District Court New South Wales Medium Neutral Citation: R v Aryal [2020] NSWDC 67 Hearing dates: 20/8/19-30/8/19, 13/12/19, 19/2/20 Date of orders: 19 February 2020 Decision date: 19 February 2020 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Sentenced to an aggregate term of imprisonment of 8 years with a NPP of 5 years 6 months. Catchwords: Crime – Sentencing – Aggravated sexual intercourse without consent – cognitive impairment Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: DPP (Crown) Brijesh Aryal (Offender) Representation: Counsel: Mr T Buckingham (solicitor) for Crown Mr D McCallum (counsel) for the offender File Number(s): 2018/86059 Publication restriction: Non-publication of the complainant sentence 1. The offender, Mr Aryal, stood trial before a jury in the District Court at Parramatta from 21 August 2019 on an indictment containing four counts, counts 2 and 4 being expressed in the alternative to counts 1 and 3. On 30 August 2019 the jury found the offender guilty of the two primary offences in counts 1 and 3. The offences are one each of having sexual intercourse with the complainant without consent knowing that she was not consenting in circumstances of aggravation, namely that the complainant had a cognitive impairment. Each offence carries a maximum penalty of 20 years imprisonment, and a standard non-parole period of ten years, which are matters that I have taken into account as guideposts in the sentencing exercise. 2. In determining the appropriate sentence I am required to make findings as to the relevant facts, which must of course be consistent with the verdicts of the jury. I make the following findings. 3. At the time of the offences the complainant victim was 21 years of age and lived with her mother and grandmother. She had been diagnosed a number of years earlier as having a mild to moderate intellectual disability. In March 2017, about one year before the offences, she scored in the extremely low range for cognitive functioning with her full scale IQ scores being in the extremely low range, placing her IQ as being greater than 0.1% of others in the community of a similar age. What this means is that more than 99% of people of similar age would score more highly than the victim. 4. Due to her intellectual disability the victim required constant supervision and care, including assistance getting dressed, having her meals prepared, and in taking her medication for a lifelong epilepsy disorder. She also had difficulty understanding the concept of time and safety. Although she had learned to shower herself and to put on her own shoes, she did not know how to tie her laces. She did, however, work part-time as an office assistant in Wynyard on weekdays from 2pm to 5pm doing administrative and cleaning jobs, although even then she required assistance from a job support trainer three days per week. 5. In 2018 she was attending Randwick TAFE two days a week and undertaking a certificate in career preparation. The victim had been "travel trained" so that she could catch the train from her home near Panania into the city and return, although she was usually accompanied to the train station in the mornings by her grandmother. The victim also had a mobile phone and a watch which enabled her mother to track her whereabouts using software installations on those devices. 6. The offender was 42 years old at the time of the offences and lived in Panania with his wife, two young children, and his parents-in-law. He worked as a registered psychiatric nurse for the Justice Health and Forensic Mental Health Network. He had a Masters Degree in Nursing, majoring in mental health, in which he had achieved several distinction grades and had been working as a nurse for about ten years. At the time of his offences his work with the Justice Health organisation involved him caring for, attending to, and assessing patients with mental illnesses, brain injuries and intellectual disabilities. 7. The offender first met the victim by chance as she was walking home from Panania Railway Station while the offender was walking his young son in a pram. The offender and the victim commenced talking and exchanged telephone numbers. This led to contact by means of telephone conversations and text messages during the following week. On Sunday, 11 March, five days before the offences, the victim and the offender spoke by telephone for about thirty minutes. About half an hour later the offender tried to call the victim five times but his calls were not answered. 8. The next day, Monday 12 March 2018, the offender sent the victim text messages. In one of these he said "I'm so excited to meet you this afternoon, so let me know when you finish your work, okay?". In another he said "I finished my work at 2 today so after work we can meet, have Thai and hang out all right?". At about 5pm the offender and the victim spoke by telephone for about four minutes, and afterwards the offender sent text messages to the victim about meeting at Padstow Railway Station. In his messages he said he was sorry she had had a bad day and that he was "eagerly waiting" for her, and that she should forget the bad things and that a "new future is waiting" for her. 9. The victim, however, failed to get off the train at Padstow Railway Station and was eventually contacted by her mother, who later collected her from Panania Railway Station. Text messages sent by the offender confirm that he was waiting for her to arrive at Padstow and made several attempts to contact her. After being collected by her mother, the victim asked the mother if they could get some takeaway Thai food. Although the mother thought this was odd, 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 offender on the phone. The victim's mother spoke briefly with the offender and he said he wanted to meet up with the victim to which the mother replied that it was too late in the evening. 10. After this the victim was told by her mother that she should not meet up with a stranger. Shortly after midnight that same evening the offender sent the victim text messages in which he said "Hi babe, sorry I could not meet with you" and "Maybe next time. I will call you tomorrow. Sweet dreams. Love you" and then the word "muwaaa", which presumably was intended to be some sort of kissing type sound. The offender continued his attempts to make contact with the victim later that day, namely Tuesday 13 March, and also the next day, and asked if she wanted to meet at Panania Railway Station. When the victim's mother picked her up from the railway station on the Tuesday afternoon she noticed that the victim was speaking with the same male as the day before. 11. On the day of the offences, Friday 16 March 2018, the offender met the victim at Panania Railway Station on her return from work and bought some food for them to eat. He then asked the victim whether she wanted to drive somewhere with him, and after she agreed he said "Maybe I'll take you somewhere we can get to know each other". The offender then drove the victim in his Toyota van to Deepwater Park in Milperra where he parked. It was dark at the time and the offender suggested to the victim that they be friends. After the victim began to talk about an injury to her ankle, the offender began massaging the ankle, kissed the victim on the mouth and suggested that they get into the back of the van. Once in the rear of the van the offender removed the victim's pants and, while kneeling over her, placed his fingers into her vagina for a few minutes. This is the offence referred to in count 1 of the indictment. After this the offender had penile-vaginal intercourse with the victim for one or two minutes until he withdrew his penis and ejaculated into a tissue. 12. Telephone tracking records, which became exhibit 2 in the trial, indicate that the victim's phone was located in the vicinity of Webster Street in Deepwater Park at about 6.08pm, but that by 6.26pm it was back in the vicinity of Woodburn Avenue where the complainant lived. It follows that the offences were committed somewhere within this approximate 18 minute period of time. The victim's mother, who was unable to contact either the victim or the offender, called police and told them that the victim's phone indicated that she was in the vicinity of Deepwater Park. Although police patrolled the area they found no trace of the victim or the offender, presumably because by then they had left the area. The offender dropped the victim a short distance from her home because, as he later told police, he knew that the victim's mother would not be happy that he had been with the victim. 13. After being dropped off the victim walked to her house and immediately informed her mother that she had had sex with the offender. In the early hours of the next morning the offender booked a flight for himself from Sydney to Kathmandu which was due to leave later that day. Also, in the early afternoon the offender conducted a number of internet searches using his laptop computer, which included searches under the phrases "consensual sex", "sexual assault punishment Australia", "sexual assault" and "sexual contact without capacity". Police attended the offender's home that same afternoon and placed him under arrest. Subsequently he participated in a Record of Interview in which he admitted to having had sex with the complainant, stating however that the sex was consensual and that the victim was "like a girlfriend" with him, and was wanting sex and enjoying it. 14. He told police further that he thought the complainant was a very simple girl and that she "doesn't look very smart", but 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. In relation to his proposed travel to Nepal, he admitted to police that he had purchased a ticket as he wanted to go because he was devastated and thought the situation was going to be a mess, but 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. The offender also told police that the first time he thought something was not right with the complainant was when he dropped her off and 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. 15. As was noted in the elements document provided to the jury, the Crown's case in relation to proof that the offender knew that the complainant was not capable of providing consent would be made out if the jury was satisfied beyond reasonable doubt that the offender had actual knowledge of the lack of consent, or if he was reckless as to her capacity to consent, or if he had no reasonable grounds for believing that the complainant consented. In sentencing the offender it is necessary for me to reach my own conclusion, which must be consistent with the verdict of the jury as to this aspect of the offender's state of mind. 16. In submissions on sentence the Crown suggested that I would be satisfied beyond reasonable doubt that the offender 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. In my view, the evidence, including the general presentation and demeanour of the complainant, both in her electronically recorded interview and in her evidence at trial, provide clear support for this conclusion beyond reasonable doubt. 17. Clearly these offences of aggravated sexual assault are inherently serious. That conclusion is reinforced by the maximum penalty, and the standard non-parole period, both of which provide guideposts in the sentencing exercise. 18. In assessing objective seriousness I take into account that there was no use of violence beyond that inherent in the sexual assaults, although there is some evidence of physical hurt in that the complainant told police and an examining doctor that she felt pain in her vagina. Although the duration of the offending was fairly short, this is not a matter that either mitigates or aggravates the offences, and is a common feature of these types of offence. I note the Crown's concession that the absence of consent in this case is established only on the basis of the complainant's mental impairment. In other words, I do not make a finding that the offender physically coerced or overpowered the complainant. Rather, the absence of consent in this case arises solely from the complainant's lack of capacity to provide that consent. 19. However, the objective seriousness in this matter is increased because of the relatively significant intellectual impairment present in the complainant which, as I have already noted, would have been apparent after even a short interaction with her. Although the complainant's intellectual disability is categorised as mild to moderate, Dr Pulman explained that this does not mean that it is "fairly mild and not that much of an issue". Dr Pulman in her evidence said at p 276 of the transcript: "A full scale IQ at that level indicates that she has a mild to moderate intellectual disability. Now I think it's important to have some understanding when we say mild intellectual disability it doesn't mean it's just fairly mild, it's not that much of an issue. To explain what I mean you've got 2 to 3% of the general population you'll find with an intellectual disability. So 2 to 3% or 2 to 3 out of 100 people will have an intellectual disability. Now, approximately 85% of that small group will be categorised as having a mild intellectual disability. Then you've got moderate, severe, profound and yes, so she's sitting in that range of mild to moderate." 1. Furthermore, and as I have already noted, the complainant's intellectual disability means that 99.9% of the population performs better than her. As a demonstration of the complainant's level of capacity and somewhat childlike nature, it is notable that Dr Pulman said this at p 268 of the transcript: "When I met her it was apparent quite early in our meeting that she, although her age was over 20, her presentation was not consistent with someone of that level of maturity development. She presented more childlike. She said things like, when I said to her what we were going to be doing, and she said "Yippee, yippee" and sort of poked her tongue out a few times, and so, because she was excited, you know, what we are going to do here. So it was not what you'd expect the responses and the behaviour to be of someone of that age." 1. 21 The evidence demonstrates that the offender, a chronologically mature man of 42 at the relevant time, 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 'muwaaa'". I also note in this regard that the sexual assaults occurred within a very short space of time after the offender collected the victim from the railway station, and immediately after satisfying his sexual urges he drove her back to the vicinity of her home. While the offender told police that he had ejaculated into a tissue, the detection of semen in the vaginal smears indicates that he may have commenced ejaculating in the complainant's vagina and clearly was not using a condom at the time. This subjected the complainant to the risk of pregnancy and the risk of infection. 2. It is clear that the offender was on notice, especially given his qualifications and training, that the complainant was intellectually compromised. This conclusion is reinforced by the evidence that he had been told by the complainant's mother that she was not allowed out at 7 o'clock at night, and that the complainant was "not mature enough" to meet with him. I accept the Crown's submission that he was at least reckless as to her capacity to provide consent. 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. 3. I accept the Crown's submission that the offending falls just below the mid-range of objective seriousness, with the offence involving digital penetration being at a slightly lower level. A victim impact statement by the victim's mother was admitted into evidence in the sentence proceedings which describes various adverse impacts experienced by the victim and her family as a consequence of the offences. The matters set out in that statement include some matters which might ordinarily be expected from offences such as these, as well as others that might be regarded as going beyond the ordinarily expected. 4. While I have had regard to the contents of the victim impact statement, I have exercised caution in my approach to it, partly because it was not subject to testing by cross-examination. In short, I accept the Crown's submission that a finding of substantial harm extending beyond that ordinarily expected ought not be made. 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. 5. It was argued on the offender's behalf that he should receive some benefit by reason of the operation of s 22A of the Crimes (Sentencing Procedure) Act 1999 because he had facilitated the administration of justice in the manner in which the trial was conducted. Firstly, in that there was no challenge to sexual intercourse having taken place. This argument, however, is misplaced largely, given that there was DNA evidence to confirm sexual penetration and given that the offender made admissions to sexual intercourse in his record of interview. Secondly, it was submitted that the cross-examination of the complainant was performed carefully and sensitively. While, to a significant degree, a careful and sensitive approach to cross-examination is something that should ordinarily be expected of counsel, experiences shows that this is regrettably not universally the case. I will, therefore take this into account in the offender's favour, although it is not a matter which in my opinion should attract a lot of weight. 6. Turning to subjective matters, the offender is 43 years of age. He was born in Nepal but emigrated to Australia when he was 23 and became an Australian citizen ten years later. His childhood was a somewhat difficult one, due in part to his father's abuse of alcohol and cannabis, and domestic violence towards the offender's mother. Ultimately the offender's father suicided when the offender was 19. His marriage to his now ex-wife was an arranged one. They married in Nepal in 2007 and had two children together, who are now aged about ten and three. The offender says that he never really felt loved by his wife and felt insecure and disrespected during their marriage. Since his arrest for these offences he has had no contact with his wife or children. He still, however, enjoys the support of his brother and his mother. 7. Although the offender left school at age 15 he has a background of applying himself academically and vocationally. He worked as a police officer in Nepal from age 20 to age 23 before coming to Australia on a student visa. It was in Australia that he completed a Bachelor of Nursing while working two jobs and worked as an assistant in nursing and then as a registered nurse. For some years prior to the offences he had been working as a psychiatric nurse with Justice Health. In 2015 he was awarded a Masters Degree in Nursing majoring in mental health. He has no prior offences and a number of testimonials were admitted in evidence which indicate that he has generally been a law-abiding and worthwhile member of Australian society. 8. Although he had no history of mental health problems before his arrest, he has found his time in custody very difficult, and has engaged in at least two incidents of self-harm. His custodial situation is one of limited association due to his timid nature and the potential threat to him in custody due to his offences, and perhaps due also to his previous work in the Justice administration area. I will assume that this situation will likely apply for the duration of his sentence. It was not submitted, however, that his time in custody is likely to be so difficult that I should take this into account in amelioration of sentence. 9. The offender provided a letter to the Court in which he arguably expressed some remorse, although the weight that I can give to that is limited given the letter's contents and the absence of evidence on oath by the offender by which his evidence might be tested. Although in the letter the offender says that the victim's impairment is now obvious to him, he claims that he had no knowledge of any impairment at the time and committed the offences unknowingly. This is contrary to the verdicts of the jury, and contrary to my own conclusion that the victim's intellectual impairment would have been obvious to anyone, and especially to a mental health nurse with a Masters Degree. Although the offender says in his letter that he would like to apologise to the victim and her family, a significant percentage of the letter is focused on the adverse impacts which the offender himself claims to have suffered. In my view any remorse by the offender is limited. 10. 30 Having said that, the offender's letter, his employment and academic history, and the testimonial evidence, supports the conclusion that the offender has at least reasonable prospects of rehabilitation. As already noted, he has a good history of applying himself academically and in work. Furthermore, his letter indicates that while in custody he has completed a number of courses which will assist him in finding work when he is released. This is important in his rehabilitation, given that he has been stripped of his nursing registration arising from his offences. He has also indicated a renewed commitment to follow Buddhist principles which should assist him in avoiding offences like this in the future. 11. Deterrence, denunciation and the protection of the community are very important principles to be applied in sentencing for sexual offences of this kind. I have given considerable weight to these matters, and particularly the importance of deterrence both of this offender and of others who might be tempted to commit similar offences. Section 5 of the Crimes (Sentencing Procedure) Act requires that I not impose a sentence of imprisonment unless I am satisfied that no other penalty is appropriate. I am so satisfied and I note that counsel for the offender accepted that a period of full time imprisonment must be imposed. In determining the appropriate sentence I have also had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 12. 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. 13. I intend to impose an aggregate sentence. Had I not done so, then the sentences that I would have imposed are as follows. Mr Aryal, the sentences I am about to refer to are not the ultimate sentence that I will impose, do you understand? These are part of the process that I have to go through by indicating the sentences that would have been imposed had I not imposed an aggregate sentence. 14. The indicative sentences are these. For count 1, a period of imprisonment of four years six months imprisonment, and for count 3 a period of six years imprisonment. I make a finding of special circumstances for varying to a slight degree the ordinary ratio between head sentence and non-parole period. Special circumstances are made out in this case by reason that this is the offender's first time in custody, and the need to ensure that he is monitored for an extended period of time once he is released to parole, given the adjustments that he will need to make in finding new forms of employment, and the fact that he may struggle with the separation from his children. 15. Mr Aryal, can you please stand up while I announce the sentence. I impose an aggregate sentence of eight years imprisonment with a non-parole period of five years six months. Both of those will date from 17 March 2018, being the date on which the offender was taken into custody. The head sentence therefore will expire on 16 March 2026 and the non-parole period will expire on 16 September 2023. Mr Crown, anything to raise? 16. BUCKINGHAM: The only thing to raise is that I understand if your Honour is imposing an aggregate sentence with respect to offences that carry a standard non-parole period, the indicative sentence must also include a non-parole period. 17. HIS HONOUR: Yes, you are quite right, thank you. In relation to the indicative sentences, on count 1 the indicative head sentence is as I have indicated four years six months, and the indicative non-parole period will be one of three years. In relation to the indicative head sentence on count 3, as I have indicated the head sentence is six years and the indicative non-parole period is three years and nine months. Nothing else to be raised? 18. BUCKINGHAM: No. 19. JORDAN: No. ********** 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: 31 March 2020