personal history. Mr Attai noted Rawat's current condition was impacted by; sadness, rumination, worry, stress, and humiliation about the impact of this offence on his victim and his family. Mr Attai noted that Rawat expressed appropriate remorse and contrition. Mr Attai raised a possible diagnosis of Major Depressive Disorder with severe Anxious Distress. In his opinion this was an undiagnosed condition that had been untreated for years. He noted that Rawat was medicating with alcohol as a way of coping with stress. He noted that Rawat is cooperative and motivated to change and seek professional intervention, and if he does so, his prognosis is considered to be positive. That finding highlights the difference between static criteria and dynamic criteria. 10. Mr Attai notes since Rawat's arrest, there has been a significant reduction in alcohol use. He notes that a custodial sentence would have a devastating consequences for his family. It is suggested that the business would close. 11. I have no evidence to support that, but obviously the impact on a family of someone being imprisoned has to be considered. Although he suggests a s 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) diversion, that option is not available. He said that Rawat would need clinical intervention and that continued treatment can be made available. In his report, he sets out a treatment plan. Submissions 1. I am indebted to Ms Kerr who spoke to written submissions provided by another solicitor from the Director of Public Prosecution's office. Her ultimate submission is that given the degree and nature of the physical contact involved in this touching offence, there is no alternative other than a sentence of fulltime imprisonment. This matter she said, was too serious to be dealt with in any other way. 2. Mr Karim, counsel for the offender, noted that the protection of the community is contributed to by the successful rehabilitation of offenders, citing Woods J, as he then was, in Blackman v Walters [2001] NSWCCA 121. He says this aspect of sentencing should never be lost sight of, and it assumes particular importance in the case of those who have not developed settled criminal habits. 3. The critical issue of dispute for determination is: 1. The length of the sentence; and 2. Whether, if that sentence is less than two years, it can be served in the community subject to intensive correction. That issue was addressed carefully and succinctly by both counsel at the outset of these proceedings. Synthesis 1. I accept, as do the prosecution, that Rawat has accepted responsibility for his crime. He has expressed appropriate remorse. He has been humiliated in the eyes of his family and the community, but obviously, not as much as the complainant. He has an understandable fear of the consequences and no one with a normal moral compass would be anything other than scared, depressed and fearful at the consequence of going gaol. 2. His excessive drinking can in part be explained by his underlying depressive condition. His capacity to work hard and deal with his alcohol problem goes positively to his rehabilitation prospects. I cannot find that his underlying condition played a causative role in this offending but, as Mr Attai points out, a depressive condition and maladaptive treatment by alcohol, singly and in combination, can mean that people do not think as clearly about what they are doing or the consequences of their acts. I cannot, however, find that his moral culpability was reduced, nor is this a matter where principles relating to general deterrence are moderated to any significant degree. 3. So far as personal or specific deterrence is concerned, I am reasonably confident that this offender will not reoffend again. Any lesson meant to be learned has been well and truly brought home to him by the consequences of his arrest, the lengthy period he spent on bail and the requirement that he comply with conditions as to curfew and reporting. All matters I take into account. Intensive Correction Orders 1. I note what fell from the High Court in Stanley v The Director of Public Prosecutions (NSW) [2023] HCA 3. I also note some matters raised in the judgment of the Court of Criminal Appeal that were not subject to criticism on appeal: Stanley v Director of Public Prosecutions (NSW) [2021] NSWCCA 337. I have to consider whether, considering all possible alternatives, no penalty other than imprisonment is appropriate, and that conclusion was accepted. 2. Three steps must be undertaken prior to a sentence of imprisonment being served by intensive correction. The first is a conclusion that a custodial penalty is required. This was accepted by both parties. I then have to determine the appropriate term of the sentence, and then consider, if the issue arises, whether or not to make an Intensive Correction Order (ICO). 3. When I consider; the objective circumstances of this offence, the significant case in mitigation, the reduction for the plea of guilty, and the maximum penalty of 5 years here (which is one important guide to the exercise of my sentencing discretion) I can come to a sentence of less than 2 years. For transparency's sake, I came to a figure prior to the utilitarian discount of about 2 years, 6 months which, with rounding down, gets to 1 year, 10 months. 4. I then have to consider the paramount consideration of community safety: s 66(1) Crimes (Sentencing Procedure). Similar consideration was taken into account when I fixed the term of the sentence, but it has to be taken into account in a different manner when considering whether or not to order that the sentence be served subject to intensive correction in the community. 5. In context, community safety principally concerns possible harms to the community from the offender's risk of reoffending: Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [72] and [116]; see also R v Zheng [2023] NSWCCA 64. But that risk may be different depending on how the sentence is to be served. The section implicitly rejects an assumption that fulltime detention will most effectively promote community safety. I have to look forward to the possible impacts of the sentence of imprisonment: Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [74]. 6. I have to consider the nature and content of the conditions that might be imposed. Here, there may be supervision, but it would be notional supervision. Here, there may be community service which will have some impact, as it may enable the offender to give something back to the community. While community safety is not the sole consideration when determining whether to make or refuse an ICO, it can be decisive, unless the evidence is inconclusive: Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [75] to [76]. Here, where rehabilitation has to an extent been demonstrated, that is a matter that I have to consider. 7. As Basten J said in Stanley v Director of Public Prosecutions (NSW) [2021] NSWCCA 337; "If a person is imprisoned, community safety can be protected by their removal". But that is only for a period of time. One has to look at the longer time likelihood of reoffending. Gaol might, as Leeming J said in Stanley v Director of Public Prosecutions (NSW) [2021] NSWCCA 337, cause an offender to dwell on what he did, which might cause him to refrain from committing further offences. 8. I have to adopt a forward-looking approach. And, I have to consider this issue in the context of the offending itself. Mitigating factors should be given appropriate weight, but they cannot lead to an imposition of a penalty which is disproportionate to the gravity of the crime. 9. Courts also have an obligation to vindicate the dignity of the victim of the crime, and to express the community's disapproval of the offending. A just sentence must accord due recognition to the human dignity of the victim of a sexual touching, and the legitimate interests in the community in the denunciation and punishment of the serious crime committed against her. 10. Here, the purposes of sentencing, in particular, victim vindication, retribution, general deterrence, in my view, would not be sufficiently served should this sentence be served subject to intensive correction. 11. While general deterrence, as the High Court said in Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [59], may have limited utility. 12. Retribution is the notion that reflects the community's expectation the offender will suffer punishment and that particular offences will merit severe punishment. A proper sentence marks the court's view of the seriousness of the crime and should let other wrongdoers know consequences will fall upon them. 13. Here, when I consider community safety as the paramount consideration, it is clear from all the material before me that the offender, while a person of otherwise good character, still has considerable lack of understanding of issues relating to consent. While it is unlikely Rawat will reoffend, because of the consequences meted upon him, a fulltime custodial sentence will reinforce those considerations and cause him to dwell upon the crime he committed. 14. When considering general deterrence in the context of the paramount consideration, I note community safety goes beyond the subjective case for the offender. Community safety also requires that the courts be seen to impose just and appropriate retribution for a very serious crime against a complainant and thus, against the community. 15. Accordingly, while an ICO is technically available, having considered all relevant matters, a fulltime custodial sentence must be imposed. That said the period in custody should be the minimum that is required to meet all the purposes of sentencing. Given the demonstrated progress towards rehabilitation, the custodial proportion of the sentence, can be reduced by a significant finding of special circumstances. Orders explained 1. Please stand, Mr Rawat. 2. It never gives a judge any pleasure to impose a fulltime custodial sentence, but that sentence must be imposed given the seriousness of the crime that you committed. I have taken into account, all the relevant factors and considered the very careful submissions of Mr Karim in regard to the question of ICOs. The crime you committed was too serious, in my view, for it to be served in the community. It requires a custodial sentence that gives you time to reflect upon how serious your crime was. You and the community must understand that questions of consent and informed consent are particularly important when men, and it almost always is men, inflict themselves, as you did, upon an innocent complainant. 3. The sentence of the Court will, taking into account all those matters, including the utilitarian discount, be 1 year and 10 months imprisonment. There will be non-parole period of 11 months. That sentence reflects a finding of special circumstances, at a 50% ratio. It involves rounding down to your advantage from my initial tentative starting point of 2 years and 6 months. The sentence will commence today. The non-parole period, the date you will be released to parole, is 21 July 2024. There will be a parole period of 11 months from that date, subject to the supervision of parole service. The sentence will expire on 21 July 2025. 4. To repeat; the sentence is – 1 year 10 months, non-parole period of 11 months. Release date, 21 July 2024. Total sentence expires 21 June 2025. ********** 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: 01 February 2024