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1. On 24 November 2023, Magistrate Theakston (the Magistrate) sentenced the appellant, Dinesh Agarwal, to 21 months’ imprisonment with a non-parole period of 11 months on a “rolled up” charge of committing an act of indecency against a person under 16 years of age, contrary to s 61(2) of the Crimes Act 1900 (ACT).

2. By an Amended Notice of Appeal filed 5 December 2023, the appellant appeals against this sentence. The appellant contends that the sentence is infected by three patent errors, namely, that: (a) The Magistrate erred in determining how the sentence of imprisonment was to be served (Ground 3); (b) The Magistrate erred in finding that the offending was planned (Ground 4); and (c) The Magistrate erred in finding that the offending was at the “midway point of objective seriousness” (Ground 5).

3. The appellant further contends that the sentence imposed was harsh, unreasonable and manifestly excessive (Ground 1). Finally, the appellant seeks an order permitting him to 1 adduce further evidence on the appeal.

4. For the reasons outlined below, the appellant has not established any of his grounds of appeal, nor has he demonstrated that the further evidence should be admitted. It follows that the appeal must be dismissed.

Background

The offending

5. The circumstances of the offending are set out in an Amended Statement of Facts filed 9 November 2024.

6. The offending occurred in the period between November 2019 and February 2020. At that time, the victim was working at a frozen custard store. The appellant was a part owner of the store and worked at the shopfront. He was responsible for rostering shifts. He regularly rostered the victim on afternoon shifts, when he was the only other person

1 The original Notice of Appeal also included a ground of appeal relating to the use of the maximum penalty as a yardstick (Ground 2). This ground of appeal was not pressed. working with the victim, even though the victim requested to work night shifts, when other young people would be working.

7. The appellant committed various indecent acts against the victim during her employment.

8. The first incident specified in the Statement of Facts occurred in November 2019, when the victim was working an afternoon shift alone with the appellant. As the victim was washing dishes, the appellant approached her from behind and placed both his arms on either side of the sink, trapping her. The appellant put his head over the victim’s right shoulder and rubbed his penis back and forth against her buttocks for approximately 20 seconds. He then walked away. The victim was 14 years old at this time.

9. The next specified incident occurred on 11 February 2020. The victim walked into the rear storeroom. The appellant followed her in while holding a tin of beetroot. He asked the victim whether she liked beetroot. When she replied that she did not, the appellant pushed the tin of beetroot into her face and said words to the effect of “here, eat it, smell it”. He then grabbed the victim’s wrist with a “decent amount of force” for about 10 seconds. The appellant pushed the victim’s arm behind her back and pinned her against a fridge. The appellant then grabbed the victim’s right breast with his hand and squeezed the victim’s breast for about 10 seconds. After the appellant released her, the victim left the storeroom and went to a preparation area.

10. The appellant then approached the victim from behind and rubbed his penis against her buttocks for about 20 seconds, moving his penis back and forth, holding her in place and then going back and forth again. The offending ended when a customer entered the store.

11. The Statement of Facts further records that the appellant intentionally rubbed the victim’s breast with his arm whenever he walked past her in a narrow hallway in the store. In oral submissions on the appeal, counsel for the Director clarified that these acts did not form part of the “rolled up” charge. Accordingly, this conduct does not aggravate the offending, and may only be used to demonstrate that the offending which was the subject of the “rolled up” charge was not isolated.

12. It was an agreed fact that the victim had experienced severe trauma and has had to undertake extensive psychological counselling as a result of the appellant’s offending. The impact of the offending was also described in victim impact statements of the victim and her mother and her father. The proceedings

13. The appellant was initially charged with committing four acts of indecency on a person under the age of 16 years. He entered pleas of not guilty to each charge.

14. As a result of various adjournments, the proceedings were listed for hearing to commence on 8 November 2023, which was approximately a year after the first mention. On the first day of the hearing, part way through the victim’s evidence but before cross-examination commenced, the appellant entered a plea of guilty to a single ‘rolled up’ charge which encompassed two of the four original charges (that is, incidents 1 and 2 as outlined at [8] – [10] above. The remaining two charges were withdrawn.

The appellant’s subjective case

15. The appellant’s subjective case was outlined in a Court Duty Report. That report noted that the appellant was born in India and migrated to Australia in 1997. The appellant reported a positive upbringing. He has been married for 22 years and has two teenage children. He is a self-employed business owner. The appellant did not report any financial issues, current or historic substance abuse, or historic mental health issues. He had no criminal history.

16. The appellant was diagnosed with leukemia in 2019 and was, at the time of the court duty report, in remission. He also has a family history of Parkinson’s disease, which causes a hand tremor which affected his writing ability.

17. The appellant did not dispute the Statement of Facts. The Court Duty Report author summarised the appellant’s expressions of remorse (see further at [65] – [69] below). The author of the report noted that the appellant had protective factors, including a supportive family, stable accommodation, employment, and no history of substance abuse or mental health issues. The appellant was assessed as being at a low risk of general re-offending and an average risk of sexual re-offending.

18. The appellant also relied on two character references from Emeritus Professor William Maley and Rajeshwar Karingula (see further at [70] – [73] below).

The Magistrate’s reasons for sentence

19. The proceedings for sentence were heard on 24 November 2023.

20. After hearing submissions from both parties, the Magistrate delivered an ex tempore judgment. His Honour began by pronouncing the sentence to be imposed. His Honour considered that a guilty plea discount of 10% was appropriate (“and perhaps … generous”), noting that the plea was entered at a very late stage in the proceedings.

21. The Magistrate then summarised the facts of the offending, stating it was a serious example of the type of offending and involved “a breach of trust and authority”. His Honour observed that the offending was repeated, deliberate and planned; that it occurred in circumstances where the victim was “essentially trapped, to a degree”; and where the appellant had deliberately put in place arrangements to be alone with the victim. His Honour referred to the maximum penalty and the broad range of offending encapsulated in the offence, concluding that the offending fell “at the midway point of objective seriousness”. In so concluding, his Honour took into account that although the offending did not involve skin to skin contact, the age and power differential and the appellant’s position as the victim’s employer “elevate[d] the offending and the culpability”.

22. The Magistrate addressed the appellant’s subjective circumstances, noting the appellant’s lack of criminal history and positive character references. The Magistrate also referred to the appellant’s leukemia, noting the evidence that the condition was not active. His Honour then summarised the appellant’s background and circumstances as set out in the court duty report (summarised at [15] – [18] above). In this respect, his Honour set out in full the appellant’s expressions of remorse to the court duty report author (extracted at [65] below). His Honour described the appellant’s expressions as an “interesting description of remorse” which “could not be said to be an unqualified apology or admission or acceptance of responsibility”.

23. His Honour also described the profound and significant impact of the offending on the victim and her family, noting the agreed fact that the offending caused “severe trauma” and required “extensive psychological counselling”. His Honour observed that “offending against children is always serious”, particularly where it involves a power imbalance, a breach of trust, or a breach of authority. His Honour emphasised that such offending can have severe consequences for victims and appeared to have done so in this case.

24. The Magistrate concluded that there was a need for condign punishment to meet the purpose of general and specific deterrence, and to recognise the harm caused. His Honour found that imprisonment was the only available sentence in the circumstances: see s 10 of the Crimes (Sentencing) Act 2005 (ACT).

25. After considering whether the sentence should be served by way of an alternative to full-time imprisonment, his Honour imposed a sentence of full-time imprisonment for 21 months, with a non-parole period of 11 months’ imprisonment. Jurisdiction

26. The appellant appeals under ss 207 and 208(1)(e) of the Magistrates Court Act 1930 (ACT), which confer jurisdiction on this Court to hear and determine an appeal against a sentence of imprisonment.

27. The powers which may be exercised by the Court on such an appeal are set out in s 214 of the Magistrates Court Act, which states: 214 Appeals in cases other than civil cases (1) This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies). (2) In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact. (3) In an appeal to which this section applies, the Supreme Court must— (a) if it considers it necessary or expedient to do so in the interests of justice— (i) order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and (ii) order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and (iii) receive the evidence, if tendered, of any witness; and (b) receive evidence with the consent of the parties to the appeal. (4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if— (a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and (b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.

28. Section 218 of the Magistrates Court Act provides as follows concerning the orders that may be made by the Supreme Court on an appeal of this nature: 218 Orders by Supreme Court on appeals (1) On an appeal to which this division applies, the Supreme Court may— (a) confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or (b) give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or (c) set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceeding to the Magistrates Court for further hearing and decision, subject to the directions the Supreme Court considers appropriate. (2) A judgment or order of the Supreme Court under subsection (1) (a) or (b) has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly. Determination

The form of the sentence of imprisonment (Ground Three)

29. It is convenient to commence with the third ground of appeal, which alleges that the Magistrate erred in determining “how the sentence of imprisonment was to be served”.

30. This ground of appeal relates to the final paragraphs of the Magistrate’s reasons, which were made immediately after his Honour had concluded that the s 10 threshold had been crossed such that a period of imprisonment “of some form” was required. His Honour then stated as follows: … There are a number of ways a period of imprisonment can be served. It can be served full time. It can be served by way of a suspended sentence. It can be a bit of both. It can also be served by way of an intense … [Counsel for the accused]: Intensive correction. HIS HONOUR: Thank you. An Intensive Correction Order. I turn my mind to whether or not it should be suspended, and, to my mind, a part of the term of imprisonment should at least be suspended, and that is to encourage rehabilitation. In relation to the intensity of the corrections order, to my mind, the offending is too serious for that to be imposed in this occasion. An intensive correction order will be served in the community and, and it essentially involve the defendant going home tonight, being under strict supervision for the period of the sentence, and including some degree of rehabilitation and supervision, at least. What is required here is a clear message to this defendant and to others that offending in this way, in these circumstances, will have a very clear and tangible consequence, well beyond what can be provided by an intensive correction order. So in those circumstances, I have decided to impose a full time period of imprisonment. Because it is more than 12 months, I need to set a non-parole period. I have decided to set that at 11 months.

31. The appellant contended that the above passages revealed two errors. The first concerned the decision of the Magistrate to set a non-parole period, rather than suspending, or partially suspending, the sentence. The second concerned the rejection of an Intensive Correction Order (ICO) as a sentencing alternative. Each of those alleged errors is addressed below.

The setting of the non-parole period

32. The appellant submitted that the Magistrate made a positive finding that the sentence should be partially suspended, but then “discordantly” stated that a non-parole period “need[ed]” to be set.

33. The appellant further contended that the Magistrate had erred in law in stating that there was a “need” to set a non-parole. The appellant noted that whilst s 65(1) of the Crimes (Sentencing) Act requires a Court that sentences an offender to a period of imprisonment for more than a year to set a non-parole period, s 65(6) provides that where a sentence of imprisonment is partially suspended, the period of suspension must be disregarded for the purposes of the provision. The appellant submitted that if the Magistrate had, as foreshadowed, partially suspended the sentence, and that suspension had resulted in a term of full-time imprisonment that was less than 12 months, it would not have been necessary for a non-parole period to be set.

34. The appellant contended that the reasons demonstrated that one of two errors had occurred: either the Magistrate had “immediately forgotten his determination to suspend the sentence”, or the Magistrate “wrongly believed that he was obliged to set a non-parole period”. The appellant submitted that, in either event, his Honour was in error.

35. Whilst counsel for the Director accepted that the use of the word “suspension” may have been “infelicitous”, he submitted that it must nonetheless be borne in mind that the “reasons were given ex tempore immediately given after the conclusion of oral submissions and in a busy court of summary jurisdiction”. He referred to the decision of the New South Wales Court of Criminal Appeal in Cao v R [2020] NSWCCA 223 at [29], in which Adamson J observed that: It is a matter of common experience that, when delivering ex tempore reasons, slips in expression can occur. Such slips do not necessarily reveal errors of substance or comprehension, but may simply reveal the effects of fatigue caused by the effort of marshalling one’s thoughts and the relevant facts and expressing one’s findings and conclusions in a cogent and comprehensive fashion.

36. Counsel for the Director further submitted that, when the reasons are read as a whole, it is clear that the Magistrate considered that a fully suspended sentence would not properly meet the purposes of sentencing. He also submitted that it was implicit in the reasons that the Magistrate had considered and rejected the appropriateness of a partially suspended sentence, in favour of imposing a non-parole period.

37. The giving of ex tempore reasons is both admirable and productive. It enables cases to be determined quickly, and is particularly important in courts of high volume, such as the Magistrates Court. However, the task is not easy. It requires the decision maker to mentally synthesise a variety of considerations, whilst simultaneously expressing those considerations in oral form. Given these pressures, it is unsurprising that “[e]x tempore judgments not infrequently lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing”: Rotner v R [2011] NSWCCA 207 at [57]. The authorities which speak of the allowance that should be given to ex tempore reasons recognise and give weight to this reality: Buxton v R [2017] NSWCCA 169 at [53]; Currie v R [2013] NSWCCA 267 at [50]; Greenwood v Barlee [2018] ACTSC 46 at [4], citing Acuthan v Coates (1986) 6 NSWLR 472 at 479.

38. Turning to the present case, when read in isolation and detached from the context in which they appear, it may appear that the Magistrate made a positive finding that the sentence should be at least partially suspended. However, when the reasons are read fairly, taking into account their ex tempore nature, it is clear that the Magistrate did not so find.

39. In particular, it is important to note that, at the time that the Magistrate stated that “a part of the term of imprisonment should at least be suspended”, the Magistrate had already indicated that the sentence that he was imposing would be a period of imprisonment for 21 months with a non-parole period of 11 months. Further, only three sentences after making this statement, the Magistrate confirmed that an 11 month non-parole period would be set, without making any reference to suspension, whether in whole or in part.

40. If the Magistrate had twice changed his mind about the form of the sentence to be imposed in a short ex tempore judgment, one would have expected him to say so. Similarly, it may also be noted that neither of the legal representatives at first instance sought any clarification from the Magistrate about the form of the sentence after it was imposed. If the Magistrate had been understood to have made a positive finding that the sentence would be “at least” partially suspended, and then departed from that finding, one would have expected that the legal representatives would have clarified this aspect of the orders with his Honour.

41. When read fairly and in context, it is clear that what the Magistrate had in mind was the distinction between a term of imprisonment that would be served in the community and a term of imprisonment to be served by way of full-time detention, and that his Honour was simply recording that he had turned his mind to these questions. I agree with the submission made on behalf of the Director that, insofar as his Honour made a finding as to the sentence that “should” be imposed, his Honour should be understood as referring to the need for the appellant to be released at a point prior to completion of the head sentence so as to facilitate rehabilitation. Such a finding was entirely consistent with the Magistrate’s indication that a non-parole period would be imposed.

42. On a fair reading of the reasons, it is clear that the Magistrate rejected the appropriateness of a fully suspended sentence. The Magistrate explained that the sentence to be imposed must have “a very clear and tangible consequence”, and that an sentence which permitted the appellant to serve his sentence entirely in the community would not meet that need. It is also clear that the Magistrate addressed, and implicitly rejected the alternative of a partially suspended sentence. Having rejected that alternative, and determined that a head sentence of over 12 months should be imposed, the Magistrate did not err by finding that there was a “need” for a non-parole period to be imposed.

43. Accordingly, the appellant has not established that the Magistrate erred in his approach to setting a non-parole period. The appellant’s separate contention that the non-parole period imposed was manifestly excessive will be considered in the context of ground 1 below.

The rejection of an ICO

44. The appellant next contended that the Magistrate erred by rejecting an ICO in a “peremptory” fashion.

45. As advanced in the written submissions, the appellant’s complaint related to the outcome of the determination (that is the rejection of an ICO), rather than with the process of reasoning that was employed. This aspect of the appellant’s complaint is properly considered as an aspect of his contention that the sentence imposed was manifestly excessive. I will consider this aspect of the appellant’s contention when determining this ground of appeal.

46. In oral submissions, the appellant’s complaint also focussed on the Magistrate’s reasoning process. In particular, senior counsel for the appellant contended that the Magistrate had “inappropriately blinkered himself” as to the possibility of a non-custodial sentence.

47. This latter aspect of the complaint may be briefly dealt with. Read fairly, it is clear that the Magistrate considered, but rejected, the appropriateness of an ICO in this particular case. His Honour did not find that an ICO or fully suspended sentence can never be imposed for an act of indecency against a young person: R v Wyper [2017] ACTCA 59; 19 ACTLR 288 at [29]. Rather, his Honour was careful to emphasise that his rejection of an ICO as an appropriate alternative concerned the particular offending and the particular offender (as seen in his Honour’s reference to offending “in this way” and the need for tangible consequence “in these circumstances”). His Honour’s finding was that in the circumstances of this particular case, only a sentence of full-time imprisonment could properly meet the purposes of sentencing expressed in s 7 of the Sentencing Act. This finding was entirely orthodox. No error is demonstrated in the reasoning employed.

48. It follows that this ground of appeal should be dismissed. Alleged error in finding the offence was planned (Ground 4)

49. The appellant contended that the Magistrate erred in finding that the offending occurred “in a deliberate and planned way”.

50. At the oral hearing of this appeal, a question arose as to whether the appellant was required to demonstrate that the Magistrate’s factual finding concerning planning was “not open”, or whether it was sufficient for the appellant to demonstrate that the Magistrate’s finding was not correct: see similarly Porter v The Queen [2024] ACTCA 9 at [95] concerning the standard of review in a severity appeal before the Court of Appeal. It is unnecessary for me to resolve that issue in the present appeal. Regardless of the standard of review to be applied, error has not been demonstrated.

51. It is important to note the careful way in which the Magistrate’s finding was expressed. It was not that the appellant had deliberately planned the particular way in which he would assault the victim, or that such planning had occurred in the days or weeks before the offences. Rather, the Magistrate’s finding was a more general statement that the offending occurred “in a deliberate and planned way”.

52. As counsel for the Director submitted, a degree of deliberation and planning was evident from the manner in which the offences were committed. In particular, on the two occasions which constituted the charged offences, the appellant approached the victim at a time when he knew that she was alone. He then effectively restrained her, on one occasion by trapping her against a sink, and on another occasion by grabbing her by the wrist and pinning her to the fridge.

53. Further, the appellant’s conduct on the two charged occasions must be assessed in the context of all of the information in the Agreed Statement of Facts. In particular, the Agreed Statement of Facts stated that the appellant was in charge of rostering the shifts that the victim worked, and recorded that although the victim requested night shifts when she would be working in the presence of other young people, the appellant regularly rostered the victim on afternoon shifts, when he would be the only other employee working.

54. In all of those circumstances, the inescapable inference is that the offending occurred “in a deliberate and planned way”. No error has been demonstrated in the Magistrate’s finding. This ground of appeal is dismissed. Alleged error in determination of the objective seriousness of the offending (Ground 5)

55. Ground 5 of the Amended Notice of Appeal alleges that the Magistrate erred in assessing the objective seriousness of the offending as within the “mid-range” of objective seriousness. In so concluding, his Honour took into account: (a) The breach of trust and authority; (b) The age difference between the appellant and the victim; (c) The power imbalance arising from the employment relationship between the appellant and the victim (d) Whilst there was no skin on skin contact, the offending involved more than one event and involved a number of touches; (e) The offending occurred in a “deliberate and planned way”. As outlined above, the appellant had set in place arrangements where he could be in a “one on one” situation with the victim; and (f) The victim had nowhere to go – she was essentially trapped to a degree or restrained to some extent by the appellant.

56. Whilst it was not been strictly necessary for the Magistrate to nominate the objective seriousness of the offence on a range, his Honour did not err by doing so: Porter at [134] – [136].

57. The prosecutor at first instance submitted that the offending “perhaps sits at the lower end” of the broad range of conduct that is covered by an offence contrary to s 61(2). As senior counsel for the appellant properly accepted, neither the Magistrate nor this Court are bound by this somewhat equivocal submission.

58. The offending encompassed by s 61(2) (which is now s 61(3)) is broad. It includes offending between persons who are close in age, and where there is no power imbalance or abuse of authority. As outlined further below, it also encompasses offences where the offender did not know (but should have known) the age of the child. An offence under this section will often concern offending that occurred on a single occasion.

59. In the present case, the offending involved an acute breach of trust and authority. The victim was a young schoolgirl who was under the authority and power of the appellant, who was her employer and a mature adult. Although there was no skin-on-skin contact, the acts involved the appellant pressing his penis against the victim’s body, trapping her and applying force to her so that she could not escape. Finally, it must also be borne in mind that the offence was constituted by two separate occasions of offending, and that it was agreed that these occasions were not isolated.

60. In view of these matters, the Magistrate did not err in finding the offending to be within the mid-range of objective seriousness. On an independent assessment, I would reach the same conclusion.

Manifest excess (Ground 1) Introduction

61. The relevant principles when determining a ground of appeal that alleges that a sentence is manifestly excessive were not in dispute. In Tracey v The Queen [2020] ACTCA 51 at [37] – [38], the Court of Appeal held as follows: 37․ The principles in relation to assessing whether a sentence is manifestly excessive are well-established. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence or where the sentence is markedly different from sentences that have been imposed in other cases. Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons: 38․ To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender. (citations omitted)

62. The following findings of the Magistrate were not contested by either party, and may be accepted for the purpose of considering whether the sentence imposed was manifestly excessive: (a) The appellant will be afforded a “generous” discount of 10 percent for his late plea of guilty; (b) As a result of the offending, the victim has suffered severe trauma and has required extensive psychological counselling; and (c) The s 10 threshold has been crossed, so that “a period of imprisonment of some form is the only available sentence”, albeit that the appellant contends that the sentence that should have been imposed was an alternative to full time imprisonment, such as a suspended sentence or an ICO, whereas the Director submits that only a sentence which incorporates a further period of full time imprisonment can properly reflect the purposes of sentencing.

63. The appellant challenged the following findings of the Magistrate in separate grounds of appeal and as aspects of the manifest excess ground of appeal: (a) As to planning, the offending occurred “in a deliberate and planned way”; (b) As to objective seriousness, “the offending falls at the midway point of objective seriousness”; (c) As to remorse, “[i]t could not be said to be an unqualified apology or admission or acceptance of responsibility”; and (d) The Magistrate failed to give sufficient weight to the appellant’s good character.

64. For the reasons outlined above, I do not accept that the appellant has demonstrated that there was any error in respect of the Magistrate’s findings concerning planning or in the assessment of the objective seriousness of the offending. The Magistrate’s findings concerning remorse and character are addressed below.

Remorse

65. The Magistrate made the following finding concerning the appellant’s remorse: He describes as feeling terrible for his actions. He feels terrible that his actions may have caused another person discomfort or stress. He talks about praying, I should say, for the victim, prior to praying for himself, and he appeared to regret the situation. In relation to the attitude to the offence, I might read this verbatim so it is crystal clear what I am relying upon for the purpose of sentencing, and I quote: Mr Agarwal reported that he pleaded guilty to the offence currently before the court. He did not dispute the statement of facts. He stated he felt terrible for his actions, whether unintentionally or otherwise, may have caused distress and pain for the victim and her family. He advised he would never intentionally do anything to hurt another person. Mr Agarwal reported, when asked, that he was not attracted to the victim and expressed no desire to have any kind of relationship with her other than a professional working relationship. He stated he has struggled with the current situation, and has sought solace through his religion and prayer for the victim and himself. Mr Agarwal claimed to accept responsibility for his actions. So while it stated he was aware his actions may have lasting implications for the victim and her family in relation to trust issues and hopes that, after time, she may be able to lead a normal life. It's an interesting description of remorse. And it appears to qualify that responsibility, to some degree. It could not be said to be an unqualified apology or admission or acceptance of responsibility.

66. The appellant contended that this finding “lack[ed] a proper foundation”. In particular, the appellant contended that the particular form of words used by the author of the Court Duty Report (that the appellant “claimed” to accept responsibility for his actions) should not have been used to limit the finding as to the degree of remorse shown. The appellant further submitted that the Magistrate’s finding was seemingly based on the appellant’s expression of his “hope” that the victim could at some time attain a level of peace in relation to the matter (noted by the Magistrate in the preceding sentence).. The appellant submitted that this expression did not support a finding that the remorse was limited.

67. However, as counsel for the Director submitted, the Magistrate’s findings need to be read in context. That context included the whole of the extract of the Court Duty Report which culminated in the oblique conclusion that the appellant “claimed” to accepted responsibility. Specifically, as outlined above, the author of the Court Duty Report recorded that the appellant reported that he felt “terrible that his actions whether unintentionally or otherwise, may have caused distress and pain for the victim and her family”. The appellant further told the author of the Court Duty Report that he “would never intentionally do anything to hurt another person” and that he was “not attracted to the victim”. He said that he had “struggled with the current situation” and that he had sought solace through his religion and prayer “for the victim and himself”.

68. This account is significant both for what the appellant said, and what he did not say. At no time did the appellant unequivocally accept that he had caused the victim distress and ongoing pain. He denied that he was attracted to the victim, but provided no explanation whatsoever as to why he acted as he did (including rubbing his penis against her buttocks, and grabbing her breast with his hand).

69. Viewed in totality, the appellant’s expression of remorse was properly described as qualified. He did not fully accept responsibility for the harm that he had caused the victim.

Weight to be given to evidence of good character

70. The appellant also contended that the Magistrate failed to give sufficient weight to evidence of the appellant’s good character.

71. Apart from the absence of prior convictions, evidence of the appellant’s prior good character was contained in two character references. In the first, Emeritus Professor William Maley, a close friend of the appellant’s, spoke of the appellant’s dignity, good humour, respect for others and “personal integrity”. Professor Maley stated that of all the people that he has encountered, the appellant “would be one of the least likely to engage in abuse of a position of dominance, exploitation of a vulnerable individual, or other inappropriate behaviours. To do so in any way would be completely out of character for him”. The second character reference was from a friend and former employer, Rajeshwar Karingula, who described the appellant as an “extremely hardworking and ethical employee”. Mr Karingula’s reference indicated that the appellant was “sorry for the charges before the court” and described the incidents as “definitely out of character”.

72. Although the appellant was the victim’s employer, there does not appear to have been any submission made in the proceedings before the Magistrate that the appellant’s good character enabled him to commit the offence. Accordingly, s 34A of the Crimes (Sentencing) Act does not apply. However, it does not follow that the evidence of good character required a substantial reduction in the sentence to be imposed.

73. In the present case, the evidence of good character had to be assessed in the context of the appellant’s admission in his plea of guilty that he had sexually offended against the victim on two separate occasions, and that those occasions were not isolated. As outlined below, the need for general deterrence, denunciation and recognition of the harm cause to the victim was high.

Comparative cases

74. A particular focus of this appeal related to a comparison of the sentence imposed in R v Ardron [2021] ACTSC 91 with the sentence that was imposed by the Magistrate in the present case. It was not suggested by either party that any other comparative cases were relevant to the determination of whether the sentence imposed by the Magistrate was excessive.

75. As in the present case, Ardron concerned an adult offender who had been charged with committing an act of indecency against a person under 16 years of age, contrary to s 61(2) of the Crimes Act. The victim was in an employer/employee relationship with the offender, in that the offender had accepted the victim’s offer to mow her lawn. The offending was constituted by touching the victim’s genitals over his clothes. The victim was psychologically affected by the incident.

76. Unlike the present case, the offending also included skin on skin contact (the offender in Ardron put her tongue in the victim’s mouth when kissing him). Further, the offender in Ardron was not of prior good character, but rather was subject to two good behaviour orders at the time of the offending. Chief Justice Murrell sentenced the offender in Ardron to 16 months’ imprisonment to be served by way of an ICO.

77. Of course, great care must be taken when using comparative cases to assess the appropriate sentence to be imposed. Sentences imposed in comparative cases illustrate, but do not define, the possible range of sentences available, and cannot cap the sentencing discretion: R v Pham [2015] HCA 39; 256 CLR 550 at 560 [29]; Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51] – [53]. Further, a ‘sentencing pattern’ cannot be discerned where there are too few cases: R v Kilic [2016] HCA 48; 259 CLR 256 at 268 [25]. Here, a single case was referred to in the proceedings before the Magistrate and in this Court. A sentencing pattern cannot be inferred from a single case.

78. Most importantly, however, any use of comparative cases must proceed on the recognition that sentencing is not an algorithmic exercise, whereby a nominated term is incrementally increased or decreased by reference to each aggravating or mitigating factor that is found by the sentencing court. Rather, as I observed in Inglis v Adamson [2024] ACTSC 4 at [86] – [87], the task of determining an appropriate sentence requires attention to be given to the purposes of sentencing, as contained in s 7 of the Crimes (Sentencing) Act, including the need for punishment and accountability, denunciation, deterrence, protection of the community, promotion of rehabilitation and the recognition of the harm done to the victim and the community. Where the weight to be given to the different purposes of sentencing differs, different sentences will be required: Green v The Queen [2011] HCA 49; 244 CLR 462 at [29] – [30]. For this reason, the High Court has repeatedly emphasised that the importance of comparative cases lies in ensuring consistency in principle rather than numerical equivalence of the sentences imposed: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54] – [55].

79. In the present case, there are important differences between the offending in Ardron and the present case, including the following: (a) The offending in Ardron consisted of a single isolated incident. In the present case, the charged offence consisted of offending on two separate occasions and was not isolated; (b) The offending in the present case used a degree of force which was not present in Ardron (grabbing the victim’s wrists, and forcing the victim against the fridge); (c) The offender in Ardron did not know that the victim was under the age of 16 years. The victim in Ardron was aged 15 years and 7 months. The judgment records that the offender immediately apologised and ceased offending when the victim told her his age. The offender in Ardron was sentenced on the basis that her belief in the victim’s age, whilst honest, had not been reasonable: Ardron at [40]. In contrast, in the present case, the appellant, as the victim’s direct and ongoing employer, was fully aware that she was 14 years old at the time of the first offence and 15 years old at the time of the second offence; (d) The power differential and consequent breach of trust in the present case was greater than that in Ardron. There was no ongoing employment relationship in Ardron; (e) Whilst the offending in Ardron had occurred in breach of conditional liberty, the offending in Ardron had occurred in the context of substance abuse issues and the offender in Ardron had, subsequent to the offending, demonstrated significant progress towards rehabilitation, including graduating from a residential rehabilitation program, enrolling in Canberra Institute of Technology and was undergoing counselling; (f) The offender in Ardron pleaded guilty at an early opportunity, and received a 20% discount for her early guilty plea. Further, 8 months was deducted from the sentence in Ardron to recognise the 15 and a half months of residential rehabilitation that the offender had successfully completed. The starting sentence in Ardron was 30 months’ imprisonment. In contrast, the appellant received only a 10% discount for his late plea of guilty.

80. These differences have a direct effect upon the purposes of sentencing in each case. Specifically, when the matters outlined at (a), (b), (c) and (d) are considered together, it is clear that, even though there was no skin-to-skin contact in the present case, the need for denunciation, recognition of the harm caused, and general and specific deterrence is considerably higher in the present case than was the case in Ardron.

81. Importantly, Ms Ardron’s progress towards rehabilitation as outlined at (f) above (in particular, the steps that she had taken towards addressing her substance abuse issues) was a powerful factor in favour of rehabilitation. Had a full-time custodial sentence been imposed, this significant progress towards rehabilitation would have been entirely undermined. This is an important matter which distinguishes Ardron from the present case. Accordingly, the difference between the sentence imposed in Ardron and the sentence imposed by the Magistrate does not mean that that sentence imposed by the Magistrate was manifestly excessive.

Conclusion

82. For the reasons outlined above, the offending in the present case was serious. It involved an acute breach of trust, perpetrated against a young and vulnerable victim over whom the appellant wielded considerable authority and power by virtue of his position as her employer. The offending was repeated, comprising two separate occasions of abuse, the second of which was comprised of acts in two separate parts of the store. While it may be acknowledged that the offending did not include skin to skin contact, the acts involved were undeniably serious. They included the appellant pressing his penis into the victim and trapping the victim in place using force while perpetrating various indecent acts against her. The impact of the offending on the victim has been profound.

83. The appellant’s expressions of remorse for his offending were qualified. He has failed to fully accept responsibility for the harm that he caused the victim and has limited insight into the consequences of his actions. Contrary to the appellant’s submissions, there was no evidence that the entry of the appellant on the sex offender registry would amount to extra curial punishment. In the proceedings below, the appellant’s counsel submitted that following the allegations, the appellant now only employs adults. The evidence of the appellant’s good character could not justify a substantial mitigation of the sentence to be imposed, particularly in circumstances where the offending against the victim was not isolated.

84. In view of the above, it was necessary for the sentence be of a duration and form which gave effect to the strong need for denunciation and accountability, recognition of the harm caused to the victim and the community and for general and specific deterrence, and that the facilitation of rehabilitation should not outweigh these sentencing considerations. The Magistrate was correct in his determination that a condign sentence was required.

85. It was well open to the Magistrate to determine that a head sentence of 21 months with a non-parole period of 11 months was required. The Magistrate did not err by declining to fully suspend the sentence, nor by refusing to impose an ICO. Such alternatives to full time custody would not have met these sentencing purposes in the circumstances of the present case.

86. Nor did his Honour err in imposing an 11 month non-parole period, rather than a shorter, partially suspended sentence. It may be accepted that the imposition of a non-parole period and a partially suspended sentence are not subject to the exactly the same principles: MT v R [2021] ACTCA 26 at [96]; Biddle v Gatherer [2021] ACTSC 236 at [40]. However, regardless of whether a partially suspended sentence or a non-parole period is imposed, it remains an essential function of the sentencing judge or Magistrate to determine “the minimum period that the offender must spend in gaol having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and the subjective circumstances”: Power v The Queen [1974] HCA 26; 131 CLR 623 at 627 – 628; see also R v Boland [2007] VSCA 242; 17 VR 300 at [13] – [14]. In the present case, the purposes of sentencing referred to above would not have been met by the imposing of a shorter, partially suspended sentence.

87. It follows that this ground of appeal must also be dismissed.

New evidence Principles

88. The appellant sought leave to adduce further evidence concerning his medical conditions, his psychological condition and the impact of custody upon those conditions, as well as the impact of custody upon his business. Further evidence may be adduced on an appeal under s 214(3) and (4) of the Magistrates Court Act, which are set out above.

89. With the consent of both parties, I accepted the evidence on a provisional basis so as to determine its admissibility.

90. There are three different bases upon which new evidence may be admitted on an appeal from the Magistrates Court: (a) The parties consent to the receipt of evidence: s 214(3)(b); (b) There is a reasonable explanation for the previous failure to adduce the evidence, the evidence is likely to be credible, the evidence would have been admissible in the proceedings below, and the Court is not satisfied that the evidence would not afford a ground for allowing the appeal: s 214(4); or (c) The Court considers it “necessary or expedient” in “the interests of justice” to admit the evidence of a witness: s 214(3)(a). See Greenwood v Barlee [2018] ACTSC 46 at [41] – [42] (appeal dismissed in Greenwood v Barlee [2018] ACTCA 62) and Kristiansen v Yeats [2022] ACTSC 351 at [40].

91. Differing views have been expressed as to the proper application of s 214: see, for example Ji v Stone [2023] ACTSC 54; Mahanay v Phelan [2023] ACTSC 162; Kristiansen v Yeats [2022] ACTSC 351; SBT v Wright [2021] ACTSC 322; 17 ACTLR 137; Millard v Pomeroy [2022] ACTSC 319; and IT v Knight [2020] ACTSC 101.

92. It is not necessary for me to finally resolve the proper construction of s 214 in the present case. On any construction, the provision does not permit the admission of new evidence which would not have affected the outcome of the proceedings at first instance: Wright v R [2016] NSWCCA 122; 259 A Crim R 133 at [20], [72] and [98]; Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [121].

93. For the reasons outlined below, I do not consider that the evidence now sought to be admitted would have affected the outcome of the proceedings at first instance. It follows that the application to adduce this evidence should be refused.

The evidence

94. The evidence before the Magistrate included a notation in the Court Duty Report that the appellant had a family history of Parkinson’s disease and a tremor in his hands that prevented him from writing efficiently. The Court Duty Report also recorded that the appellant had not sought the assistance of any professional mental health service providers.

95. The further evidence tendered by the appellant concerned the appellant’s medical and psychological condition following his incarceration and his subsequent grant of bail pending the resolution of the present appeal. This evidence included an affidavit of the appellant’s lawyer, which listed the appellant’s medical appointments with his treating haematologist, his treating neurologist, a psychologist and his treating cardiologist. The affidavit also annexed the following medical reports: (a) Report of the appellant’s treating neurologist, Dr Yash Gawarikar, dated 26 February 2024. (b) Report of Dr Awaneesh Bamola, psychologist, dated 13 March 2024. (c) Report of the appellant’s treating GP, Dr Srinivas Vure, dated 8 February 2024.

96. The report of Dr Gawarikar states that the appellant has been under “tremendous … stress and anxiety” which has resulted in a marked worsening of his tremor symptoms (including worsening of speech, right hand and upper limb tremor, balance, and walking), which has caused the appellant to have a couple of falls and have difficulty holding objects. Dr Gawarikar reported that the appellant was on suicide watch for the first few days of his incarceration and that he needed constant review and care from the mental health team. Dr Gawarikar confirmed that he has increased the appellant’s medication. He states that he believes the appellant’s condition is temporary and states that his condition may improve “if his ordeal finsihes [sic] and he is able to be cleared”.

97. The report of Mr Bamola, psychologist, indicates that the appellant’s symptoms (including severe levels of depression, anxiety and stress, constant rumination and worrying, restlessness, and irritability) may meet the diagnostic criteria for an adjustment disorder with mixed anxiety and depressive mood, as well as a generalised anxiety disorder, although he was unable to provide a formal diagnosis. Mr Bamola considered that incarceration had, and would continue to, adversely affect the appellant’s mental health, and that his prognosis would be improved “if he does not return to custody”. He states that the appellant reported that incarceration was “stressful and a difficult adjustment” involving exposure to racial abuse and, at times, difficulty receiving prompt medical assistance. However, he also noted that the appellant’s “emotional and psychological response is proportional to his legal and medical health challenges and falls within the range of a normative reaction to such life stressors”.

98. The report of Dr Vure also states that the appellant appeared to be showing symptoms of depression and anxiety “related to his legal matter”. Dr Vure confirms that the appellant’s treating haematologist has advised that the appellant is currently in a stable condition in relation to his leukemia diagnosis.

99. An affidavit of the appellant’s wife was also read on behalf of the appellant. In this affidavit, Ms Agarwal details attending a range of medical appointments with the appellant since he was granted bail, and details the appellant’s upcoming medical appointments. She also reports observing that the appellant’s tremors have worsened since his incarceration and confirms that his treating doctor has increased his medication as a result. Ms Agarwal reports that she is concerned the appellant’s health will deteriorate if he returns to custody. She states that he requires constant monitoring and notes that she and her daughter are able to be home a significant proportion of the week to watch him.

100. Ms Agarwal also states that the appellant’s business has financially suffered as a result of the appellant’s incarceration, and that the appellant has consequently decided to sell the business.

101. At the appeal hearing, the respondent tendered an email from Justice Health Services, dated 11 December 2023, and an email from ACT Corrective Services (ACTCS), dated 16 February 2024. I also accepted the tender of these emails on a provisional basis.

102. These emails advise that Justice Health Services is aware of, and actively managing, the appellant’s healthcare needs and there are no current concerns as to its capacity to do so (noting that the appellant may be transferred to inpatient care if his needs escalate). Justice Health Services outlined the various services they provide, including GP services, medication, mental health care, case management of chronic conditions, and access to inpatient and specialist outpatient services. ACTCS relevantly confirmed that they are able to accommodate the appellant’s preference for vegetarian meals; and that the ACTCS Support and Interventions Unit provides support for detainees with mild to moderate mental health needs who do not meet the criteria for treatment by Justice Health Services, including welfare reviews, complex behaviour support, and complex care if required.

Consideration

103. An appellant’s health is “relevant to the type and length of any sanction imposed”: R v Obeid (No 12) [2016] NSWSC 1815 at [118]. However, an offender’s health condition will generally only be a mitigatory factor where there is evidence that the condition will make the offender’s experience of custody significantly more onerous or that custody will have a grave adverse effect on their health, taking into account the treatment available to the offender while in custody: R v Badanjak [2004] NSWCCA 395 at [9]; Obeid (No 12) at [118]; Doudar v R [2021] NSWCCA 37 at [59], citing Hunt v R [2019] NSWCCA 118 at [51]. The existence of a health condition at the time of sentence will not “necessarily lead to the conclusion that the person’s incarceration will be more onerous”: Doudar at [58].

104. In this respect, it is also important to recall that it is the “responsibility of the correctional services authorities to provide appropriate care and treatment for sick prisoners”: R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 at [135]; see similarly York v R [2005] HCA 60; 225 CLR 466 per Hayne J at 478 [37]; R v Lian [2023] SASCA 122 at [57], [74], [158] – [159] and [165]. Most conditions “can be adequately managed by those authorities without the need for mitigating the sentence that would otherwise be appropriate” (Badanjak at [11]), and offenders cannot “expect to escape punishment because of the condition of their health”: Achurch at [135]. As courts have repeatedly emphasised, the weight to be given to an offender’s health condition “must be assessed in light of all the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and any damage to health”: Achurch at [117].

105. For the same reason, “the hardship caused by a failure of prison authorities to provide prisoners generally with medical treatment of the same standard as that which might be accessed in the community does not warrant a sentence reduction”: Lian at [165] and [57].

106. I accept that the appellant has found the experience of custody to be challenging and confronting. I also accept that the appellant shows symptoms of anxiety and depression, that his mental health has deteriorated as a result of his incarceration, and that his prognosis would be improved if he were not incarcerated. As the courts have observed, however, stress, anxiety and depression are, sadly, an “almost universal” experience among persons facing full-time incarceration: R v Camelo-Gomez [2022] NSWSC 136 at [296]; see also R v Jiao [2015] NSWCCA 95 at [76]. The evidence before me does not indicate that the condition will make the appellant’s experience of custody significantly more onerous than that of other prisoners, or that custody will have a "grave” adverse effect on his health: cf R v Maloney [2014] VSC 641 at [36]. As noted above, the evidence of the appellant’s psychologist is that the appellant’s psychological response “falls within the range of a normative reaction to such life stressors”.

107. I also accept that the appellant’s tremors have been worsened by the stress and anxiety occasioned by incarceration. I accept that the resulting difficulty with speech, right hand and upper limb tremors, balance, and walking has the potential to render his experience of custody more unpleasant.

108. However, as counsel for the Director submitted, there is no evidence as to the effect of those symptoms on his experience of custody, nor as to the extent to which they may make his time in custody more onerous. Moreover, as counsel for the Director submitted, the medical evidence does not indicate that the tremors cannot be appropriately and effectively managed in custody. In particular, noting the evidence from Justice Health Services that they are actively managing the appellant’s health conditions and have no concerns regarding their capacity to provide appropriate medical care, the appellant has not demonstrated that corrective authorities cannot manage his medication and symptoms. Nor has the appellant established that his experience of custody will be significantly more onerous than that of other prisoners as a result of these tremors.

109. Finally, I have also taken into account the evidence of the appellant’s wife that the appellant’s incarceration has caused financial difficulty for the appellant’s business, in accordance with s 33(1)(o) of the Crimes (Sentencing) Act. There is no requirement that hardship to an offender’s family be ‘exceptional’ before it can be taken into account: DPP v Moala (No 3) [2023] ACTSC 306 at [48]; R v Naing [2023] ACTSC 210 at [108]. The existence of such hardship does not, however, lead to an automatic reduction in sentence, and the weight it should be afforded is a discretionary matter: DPP v Ip [2005] ACTCA 24 at [61]; Moala (No 3) at [46]; Naing at [108]. In the present case, the appellant has not established that the hardship occasioned goes beyond the inevitable hardship to be expected as a result of the commission of crimes of this severity.

110. The appellant has not established that the further evidence sought to be adduced would have affected the sentence imposed at first instance. Accordingly, the appellant’s application to adduce the further evidence on the appeal is refused.

Conclusion

111. Each of the appellant’s grounds of appeal must be dismissed for the reasons outlined above.

112. The appellant’s sentence was automatically stayed upon the filing of the Notice of Appeal: s 216 of the Magistrates Court Act. The appellant remained in custody until bail was granted on 16 February 2024. In these circumstances, it is necessary to vary the commencement date of the sentence to take into account of the 85 days served by the appellant prior to the grant of bail: see similarly Millard v Pomeroy at [50] – [53].

Orders

113. For the above reasons, the following orders are made: (1) The appellant’s Application in Proceedings filed on 20 March 2024 seeking orders for the admission of further evidence is dismissed; (2) The appeal is dismissed; (3) The appellant’s sentence is varied to take account of custody served prior to the grant of bail as follows: (a) The appellant is sentenced to a term of 21 months’ imprisonment, commencing on 14 January 2024 and expiring on 13 October 2025. (b) The appellant will be eligible for parole on 13 December 2024.

I certify that the preceding one hundred and thirteen [113] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 8 April 2024