District Court New South Wales Medium Neutral Citation: R v Gurung [2012] NSWDC 272 Hearing dates: 24 - 27 April 2012, 8 June 2012, 31 August 2012, 14 September 2012 Decision date: 26 October 2012 Jurisdiction: Criminal Before: KING SC DCJ Decision: 2. Enter a building with intent to commit an indictable offence, that is, to intentionally damage the property of ST: Sentenced to a fixed term of imprisonment of three months to date from 8 June 2012 and to expire on 7 September 2012 1. False accusation: Sentenced to a term of imprisonment of two years with a non-parole period of one year dating from 8 June 2012 and expiring on 7 June 2013. The balance of term, having found special circumstances, is one year commencing on 8 June 2013 and expiring on 7 June 2014. I make an order that you be released on parole on 7 June 2013. Catchwords: CRIMINAL - Sentence - false accusation of sexual assault - enter building with intent to commit indictable offence (intentional damage) - withdrawals of pleas - procedure outlined in & effect of s157(2) Criminal Procedure Act 1986 - no jurisdiction to entertain application for withdrawal of guilty plea Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: The Crown Renuka Gurung Representation: Director of Public Prosecutions KTG Lawyers File Number(s): 2012/00397284 SENTENCE 1HIS HONOUR: Renuka Gurung appears for sentence in respect of two offences. 2The first offence was committed on 30 October 2010, when the offender made a false accusation with intent to subject ST to an investigation for an offence of sexually assaulting the offender. The offence is contrary to section 314 of the Crimes Act 1900 and has a maximum penalty of seven years imprisonment. 3The second offence was committed on 2 November 2010, when the offender entered a building with intent to commit an indictable offence (intentionally damage the property of ST), contrary to section 114(1)(d) of the Crimes Act 1900. A maximum penalty of seven years imprisonment is provided. There is no standard non-parole period provided in respect of either offence. 4Due to the protracted progress of this matter since trial, it is necessary to provide considerably more detail of that progress than would ordinarily be necessary. The delay is important to issues regarding remorse, contrition and rehabilitation. 5The offender was committed for trial on 28 June 2011. The trial commenced with pre-trial argument on 25 April 2012, in which it was submitted on behalf of the offender that the offender's police statement setting out the false allegation, dated 30 October 2010, and the offender's ERISP, dated 24 November 2010, should be excluded from evidence. 6Neither of the objections had any merit. The offender's statement and ERISP were ruled admissible on 26 April 2012, and a jury was then empanelled. 7The indictment contained four counts. The third and fourth counts, (2(b) and 2(c)), were each alternatives to Count 2(a). 8Count 1 was the make false accusation offence already referred to. 9Count 2(a) was an offence of attempt to break and enter the premises of ST with intent to commit a serious indictable offence: intentionally damage the property of ST in circumstances of aggravation, namely, being in company. 10Count 2(b) was the same as Count 2(a), without the circumstance of aggravation. 11Count 2(c) has already been referred to. 12After the jury was empanelled and the offender placed in their charge, and before the Crown opened, there was an adjournment. After the adjournment, Mr Overall, counsel for the offender, indicated that his client wished to enter a plea of guilty in respect of Count 1 and the alternative Count 2(c). The Crown was prepared to accept the two pleas as discharging the indictment. 13The offender was again arraigned on those counts and pleaded guilty to Count 1, but despite expectations, continued a not guilty plea in respect of Count 2(c). 14In those circumstances the trial continued in respect of Count 2(a) and the alternative counts of 2(b) and 2(c). 15The Crown then opened and called ST as the first witness. His evidence was completed that day and the trial adjourned to continue on the following day, 27 April 2012. 16On that day, before the jury returned, Mr Overall again indicated that the offender wished to enter a plea of guilty in respect of Count 2(c). 17The offender was arraigned on that count in the presence of the jury and entered a plea of guilty. 18The Crown accepted the pleas as discharging the indictment. 19The Court then dealt with the pleas in accordance with section 157 of the Criminal Procedure Act, that is, it accepted the pleas in respect of Count 1 and Count 2(c), and found the offender guilty of each. The jury was then discharged. 20Section 157 subsection (2) provides that where the Court follows that procedure, the finding of guilt has the effect as if it were the verdict of the jury. 21A document entitled "Agreed Facts on Sentence" annexing the offender's statement to police dated 30 October 2010, and signed by the parties, including the offender, was then tendered, and the sentence hearing listed for Friday 8 June 2012. 22On that date, the Court heard evidence from Tanya Merhi, Probation and Parole Officer, and the offender. A psychiatric report from Dr Furst, dated 4 June, 2012, and references were tendered. 23However, by the time submissions were completed, it was after 4pm. 24While I had anticipated being able to complete the matter that day, as a result of the evidence there were clearly issues that required careful consideration. 25The offender was allowed bail from 27 April 2012 until 8 June 2012, particularly to facilitate the obtaining of a psychiatric report on her behalf. 26As I was not then available in Sydney until the week commencing 23 July 2012, the matter was adjourned for reasons on sentence to Friday 27 July 2012. 27At the time of the offences, the offender's presence in Australia was subject to a Student Visa. By the time of the trial, the Student Visa having expired, she remained in Australia subject to a Criminal Justice Visa. 28As all relevant material was before the Court on sentence, I said: "The offence is a serious one, and it is inevitable that a term of imprisonment must be imposed, although I have not yet decided on the length of that, so there is no point, particularly in the circumstances where, if your client was to come back in seven weeks time, and I then imposed a sentence, she would have to serve the sentence after that seven weeks had already been spent in the community, subject to whatever bail conditions she has been on. So I think it is far more in your client's interests that I refuse her bail at this time. It is a matter for you whether you wish to make any submissions to the contrary." 29Mr Overall made no application for bail, and it was refused. 30On 27 July 2012, the Court, having reflected on the issues, was prepared to impose sentences. However, Mr Overall sought leave to withdraw, as his and his instructing solicitor's instructions had been withdrawn. Leave was granted. 31Mr Killalea, solicitor, then appeared for the offender, and indicated that he had filed a notice of motion to withdraw the pleas and would be making an application for bail in the future, prior to the application to withdraw the pleas. 32The matter was inadvertently listed for a date when I was to be on circuit, and when the parties returned that day, I was asked to recuse myself from hearing the application to withdraw the pleas, which was refused. 33In short, there was then an unsuccessful appeal to the Court of Criminal Appeal in respect of my refusal to recuse myself. 34The decision of the Court of Criminal Appeal on 6 September 2012 indicates that that Court was not informed that both pleas occurred after the offender had been placed in the charge of the jury, and that the Court had followed the procedure set out in section 157 of the Criminal Procedure Act. 35The effect of following that procedure, and the findings of guilt having effect as though they were verdicts of the jury, the Court had no jurisdiction to entertain an application to withdraw the pleas of guilty. 36The matter returned to court before me on 14 September 2012, at which time I informed Mr Killalea of section 157 and my view as expressed above. 37To allow him to consider his client's position and the law, and the opportunity to obtain any further material on sentence, the matter was adjourned to the first Thursday I was again available in Sydney, being yesterday, 25 October 2012. 38No application was made, and no further material or submissions were made on sentence. 39As the Court was then involved in a trial, the matter was adjourned to today for sentence. 40The practical effect has been to defer the imposition of sentence from 27 July 2012 until today, a period of three months, and while the offender has remained in custody, not knowing the term of the sentence - a most unfortunate consequence. 41As previously indicated, the parties agreed on the facts on sentence, which annexed a copy of the offender's statement on 30 October 2010 containing the false accusation. 42I intend to refer not simply to the agreed facts on sentence, but in part, to the content of the statement, and also to the evidence of ST, which was already before the Court as a result of the conduct of the trial. 43The offender alleged that ST called her mobile phone at around midday on 29 October 2010, saying that he needed to speak to her about some documents that he had signed and that she had witnessed in February 2010. 44Her statement clearly indicates that she had no further contact with ST after witnessing the signing until the alleged phone call on Friday 29 October 2010 to her mobile phone at about midday. 45She stated that it was agreed that they would meet in the city after work at Martin Place. She alleged that ST collected her in his car from Martin Place after 5pm. 46She left her house at 3pm, caught a train from Auburn to Wynyard Station, went to see a consultant to discuss courses she was doing, and applying for temporary residence in Australia. 47She left the premises of a friend's uncle's office at about 5.15pm and walked for about five minutes to Martin Place, where she looked around to find ST. She observed him sitting in a dark grey coloured four-wheel drive, in the driver's seat. 48They then had a conversation which related to the alleged purpose of his phone call to her, as being to do with the documents that she had witnessed in February of 2010. 49They were said to have driven around the city area for fifteen to twenty minutes before he suggested going to a motel. In short, she indicated that she said she was not a prostitute, and declined the invitation to go to a motel. 50While there was further conversation, she indicated that ST became angry, his voice growing louder, as he continued to drive around the city; that while driving around the city, he grabbed her neck with his left hand and pulled her towards his lap. She said that, "he was doing this to me for about ten to fifteen minutes". "He is still driving, and then he used left hand and started to touch my boobs. He put his hand down my top. I was trying to push him away but he was too big. ST then put his left hand down my undies and touched me on the skin of my vagina, and then I threw his hand away. He was still driving at this stage around the city. He didn't put his fingers inside my vagina." 51There was some further conversation and driving for a further three to five minutes before he stopped the car, and she opened the door and ran. 52She returned to her residence, and at 9pm made a call from a phone booth to Alan Ghadi, described in the facts as her then boyfriend. 53The documents that had been witnessed in February 2010 were an application being made by ST, through Alan Ghadi, for a loan in respect of the purchase of a motor vehicle. 54She said that she requested information from Mr Ghadi, which he at first declined to give her, but after she had informed him of what she alleged had happened to her, he said he would call her back when he had the application. 55The statement continues on to indicate that at 11pm that day, Mr Ghadi called her mobile, having found the paperwork in respect of the loan application, that he then brought it to her residence at 11.45pm, and Mr Ghadi then drove her to the Auburn Police Station. 56The statement indicates that it was signed by the offender on 30 October 2010 at 7.21pm. That is, in the circumstances of the content of her statement, there can be no doubt that the events that she alleged had occurred, occurred at the times indicated on 29 October 2010, and that her attendance at the police station was on that same date. 57In preparing the statement containing the allegation, the offender, after reading the jurat, said, "How would people know if what was said is a lie?" 58ST resided on the 22nd floor of a unit building in Chatswood with his wife and their son. Access to that floor could only be obtained by using an access swipe card, unless someone within one of the units pressed the appropriate button within their unit to allow access to the building, and the lifts in particular. 59At about 10am on 2 November 2011, ST was at home with his wife and son. The son heard noise from the door area. ST observed the door handle to move and heard voices, at least one being female, outside, although he could not discern what was being said. He called Triple 0. His wife observed ST to "sound full of stress and shaking" when he spoke to the police, and was attempting to keep the door closed. 60When the police arrived, the offender, who ST knew only as Veronica, was standing outside his unit. ST gave evidence in the trial that he had only met Veronica on two occasions, the first being in February 2010 when she had witnessed his loan documentation, and she was introduced by Mr Ghadi as his girlfriend, and on a later occasion in September 2010, again at offices associated with Alan Ghadi. 61It was only after the offender's attendance at ST's residence on 2 November 2011 that police interviewed ST in relation to the alleged sexual assault. 62I note, since the date of that interview was not contained in the facts or in the evidence of ST at trial, that the Court has obtained the date from the document which was part of the court file from the committal proceedings. 63ST informed the police in the interview that he had never actually spoken to the offender; he did not know her telephone number, and had certainly never telephoned her. He denied having met her in the city, and said that at the relevant time he had been with his wife and child at Chatswood on the way to the Blue Mountains. 64The police investigation revealed CCTV footage from the Westfield Shopping Centre showing ST, his wife and son at a kebab store in the Food Court at about 4.55pm on 29 October 2010. 65CCTV footage obtained from Caltex Petrol Station, Epping Road, depicts ST filling his car with petrol at about 5.52pm on 29 October 2010. 66At 5.59pm on 29 October 2010, ST's vehicle was charged for using the M2 Motorway Toll at North Ryde Plaza, and at 6.14pm was charged for using the M7 Motorway Toll at the M2 Interchange Northwest. 67The facts indicate that it was an impossibility for ST to have committed the alleged offence against the offender, and as previously indicated, there can in the circumstances be no doubt about the date on which she alleged it occurred. 68On 24 November 2011, the offender attended Chatswood Police Station at the request of the investigating officer. She was charged and cautioned. She participated in an ERISP where she stated, inter alia, the following: (i)That she was not attempting to break into the premises, she was just knocking; (ii)If she gained access to the premises, she was going to write on the wall, "He's a rapist", or something like that; (iii)Her mobile telephone number; (iv)She was shown CCTV footage from the unit building at which ST resided in Chatswood, in which she identified herself entering the building; (v)She had obtained ST's address from the finance application he had filled out and provided to Alan Ghadi; (vi)Prior to attending ST's residential building at Chatswood, she and Alan Ghadi had attempted to call ST on numerous occasions without receiving an answer over a period of three to four days; (vii)At the time of the alleged offences she was on a student visa; (viii)She explained at the interview that she had followed others into the building and that a building manager or security person had given her access to the floor on which ST resided. 69Although during the interview she was confronted with relevant CCTV footage and information as to where ST was in fact at the relevant times according to her allegation, she continued to claim that her allegation was true. 70In the Court's view, where an allegation of an act of sexual misconduct is made against any individual, whether they be married or not, that allegation being false, it is a serious matter. 71The evidence in sexual assault matters is frequently one on one, and with the exception that ST was able to provide information that led to clear evidence that he could not have committed the offence, it is highly likely that he would in fact have been charged with the offence alleged, and potentially suffered serious consequences, possibly even imprisonment, and being put to considerable expense to defend himself. 72False allegations of this nature fundamentally undermine the justice system, and indeed, the credibility of complainants in sexual assault matters. 73Although the offence of enter building with intent to commit, an indictable offence, carries the same maximum term of imprisonment as the offence of making a false statement, in this matter it is noted that the offender essentially conned her way to the residential floor of ST and was unable in the circumstances to carry out her intention of writing on his walls. 74In those circumstances, considering the intention, I would assess the offence of enter building with intent as falling into the lowest range of seriousness for such offences. 75The Court has been provided with a Victim Impact Statement from ST as to the impact on him and his family. It underlines the significance and impact of false allegations such as this. However, there is nothing contained in the Victim Impact Statement which takes the impacts out of what might be ordinarily expected. 76In respect of subjective matters, the Court has before it evidence given by the offender on 8 June 2012; the references from Shreejan Shakya and Sevgi Selik, being Exhibit 5; a number of medical certificates, being Exhibits 3 and 4; and a psychiatric report from Dr Richard Furst dated 4 June 2012, being Exhibit 2. 77The offender is a twenty-four year old Nepalese woman who, prior to 8 June 2012, when bail was refused, was living alone in private rental accommodation. She is a single woman with no dependents or social supports in Australia. She maintained regular contact with her family, who reside overseas, and is said to have had a close and supportive relationship especially with her mother. She was born in Nepal and is the middle of three siblings of her parents' union. 78Her upbringing is said to have been marred by sexual abuse perpetrated by a family relative, which is reported to have had an ongoing emotional effect over the years. 79Her parents have been emotionally and financially supportive, and there was no history of domestic violence in the family. 80She married in Nepal at twenty-one years of age and came to Australia shortly afterwards in 2008 with her husband on a student visa. They separated within three months, her husband abandoning her, leaving her on her own to support herself. 81She found the transition to life in Australia difficult because she had no support, stable accommodation or employment. 82At the time of the Pre-Sentence Report she was then currently unemployed, but was not entitled to government financial assistance because she was a non-resident. 83She was, of course, by the time of the report, remaining in Australia subject to a Criminal Justice Visa. 84She is said to have completed her schooling in Nepal to a Year Twelve level. Following the completion of her equivalent Higher School Certificate, she has completed the Certificate 3 in Hairdressing and also a basic Cabin Attendant's training course in Australia. 85Before migrating to Australia on the Student Visa in 2008, she had worked for some period in her parents' shop. 86In Australia she reported a history of casual, unskilled employment as a waitress, hairdresser and housekeeper. Her last position of employment was said to have been in April 2012 as a housekeeper. 87Although the offender is largely the source of most of the information I have just referred to, and the Court entertains some doubts about the truthfulness of the offender, the Court accepts the subjective matters that have been referred to. 88There are two references, as indicated, the first from Mrs Shakya, who refers to having been the direct supervisor of the offender when she worked at the Quay Grande Suites as a room attendant. Mrs Shakya speaks well of the offender's integrity, honesty and loyalty. She has known the offender for approximately two and a half years and believes her conduct to be uncharacteristic, and that she sincerely and completely regrets it. 89However, I note in respect of the suggestion that the offender sincerely and completely regrets her conduct that the reference does not state that that has been communicated to the referee by the offender. Indeed, when the referee speaks of conversations with the offender about the offences, it appears that the substantial impact as expressed to the referee is as to the impact and embarrassment to the offender from her conduct. 90The second reference, from Sevgi Selik, refers to having known the offender for two years as her landlord, and her belief that the offender sincerely regrets her conduct. 91As to conversations the referee has had with the offender, the reference contains: "I know personally from conversations we have had since the commission of the offence that she is utterly despondent in the knowledge of the deleterious impact which a recorded conviction poses to pursuing a future in the fields of education and work." 92Again, the reference appears to indicate the offender is more concerned with the effect on her rather than being remorseful or contrite in respect of the offences. 93The report of Dr Furst indicates, together with the medical notes, that the offender has suffered from depression since approximately 2009, and has received medication, in particular Zoloft, to assist her with her depression. She also suffers from alopecia. 94Dr Furst was of the opinion that she has a major depressive disorder, with no indications of personality disorder, the depressive symptoms having developed in the context of her migrating to Australia and separating from her husband. 95Dr Furst indicates, in answering the question posed to him as to whether there were any mental health issues relevant at the time of the alleged offences: "The difficulty she had in explaining her actions raises the real possibility that she was suffering from some type of psychosis at the time in question. Given that the depressive symptoms appear to have been present for the last two and a half years, I thought it probable that she was affected by her major depressive illness at the time in question before the Court, which may well have clouded her judgment and appreciation of the consequences of her actions." 96One of the difficulties with Dr Furst's opinion is that, in his report, under the heading of "Account of Index Offence", he indicates that the offender had claimed to him that she could not recall the events in question, and that she could not recall how she was feeling at the time. She was unable to give a clear account of what she had been thinking in relation to the two offences. She said that she had been confused at the time and had trouble thinking clearly. Ms Gurung said that she believed what she told police at the time, "but I wasn't thinking clearly...I am not sure about the time...I didn't know about court, it was my mistake". 97Dr Furst said: "She was distressed when recounting the events in question. Ms Gurung said that she felt bad, embarrassed and frightened about what she had done and expressed remorse. She was open to counselling and mental health treatment to address her issues." 98To the extent that Dr Furst's opinion that she may have been suffering from some type of psychosis depends on the offender's expressed inability to recall how she was feeling at the time and her inability to give a clear account of what she had been thinking in relation to the two offences. On her suggestion that she had been confused at the time and had trouble thinking clearly, the Pre-Sentence Report from Tanya Merhi dated 7 June 2012 casts some doubt. 99Ms Merhi, at the time of writing her report, had available to her Dr Furst's report, although she refers to it as a psychological report. 100Under the heading "Attitude to the Offences", she stated: "In discussing the agreed facts pertaining to the offences, Ms Gurung agreed with the documents. She, however, appeared to justify her offending in claiming that she only attended the victim's residence in an attempt to speak with him and did not intend to cause him harm in any way. She further denied that the allegation she made in regard to being indecently assaulted by the victim was false, and rather advised that she could not recall the date of the incident. This, however, conflicts with the information provided in the psychological report dated 4 June 2012, where Ms Gurung claimed that she could not recall the events and was unable to give a clear account of what she had been thinking in relation to the above two offences. Further, Ms Gurung failed to demonstrate any insight into the impact of her actions upon the victim." 101As a result of that particular passage of the Pre-Sentence Report, an audiovisual link was established on 8 June 2012, as Mr Overall, on behalf of the offender, wished to explore the basis on which Ms Merhi had made those comments. 102Although he had proposed to call the offender before evidence could be adduced from Ms Merhi, he acceded to the suggestion that it would be more appropriate to hear first from Ms Merhi before he put his instructions from the offender. When asked: "Why do you say, 'She appeared to justify her offending'?" Ms Merhi said: "When discussing the offence with her, Renuka basically focused on why she attended the victim's residence rather than making any mention of what she did was wrong, or that her actions were unlawful. She appeared to have no acceptance of responsibility, so that's why basically I've put that she appeared to justify her offending rather than accept responsibility for her unlawful actions." 103When referred to her statement that the offender had actually denied the allegation in respect of the indecent assault, Ms Merhi said: "She denied that the allegation she made was false, so she rather advised that the incident did happen; however, she could not recall the date of the incident." 104In respect of the offence of entering the premises with intent, Ms Merhi said that the offender did mention that she was attending the victim's house in order to graffiti on the walls that he was a rapist. 105This evidence was significant because the offender subsequently gave evidence and was taken by counsel to a reference in the Pre-Sentence Report that she claimed to the officer that she only attended the victim's residence to speak with him and did not intend to cause him harm in any way. Her response was to state: "I just wanted to give him all the papers." And subsequently: "...when I had the interview with the police, I did say that I was thinking about making the graffiti, but from my heart I did not have that intention." 106When asked about the evidence that she had told the Probation Officer that the allegation of indecent assault was not false, she said: "As far as I remember, this question was not raised at all." "Q. What do you say about the allegation of indecent assault? A. I have told Tanya that it was my fault, that I signed all the papers even before reading, and that I was sorry, and I wanted to apologise this to everyone. Q. I am now asking you to tell the Court what is your attitude now to your allegation that you made to police that the victim indecently assaulted you? What is your attitude to making that allegation? A. What I feel right now, what I want to say is that I'm extremely sorry for whatever I did, and I am sorry, I want to apologise to his family and also to the Court. Q. You agree, do you, that you made the false allegation? A. Yes, I do agree, and I have pleaded guilty." 107Subsequently she said: "Like I said before, I feel guilty and I have done mistake, and what I think that is, is all the allegation I have made will be carried out throughout his life and also throughout my life, and it can have that kind of long-term effect, and I regret about whatever happened." 108It is difficult in the circumstances of her evidence and her statements to the pre-sentence officer to accept that her evidence provides any evidence of genuine remorse or contrition. 109In her evidence, she subsequently substantially contradicted the evidence of the victim ST as to his lack of contact with her, and also stated that she had had significantly more contact with him than he had said in his evidence, and which was also inconsistent with her false allegation. She said: "I had always fed him, I had given him tea, and we were close, and he said he would give me a job, and did those kind of things...I was promised that I would be given at least twenty hours of job at...stock market...This was repeatedly promised by him, even when he came several times to my house." 110When asked: "Do you remember him saying he had only met you twice, do you remember him saying that?" She said: "I remember that, but he had met me many, many times. He used to come to my house." 111I note that no such suggestion was made to ST during the course of his evidence, nor was any request made on the sentencing proceedings for ST to be recalled so that those matters could be put to him. 112It is also inconsistent with any genuine remorse that, subsequent to the pleas of guilty and the offender's evidence on sentence, and the matters that I have referred to in relation to the contents of the references, and in Dr Furst's report under the heading of "Expressions of Remorse", "Ms Gurung has pleaded guilty to the offences and is very embarrassed and remorseful about her actions," that subsequently the offender, on 27 July 2012, indicated to the Court through her fresh legal representative, Mr Killalea, that she now wished to withdraw her pleas of guilty, whether that was possible or not. 113In the circumstances, the Court finds that there is no acceptable evidence of genuine remorse or contrition. 114That makes it difficult to find that there is a good prospect of rehabilitation, although that is not to say that there is no prospect. 115I note that the offender did not enter pleas of guilty until after she was in the charge of the jury, and the evidence of the victim had been completed. Although there was some utility in the pleas of guilty, the utility is much diminished by the lateness of the pleas. I will, however, take into account that a minimal discount for the utility of the pleas should still be allowed. 116The conduct of the matter since 27 June 2012 and the expressed intent to withdraw the pleas confirms the opinion that the Court had formed, on the evidence of Ms Gurung of 27 July 2012, that there is no evidence of genuine remorse or contrition. 117The Court was about to deliver the reasons on sentence on 27 July 2012. Despite the subsequent delay, the Court will impose exactly the same sentences that it had intended to impose on that date, as the conduct of the matter since that date is simply confirmatory, in the Court's view, of an opinion that had already been formed and taken into account. 118It is, of course, important to also note that Ms Gurung has no previous criminal record. 119For the purposes of sentencing, I have had regard to section 3A of the Crimes (Sentencing Procedure) Act. I have taken into account, to the extent that it has been requested, the matters relevant to section 21A(2) and subsection (3) of that Act. 120In sentencing an offender, the sentence must reflect the seriousness of the offence, and a sentencing judge must fix a sentence that will ensure that any time an offender must spend in custody reflects all of the circumstances of the offence, including the seriousness and the need for general deterrence and specific deterrence. General deterrence, in the Court's view, is particularly important in relation to an offence of making a false allegation of this nature. 121I am satisfied, pursuant to section 5 of the Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. 122I take into account that the offender has little or no support in Australia and that imprisonment in those circumstances will be somewhat more difficult for her than it might otherwise have been. 123It is evident that, the offender now being only present in Australia subject to a Criminal Justice Visa, it is highly likely that she will be deported from Australia when paroled. 124I have considered whether I should find special circumstances. If the offender was an Australian citizen, intending to continue residing in Australia, I would certainly have found special circumstances arising from her age and from the fact that this is the first time that she will have spent serving a period of imprisonment. 125I have decided that it is not appropriate to distinguish her from someone who is resident in Australia as an Australian citizen, and not likely to be deported, and so I will find special circumstances on the basis that I have indicated, to provide an extended period of rehabilitation, even though it is likely that that must occur when she is in fact removed from Australia and not subject to supervision. 126Accordingly, I will vary the statutory relationship between the non-parole period and the additional term in the offender's favour by reducing the nonparole period. 127Ms Gurung, would you please stand. 128You are convicted in relation to each of the two offences. 129You are sentenced in respect of the offence of enter a building with intent to commit an indictable offence, that is, to intentionally damage the property of ST, to a fixed term of imprisonment of three months to date from 8 June 2012 and to expire on 7 September 2012. 130It is a fixed sentence because I intend to make the sentence for the offence of making a false accusation with intent to subject ST to an investigation for an offence of sexually assaulting you to a concurrent term, particularly in the light of what I have previously said about the enter building with intent offence as being at the lower end of any range of seriousness. 131In respect of the false accusation offence, you are sentenced to a term of imprisonment of two years with a non-parole period of one year dating from 8 June 2012 and expiring on 7 June 2013. The balance of term, having found special circumstances, is one year commencing on 8 June 2013 and expiring on 7 June 2014. 132I make an order that you be released on parole on 7 June 2013. 133Ms Gurung, since you are inexperienced in respect of sentencing in criminal matters, I should indicate that that means that you will be released from custody on 7 June 2013. Whether you are then deported or not is not a matter for me. You can sit down, thank you. ********** 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: 28 March 2013